NOT RECOMMENDED FOR PUBLICATION

File Name: 23a0413n.06

Case No. 22-5890

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BUD HEMBREE,

Defendant-Appellant.

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ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR 

THE EASTERN DISTRICT OF 

KENTUCKY 

OPINION

Before: SUTTON, Chief Judge; COLE and THAPAR, Circuit Judges.

SUTTON, Chief Judge. Bud Hembree pleaded guilty to his role in a fentanyl distribution 

conspiracy. Based on several phone calls that Hembree made from jail after his arrest, the district 

court determined that Hembree was an “organizer or leader” of the criminal conspiracy, prompting 

it to apply a four-level enhancement to his sentence. Hembree challenges the enhancement and 

the substantive reasonableness of his sentence. We affirm. 

I.

In December 2020, law enforcement received a tip that Hembree and several others were 

distributing heroin and fentanyl in Madison County, Kentucky. Soon after, a Kentucky State 

Trooper stopped Hembree for a traffic violation and arrested him for drug possession. Hembree 

was detained but not deterred. He used the Madison County jail’s phone to request his portion of 
No. 22-5890, United States v. Hembree

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the proceeds from the drug sales, to facilitate some drug-distribution meetings, and to give

instructions to his co-conspirators. 

Hembree pleaded guilty to one count of conspiracy to distribute more than 40 grams of 

fentanyl and one count of possession with intent to distribute an unspecified quantity of fentanyl. 

The presentence report recommended a range of 168 to 210 months. The recommendation 

included a three-level enhancement for Hembree’s role as a “manager or supervisor (but not an 

organizer or leader).” U.S.S.G. § 3B1.1(b). 

At sentencing, the district court judge upgraded Hembree’s enhancement from three levels 

to four based on some intercepted phone calls that Hembree made from jail, indicating that he had 

more of a leadership role in the distribution ring than law enforcement first thought. With that 

change, the advisory Sentencing Guidelines range became 188 to 235 months. The district court 

sentenced Hembree to 230 months. 

II.

Hembree challenges his four-level leadership enhancement and the substantive 

reasonableness of his sentence. Each challenge comes up short. 

Leadership enhancement. The Guidelines instruct judges to “increase the offense level” 

of a drug distributor “[b]ased on the defendant’s role in the offense.” U.S.S.G. § 3B1.1. Relevant 

here, a defendant gets a four-level enhancement if he is an “organizer or leader of a criminal 

activity” but only a three-level enhancement if he plays the lesser role of “manager or supervisor.”

Id. § 3B1.1(a)–(b). To determine which enhancement to apply, we look to several factors

identified in the Guidelines: “decision making authority, the nature of participation in the 

commission of the offense, the recruitment of accomplices, the claimed right to a larger share of 

the fruits of the crime, the degree of participation in planning or organizing the offense, the nature 
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and scope of the illegal activity, and the degree of control and authority exercised over others.” 

Id. § 3B1.1 cmt. n.4. To warrant a leadership enhancement, the defendant must satisfy at least one

of these factors. See United States v. Vasquez, 560 F.3d 461, 473 (6th Cir. 2009); cf. United States 

v. Walker, 160 F.3d 1078, 1091–92 (6th Cir. 1998). District courts have leeway in sizing up these 

considerations. We will overturn only clearly erroneous factual determinations. United States 

v. Nicolescu, 17 F.4th 706, 724 (6th Cir. 2021).

No such error occurred when the district court found it “crystal clear” that Hembree merited

a four-level leadership enhancement. R.232 at 19. Start with the control and authority exercised 

over others. In recorded jail calls, Hembree asked one co-conspirator to give him $500 per week

from the ongoing proceeds from the drug-distribution ring, all while he remained incarcerated,

expressed frustration about this co-conspirator not doing what he instructed her to do, and told her 

“to stay out of the way of all the stuff” he had arranged. R.196-1 at 3. Hembree directed another 

co-conspirator to “put money” on his “books” as well as to cut ties with another co-conspirator 

and threaten that individual in various ways. Id. Hembree claims that these calls only show that 

he was “giving people advice,” but the record belies that claim. Appellant’s Br. 18.

Hembree also played a major role in planning and organizing the offense, including by 

coordinating various drug-related exchanges and communications. And he claimed a larger share 

of the fruits of the crime by repeatedly asking for money and acknowledged that he would “get the 

most time” in jail because he was “the top dog,” sitting “at the head of that table.” R.196-1 at 1.

While he acknowledges this evidence, Hembree argues that he was only “making introductions” 

and claiming a “nominal share” of the proceeds. Appellant’s Br. 18. But again, the record 

contradicts that argument.
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Hembree has no answer to all of the ways in which this evidence met the § 3B1.1 factors 

for establishing a leadership role in the conspiracy. On this record, the district court permissibly 

increased Hembree’s leadership enhancement to four levels. 

Substantive reasonableness. Hembree separately challenges his sentence as substantively 

unreasonable. A sentence must be “sufficient, but not greater than necessary,” to accomplish the 

goals of proportional punishment, deterrence, public safety, and rehabilitation. 18 U.S.C. 

§ 3553(a). We review a sentence’s length—whether it is “too long” or “too short”—for abuse of 

discretion. United States v. Rayyan, 885 F.3d 436, 442 (6th Cir. 2018). 

The district court did not abuse its discretion. It balanced Hembree’s challenging life 

history with his criminal past and risk of recidivism. The court gave special attention to the 

dangerous “type of narcotics” at issue, which “can injure and kill others” and which accordingly 

deserve a within-Guidelines sentence. R.232 at 34. Through it all, the court “consider[ed] all of 

the factors” listed in § 3553, and permissibly decided to impose a sentence within the advisory 

Guidelines range. Id. at 32. 

Hembree has one key response—that the district court placed undue weight on his role in 

the criminal scheme. But beyond making the assertion and insisting this factor deserved less 

weight, he has done nothing to rebut the presumption of reasonableness that accompanies a withinGuidelines sentence. See Rita v. United States, 551 U.S. 338, 347 (2007); United States v. Vonner, 

516 F.3d 382, 387 (6th Cir. 2008) (en banc).

We affirm.