RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 19a0173p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KITROY BRIAN BUCHANAN,

Defendant-Appellant.

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No. 18-3667

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 1:18-cr-00008-1—James S. Gwin, District Judge.

Argued: June 25, 2019

Decided and Filed: July 31, 2019

Before: SUTTON, BUSH, and LARSEN, Circuit Judges.

_________________

COUNSEL

ARGUED: David Graham, UNIVERSITY OF MICHIGAN LAW SCHOOL, Ann Arbor, 

Michigan, for Appellant. Matthew B. Kall, UNITED STATES ATTORNEY’S OFFICE, 

Cleveland, Ohio, for Appellee. ON BRIEF: David Graham, Melissa M. Salinas, 

UNIVERSITY OF MICHIGAN LAW SCHOOL, Ann Arbor, Michigan, for Appellant. 

Matthew B. Kall, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.

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OPINION

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JOHN K. BUSH, Circuit Judge. After a jury trial, Kitroy Brian Buchanan was convicted 

of one count of possession with intent to distribute marijuana and one count of conspiracy to 

>
No. 18-3667 United States v. Buchanan Page 2

distribute marijuana. The district court sentenced him to 50 months’ imprisonment followed by 

three years of supervised release. Buchanan now appeals his conviction and sentence, and he 

makes four arguments. We find merit in one of his arguments—a challenge to a two-level 

increase in his offense level for committing a crime “as part of a pattern of criminal conduct 

engaged in as a livelihood” under USSG §§ 2D1.1(b)(16)(E) and 4B1.3. Therefore, we 

AFFIRM the district court’s judgment of conviction but VACATE Buchanan’s sentence and 

REMAND for the district court to reconsider, under the proper legal standard, whether the 

enhancement applies.

I. BACKGROUND

A. Factual Background

In 2015, Buchanan, who was already involved in the marijuana trade, met a United States 

postal worker named Dominique Hobbs in South Euclid, Ohio. Buchanan asked Hobbs if he 

would like to “do some business,” which Hobbs understood to mean that Buchanan wanted 

Hobbs to help him deliver illegal drugs. R. 73, PageID 544. Hobbs said he was interested, and 

the two men exchanged phone numbers. However, Hobbs was not able to help Buchanan 

immediately; he explained to Buchanan that he did not have a consistent postal route but was a 

“U-person,” or utility carrier, who substituted for those with regular routes when they had to 

miss work. Id. at PageID 547–48. 

In November 2017, Hobbs let Buchanan know that he had obtained a regular postal route, 

and the two began working together. Buchanan promised to pay Hobbs $200 in exchange for 

each package Hobbs would deliver. Hobbs also supplied Buchanan with lists of addresses on 

Hobbs’s postal route so Buchanan would know where Hobbs, in conjunction with his mail 

deliveries, could deliver packages of marijuana.

One day late in November 2017, Buchanan informed Hobbs that a package of marijuana 

was due to arrive in South Euclid soon, but Buchanan was not sure of the exact arrival date. 

Hobbs told Buchanan that he would not be able to deliver the package if it happened to arrive in 

town that coming Monday, because Hobbs was not working that day. As it turned out, however, 

the package arrived at the South Euclid post office that Monday. Buchanan had been tracking 
No. 18-3667 United States v. Buchanan Page 3

the package through the United States Postal Service’s website and alerted Hobbs. Although 

Hobbs reminded Buchanan that he was off duty, he agreed to help Buchanan try to lay hands on 

the package.

Buchanan and Hobbs both drove to the post office. Hobbs asked his supervisor, who was 

covering Hobbs’s route that day, whether he had Buchanan’s package; the supervisor had not 

seen it. Hobbs told Buchanan.

Buchanan became enraged and began shouting at Hobbs, accusing him of stealing the 

package, which Hobbs denied. After Hobbs and Buchanan unsuccessfully made another attempt 

to find the package at the post office, Buchanan cornered Hobbs, searched his car for the 

package, and then ordered him to chauffeur Buchanan around other postal carriers’ routes to ask 

the other carriers if they had the package. While he and Hobbs were in the car, Buchanan made 

“[a]t least ten” phone calls to someone whom he told that Hobbs “had the package” and was 

“hiding it from” Buchanan. Id. at PageID 585, 589.

After a long and fruitless search along other carriers’ postal routes, Hobbs and Buchanan 

had not located the package. Buchanan let Hobbs go home, but he continued to call and send

text messages to Hobbs, reiterating that he believed Hobbs had stolen the package and 

suggesting that for Hobbs’s own safety, he had better return the package to Buchanan.

Fearing for his safety, Hobbs went to the police and made a complaint of kidnapping 

against Buchanan, telling the police select details of his interactions with Buchanan without 

admitting that he had been complicit in any drug activity. Because Hobbs was a postal worker, 

the police communicated Hobbs’s accusation to the Postal Inspection Service, a law-enforcement 

arm of the United States Postal Service. Hobbs reiterated his story to the postal inspectors. 

Having learned from Hobbs some details about the kind of car Buchanan drove, law-enforcement 

officers then used database information to identify suspect vehicles; this investigation eventually 

led them to Buchanan’s car and home. On December 8, 2017, officers conducted a drug sniff of 

Buchanan’s car, and the dog alerted to the smell of narcotics from the car.
No. 18-3667 United States v. Buchanan Page 4

Buchanan was arrested on a charge of kidnapping. Law-enforcement officers also 

obtained and executed search warrants for Buchanan’s home, his car, and his cellphone. 

The search of Buchanan’s home revealed over 150 grams of marijuana, a vacuum sealer, and 

plastic food-storage bags, among other evidence of marijuana trafficking. The search of the 

cellphone revealed that Buchanan was tracking another package. Following the tracking 

information from Buchanan’s cellphone, postal inspectors determined that the package was 

headed to an address on Hobbs’s route; the inspectors intercepted the package, obtained a search 

warrant, and opened the package to find 4.8 kilograms of marijuana. In addition, the inspectors 

determined that the return address on the package—which purported to have come from 

California—was fake.

Because Hobbs’s complaint had led to Buchanan’s arrest, law-enforcement officers 

questioned Hobbs further and learned that Hobbs had concocted a false kidnapping complaint to 

get Buchanan off his back without at the same time implicating himself in a marijuanadistribution scheme. After admitting that he had made up the kidnapping story, Hobbs also 

admitted to his agreement and cooperation with Buchanan. Hobbs eventually pled guilty to 

charges of lying to law enforcement and tampering with evidence, and he agreed to testify 

against Buchanan.

B. The Trial

On January 4, 2018, Buchanan was indicted for one count of conspiracy to distribute a 

controlled substance, one count of possession of a controlled substance with intent to distribute, 

and three counts of communicating threats in interstate commerce. Because Hobbs had admitted 

that Buchanan did not really kidnap him, the government dropped the kidnapping charge. 

At trial, Hobbs testified about his association with Buchanan, leading up to the day that 

the package went missing. Among other evidence, the government also presented testimony by 

two postal inspectors, Michael Adams and Lauren Cajuste. Adams had participated in the search 

of Buchanan’s home, and Cajuste had investigated the information found on Buchanan’s 

cellphone. 
No. 18-3667 United States v. Buchanan Page 5

Adams testified that he had extensive experience and training in narcotics investigations 

and had served eight years as a narcotics agent before becoming a postal inspector. He testified 

that, based on his experience, the amount of marijuana found in Buchanan’s home was a 

“dealer/supplier amount” and that some of the food-packaging supplies found there were of the 

sort commonly used by drug traffickers. Adams also testified that drug traffickers often use fake 

return addresses when sending packages through the mail and that they often use express or 

priority mail to reduce the risk that law enforcement will seize and search packages. Hobbs had 

testified, and the government’s exhibits at trial showed, that Buchanan had used priority mail to 

ship packages. Adams also testified that some of the messages Buchanan had sent to alleged coconspirators contained drug-traffickers’ jargon. Among other testimony, Adams also testified 

that ten pounds of marijuana—an amount comparable to that found in the intercepted package—

was worth roughly $30,000 to $50,000 on the “street” in Cleveland. Id. at PageID 482.

Cajuste stated that she had worked on financial investigations for the first six years of her 

time as a postal inspector before broadening her focus to include workplace violence as well as 

financial investigations. She then testified at length about what the analysis of Buchanan’s 

cellphone and financial records had revealed. Buchanan had communicated extensively with 

someone in California about the delivery of packages, and he had sent the delivery addresses he 

received from Hobbs to the California phone number. Buchanan’s contact in California would 

send Buchanan tracking information for each package, and Buchanan would track each package 

on the Postal Service’s website until it was delivered. According to Buchanan’s financial 

records, Buchanan sent payments to accounts given to him by the California contact. In addition 

to Cajuste’s testimony on these matters, the government presented numerous exhibits showing 

Buchanan’s phone and tracking activity.

Testimony and exhibits also established that, besides the California contact, Buchanan 

regularly communicated with an individual located in or near Erie, Pennsylvania about 

delivering packages. Buchanan’s text messages with the Erie contact demonstrated that 

Buchanan and the contact appeared to take turns driving to meet each other, and one would text 

the other when he was twenty minutes away from the meeting place. Buchanan’s financial 

records showed that he frequently deposited money into his bank account after Erie trips.
No. 18-3667 United States v. Buchanan Page 6

In addition to testifying about what she had learned through the investigation of 

Buchanan’s cellphone and financial records, Cajuste testified about the implications of these 

findings based on her experience as a postal inspector. Specifically, Cajuste testified (on crossexamination) that one of the individuals with whom Buchanan had communicated about drug 

deliveries had used a “burner phone” that was not registered with any phone company. R. 74, 

PageID 700. She continued, “You buy a burner phone, typically in most drug conspiracies most 

individuals use burner phones so they can avoid detection.” Id. at PageID 700–701. Cajuste also 

testified that Buchanan had sent and received messages via an application called WhatsApp, and 

she stated that “WhatsApp is a messaging system that is generally used because it has a heavy 

encryption system.” R. 73, PageID 663.

Buchanan did not call any witnesses and did not testify. Once the government’s case had 

concluded, the court went over the proposed jury instructions with the parties. Both parties had 

submitted proposed instructions on “expert” or “opinion” testimony. In addition, the government 

had submitted a proposed instruction to address witnesses who gave mixed fact and opinion 

testimony, as Adams and Cajuste had done. However, when the prosecutor raised these 

instructions to the district court, the district court responded, “I don’t know that we had any 

opinion testimony.” R. 74, PageID 735. The prosecutor began to explain that he viewed Adams 

as having given both fact testimony based on his role in investigating Buchanan and opinion 

testimony based on his experience and training in narcotics investigations. The district court 

reiterated, “Unless there’s some need, I didn’t think that would qualify as opinion testimony.” 

Id. Defense counsel agreed, “No, Your Honor.” Id. When it charged the jury, the district court 

did not give any instruction on opinion testimony or mixed fact and opinion testimony.

The jury convicted Buchanan of possession of marijuana with intent to distribute, in 

violation of 21 U.S.C. § 841(a)(1), and conspiracy to distribute marijuana, in violation of 

21 U.S.C. § 846. He was acquitted of the threat counts.

C. The Sentencing

Before sentencing, Buchanan and the government stipulated that Buchanan was 

responsible for 79.2 kilograms of marijuana. Using this figure to obtain a base offense level of 
No. 18-3667 United States v. Buchanan Page 7

20 and adding four two-level enhancements, Buchanan’s presentence report (“PSR”) calculated 

his total offense level as 28. At the sentencing hearing, the district court decided to apply only 

three of the enhancements and sentenced Buchanan based on a total offense level of 26. 

Relevant to this appeal, Buchanan’s counsel objected to a two-level enhancement under USSG 

§ 2D1.1(b)(16)(E)1for “committ[ing] the offense as part of a pattern of criminal conduct 

engaged in as a livelihood.” After hearing argument from both sides, the district court overruled 

the objection and applied the enhancement.

Considering Buchanan’s criminal history category of I together with Buchanan’s total 

offense level of 26, the district court calculated a Guidelines range of 63 to 78 months. The 

district court then considered the 18 U.S.C. § 3553(a) factors and decided to vary downward and 

impose a sentence of 50 months on each count. Finally, the district court decided to run the 

sentences concurrently and to impose a three-year term of supervised release following the 

prison term. Thus, Buchanan received a sentence of 50 months of imprisonment followed by 

three years of supervised release. 

D. The Appeal

The district court entered judgment against Buchanan on July 9, 2018, and Buchanan 

timely appealed to this court. On appeal, Buchanan makes one challenge to his conviction and 

three challenges to his sentencing. First, he asks this court to vacate his conviction and sentence 

and remand for a new trial because, he argues, the district court erred in failing to instruct the 

jury properly on how to weigh the mixed fact and opinion testimony of Adams and Cajuste, and 

this failure prejudiced him. 

Second, Buchanan argues that the district court erred in sentencing him without 

considering the statutory maximum sentence of 60 months on each of the counts of which he was 

convicted. Defense counsel did not raise this issue to the district court. Therefore, Buchanan’s 

third argument is that he received ineffective assistance of counsel when defense counsel did not 

object to the district court’s alleged failure to consider the statutory maximum sentence. 

 

1The sentencing documents and the parties’ briefs refer to § 2D1.1(b)(15)(E). After Buchanan was 

sentenced, however, the Guidelines were amended, and the relevant enhancement now appears in § 2D1.1(b)(16)(E).
No. 18-3667 United States v. Buchanan Page 8

Finally, Buchanan argues that the district court erred in imposing the two-level 

enhancement for engaging in criminal conduct as a livelihood. He asks this court to remand for 

resentencing on the basis of these asserted errors.

We will address each of Buchanan’s arguments in turn.

II. DISCUSSION

A. Instruction on Opinion Testimony

Because defense counsel did not object to the district court’s lack of an instruction on 

mixed fact and opinion testimony, this court would ordinarily review for plain error. See 

Johnson v. United States, 520 U.S. 461, 466–67 (1997). Under that standard, this court may 

reverse for “(1) error, (2) that is plain, and (3) that affect[s] substantial rights” if “(4) the error 

seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” United 

States v. Acosta, 924 F.3d 288, 299 (6th Cir. 2019) (alterations in original) (citations omitted).

However, the government argues that this issue is not reviewable at all because Buchanan 

waived it by expressly agreeing with the district court that no instruction was needed. See 

United States v. Sloman, 909 F.2d 176, 182 (6th Cir. 1990) (“An attorney cannot agree in open 

court with a judge’s proposed course of conduct and then charge the court with error in following 

that course.”); see also United States v. Olano, 507 U.S. 725, 733 (1993) (“Whereas forfeiture is 

the failure to make the timely assertion of a right, waiver is the intentional relinquishment or 

abandonment of a known right.” (citations and internal quotation marks omitted)). 

Buchanan responds that even if he invited the district court’s error, this court should 

overlook the waiver “because the interests of justice demand it.” Reply Br. at 14 (citing United 

States v. Savoires, 430 F.3d 376, 381 (6th Cir. 2005); United States v. Barrow, 118 F.3d 482, 491 

(6th Cir. 1997)). Furthermore, Buchanan argues, he was no more at fault for inviting the error 

than was the government: both parties initially submitted proposed instructions on opinion 

testimony, but both parties later agreed with the district court that no such instruction was 

necessary.
No. 18-3667 United States v. Buchanan Page 9

Although both the government and Buchanan have some case law on their sides, we need 

not declare a winner on the standard-of-review point: Buchanan’s claim fails even on plain-error 

review.

Both parties agree that the district court should have given an instruction on how to 

weigh mixed fact and opinion testimony. As we recognized in United States v. Lopez-Medina, 

461 F.3d 724, 745 (6th Cir. 2006), when law-enforcement officers testify both as to the facts of a 

case and as to their interpretation of those facts based on their experience, the district court must 

give a cautionary instruction. The instruction generally should inform the jury about the 

difference between fact and opinion testimony and let the jury know that it does not have to 

accept opinion testimony. See id. at 743–44. In addition, the instruction should tell the jury to 

consider the witnesses’ qualifications and experience in deciding whether their testimony is 

credible. See id. In Lopez-Medina, as here, there was no “clear demarcation between [the] fact 

testimony and expert opinion testimony” given by certain government witnesses, and this court 

found “that the district court committed an error that was plain or obvious” in allowing the 

testimony of those witnesses without a cautionary instruction. Id. at 745. Lopez-Medina’s 

applicability to this case is clear, and thus the first two elements of plain error have been met.

However, the parties disagree over whether the district court’s failure to give the 

instruction here affected Buchanan’s substantial rights. “In the context of challenges to jury 

instructions, plain error requires a finding that, taken as a whole, the jury instructions were so 

clearly erroneous as to likely produce a grave miscarriage of justice.” United States v. Semrau, 

693 F.3d 510, 528 (6th Cir. 2012) (citation omitted). Such a finding is proper “‘if the 

instructions, viewed as a whole, were confusing, misleading, or prejudicial,’ and ‘the error 

seriously affected the fairness, integrity, or public reputation of the judicial proceedings.’” Id.

(citations omitted).

Buchanan does not appear to argue that the jury instructions given by the district court 

were confusing or misleading, but he does argue that he was prejudiced by the missed 

instruction. According to Buchanan, he was prejudiced because Adams’s testimony that items 

found in Buchanan’s home were indicative of drug trafficking “essentially amounted to an expert 

opinion that the items . . . demonstrated a conspiracy to distribute” marijuana. Appellant Br. at 
No. 18-3667 United States v. Buchanan Page 10

26 (quoting Lopez-Medina, 461 F.3d at 745). And Buchanan argues that both Adams’s and 

Cajuste’s testimony was “critical to demonstrating . . . the requisite intent to distribute 

marijuana.” Appellant Br. at 28. 

The government makes three arguments in response. First, it points out that the LopezMedina court reversed for plain error not solely on the basis of the missed instructions but, 

instead, on the cumulative basis of that error plus several additional errors at the defendant’s 

trial. See 461 F.3d at 745 (“We discuss the issue of prejudice as it pertains to all of the 

evidentiary issues raised . . . .” (emphasis added)). Therefore, the government argues that the 

missed instructions alone do not entitle Buchanan to a new trial. Second, the government 

contends that all of the opinion testimony tended to show Buchanan’s involvement in marijuana 

trafficking, which he conceded at trial, and did not support the conspiracy count in particular, 

which Buchanan contested. Finally, the government argues that other evidence so thoroughly 

incriminated Buchanan that Adams’s and Cajuste’s testimony—even if improperly considered as 

authoritative by the jury—did not affect the verdict.

Although the government is correct that this court reversed in Lopez-Medina on the basis 

of more than just the missed instructions, we could still reverse in this case if the failure to give 

the instructions was prejudicial and “seriously affected the fairness, integrity, or public 

reputation of the judicial proceedings.” See Semrau, 693 F.3d at 528. However, as discussed 

below, we agree with the government that the error was not prejudicial because Buchanan 

conceded most of the issues that Adams’s and Cajuste’s testimony supported. Furthermore, even 

to the extent that Adams’s and Cajuste’s testimony supported the conspiracy conviction as 

opposed to only the conviction for possession with intent to distribute, the government presented 

sufficient additional evidence supporting the conspiracy conviction that the opinion testimony 

was cumulative and unlikely to have influenced the verdict.

The elements of a drug distribution conspiracy are “(1) an agreement to violate drug 

laws . . . ; (2) knowledge and intent to join the conspiracy; and (3) participation in the 

conspiracy.” United States v. Martinez, 430 F.3d 317, 330 (6th Cir. 2005) (citation omitted). On 

the other hand, the elements of possession with intent to distribute are “(1) knowingly or 
No. 18-3667 United States v. Buchanan Page 11

intentionally, (2) possessing, (3) with the intent to distribute, (4) a controlled substance.” United 

States v. Monger, 185 F.3d 574, 576 n.2 (6th Cir. 1999).

Defense counsel apparently made a strategic choice not to contest whether Buchanan 

possessed marijuana with the intent to distribute it, or even whether Buchanan was involved in 

actually trafficking marijuana. In his opening statement, defense counsel announced that “one 

thing that [the prosecutor] and I will agree on, and we may not agree about much in this case, is 

that Kitroy Buchanan was a marijuana trafficker. He had marijuana in his apartment for sale. 

He received packages of marijuana from California for sale.” R. 73, PageID 436. Defense 

counsel then explained that he intended to contest whether Buchanan was involved in a 

conspiracy and whether he had communicated threats in interstate commerce. Then, during 

closing argument, defense counsel repeated: “[Buchanan] possessed the marijuana, I’m not 

denying that. He was going to sell the marijuana, I’m not denying that, but the rest of this case 

the government failed to prove beyond a reasonable doubt.” R. 74, PageID 763.

It is difficult to see which parts of Adams’s testimony tended to prove more than 

Buchanan admitted. Much of the testimony that Buchanan now argues was prejudicial supported 

the propositions that Buchanan possessed commercial quantities of marijuana, intended to sell it, 

or shipped and received packages of marijuana to and from various buyers and sellers. For 

example, Adams testified that the food-packaging materials found in Buchanan’s home were of a 

type commonly used by drug traffickers. But Buchanan admitted that he was a drug trafficker 

and had intended to sell the marijuana found in his house. As another example, Adams testified 

that drug traffickers like to use priority or express mail, and the government presented evidence 

that Buchanan used priority mail. Again, however, Buchanan admitted that he both received 

shipments of marijuana and intended to sell that which he had in his home.

Furthermore, Adams’s testimony was cumulative. Hobbs’s testimony and the 

government’s exhibits amply corroborated it. For example, Hobbs testified that during the time 

he was in the car with Buchanan driving around and searching for the missing package, 

Buchanan repeatedly spoke with someone on the phone about the package. That testimony 

supported the theory that Buchanan was conspiring with at least one person to distribute 

marijuana. Hobbs also testified that he sent Buchanan lists of addresses to which Buchanan then 
No. 18-3667 United States v. Buchanan Page 12

had packages delivered. This testimony supported the same factual findings that Adams’s 

testimony supported: Buchanan bought and sold marijuana and had it shipped through the mail.

Similarly, most of Cajuste’s testimony simply duplicated what other evidence showed. 

True, Cajuste did give some opinion testimony that was not cumulative: she testified that 

WhatsApp and burner phones are used to avoid detection, and she did so in terms that suggested 

Buchanan was involved in a drug conspiracy. However, this testimony added little to the dozens 

of exhibits presented by the government showing messages and phone calls between Buchanan 

and individuals in California and Pennsylvania; financial records demonstrating payments 

corresponding with some of those communications; and Hobbs’s testimony about hearing 

Buchanan discussing the missing package on the phone, among other evidence. Had Cajuste not 

testified about her experience with the use of WhatsApp and burner phones, it is very unlikely 

the jury would have reached a different conclusion about whether Buchanan conspired with 

others to distribute marijuana. 

In sum, Buchanan has not demonstrated that the lack of a jury instruction on mixed fact 

and opinion testimony affected his substantial rights. Therefore, Buchanan cannot meet his 

burden on plain-error review, and we affirm Buchanan’s conviction of the two drug counts.

B. The District Court’s Alleged Failure to Consider the Statutory Maximum Sentence

Next, Buchanan argues that the district court sentenced him based on the wrong 

Guidelines range because it did not take into account the statutory maximum sentence of 60 

months on each of his counts of conviction. See 21 U.S.C. § 841(b)(1)(D). Buchanan did not 

raise this argument to the district court, so we review for plain error. See United States v. 

Rosenbaum, 585 F.3d 259, 266–67 (6th Cir. 2009). 

As discussed above, the district court found that Buchanan’s total offense level and 

criminal history category produced an advisory Guidelines range of 63 to 78 months of 

imprisonment. The district court then sentenced Buchanan while assuming that this Guidelines 

range applied. But Buchanan argues that the statutory maximum sentence of 60 months should 

have replaced the 63-to-78-month range as his Guidelines range under USSG § 5G1.1(a). 

Section 5G1.1(a) provides: “Where the statutorily authorized maximum sentence is less than the 
No. 18-3667 United States v. Buchanan Page 13

minimum of the applicable guideline range, the statutorily authorized maximum sentence shall 

be the guideline sentence.”

However, § 5G1.1(a) applies only to single-count convictions. For convictions on 

multiple counts, the Guidelines range is not replaced by the statutory maximum on any count. 

Instead, § 5G1.2(b) provides that the district court “shall determine the total punishment and 

shall impose that total punishment on each . . . count, except to the extent otherwise required by 

law.” Next, § 5G1.2(c) provides that “[i]f the sentence imposed on the count carrying the 

highest statutory maximum is adequate to achieve the total punishment, then the sentences on all 

counts shall run concurrently, except to the extent otherwise required by law.” Here, the district 

court calculated Buchanan’s Guidelines range, considered the § 3553(a) factors, and departed 

downward to impose a total punishment of 50 months of imprisonment. The district court then 

imposed a sentence of 50 months on each count. Each count of conviction had the same

statutory maximum, so either of the two 50-month sentences qualified as the sentence imposed 

on the count with the “highest” statutory maximum under § 5G1.2(c). Thus, the sentence 

imposed on the count with the highest statutory maximum was adequate to achieve the total 

punishment of 50 months. The district court correctly decided to run the two 50-month 

sentences concurrently. See USSG § 5G1.2(c).

Buchanan cites Molina-Martinez v. United States, 136 S. Ct. 1338, 1345 (2016) for the 

proposition that on plain-error review, “[w]hen a defendant is sentenced under an incorrect 

Guidelines range—whether or not the defendant’s ultimate sentence falls within the correct 

range—the error itself can, and most often will, be sufficient to show a reasonable probability of 

a different outcome absent the error.” However, because Buchanan has not demonstrated that 

the district court calculated his Guidelines range incorrectly in light of the statutory maximum, 

he has not shown that the district court erred at all. Therefore, we need not address Buchanan’s 

argument based on Molina-Martinez, which presupposes error and addresses only how a 

defendant can show that the error was plain.

One final argument deserves attention. In his reply brief, Buchanan acknowledges that 

“the government correctly asserts that the district court could have sentenced [him] to 

consecutive terms if it made findings in support of that sentence.” Reply Br. at 10. With that 
No. 18-3667 United States v. Buchanan Page 14

statement, Buchanan appears to admit that the district court was not bound to treat the statutory 

maximum as his Guidelines sentence. Nevertheless, Buchanan argues, the district court still 

should have considered the statutory maximum because “awareness of the statutory limits would 

have assisted the court in rendering a just sentence.” Id. at 11. In other words, Buchanan argues 

that because the statutory maximum sentence has an “anchoring effect” on the district court’s 

sentencing decisions, the district court’s failure to consider the statutory maximum may have 

resulted in a higher sentence for Buchanan. Id. (quoting United States v. Currie, 739 F.3d 960, 

966 (7th Cir. 2014)).

It is not clear whether Buchanan intends to abandon his Molina-Martinez argument—in 

other words, that his sentence was based on an incorrect Guidelines range—and rely solely on 

the “anchoring effect” argument. Regardless, his “anchoring effect” argument lacks merit. The 

sentence from the Seventh Circuit case Buchanan cites reads in full: “Statutory minima and 

maxima have an obvious anchoring effect on the judge’s determination of a reasonable sentence 

in the sense that they demarcate the range within which the judge may impose a sentence.” 

Currie, 739 F.3d at 966. In Currie, the district court mistakenly identified the statutory 

minimum as ten years when, in fact, it was five years. Id. at 964. Here, by contrast, there is no 

evidence that the district court mistook the relevant statutory maximum. Buchanan’s PSR 

accurately listed the statutory maximum sentence on each of his counts of conviction as five 

years. Cf. id. (“[I]n sentencing [Currie] to a 121-month term, [the district court] remarked that it 

was bound by the ten-year minimum . . . .”). And as explained above, the district court’s 

sentencing decision comported both with the relevant statutory maximum and with USSG 

§ 5G1.2. Because the district court did not rely on an incorrect statutory maximum or minimum 

sentence, Buchanan’s sentence was not erroneously “anchored” in the sense Currie addresses.

Most importantly, Buchanan’s argument focuses on prejudice: he claims his substantial 

rights were affected because the district court was not aware of a factor—the statutory 

maximum—that might have led it to sentence him to a shorter term of imprisonment. To pass 

the plain-error barrier, however, Buchanan must first show an error at sentencing. And without 

his argument that the statutory maximum should have become his Guidelines sentence, 
No. 18-3667 United States v. Buchanan Page 15

Buchanan makes no argument that the district court erred in calculating his Guidelines range. 

Therefore, he fails to show plain error.

C. Ineffective Assistance of Counsel

Buchanan next claims that he received ineffective assistance of counsel when defense 

counsel failed to raise the statutory maximum in the district court. Ordinarily, we do not review 

on direct appeal ineffective-assistance claims that were not raised in the district court. See 

United States v. Hughes, 733 F. App’x 299, 299 (6th Cir. 2018). Although we may review such 

a claim if it “depend[s] entirely upon facts within the record or . . . present[s] purely legal 

questions,” United States v. Angel, 355 F.3d 462, 469 (6th Cir. 2004) (citation omitted), that 

exception is a narrow one; as a general rule, ineffective-assistance claims “are best brought by a 

defendant in a post-conviction proceeding under 28 U.S.C. § 2255 so that the parties can develop 

an adequate record on the issue,” United States v. Aguwa, 123 F.3d 418, 423 (6th Cir. 1997) 

(citation omitted). Here, we will follow the general rule and decline to review Buchanan’s 

ineffective-assistance claim.

D. Enhancement for a Pattern of Criminal Conduct Engaged in as a Livelihood

Finally, we come to the issue that requires a remand for resentencing. Buchanan argues, 

and we agree, that the district court erred in adding a two-level enhancement to his total offense 

level under USSG § 2D1.1(b)(16)(E) for “committ[ing] the offense as part of a pattern of 

criminal conduct engaged in as a livelihood.”

Because Buchanan objected at sentencing to the livelihood enhancement, we review the 

district court’s decision to apply the enhancement for an abuse of discretion. See Gall v. United 

States, 552 U.S. 38, 51 (2007) (stating that “significant procedural error[s]” amounting to an 

abuse of discretion include “failing to calculate (or improperly calculating) the Guidelines 

range”). In assessing the procedural reasonableness of the district court’s sentencing decisions, 

we review legal conclusions de novo and factual findings for clear error. United States v. Cole, 

359 F.3d 420, 425 (6th Cir. 2004).
No. 18-3667 United States v. Buchanan Page 16

Applying de novo review to the district court’s legal conclusions, as we must, we 

conclude that the district court misinterpreted the Guidelines when it applied the livelihood 

enhancement to Buchanan. Therefore, the district court abused its discretion by calculating 

Buchanan’s Guidelines range under the wrong legal standard, and Buchanan is entitled to 

resentencing because the error was not harmless.

Buchanan does not dispute that his activities constituted “a pattern of criminal conduct.” 

He does dispute that this conduct was “engaged in as a livelihood.” To define “engaged in as a 

livelihood,” § 2D1.1 cross-references § 4B1.3. See USSG § 2D1.1, comment. (n.20(C)). In turn, 

the relevant application note to § 4B1.3 states that the district court must make two findings to 

determine that the defendant’s criminal conduct was engaged in as a livelihood. See id. § 4B1.3, 

comment. (n.2).2 First, the district court must find that “the defendant derived income from the 

pattern of criminal conduct that in any twelve-month period exceeded 2,000 times the then 

existing hourly minimum wage under federal law.” Id. Second, the district court must find that 

“the totality of circumstances shows that such criminal conduct was the defendant’s primary 

occupation in that twelve-month period (e.g., the defendant engaged in criminal conduct rather 

than regular, legitimate employment; or the defendant’s legitimate employment was merely a 

front for the defendant’s criminal conduct).” Id.

However, the district court sentenced Buchanan based on the understanding that § 4B1.3 

required only one finding: that Buchanan’s criminal earnings exceeded 2,000 times the minimum 

wage in a twelve-month period. At sentencing, events transpired as follows.

 

2

In Stinson v. United States, 508 U.S. 36, 42–43 (1993), the Supreme Court held that “[c]ommentary which 

functions to interpret a guideline or explain how it is to be applied . . . controls, and if failure to follow, or a 

misreading of, such commentary results in a sentence selected from the wrong guideline range . . . , that sentence 

would constitute an incorrect application of the sentencing guidelines.” (cleaned up). Therefore, federal courts are 

to treat commentary to a particular Guidelines provision as an authoritative interpretation of that provision as long as 

the interpretation “does not violate the Constitution or a federal statute” and is not “plainly erroneous or inconsistent 

with” the provision’s text. Id. at 45 (citations omitted); see also United States v. Havis, 927 F.3d 382, 386–87 (6th 

Cir. 2019) (en banc) (holding that because the list of controlled substance offenses in USSG § 4B1.2(b) does not 

contain attempt crimes, the gloss on “controlled substance offense” in the commentary, which includes attempts, is 

not a permissible “interpretation” of the Guidelines provision). Havis stated that “[c]ommentary binds courts only 

‘if the guideline which the commentary interprets will bear the construction.’” Havis, 927 F.3d at 386 (quoting 

Stinson, 508 U.S. at 46). Because application note 2 to § 4B1.3 explains the meaning of “engaged in as a 

livelihood” in a way that the text of the Guidelines provision will bear, rather than adding to a list or definition given 

in the text of the Guidelines provision, the application note is binding on federal courts under Stinson and Havis.
No. 18-3667 United States v. Buchanan Page 17

The prosecutor presented evidence that Buchanan had earned over $14,500, or 2,000 

times the relevant minimum wage of $7.25, in less than a twelve-month period. Specifically, the 

government had estimated that Buchanan’s net income from marijuana sales, over a period of 

eight months for which the government had data, was $384,000. The government arrived at this 

number by first subtracting $6,000 (a high-end estimate—based on evidence of wire transfers 

Buchanan had made that corresponded with package shipments—of how much he paid for each 

package of marijuana) from $30,000 (the low end of Adams’s estimate of the value of the 

package of marijuana intercepted by law enforcement) to reach an estimated profit per package 

of $24,000. Then, the government multiplied $24,000 by 16—an estimate of the number of 

packages Buchanan was responsible for, based on his stipulation to responsibility for 79.2 

kilograms of marijuana—to arrive at the $384,000 figure.

When the prosecutor presented this estimate of Buchanan’s criminal income to the 

district court in support of the livelihood enhancement, the district court pointed out that 

Buchanan’s PSR stated that he had been employed by his father’s trucking company since 2008 

and claimed to have earned $400 per week in that capacity. The district court then inquired, 

“Doesn’t [the phrase “engaged in as a livelihood”] suggest that that’s aimed at a Defendant who 

does nothing but criminal conduct?” R. 75, PageID 795. The prosecutor responded that the 

commentary to § 2D1.1 “says that you look then to 4B1.3 Note 2 for the definition of a 

livelihood. Not definition of a livelihood is simply—is not necessarily this totality, but it means 

2000 times the federal minimum wage of $7.25 per hour.”3 Id. at PageID 795–96. After the 

district court inquired more about how the government had arrived at its estimate of Buchanan’s 

criminal income, the district court asked defense counsel if he had any comment. 

Defense counsel admitted that Buchanan had stipulated to the 79.2-kilogram figure but 

argued that he had not stipulated “to the value of any package.” Id. at PageID 798. Thus, 

defense counsel argued that because the income attributed to Buchanan was based on an 

estimate, “I don’t believe the Government can sustain a burden, even by a preponderance, that 

 

3The government’s sentencing memorandum also represented that the livelihood enhancement required 

only an amount-of-income finding and said nothing about the “primary occupation” prong.
No. 18-3667 United States v. Buchanan Page 18

there was a criminal livelihood here.” Id. at PageID 798–99. Defense counsel did not make any 

arguments about the second element of the § 4B1.3 livelihood test, “primary occupation.” 

After asking more questions about the proper estimate of Buchanan’s criminal income, 

the district court overruled Buchanan’s objection to the livelihood enhancement. However, the 

district court stated that it believed the application of the enhancement was “a very close 

question” and that “the Government[] [had] very little evidence.” Id. at PageID 804. Explaining 

its reasoning, the district court continued:

I think that the Defendant had long time significant employment for more—

approaching ten years of time. And so I think it’s difficult to make a generalized 

claim that this drug dealing was engaged in as a livelihood, which the phrase from 

the Guidelines suggest[s] to me that livelihood refers to an almost independent

occupation. But, under the Guideline you’ve pointed out and the commentary, 

I think there is sufficient evidence that he meets this minimum wage times 2000 

hours requirement.

Id. at PageID 805. Later, in announcing Buchanan’s sentence, the district court explained the 

factors it had considered under § 3553(a). On the subject of Buchanan’s “history and 

background,” the district court stated, “He has had a—what appears to be a good work record, 

working for his father. He earns a moderately reasonable amount of income in that [position].” 

Id. at PageID 831.

Based on this record, Buchanan argues that the district court made a factual finding that 

he had an extensive record of working at a company that paid him regularly. Buchanan does not 

now contest the district court’s finding that he made criminal income of more than 2,000 times 

the minimum wage in a twelve-month period; instead, he argues that the district court improperly 

ignored the need to make a “primary occupation” finding and that such a finding would be at 

odds with the district court’s statements about Buchanan’s legitimate work history.

As the transcript portions quoted above show, the district court did make a factual 

finding—which we should not disturb except on a finding of clear error—about Buchanan’s 

legitimate work history. The district court “may accept any undisputed portion of the 

presentence report as a finding of fact.” United States v. Denson, 728 F.3d 603, 614 (6th Cir. 

2013) (quoting Fed. R. Crim. P. 32(i)(3)(A)). Here, the government never objected to the 
No. 18-3667 United States v. Buchanan Page 19

paragraph in Buchanan’s PSR stating that he had worked at his father’s company since 2008 and 

that “[a]ccording to the defendant and his father, the defendant earned $400 weekly.” R. 49, 

PageID 296. Therefore, the district court did not err in accepting the information in that 

paragraph as fact and in crediting Buchanan’s and his father’s claims about his legitimate 

income.4 

The transcript of the sentencing hearing also shows that the district court applied the 

enhancement under the impression that § 4B1.3 required only a finding of how much money the 

defendant had made from criminal activity. Because the commentary to § 4B1.3 makes clear 

that the district court must make two findings for the enhancement to apply, the district court 

erred in basing its application of the enhancement on only one of those findings. 

Furthermore, the district court’s error in interpreting the Guidelines was not harmless. 

There can be no harmless error unless the appellate court can determine from the 

record that the same sentence would be imposed on remand. For the government 

to carry its burden, it must demonstrate to the [c]ourt with certainty that the error 

at sentencing did not cause the defendant to receive a more severe sentence.

United States v. Gillis, 592 F.3d 696, 699 (6th Cir. 2009) (internal citations and quotation marks 

omitted); see also United States v. Salyers, 592 F. App’x 483, 486 (6th Cir. 2015) (finding that a 

four-level error in calculating the defendant’s base offense level was not harmless because “[t]he 

district court did not indicate that it would have imposed the same 120-month sentence even if 

defendant’s base offense level was 24”).

 

4The government attempts to cast doubt on whether Buchanan really earned $400 per week working for his 

father’s company by alluding to evidence that it learned of post-sentencing. See Appellee Br. at 37 n.6. However, 

the time for challenging the district court’s factual finding on this matter has passed for the purposes of our appellate 

review. See Fed. R. Crim. P. 32(f)(1) (“Within 14 days after receiving the presentence report, the parties must state 

in writing any objections, including objections to material information, sentencing guideline ranges, and policy 

statements contained in or omitted from the report.”); see also Sovereign News Co. v. United States, 690 F.2d 569, 

571 (6th Cir. 1982) (“A party may not by-pass the fact-finding process of the lower court and introduce new facts in 

its brief on appeal.”). Although the prosecutor mentioned in passing at the sentencing hearing that Buchanan’s 

“bank records don’t seem to show any pay checks coming in” that would corroborate Buchanan’s claim of 

legitimate employment, the government did not object to the PSR on this basis. R. 75, PageID 795. Based on the 

un-objected-to statements in the PSR, the district court made a factual finding about Buchanan’s legitimate 

employment that was not clearly erroneous.
No. 18-3667 United States v. Buchanan Page 20

Here, the enhancement resulted in a two-level addition to Buchanan’s offense level, and 

the district court gave no indication that it would have given Buchanan the same sentence had his 

total offense level been calculated as 24 instead of 26. With a total offense level of 24, 

Buchanan’s Guidelines range would have been only 51 to 63 months. See USSG Ch. 5, Pt.A. 

Indeed, the district court repeatedly referenced Buchanan’s total offense level while announcing 

his sentence, and the district court noted that Buchanan’s PSR listed the average sentence for a 

drug-trafficking defendant in criminal history category I as 55 months. Apparently assuming 

that that number applied to defendants with a total offense level of 28—two levels higher than 

Buchanan’s—the district court mused that the average sentence was probably lower than 55 

months for someone with a total offense level of 26. The district court then sentenced Buchanan 

to 50 months, a term of imprisonment thirteen months below the bottom of his Guidelines range 

and five months below the average sentence for what the district court believed to be a 

comparable defendant. In sum, the record demonstrates that the district court took Buchanan’s 

total offense level very seriously in calculating his sentence and may well have sentenced him to 

a shorter term of imprisonment had it calculated his Guidelines range differently.

The government, however, urges us to affirm because Buchanan’s purported criminal 

income of $384,000 (based on Adams’s testimony) dwarfs his claimed legitimate income of less 

than $21,000. Crime was Buchanan’s primary occupation, goes the government’s argument, 

because it accounted for the vast majority of his income. 

We decline to adopt the government’s logic because it would require us to make two 

factual findings in the first instance. First, that crime was a defendant’s “primary occupation” is 

a factual finding requiring a totality-of-circumstances approach. See USSG § 4B1.3, comment. 

(n.2). The district court did not make any such finding because it was unaware of the 

requirement. Second, to accept the government’s position, we would also need to accept as a 

matter of fact that Buchanan’s criminal income for the relevant period was $384,000. But there 

are reasons to doubt this estimate (for example, it was based not on evidence of Buchanan’s 

actual sales but on one witness’s opinion about the average value of a given quantity of 

marijuana in Cleveland). More importantly, the district court never made a factual finding on the 

record of exactly how much Buchanan’s criminal activity profited him. Instead, the district court 
No. 18-3667 United States v. Buchanan Page 21

merely found that Buchanan’s criminal earnings exceeded 2,000 times the minimum wage 

during the relevant time period. At the same time, the district court reiterated that it found the 

application of the enhancement was “a close question” but that “a preponderance of the 

evidence” supported the government’s position that Buchanan surpassed the threshold level of 

criminal income. R. 75, PageID 805. In fact, the district court may have credited only 

$14,500.01 of the government’s estimate: that finding, on the district court’s erroneous reading 

of § 4B1.3, would have triggered the livelihood enhancement. 

As a reviewing court, we have no principled basis for accepting in total the government’s 

evidence of Buchanan’s criminal income when the district court did not. Instead, we are to 

review the district court’s factual findings for clear error, see Cole, 359 F.3d at 425; if the district 

court failed to make a factual finding on a required element, we have no facts to review, and 

remand is the appropriate course of action, see Pullman-Standard v. Swint, 456 U.S. 273, 291–93 

(1982).

On remand, therefore, the district court must analyze whether, under the “totality of 

circumstances,” Buchanan’s crimes were his “primary occupation.” Relevant factors in this 

analysis may include an estimate of hours worked in each capacity as well as the amount of 

income earned in each capacity. No particular ratio of, or difference between, illegitimate and 

legitimate income automatically satisfies the “primary occupation” prong; to hold otherwise 

would ignore § 4B1.3’s “totality of circumstances” language.5 Of course, if the district court 

finds that Buchanan fits the description in either of the application note’s two non-exhaustive 

examples—that of a defendant who “engaged in criminal conduct rather than regular, legitimate 

employment” or whose “legitimate employment was merely a front for the defendant’s criminal 

 

5United States v. Kellams, 26 F.3d 646, 649 (6th Cir. 1994) and United States v. Reed, 951 F.2d 97, 101–02 

(6th Cir. 1991) do not affect our conclusion. In Kellams, we affirmed the application of the enhancement to a 

defendant who had net legitimate income of, at most, $4,268 and illegitimate income of $15,917.41 in the relevant 

time period. See 26 F.3d at 649. In Reed, we affirmed the application of the enhancement to a defendant who had 

legitimate income of $350 and illegitimate income of more than $17,000. See 951 F.2d at 101–02. In neither case 

did the defendant argue that the district court had failed to make the “primary occupation” finding. Unlike here, in 

each case we were reviewing a district court that had applied the correct legal standard and made factual findings 

thereunder. Reviewing these factual findings, both opinions noted the “totality of circumstances” language in the 

application note to § 4B1.3 and held that the district court had not erred in applying the enhancement. See Kellams,

26 F.3d at 649; Reed, 951 F.2d at 101–02. Appropriately, neither opinion announced a hard-and-fast rule for 

determining what proportion of illegitimate income triggers the enhancement.
No. 18-3667 United States v. Buchanan Page 22

conduct”—the district court may apply the enhancement, given that it has already found the 

2,000-times-minimum-wage prong is satisfied. See USSG § 4B1.3, comment. (n.2).

Finally, both the government and Buchanan may present new evidence on remand 

regarding whether crime was Buchanan’s “primary occupation.” See United States v. Doutt, 

926 F.3d 244, 248 (6th Cir. 2019) (“When a district court applies the wrong legal standard at 

sentencing, the government may introduce additional evidence on remand that comports with the 

appropriate legal standard.” (citation omitted)); cf. United States v. Baker, 559 F.3d 443, 455 

& n.10 (6th Cir. 2009) (holding that on remand, the government was entitled to present new 

evidence in support of the defendant’s designation as a career offender because the case 

announcing the relevant standard had not yet been decided at the time of sentencing). 

III. CONCLUSION

For the foregoing reasons, we AFFIRM Buchanan’s conviction but VACATE his 

sentence and REMAND for resentencing. On remand, the district court is instructed to revisit 

the applicability of the livelihood enhancement under the correct legal standard.