NOT RECOMMENDED FOR PUBLICATION

File Name: 21a0057n.06

Nos. 19-2443/2444

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JEREMY DARNELL MORTON,

Defendant-Appellant.

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE WESTERN 

DISTRICT OF MICHIGAN

BEFORE: SUHRHEINRICH, McKEAGUE, and READLER, Circuit Judges. 

SUHRHEINRICH, Circuit Judge. 

Defendant Jeremy Darnell Morton appeals his conviction and sentence for one count of 

possession with intent to distribute heroin, as well as the consecutive sentence imposed for 

violating the terms of his supervised release. 

I.

The events leading to Morton’s conviction for possession with intent to distribute heroin, 

in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 851 are recounted in the district court’s 

written opinion denying Morton’s motion to suppress, which we incorporate by reference here. 

Briefly: Morton was implicated in a series of murders in Muskegon Heights, Michigan in 2015. 

While executing a search warrant at a Quality Inn room where Morton and his cohorts were 

suspected to be hiding out, officers stopped Morton, who had just left the Quality Inn and walked 

to a nearby Comfort Inn, and patted him down for weapons. They found only cash ($8,380.76). 
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The officers then handcuffed Morton, placed him in the back of a police car, and drove back to the 

Quality Inn. Morton remained there while the officers executed the search warrant at the Quality 

Inn. Meanwhile Detective Jason Hartman reviewed the surveillance video of the Comfort Inn and 

found that Morton had recently visited the men’s bathroom twice. He then searched the bathroom 

and discovered ten grams of heroin in a toilet tank (Morton’s latent prints were later lifted from

the tank lid). Morton was arrested and charged with drug crimes. Before trial he moved to 

suppress the cash, claiming that the officers lacked probable cause to arrest him without a warrant. 

After conducting an evidentiary hearing, the district court denied Morton’s motion, concluding 

that the seizure “was justified as a Terry stop to allow other officers to execute the search warrant 

without tipping off the hotel room occupants.” Later, the district court added another rationale: 

that “based on the facts that were known to the officers at the time they seized Morton, they had 

probable cause to believe that he participated in a conspiracy to commit murder.” Therefore, “the 

subsequent seizure of the cash from Morton—taken while he was detained—would not violate the 

Fourth Amendment.” 

The court also denied Morton’s motion to exclude other acts evidence of a 2008 federal 

conviction for distributing cocaine base. 

The jury convicted him of the count. After classifying him as a career offender based on 

two prior convictions, the district court sentenced Morton to the bottom of the applicable 

Guidelines range: 262 months. After that, the district court revoked Morton’s supervised release 

because the present crime violated the terms. The court imposed a consecutive sentence at the 

bottom of the guidelines range: 24 months. 

Morton appeals. 
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II.

A.

At sentencing the district court found that Morton qualified as a career offender based on 

his prior drug-trafficking conviction under 21 U.S.C. § 841 and a prior conviction for 

delivery/manufacture of cocaine under Michigan Compiled Laws § 333.7401. This gave him a 

guidelines range of 262 to 327 months. The district court sentenced him at the bottom of that 

range. 

On appeal, Morton reiterates the argument he made below, namely that his two prior drug 

offenses are not “controlled substance offenses” under U.S.S.G. § 4B1.2(b) because both the 

Michigan and federal offense define the term “delivery” to include attempted offenses, which,

following this Court’s recent decision in United States v. Havis, 927 F.3d 382 (6th Cir. 2019) (en 

banc) (per curiam), are not covered by § 4B1.2(b). However, as he implicitly concedes in his reply 

brief, this court recently rejected that argument in United States v. Thomas, 969 F.3d 583, 585 (6th 

Cir. 2020) (per curiam), cert. denied, No. 20-6282, 2021 WL 78377 (Jan. 11, 2021); see also

United States v. Garth, 965 F.3d 493, 496–98 (6th Cir. 2020) (same; applying Tennessee law). As 

Thomas explains, the logic of Havis does not apply where an attempted action (here attempted 

transfer) constitutes a completed crime (delivery). Thomas, 969 F.3d at 585. Both statutes qualify 

as controlled-substance offenses under U.S.S.G. § 4B1.2, and the district court properly relied on 

them to classify Morton as a career offender. 

B.

Next, Morton claims that the district court erred in denying his suppression motion. As he 

did below, Morton contends that the cash should have been suppressed as the fruit of an illegal 

search and seizure because the officers lacked probable cause to arrest him without a warrant. The 
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government disagrees, arguing that the district court correctly determined that the officers had 

probable cause to arrest Morton for conspiracy to commit murder. The government further claims 

that the interaction finds support as a permissible Terry stop, followed by a reasonable detention 

while the search warrant was executed. It also throws in the attenuation doctrine for good measure. 

Notwithstanding these meritorious arguments, we think that harmless error sufficiently 

resolves the issue here. Even if the admission of the large amount of cash was unduly prejudicial 

because it is highly suggestive of drug trafficking rather than personal use, the government offered 

other convincing evidence to support the conviction for possession with intent to distribute. An 

expert witness on heroin trafficking testified that the amount and packaging were consistent with 

distribution, not personal use. Specifically, the expert stated that user quantity is about one-tenth 

of a gram, whereas the heroin found in the toilet tank was about 100 doses. Thus, the admission 

of the cash did not affect the outcome. See United States v. Copeland, 51 F.3d 611, 615 (6th Cir. 

1995) (citing Fed. R. Crim. P. 52).

C.

Over Morton’s objection, the district court allowed the government to offer evidence of his 

2008 federal conviction for distributing cocaine base as proof of intent to distribute heroin. Thus, 

at trial, Morton stipulated that he sold cocaine base to a confidential informant on three occasions 

in 2008: the sale of 1.07 grams in two plastic baggies for $150 on May 8, 4.01 grams in four small 

plastic baggies for $300 on May 29, and 5.34 grams in eight plastic baggies for $500 on June 4. 

The district court held that the evidence was admitted “for a proper purpose, that is, intent 

to distribute.” Because defense counsel indicated that Morton’s intent to distribute would be an 

issue at trial, the district court reasoned that:

[T]o the extent that the defendant has a history, I think that’s highly probative if 

indeed the jury can come to the conclusion that it was Mr. Morton who possessed 
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the drugs at issue in this case, the question then becomes what he intended to do 

with them, and the fact that he has a history of distribution of crack cocaine to 

undercover police agents, it seems to me, is highly probative of what was going on, 

as far as this Indictment is concerned.

On appeal Morton argues that his “prior conviction for three separate sales of cocaine to 

an agent prejudicially establish propensity, and the limited probative value of his prior convictions 

[sic] is substantially outweighed by the danger that the jury will convict him because he is a bad 

person with a criminal record.” 

We review evidentiary rulings under the familiar abuse of discretion standard, and “a trial 

judge is accorded broad discretion in determining the admissibility of bad acts evidence under

Rule 404(b).” United States v. Dunnican, 961 F.3d 859, 874 (6th Cir. 2020) (alteration and citation 

omitted); United States v. Mandoka, 869 F.3d 448, 456–57 (6th Cir. 2017). “Before admitting 

prior acts evidence, the district court must determine that the evidence is admissible for a proper 

purpose and that the probative value of the evidence outweighs its potential prejudicial effects.” 

United States v. Ismail, 756 F.2d 1253, 1259 (6th Cir. 1985). “This court has repeatedly recognized 

that prior drug-distribution evidence is admissible under Rule 404(b) to show intent to distribute.” 

United States v. Cordero, 973 F.3d 603, 621 (6th Cir. 2020) (quoting United States v. Hardy, 643 

F.3d 143, 151 (6th Cir. 2011)). Still, to be sufficiently probative of intent, the prior drug 

distribution evidence “must be substantially similar and reasonably near in time to the specific 

intent offense at issue.” Id. (internal quotation marks, alterations, and citation omitted).

Although the 2008 conviction involved individual portions of cocaine base and police in 

the current case found only one plastic baggie, that bag contained over ten grams of heroin. As 

Detective Hartman testified, the latter bulk distribution amount is consistent with the former 

distribution activity. Cf. id. at 621–22 (prior drug scheme was related to charged cocaine scheme 
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in that it “involved narcotics distribution, as opposed to the purchase and use of narcotics for 

personal use”). Thus, as Morton admits, the evidence was substantially similar. 

Moreover, we have repeatedly held that “the prior act need not be identical in every detail 

to the charged offense.” Id. at 623 (internal quotation marks and citation omitted). In Ismail, we 

allowed prior acts evidence of cocaine and hashish distribution to prove the charged offense of 

heroin distribution. 756 F.2d at 1259; cf. United States v. Ray, 549 F. App’x 428, 434 (6th Cir. 

2013) (prior possession and distribution of small quantities of crack cocaine held admissible in 

prosecution for possession with intent to distribute a significant quantity of cocaine). “We have 

also held that there is no definitive set of years that may separate a prior act and the offense 

charged.” See United States v. Thompson, 690 F. App’x 302, 308 (6th Cir. 2017) (internal 

quotation marks and citation omitted) (holding two and four-year-old arrests for prior associations 

with possessing and distributing marijuana were evidence of intent, and not too distant 

temporally); United States v. Ayoub, 498 F.3d 532, 548 (6th Cir. 2007) (four-year-old drugdistribution arrest was admissible); United States v. Love, 254 F. App’x 511, 516 (6th Cir. 2007)

(eight-year-old arrest for cocaine trafficking held probative of charge for conspiracy to traffic 

cocaine). Given that Morton was incarcerated from 2008 through 2012, the seven-year span 

between the prior acts evidence and the charged offense was not too remote. 

Morton claims, because the evidence is “so similar,” that “any jury would make the unfairly 

prejudicial inference that Morton must be guilty again now because of his criminal record for 

distribution.” But the district court recognized that the evidence was prejudicial and cured any 

injury by instructing the jury to consider this evidence “only as it relates to the government’s claim 

on the defendant’s intent.” The court included the same instruction after closing arguments when 

it instructed the jury. Hence, with proper jury instructions mitigating the risk, the 2008 conviction 
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evidence was not “unfairly” prejudicial. See United States v. Asher, 910 F. 3d 854, 862 (6th Cir. 

2018); Fed. R. Evid. 403. In short, the district court did not abuse its discretion in admitting the 

2008 conviction. See Hardy, 643 F.3d at 153 (finding no abuse of discretion where district court 

found that that the probative value of prior acts evidence was not outweighed by its prejudicial 

effect and “gave two strong cautionary instructions to the jury”).

One final point: Morton claims that the admission of the prior acts caused the same kind 

of unfair prejudice as the admission of a prior felony conviction in a felon in possession case 

despite the defendant’s stipulation. See Old Chief v. United States, 519 U.S. 172, 191–92 (1997)

(requiring admission of a defendant’s stipulation to a prior felony conviction in a felon in 

possession case). We rejected this argument in United States v. Bilderbeck, 163 F.3d 971, 977–78 

(6th Cir. 1999). There, we held that even after Old Chief, prior acts evidence remains admissible 

to prove specific intent even if the defendant stipulates to intent. Id. And Morton did not stipulate 

to intent. In addition, as the government points out, even if Old Chief applied, it would require a 

stipulation, not an exclusion. Again, the district court did not abuse its discretion in admitting the 

2008 conviction. 

D.

Next, Morton, who is African American, claims that the jury venire was not random, 

resulting in a venire panel that was not a fair cross-section of the community because no African 

Americans were on the jury, and that this violated the Jury Selection and Service Act (“JSSA”), 

28 U.S.C. § 1861, et seq., the Sixth Amendment, and the Fifth Amendment’s Equal Protection 

Clause. Morton concedes on appeal that he failed to timely preserve the issue, so plain error review 

applies. Under that standard, he must show (1) a trial error, (2) that was plain, (3) that affected the 

defendant’s substantial rights, and (4) that “seriously affect[ed] the fairness, integrity or public 
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reputation of the judicial proceedings.” United States v. Olano, 507 U.S. 725, 733–36 (1993)

(internal quotation marks and citation omitted). 

To establish a Fifth Amendment equal protection violation, a defendant must show not

only that the group allegedly excluded from the jury was a distinct class, but also prove the degree 

of underrepresentation, and establish that the selection procedure was susceptible to abuse or was 

not racially neutral. United States v. Ovalle, 136 F.3d 1092, 1104 (6th Cir. 1998). To show a 

violation of the fair-section component of the JSSA and Sixth Amendment, which “are analyzed 

identically,” Holmes v. United States, 281 F. App’x 475, 480 (6th Cir. 2008), a defendant must 

show that systematic exclusion of a distinctive group in the jury-selection process caused an 

unreasonable underrepresentation of African Americans in jury venires as compared to their 

presence in the community. Duren v. Missouri, 439 U.S. 357, 364 (1979); Holmes, 281 F. App’x

at 480. 

Morton has not made these showings because he has not offered any factual evidence of a 

systematic problem with the jury pool selection process. His reliance on Ambrose v. Booker, 684 

F.3d 638, 640–41 (6th Cir. 2012), and Garcia-Dorantes v. Warren, 801 F.3d 584, 600 (6th Cir. 

2015), is unavailing because those considered Kent County Circuit Court’s jury selection process, 

not the Western District of Michigan’s. In other words, he has not shown error (let alone plain 

error), so there is no basis for reversal. 

Morton suggests that his lawyer’s failures warrant a second chance and requests the 

opportunity to develop the record on remand. However, the proper vehicle to pursue that issue is 

through an ineffective assistance of counsel claim as part of a collateral proceeding “after the 

parties have had the opportunity to develop an adequate record on the issue.” United States v. 

Williams, 612 F.3d 500, 508 (6th Cir. 2010) (citation omitted). 
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E.

At the close of the government’s case, Morton moved for judgment of acquittal on the 

ground that no witness had actually identified Morton. Over Morton’s objection, the district court 

let the government reopen its case1and have Detective Hartman identify Morton. Morton claims 

that this is an abuse of discretion because it “imbue[d] the evidence with distorted importance” 

and left Morton powerless to challenge Hartman’s identification “without opening the door to the 

homicide evidence.” 

This contention is without merit. As the district court noted, Morton is seen in the 

surveillance video of the Comfort Inn. Furthermore, Morton stipulated to admissibility of the 

video as well as his fingerprint card. Given these stipulations, it was not unreasonable for the 

government to assume that identity was not in issue. Finally, the reopening occurred before 

Morton had presented any evidence, minimizing any prejudice. See United States v. Blankenship, 

775 F.2d 735, 741 (6th Cir. 1985) (stating that any prejudice was “unlikely” where the district 

court allowed the government to reopen proofs after it had rested its case in chief but before the 

defendant had presented any evidence). And Morton “could not have been surprised by the 

evidence” since it was merely a “positive identification” of him. See id. Morton fails to explain, 

and we fail to see, how he was deprived of his ability to argue identity without “opening the door” 

to the homicide investigation, simply because Hartman identified him shortly after the government 

had rested its case. In short, because Morton did not suffer any prejudice by the late witness 

identification, the district court did not abuse its discretion in reopening the government’s case. 

1 The district court would have denied the motion anyway: “Concerning [the] identity of the defendant, defense is 

correct that no witness pointed to Mr. Morton during the course of the trial; however, the video shows the individual 

that the officers confronted in the hallway of the Comfort Inn. And in the Court’s judgment, that alone is sufficient 

to allow the case to be presented to the jury for decision.” 
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F.

At sentencing, the district court explained that a 262-month term of imprisonment was 

necessary based on the 18 U.S.C. § 3553(a) factors: Morton was a career offender, his prior drug 

offenses “indicate[d] that Mr. Morton has absolutely no respect for the law”; and that “as far as 

drugs are concerned, he does what he wants, when he wants to do it, and no sentence imposed by 

another court has managed to reform [his] conduct as it relates to controlled substances.” The 

court stated that it “ha[d] very grave concerns about the protection of the public from further crimes 

of this defendant” and was “mindful of general deterrence of others who contemplate trafficking 

in heroin,” especially given that the Western District of Michigan “ha[s] a major opioid abuse 

problem,” to which Morton “obviously was contributing to.” Still, it sentenced Morton to the low 

end of the advisory guideline range, despite the government’s request for a sentence at or near the 

maximum of the statute. 

After sentencing Morton on the heroin charge, the district court turned to the supervised 

release violation. Morton had been incarcerated from 2008 until 2012 after being convicted of 

possession with intent to distribute cocaine base.2 (This conviction was the prior acts evidence 

introduced at trial.) The district court found that Morton’s heroin conviction constituted a 

supervised release violation of the prior 2008 conviction and sentenced Morton to the 24 months, 

at the bottom of the advisory guideline range of 24 to 30 months. The court rejected Morton’s 

request to impose the sentence concurrently, stating that “Mr. Morton committed the new offense 

while on supervised release. This is a clear major violation of the trust placed in Mr. Morton while 

he was on supervised release by the Court. The Court finds that a consecutive 24-month sentence 

2 Morton was released on October 22, 2012. On May 3, 2013, he spent six weeks in jail for using marijuana and 

submitting diluted samples. On June 12, 2014, his supervised release was revoked. He was released on July 1, 2014. 

On September 21, 2015, a supervised release violation was filed based on his commission of the crime at issue and 

other infractions. Thus, the revocation at issue was Morton’s second. Morton does not contest these allegations. 
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is appropriate under the circumstances.” After asking the parties if they had any “legal objection” 

to the sentence imposed, the court added that it “recognize[d] its discretion in giving a consecutive 

or concurrent sentence,” but felt that because “the breach of trust here [was] a major one,” a 

consecutive sentence was warranted. 

On appeal Morton claims that the sentence is procedurally unreasonable because (1) the 

district court relied on the same sentencing factors it used for the heroin conviction, and (2) the 

court did not reference U.S.S.G. § 7B1.3(f). 

Morton acknowledges that plain error review applies because he failed to object to the 

sentence when asked. See United States v. Vonner, 516 F.3d 382, 385 (6th Cir. 2008) (en banc). 

But, as the government argues, this claim also fails under the abuse of discretion standard. See 

United States v. Johnson, 640 F.3d 195, 201 (6th Cir. 2011) (stating that the standard of review

for a sentence imposed upon revocation of supervised release is abuse of discretion). 

A district court has discretion to order concurrent or consecutive sentences. 18 U.S.C. 

§ 3584(a); Johnson, 640 F.3d at 208. “Exercise of that authority, however, is predicated on the 

district court’s consideration of the facts listed in 18 U.S.C. § 3553(a), including any applicable 

Guidelines or policy statements issued by the Sentencing Commission.” Johnson, 640 F.3d at 208. 

(citing 18 U.S.C. § 3584(b)). The pertinent policy statement, U.S.S.G. § 7B1.3(f), provides that:

Any term of imprisonment imposed upon the revocation of . . . supervised release 

shall be ordered to be served consecutively to any sentence of imprisonment that 

the defendant is serving, whether or not the sentence of imprisonment being served 

resulted from the conduct that is the basis of the revocation of . . . supervised 

release.
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Section 7B1.3(f) is not binding on the district court,3but the court “must consider § 7B1.3(f) when 

it is applicable and may exercise its discretion to apply it when determining whether to impose a 

consecutive sentence.” Johnson, 640 F.3d at 208. 

The district court properly exercised that discretion. Contrary to Morton’s assertion, as 

Johnson makes clear, the court was required to consider the § 3553(a) factors when imposing a 

concurrent or consecutive sentence, and it did. Not only that, but we have also held that “[w]here 

the court has just engaged in a lengthy discussion of the sentencing factors in explaining the 

sentence itself, it is generally clear that the decision to impose a consecutive sentence is based on 

the same factors.” United States v. Briggs, 543 F. App’x 583, 584 (6th Cir. 2013) (per curiam)

(citing United States v. Cochrane, 702 F.3d 334, 346 (6th Cir. 2012)). Although the court did not 

explicitly reference section 7B1.3(f), it referred to “any guideline policy statements that pertain” 

to the supervised release violation. This of course includes Section 7B1.3(f), so the reference 

suffices. See United States v. King, 914 F.3d 1021, 1025–26 (6th Cir. 2019) (finding reference to 

a supervised release violation report that cited section 7B1.3(f) was sufficient even though court 

did not otherwise cite it). This issue is also without merit.

4

III.

The judgment of the district court is AFFIRMED.

3 Although “the advisory provision in § 7B1.3(f) of the Sentencing Guidelines appears to make consecutive sentencing 

in the revocation setting mandatory, we have held repeatedly that the statutory provision controls the determination, 

making it discretionary and based on the same § 3553(a) sentencing factors that guide the length of sentence.” United 

States v. Watkins, 515 F. App’x 556, 559 (6th Cir. 2013) (per curiam) (collecting cases) (footnote omitted).

4 At oral argument defense counsel asserted that Morton’s sentence was procedurally unreasonable because at 

sentencing he was blindsided by the government when it played a video of Morton in a fight while in the county jail 

awaiting sentence. Although Morton referenced the sentencing incident in his appellate brief, he did not develop any 

argument on this basis. Thus, any such claim is forfeited. See Goff v. Nationwide Mut. Ins. Co., 825 F. App’x 298, 

305–06 (6th Cir. 2020).