NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 12a1039n.06 No. 10-4145 UNITED STAT ES COURT OF AP P EALS FOR THE SI XTH CI RCUI T UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. FARI D MOHAMMED, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE SOUT HERN DI STRI CT OF OH I O

Be fore : KEITH, BOGG S, and MOORE, Circuit Judges. P ER CURIAM

. Def

endant- Appellant Fa

rid Mohammed appea ls his jury conviction and
sentenc e for possession of heroin with intent to distri b u t e in violation of 21 U.S.C. §§ 841(a) (1), (b)( 1), and possession of a firea rm in further ance of a drug traff icking crime in violation of 18 U.S.C. § 924(c) (1)( A)(i)

. Mohammed argues that: (1) the sear ch of his apar tment was unconstitutional; (2) the district court abused its discretion in denying his reque st to fil e a s ec o n d motion to suppress challeng ing probable cause for his arr est; (3) there was insufficient evidenc e to support his firea rm conviction; (4) hear say testimony at trial violated his Six th A mendment rig ht to confr ontation; ( 5) photogr aphs wer e improperly admitted into evidenc e; (6) his statement to the police deny ing that he had drug s on his pe rson violated his F ifth Amendment rig ht to an attorney ; ( 7) he was entitled to a reliability hear ing to test the vera city of a jailhouse informant; (8) the Gover nment violated his Six th Amendment rig ht to c ounsel by using a jailhouse informant to e licit incr iminating statements; andNo. 10-4145

United States v. Farid Mohamm ed Pag e 2 (9) his sentenc e was both proce durally and substantively unrea sonable. For the following rea sons,

we AF F IRM. I

. A. On J uly 21, 2009, the Central Vi ce C o ntrol Section of the Cincinnati Police Depa rtment conducte d a “buy -bust operation,” intending to arr est Def endant- Appellant Fa

rid Mohammed afte r police surveillance reve aled a drug transac tion betwee n Mohammed and a confide ntial informant. The informant told Cincinnati police office rs that Mohammed, operating un d e r the alias “Qua n,” had heroin available for purcha se. The informant reve aled to police office rs that: (1) Mohammed lived in an apar tment on 2704 Eden Avenue ; (2) Mohammed d ro v e a s ilver Merc edes Be nz and a blue L exus; (3) the informant arr ang ed for Mohammed to deliver heroin to a lot behind a Shell g as station

on Ohio Avenue ; and (4) Mohammed would arr ive at the Shell g as station i n his silver Merc edes Be nz. One of sever al rec orded phone conver sations captur ed the informant asking Mohammed whether he was “re ady to do the car th[ i] ng .” Mohammed responde d by asking , “You g ot it? ” The informant then told Mo h am m ed , “I go t t h e car . We g otta probably g o g et the title

. . . .” The informant then inquired if he and Mohammed wer e “still g onna do the same thing we talked about.” Mohammed replied, “Ye ah, y eah, same thing .” Another rec orded conver sation captur ed simil arly

co d ed dialog ue expressing an intention to “do the car th[ i] ng ,” althoug h none of the rec orded

conver sations capture d any express mention of drug s. Around 6:25 p.m. on the evening of J uly 21, 2009, Mohammed drove to the Shell station parking lot in a silver Merc edes Be nz with a passeng er. After Mohammed arr ived, Offic er Howar dNo. 10-4145

United States v. Farid Mohamm ed Pag e 3 Fox drove the informa n t t o the parking lot in a blue Cadillac. Upon noticing the Cadillac, Mohammed wave d his hands and beg an walking towards the Cadillac. As Mohammed rea ched his hand out to open the Cadillac door, Offic er Fox drove awa y and the other office rs moved in to arr est Mohammed. The a

rre sting off

icer s first asked whether Mohammed had any drug s or wea pons on his person. Mohammed denied having drug s or wea pons. The o ff

i ce rs re ad Mohammed the Miranda war

nings a nd questioned him a

bout his car . Mohammed indicate d to the office rs that he had a g un in his car . After conducting a sear ch of Mohammed and his car , the office rs rec overe d a set of key s from Mohammed’s person and a loaded .45-ca liber handg un from the cente r console of the backse at of Mohammed’s car . Offic ers then asked Mohammed wher e he resided. Mohammed,
not mentioning his Eden Avenue apar tment, claim ed t o re s ide in New J erse y while sometimes stay ing in West C h es ter, Ohio. The office rs conducte d a K9 sniff of the Merc edes Be nz. When Offic er Br ian Trotta direc ted the drug K9 around the vehicle, the drug K9 g ave a clea r and ag g ressive indication on the driver and passeng er side doors; howeve r, no drug s wer e found during the sear ch of the Mer cede s Be nz. The office rs went to 2704 Eden Avenue and located Mohammed’s blue L exus parke d at the intersec tion of Charlton Avenue and Eden Avenue

. The office rs conducte d a K9 sniff of the L exus and the same drug K9 g ave a clea r and ag g ressive indication on the driver- side and passeng er- side doors. The office rs used the key s they had seized from Mohammed to enter the common entry door of the apar

tment b u i l d i n g at 2704 Eden Avenue

. Once inside the common are a of the apar tment building, the office rs ag ain conducte d a drug K9 sniff of the door of Apar tment 2, wher e MohammedNo. 10-4145

United States v. Farid Mohamm ed Pag e 4 resided. The same drug K9 that conducte d the other two drug sniffs ag ain g ave a clea r and ag g ressive indica

tion on the apar

tment door. Ba sed on the fore g oing information, t h e o ff i cer s obtained a sear ch war rant to sear ch Mohammed’s apar

tment. During the sear ch, the office rs re c o v e r ed a total of 883.61 g rams of heroin. The office rs found heroin pellets i n the bedroom vent, the bedroom closet, and a shoebox in the family room. Offic ers also rec overe d a digital scale , a kil o wra pper, and ammunition of t he same make a nd model that was in the fir ear m rec overe d from the Me rce des B enz.

B. On Aug ust 5, 2009, Mohammed wa s i n d icted on one count of possession with intent to distribute one kilogr am or more of her oin in violation of 21 U.S.C . §§ 841(a) (1) a nd (b)( 1)(A)

. On October 19, 2009, Mohammed fi l ed a m o tion to suppress all evidenc e obtained at his apar tment, claiming t h at the office rs’ war rantless entry into the common are a of his apar tment building violated the Fou rt h Amendment. The district court denied the motion on November 25, 2009, finding that althoug h the office rs’ entry into the common ar ea v i o l ated the Four th Amendment—base d on our ruling in United States v. Carriger , 541 F.2d 545 (6th Cir. 1976)—there

was sufficie nt probable cause to support the sear ch war rant when the tainted portions of the sear ch

war rant we re e x cised. On J anuar

y 27, 2010, afte r the officia l drug weig ht reve aled that the total a mount of heroin

was less than o n e k i l o gram, a fede ral g rand jury returne d a superse ding indictment that char g ed Moh am m ed wi t h p ossession with intent to distribute one hundred g rams or more of heroin in violation of 21 U.S.C. § 841(a) (1) and (b)( 1)(B ). The superse ding indictment al s o ad d ed a newNo. 10-4145

United States v. Farid Mohamm ed Pag e 5 char g e of possessing a firea rm in further ance of a drug -tra ff i ck i n g crime in violation of 18 U.S.C. § 924(c)(1) (A)( i). On Marc h 1, 2010, Mohammed filed his second motion to suppr ess, challeng ing his arr est, the subsequent sear ch of his car, an d h i s statements claiming owner ship of the g un. The district
court denied the motion based on M o h am m ed ’s failure to raise such issues in his first motion to suppress. After a j u ry co n v icted Mohammed on both counts, he filed a motion for judgme nt of acquittal, claiming that there was insufficient evidenc e for the jury to find him g uilty of possessing

a fi rea rm in further ance of a drug -traf ficking crime. The court denied the motion and s en t en ce d Mohammed to a total of 157 months in prison. This appea l followed. I I

. Mohammed ra ises numerous issues on appe al. We addre ss eac h one in turn. Search of Moham m ed’s Apartm ent Mohammed arg ues t hat t he dis trict court erre d in failing to suppress all evidenc e obtained during the sear ch of his a

partment. The district c ourt found that the off icer s’ entry

into the loc ked

co mmon are a of Mohammed’s apar tment building prior to obtaining a sear ch war ra n t wa s unconstitutional. The court conclu d ed , h o wever, that when all the evidenc e obtained from the unconstitutional entry

was excised from the sear ch wa rra nt—namely

the testing of the lock on the apar tment door and the K9 sniff at Mohammed’s door—the war rant was still supported by probable

cause . At oral argument, Mohammed asser ted for the fi rs t time that the district court err ed in concluding that untainted portions of the sear ch war rant supported a find i n g o f p robable causeNo. 10-4145

United States v. Farid Mohamm ed Pag e 6 beca use the untainted p o rt i o n s o f the sear ch war rant did not indicate Apar tment 2 as the subject apar tment to be sear ched. The Gover nment contends that Mohammed lacks standing to c halleng e the sea rch of the apa rtment afte r purpor

tedly disclaiming know ledg e of the building. We revie w a district court’s denial of a motion to sup p re ss for clea r err or as to fac tual finding s and de novo as to conclusions of law. United States v. Howard , 621 F.3d 433, 450 (6th Cir. 2010). As an initial matter, we find that the district court corr ectly applied our holding in Carriger
to conclude that th e p o l i ce office rs unconstitutionally enter ed the locked common are a of Mohammed’s apar

tment building without a war rant. I n Carriger , we held that a tenant in an apar tment building has a rea sonable expectation of privac y in the common are as of the building not open to the g ener al publ i c an d that an office r’s entry into a locked apar tment building without
consent or a warra

nt constitutes an illeg al entry in violation of t he Fourth Amendment. Carriger , 541 F.2d at 549-50. When the office rs enter ed into the locked common are a of 2704 Eden Avenue without permission, exigenc y , or a war rant, they eff

ecte d an unco n s t i t u t i onal sear ch based on the principle set forth in Carriger

. See United States v. Heath , 259 F.3d 522, 534 (6th Cir. 2001). We have sinc e re peate dly

applied the r easoning and holding of Carriger as controlling l aw. See, e.g. , United States v. Dillard , 438 F.3d 675, 683 (6th Cir. 2006) ; Heath , 259 F.3d at 533; United States

v. Salgado , 250 F.3d 438, 456 n.3 (6th Cir. 2001); United States v. Kimber , 395 F. App’x 237, 246No. 10-4145

United States v. Farid Mohamm ed Pag e 7 (6th Cir. 2010). We decline to disturb this well-settled law even though “[t] he United States believes that Carriger and Heath wer e incor rec tly decide d.” Appellee Br . at 30.

1 We next evalua

te whether t he dis trict court properly applied t h e i ndepende nt-source rule. Under the independe nt-source rule, evidenc e obtained pursu ant to an unconstitutional sear ch will be admitted if the Gover

nment shows that it was discovere d throug h source s wholly independe nt of any constitutional violation. United States v. Jenk ins , 396 F.3d 751, 757 (6th Cir. 2005). “[P] olice who car ry out a sear ch that they should not have car ried out should be put in the same, but no worse , position than they would have been absent any err or or misconduct.” Id. at 758 (empha sis i n orig inal). Where, as in this case , a warra nt was obtained based upon information l ear ned through an improper

sear ch, cour

ts consider whe ther the a

pplication for a

war rant c ontains probable c ause apar t from the tainted information. Id. at 760. Her e, this inquiry require s excising the t ai nted information lear

ned throu gh t h e unconstitutional entry into Mohammed’s apar tment building: (1) that the drug K-9 ale rt ed at the door of Apar tment 2, and (2) that the key s obtained from Mohammed cor

responde d with the lock on the Apa rtment 2 door. We conclude that the untainted information contained in the war rant still supports a finding of probable cause—a “rea sonable grounds for belief, supported by less than prim a facie proof but

more than mere suspicion.” United States v. McClain , 444 F.3d 556, 562 (6th Cir. 2005) (quoting United States v. Ferguson , 8 F.3d 385, 392 (6th Cir. 1993) (en b an c) ). We consider, based on a

I ndeed, it is bey ond our province to rec onsider Carriger and Heath , for it is well established 1 that “[a] published prior panel decision ‘r e ma in s c o n tr o ll in g authority unless an inconsistent decision of the United States Supreme Court re q u i re s m o dification of the decision or this Court sitti ng en banc overr

ules the prior decision.’” Rutherford v. Columbia Gas , 575 F.3d 616, 619 (6th Cir. 2009) (quoting Salmi v. Sec ’y of He alth & Human Serv s. , 774 F.2d 685, 689 ( 6th Cir. 1985)).No. 10-4145

United States v. Farid Mohamm ed Pag e 8 prac tical, common-sense decision, whether the circumstance s set forth in the af fidavit established

a fair probability that contra band or evidenc e of a crime would be found in Apar tment 2. See United States v. Carpenter , 360 F.3d 591, 594 (6th Cir. 2004) (quoting Illinois v. Gates , 462 U.S. 213, 238- 39 (1983))

. To justify a sear ch, t h er e m u s t b e a “nexus betwee n the place to be sear ched and the evidenc e soug ht.” Carpenter , 360 F.3d at 594. “[A]n issuing judge may infer that drug traff icker s

use their homes to store drug s and otherwise further their drug traff icking .” Un i t ed States v. W illiams , 544 F.3d 683, 687 ( 6th Cir. 2008). Wit h the assistance of a confide ntial informant, the police had rec orded phone conver sations in which Mohammed and the confide ntial informant p u rp o rtedly arr ang ed for the delivery of an amount of heroin. Nea

rly all of the informant’s information was corr oborate d by subsequent events. The informant told the office rs that he and Mohammed had arr ang ed for the delivery of heroin and that Mohammed would ar ri ve in a newe r silver Merc edes Be nz. On the night of the “buy -bust,” althoug h Mohammed did not possess heroin, he did arrive at the pre deter mined location driving a 2002 silver Merc edes Be nz. A trained and reliable drug K9 aler ted office rs of the prese nce of the 2 odor of drug s on Mohammed’s Merc edes, and later on the blue L exus. The confide ntial informant also corr ectly

informed the of

fice rs of Mohammed’ s residenc e at 2704 Ede n Avenue

. Mohammed argues that the untainted aff idavit does not support a finding of probable cause beca use there would be no information that would link Mohammed to Apar tment 2. We disag ree . I t is true that by eng ag ing the key in the tumbler, the office rs wer e able to confirm that Mohammed

was linked to Apar

tment 2; howeve r, this does not mean that t he office rs did not have rea son to

The district cour

t made an e x press finding that the drug K9 was r eliable. R. 21 at 15. 2No. 10-4145

United States v. Farid Mohamm ed Pag e 9 believe that Mohammed lived in Apar tment 2 apar

t from this confirma tion. To the contra ry , Offic er Schaible testified at the suppression hear ing that in using Mohammed’s key s to unloc k Apar tment 2, the office rs wer e “attempting to corr oborate the information that [t hey had] rec eived t h at Mr. Mohammed resided at that apar tment

. . . .” I t is also appar ent from the rec ord that the office rs did
not use Mohammed’s key s in a fishing expedition to find which apar tment he resided in, but instead
went direc tly to Apar

tment 2. Under the independe n t -s o u rc e rul e, we do not excise the fac t that Mohammed resided in Apar tment 2 b eca

use the office rs had an independe nt source for this information apa

rt from having use d Mohammed’s ke y s to unlock the door. Mohammed also attacks the sear ch war rant for failing to establish the confide ntial informant’s history of reliability

. “When confr onted with he arsa y information from a confide ntial informant, ‘a court must consider the vera city , reliability , and the basis of k n o wl edg e for that information as a part of the totality of the circ umstances for evalua ting the impact of that information

. . . .’” United States v. Frazier , 423 F.3d 526, 532 (6th Cir. 2005) (quoting United States v. Helton , 314 F.3d 812, 819 (6th Cir. 2003)). Whil e the war rant does not speak to the informant’s history or past re l ati onship with office rs, the vera city of the information is sufficie ntly established by the subsequent eve nts corrobor ating the informant’ s information. We conclude that the untainted aff i d avit contains sufficie nt probable cause to justify the

sear ch of Mohammed’s apartme n t

. We there fore aff irm the di strict court’s judgment deny ing the motion to s uppress. 3

Be cause we find that the independe nt-source rule s av es t h e sear ch war rant, we do not 3 addre ss the Governm en t ’s alternative arg uments for affirma nce: that Mohammed l acke d standing to challeng e the sear ch, and that the office rs acte d in g ood faith relianc e on the sear ch war rant. WeNo. 10-4145

United States v. Farid Mohamm ed Pag e 10 Second Motion to Su

ppress Mohammed contends that the district court abused it s d is c r e ti o n w h en it dismiss ed his second pretria l motion to suppress, which was filed afte r he was char g ed in a superse ding indictment. We ag ree that the district court abused its discr etion and should have considere d Mohammed’s second motion to suppress. When the g rand jury returne d a superse ding indictment three mont h s af ter M o h am m ed fi l ed his first motion to suppress, Mohammed was fac ed with the new char g e of possessing a firea

rm in further ance of a drug -traf ficking crime, which car

ried a five-y ear consec utive
sentenc e. Mohammed filed a second motion to suppress on Marc h 1, 2010, and, for the first time, challeng ed probable cause for his arr est and the sear ch of his vehicle. H oweve r, pursua nt to Rul e 12(c) of the Fe dera l Rules of Criminal Procedur e, the district court established the deadline for filing pretria l motions to be Octobe r 21, 2009. I n dismiss ing Mohammed’s second motion to suppress, the d istrict court rea soned that Mohammed had “the opportunity and obligation” to challeng e the probable cause for his arr est and

car sear ch during his first motion to suppress filed on Octobe r 1 9 , 2 0 0 9

. The dist rict court found Mohammed’s case to be “almost identical” to United States v. Jones , No. 3:07-CR-162, 2009 WL 973206, (E.D. Tenn. April 9, 2009), whe re the district court simil arly denied leave to file a postdeadline, pretrial moti on to supp re s s based on the defendant foreg oing an opportuni ty to raise the

note, howeve r, that this court has never h el d that disclaiming residenc y at a particula r place exti ng uishes standing to challeng e an unconstitutional sear ch of that re s i d ence . Moreove r, it is unclea r t o what ex tent Mohammed ac tually disclaimed his connec tion with 2704 Eden Avenue in his circ uitous and misleading answe rs to the office rs’ questions. See United States v. Brown , 64 F.3d 1083, 1085 (7th Cir. 1995) (“[A] misleading response to an office r’s question is a far cry from a consent to sear ch.”)

. I n fac t, the district court acknow ledg ed that Mohammed ultimately conce ded that he lived on Ede n Avenue . R. 73 at 8.No. 10-4145

United States v. Farid Mohamm ed Pag e 11 challeng ed issues befor e the deadline. We find the Jones case to be distinguishable from Mohammed’s case . I n Jones , the d ef en d ant had orig inally filed a pretria l motion to suppress, alleg ing an illega l de tention, se arc h, and arr est. The defe ndant there afte r filed an untimely motion
to supp re s s b o t h t h e evidenc e seized in the same traff ic stop at issue in the orig inal motion, and evidenc e seized as a result of a dog sniff. The only discerna ble explanat i o n fo r t h e defe ndant’s untimely motion was to allow the defe ndant’s third appointed counsel to relitigat e t h e p retria l motions filed by the defe ndant’s first attorney

. The district court ultimately denied leave to file the untimely motion to suppress, citing strong policy considerations supporting that decision. See id. at *4. Her e, Mohammed had the opportunity to challeng e his arr est and car sear ch during his first

m o t i o n to suppress, but he did not have the obligation to do so. Mohammed’s co u n s el understanda

bly focuse d on challeng ing the sear ch of the apar tment, which formed the basis of Mohammed’s then-sole char g e of possessing heroin with an intent to distribute. I t was not until the g rand jury returne d a superse ding indictment adding a firea rm char g e that the sear ch of his car , which produce d the firea

rm and no heroin, beca

me rele vant. Rule 12(e) of the Fe dera l Rules of Criminal Procedur e provides that a defe ndant waives a motion to suppress for failing to raise it befor e the deadline set by the district court; howeve r, “[f]or g ood cause , the court may g ra n t relief from the

wa i v er . ” Fed. R. Crim. P. 12(e)

. At a minimum , g ood cause require s a party to “ar ticulate some leg itimate explanation for the failure to timely file.” United States v. W alden , 625 F.3d 961, 965 (6th Cir. 2010). Her e, we find “g ood ca u s e” t o i n cl u de a situation wher e the failure to raise a pretria l motion to s uppress is base d on its lega l irreleva nce to the pe nding c harg es.No. 10-4145

United States v. Farid Mohamm ed Pag e 12 Although we believe that the district court abused its discretion in deny ing Mohammed the opportunity to file a second motion to suppress, we conclude that the err or was harmless. See Fe d. R. Crim. P. 52(a) (“A ny err or, defe ct, irregularity , or varia nce that does not aff

ect substantial rig hts
must be disreg arde d.”). As noted by the district court, the events that supported a finding of probable

cause to sear ch Mohammed’s apar tment larg ely coincide with probable cause to arr est Mohammed, which in turn allowed the police to sear ch his car incident to the arr est. Probable cause to arr est Mohammed wa s based on the c orrobor ated testimony of the infor

mant, as discussed e arlier

. Moham m ed’s Motion for Acquitt al Mohammed challeng es the sufficie ncy of evidenc e leading to his conviction on possession of a f irea rm in further ance of a dr

ug -traf fickingoffe nse. “When the suf ficienc y of the evidenc e is challeng ed on appea l, the standard of revie w is whether , afte r viewing the evidenc e in the light most favor able to the prosec ution, any rational trier of fac t could have found the essential elements of the crime.” United States v. Jones , 102 F.3d 804, 807 (6th Cir. 1996) (quotation marks and citations omitted). The court makes “all rea sonable infere nces and cre dibilit y choice s in support of the jury ’s verdic t.” United States v. Springer , 609 F.3d 885, 891 (6th Cir. 2010) (quotation marks and citations omitted). The jury

instructions read: I n order to establish that the Def endant is g uilty of t h i s offe nse, the g overnme nt mus t p ro v e bey ond a reasonable doubt eac h of t he following essential elements: First: T h at t h e Def

endant committed the drug traff icking crime char g ed in Count 1, for which he is being prosec uted in a cour t of the United States; Second: That the D efe ndant knowing ly possessed a f

irea rm; andNo. 10-4145

United States v. Farid Mohamm ed Pag e 13 Third: That the Def endant possessed the firea rm i n furtheranc e of the drug traff icking crime c harg ed in Count 1. The jury was further instructed that the prese n ce o f a fi re arm cannot be the result of acc ident or coincidenc e, and in finding that the firea rm was possessed “in further ance of,” the jury could consider whether the g un was loaded, the leg ality of its possession, and the time and circ umstances under which the firea

rm was found. See United States v. Mack ey , 265 F.3d 457, 462 (6th Cir. 2001). “B y requiring that the possession be ‘in further ance of’ the drug crime, Congr ess intended a specific nexus between the g un and the crime charg ed.” Id. The firear m must be “strate g ically

located so that it is qui ckly

and ea sily

available for use .” Id. Mohammed ar g ues that bec ause the handg un was found in his ca r, a conside rable distance from the heroin rec overe d from his apar tment, the evidenc e prese nted at trial was insufficient to show that the possession of the handg un was “in further ance ” of a drug -traf ficking crime. We disag ree . A rational jury viewing the evidenc e in the light most favor able to the prosec ution had ample evidenc e upon which they could find that Mohammed possessed the firea rm in further ance of drug traff icking

. The jury

hear d testimony and rec orded calls sug g esting that Mohammed was g oing to sell heroin to a confidential informant. Mohammed brought a loaded .45-c aliber Taurus handgun
to meet the confid en t i al informant at a prede termined location for a purported drug transac tion. Offic er Hubbard testifi ed t h at the handgun recove red from the center console in the backseat was “ver y acc essible” to Mohammed be cause the ca r wa s a two-door

car . Additionally , the jury hear d testimony from s ev er al office rs that drug deale rs commonly possess and car ry firea rms to protec tNo. 10-4145

United States v. Farid Mohamm ed Pag e 14 themselves and their narc otics. Although heroin was not rec overe d from Mohammed’s Merc edes 4

at the buy -bust, a drug sniff by the K9 indicated the scent of drug s on the Merc edes, wh er e t h e Taurus was rec overe d. The jury also hear d testimony that Mohammed had heroin in his vehicle but decide d to take the dr

ug s back to his apa

rtment at t he last minute. Police office rs recover ed more than 800 g rams of heroin from Mohammed’s apar tment. In the same apar

tment, the police rec overe d

a loaded mag azine that matched the Tauru s h an d g un rec overe d from Mohammed’s vehicle. Moreove r, the jury saw photogr aphs of Mohammed posing in his apar tment with a larg e amount of cash and a handg un rese mbling the Taurus handg un rec overe d from his car . The prese nce of drug s,

a handg un, and a larg e amount of cash would allow a rational jury to conclude that Mohammed used the handgun for protec tion in conducting drug sales. Fur ther, a rational jury could conclude that the g un was strateg ically located in the Merc edes so as to be ea s i l y acc essible to Mohammed in further ance of his drug sale. We there fore aff irm the district court’s denial of Mohammed’s motion for a cquittal. Moham m ed’s Motion for a Mistri al Based on th e Confrontat ion C lause Mohammed argues that his Si x th Amendment rig ht to confr ontation was violated when prosec utors introduced hear say testimony of a confide ntial informant who did not testify at trial. He thus contends that the district court abused its discretion by not g ranting a mistrial. M o h am m ed claims that prosec utors purposely eli cited the informant’s hear say testimony from police office rs

Mohammed cites Mack

ey to disc o u n t p o l ice testimony on this point, but Mohammed’s 4 relianc e on Mack

ey is misplaced. Mack

ey only counsels that “ standing on its own , [pol ice testimony reg ard i n g d ru g deale rs’ use of firea rms] may be insufficient to meet the ‘in further ance of’ test.” Mack ey , 265 F.3d at 462 (quoting H.R

. Rep. No. 105-344, 1997 WL 668339 at *12) (empha sis added) . Her e, the police testimony cer tainly was not the sole c onsideration by the jury

.No. 10-4145

United States v. Farid Mohamm ed Pag e 15 when they

had knowledg e, bef

ore the prese ntation of opening statements, that they would not call the conf idential informant to testify

. We revie w an evidentiar

y ruling rela

ted t o claimed violations of t he C onfrontation C l ause de novo . United States v. Robinson , 389 F.3d 582, 592 (6th Cir. 2004). The Gover nment contends that Mohammed failed to object to cer tain statements and that we should there fore revie w for plain

err or. See United States v. Hadley , 431 F.3d 484, 498 (6th Cir. 2005). Howeve r, a revie w of the

rec ord reveals that Mohammed’s attorn ey did indeed make num erous objections to the admis sion of testimony based on the sole knowledg e of a non- testify ing c onfidential informant. As such, we revie w Mohammed’s claims de novo . Testimonial out-of-c ourt statements offe red to e stablish the truth of the matter asser

ted are admissible only whe n (1 ) t h e d eclarant is unavailable and (2) the defe ndant had a prior opportunity to cross-e x amine the decla rant. See Crawf

ord v. W ashington , 541 U.S. 36, 53-54 (2004). “[S] tatements of a confide ntial informant are testimonial,” United States v. Cromer , 389 F.3d 662, 675 (6th Cir. 2004), howeve r, the Confrontation Clause “does not bar the use of testimonial statements for purposes other than establishing t h e t ru t h of the matter asser ted,” Crawf ord , 541 U.S. at 59 n.9. Mohammed ci t es as err or the admission of the following testimony elicited by the Gover nm en t during the examinations of Offic ers Fox, Schaible, and Hubbar d: (1) Mohammed’s nickname is “Qua

n”; (2) Mohammed was the voice on the other end of the rec orded phone calls with the informant; (3) M o h am m ed and the informant neg otiated a deal to exchang e the Cadillac and money for heroin; (4) the dr ug deal wa s to take plac e in the g rave l lot of the Shell Ga s Station; (5) the g rave l lot was the place wher e Mohammed and the informant met befor e; (6) the drug transac tionNo. 10-4145

United States v. Farid Mohamm ed Pag e 16

was to be for one hundred g rams of heroin; and (7) Mohamm ed is a larg e-sc ale drug deale r. The third throug h seventh enumer ated statements wer e objected to, the objection was sustained, and the
statements wer e stricken from the rec ord. The district court also instructed the jury to disreg ard eac h of the statements that wer e stricken from the rec ord. “The assumption that jurors are able to follow the co u rt ’s i n s t ructions fully applies when rig hts g uara nteed by the Confrontation Clause are at issue.” Tennessee v. S t r ee t , 4 71 U.S. 409, 415 n.6 (1985). This presumption is overr idden “only when t h er e is a strong likelihood that the eff ect of the evidenc e would be devasta ting to the defe ndant and

. . . there is an over wh elm ing probability that the jury will be unable to follow the court’s instructions.” W

ashington v. Hofbauer , 228 F.3d 689, 706 (6th Cir. 2000) (interna l quotation marks and citations omitted). Her e, there is neith er a “s t ro n g likelihood” that the eff ect of the stricken testimony was devasta ting to Mohammed’s defe nse nor an “over whelming probability ” that the jury was una ble to follow the cour

t’s direc tive. The first two statements that wer e not str i ck en fr o m the rec ord violate the Confrontation Clause. See United States v. McG ee , 529 F.3d 691, 698 (6th Cir. 20 0 8 ) (f i n d i n g a Confrontation Clause violation wher e police t es t ified to a confide ntial informant’s out-of-c ourt statements identify ing the defe ndant as the person he talked to on the phon e and with whom he arr ang ed the drug deal)

. The statements wer e testimonial, see Cromer , 389 F.3d at 675, beca use the confide ntial informant communicated the s t at ements to the police anticipating their use ag ainst Mohammed during the pending investiga tion and subsequent prosec ution. The statements wer e also out-of-c ourt sta t em en t s u s ed to prove the truth of the matter asser ted—that Mohammed’s street name was “Qua n,” and that his voice was captur ed in the rec orded phone calls. I t is undisputed thatNo. 10-4145

United States v. Farid Mohamm ed Pag e 17 M ohammed did not have a prior opportunity to cross-e x amine the confide ntial informa n t. V io la ti o n s of the Confronta tion Cl ause, how ever , are subject to harmless- err or ana ly sis. McG ee , 529 F.3d at 697 (citing C

h a p ma n v. Calif

ornia , 386 U.S. 18, 22-23 (1967)). “Err ors are harmless in terms of their eff ect on the fac tfinding proce ss at trial wher e the revie wing court may confide ntly say , on the whole rec ord, that the constitutional err or was harmless bey ond a rea sonable doubt.” Id. (quotation marks and citations omitted). I n deter mining whether an err or was harmless, courts consider: (1) the importance of the witness’s testimony in the prosec ution’s case; (2 ) wh ether the testimony was cumulative; (3) the prese nce or absenc e of evidenc e corr oborating or contra dicting the testimony of the witness on materia l points; (4) the extent of cross-e x amination otherwise permitted, and (5) the

o v er al l s treng th of the prosec ution’s case . Delaware v. Van Arsdall , 475 U.S. 673, 684 (19 8 6 ). The testimony that Mohammed went by the ali as “Q u an ” was not a critica l fac t in the prosec ution’s case . Howeve r, the identification of Mohammed as t he voice on the recorde d tapes

was important to the prosec ution’s case to the extent that the rec orded conver sations sug g est that a drug sale was to occur at the Shell station betwee n the two people conver sing. Yet, as helpful as it may have been, this evidenc e was not indispensable to the prosec ution’s ca s e beca use there was other corr oborating evidenc e indicating that Mohammed intended to sell heroin to the confide ntial informant at the Shell g as station. For example, Sami Elias, a jailhouse informa n t, testified that Mohammed t old him how he in i t i all y planned to meet the confide ntial informant with the heroin, but the n chang ed his mind last minute and left the he roin at his apar tment. Additionally , the larg e

amou n t o f h er oin located at Mohammed’s apar tment toge ther with the evidenc e that Mohammed

arr ived at the Shell station, wave d his arm upon seeing the Cadillac, and moved to open the CadillacNo. 10-4145

United States v. Farid Mohamm ed Pag e 18 door, further supports the conclusion that Mohammed was the person the confi d en t i al informant communicated with in the rec orded phone conver sations. I n light of the whole rec ord, we conclude that the Confrontation Clause err ors wer e harmless, and the district court there fore did not err by not decla ring a mistrial. Prosecutorial Miscondu ct Mohammed alleg es that t h e Gover nment eng ag ed in prosec utorial misconduct during its opening statement and throug hout the trial by purposely eliciting hear say statements from its witnesses when it knew that the confide ntial informant was unavailable

. A district court’s denial of

a motion for mistrial b as ed o n prosec utorial misconduct is revie wed for an abuse of discretion. United States v. W

hite , 563 F.3d 184, 193 (6th Cir. 2009). We first look at whether the prosec utor’s behavior was improper. Id. We then evalua te whether the rema rks wer e flag rant and war rant

reve rsal. Id. “To de termine the flag ranc y of t he prosecutor’s remar ks, we look at (1) whether the
statements tended to mislead the jury and prejudice the defe ndant; (2) whether the statements wer e isolated or perva sive; (3) whether the statements wer e deliberat el y p lace d befor e the jury ; and (4) whe ther the e vidence ag ainst the ac cused is other wise strong .” Id. Mohammed contend s that during opening statements, the Gover nment stated that the jury woul d h ea r evidenc e that Mohammed arr ang ed to sell drug s in exchang e for a car and money . Mohammed alleg es that the Gover nment made this comment knowing that the confide ntial informant would not testify

. This argument is without merit. The Gover nment has maintained that
at the time of opening statements, it rea sonably expect ed that the confide ntial informant wouldNo. 10-4145

United States v. Farid Mohamm ed Pag e 19 t estify

. I n response to Mohammed’s alleg ations that the Gover nment eng ag ed in prosec utorial misconduct, both during opening statements and throug hout the trial, the district court obse rved:

I don’t think the j ury has been misled nor t he ac cu s ed prejudiced, and I am rea sonably convince d that the g overnme nt’s counsel did not delibera tely mislead the jury and had a rea sonable ex pecta tion that the confide ntial informant might be produce d. But even in the event that he wasn’t produce d, that was not critica l to the g overnme nt’s case

. As we look ba ck now, the case is strong ag ainst the Def endant. At the time the [mot ion for a mistrial] was filed, it wa s two hours of testimony under our belts, shall we say , and the only the sec ond witness.

. . . And I do ag ree wi t h [ the Government] that [ Frazier v. Cupp , 394 U.S. 731 (1 9 6 9 )] i s v er y close to our circumstance s here

. That was a case in which a rathe r important witness at the last minute decide d to stand on his Fifth Amendment rig hts and not testify , which the g overnme nt did not anticipate in that situation. And the court found that the prosec utor had acte d in g ood faith with the expectation that the witness would testify , and the [S upreme Court] conclude d the evidenc e prese nted on the re cord w as suffic ient to support the conviction. So the motion i s denied. . . . R. 78 at 161-63. The district c ourt acc urate ly descr ibed the Supreme Court’s holding in Frazier and did not abuse its discre tion by

finding that the circ umstances in Frazier wer e similar to the circ umstances in Mohammed’s ca se. To counter , Mohammed points to a colloquy betwee n the Gover nment and the district court in which the Gover nment explained that it rec eived a last-minute call from the confide ntial informant’s attorney , who stated that the confide ntial informant would not testify

. The Gover nment explained that, even at that point, it was still hopeful that the informant would testify , but those hopes just failed to mater ialize. Mohammed has not pointed to a ny evidenc e sug g esting that the Gover

nment falsified this e x planation, or otherwise acte d in ba d faith. There fore , we findNo. 10-4145

United States v. Farid Mohamm ed Pag e 20 that the district court did not abuse its discre tion in denying Mohammed’s motion for mistrial due to prosecutor ial misconduct. Adm ission of Photographs of Moh am m ed with Mon ey and a Gun Mohammed next claims that the distri c t court abused its discretion in admitting into evidenc e three photogr aphs of Mohammed posing with a stack of money and a g un sticking out of his pocket. I n all three photogr aphs Mohammed was standin g in h is a p a r tment. The photogr aphs wer e rec overe d from a digital came ra that was found in Mohammed’s apar tment during the sear ch. Mohammed arg ues that the photogr aphs wer e substantially more prejudicia l than probative and should not have been admitted. See Fe d. R. Evid. 403. Mohammed ar g ues that t he photos wer e admitt ed for “the sole purpose of

g etting the jury

to believe that the gun had been in the apar tment with the drug s at

some other time.” Appellant’s Br

. at 48. He further claims that the pho t o s risked provoking an emotional rea ction from the jury as they depicted “an Afric an Americ an male with a g un and striking a g ang ster pose.” Id. The dis t ri ct co u rt is “g rante d very broad discretion in deter mining whether the dang er of undue pre judice outweig hs the probative va lue of the e vidence .” United States v. Mac k , 258 F.3d 548, 555 (6th Cir. 2001) (interna l quotation marks and citation omitted). Her e, the district court did
not abuse i t s b ro ad discretion. We are not convince d that the photogr aphs’ probative value was “substantially outweig hed by a dang er of

. . . unfair prejudice .” Fe d. R. Evid. 403. The photogr aphs

wer e rele vant to both the § 841 and the § 924(c) counts beca use they purportedly : (1) identified the Taurus handg un found in the Merc edes Be nz as belong ing to Mohammed, wher eas Mohammed had sug g ested at trial that the firea rm found in his car may have belong ed to the passeng er; (2) showedNo. 10-4145

United States v. Farid Mohamm ed Pag e 21 that Mohammed possessed larg e amounts of cash; and (3) connec ted the larg e amount of cash and

a firea rm to the apar

tment wher e the heroin was found. Fur ther, we have rec og nized that “fire arms, as t ools of t he drug- traff

icking trade , are probative e vidence in drug prosec utions.” United St ates

v. W heaton , 517 F.3d 350, 364 (6th Cir. 2008). Mohamm ed does not cite any counter vailing prejud i ce that indicates the district court abused its discretion in admitting the photogr aphs. Acc ording ly , we a ffirm the district c ourt. Moham m ed’s Pre-Miranda Statem ents Mohammed ar g ues that the dist rict court err ed in denying a motion to suppress statements that he cla imed wer e made in violation of his Fifth Amendment rig hts. W e re view the denial of a motion to suppress for clea r err or as to fac tual finding s and de novo as to conclusions of law. United States v. Simpson , 520 F.3d 531, 534 (6th Cir. 2008). The district court found that Offic er Schaible place d Mohammed in handcuf fs and, befor e conducting a pat down, asked Mohammed whether he had any wea

pons, drug s, or an y

t h i n g s h ar p that would stick him. Mohammed denied having any contra band. There afte r, the office r conducte d a pat-down sear ch, and then rea d t h e Miranda

war nings to Mohammed. After Mohammed indicated that he understood the Miranda war nings, the office r asked Mohammed if there wer e any drug s or wea pons in his car , to which Mohammed replied that there was a

g un in the backse at console. Mohammed contests only the failure t o suppress his pre- Miranda statement that he ha d no drug s on his person. “[W ]hen office rs ask questions ‘nec essar y to secur e their own safe ty or the safe ty of the public’ as opposed to ‘questions desig ned solely to elicit testimonial evidenc e from a suspect,’ they do not need to provide the war nings require d by Miranda .” United States v. W illiams , 483 F.3d 425,No. 10-4145

United States v. Farid Mohamm ed Pag e 22 428 (6th Cir. 2007) (c i t i n g N ew Y ork v. Quarles , 467 U.S. 649, 659 (1984))

. This “public-sa fety exception” applies “whe n office rs have a re asonable belief ba sed on ar ticulable facts t hat t hey are in dang er.” Id. (interna l quotation marks omitted). I n W illiams , we established that an office r’s belief that he is in dang er is re as o nable only if the office r has rea son to believe “(1) that the defe ndant might have (or rec ently have had) a wea pon, and (2) that someone other than police might g ain ac cess to that we apon and inf lict harm with it.” Id. The district court co n cl u d ed “Of fice r Schaible had a rea sonable belief that Def endant prese nted a safe ty threa t,” by rea soning tha t “it is ge nera lly rec og nized that drug traff icker s have a propensity to car

ry wea pons,” R.38 at 4 (citing United States v. W illiams , 272 F. App’x 473, 477-78 (6th Cir. 2008)). We ag ree with the district court’s conclusion that Offic er Schaible had a rea son to believe that Mohammed, by the nature of his suspected drug dea l i n g, h ad a wea pon rea dily

acc essible. This rea sonable belief would war rant the office r’s questions reg arding a wea pon, but we have not specific ally addre ssed if questions about whether a suspect is car rying drug s or drug para pherna lia, i n anticipation of a pat down, are permissible under the public-saf ety exception. Other circ uits that have addre ssed this issue have found that these ty pe of preliminary questions are appropr iate under the public-saf ety exception. See United States v. Rey es , 353 F.3d 148, 152-53 (2d Cir. 2003) (collec ting case s) (upholding under the public-saf ety exception an office r’s question, just befor e a pat down, whether a suspected narc otics deale r had a ny thing in his pocke t that could hurt the office r, wher e the question was limit ed to objects located on the suspect’s person and prompted by a re asonable conce rn for the offic er’ s safe ty); United States v. Lacke y , 334 F.3d 1224, 1227- 28 (10th Cir. 2003) (off

icer ’s question befor e a pat down whether a suspect had g uns or any thing sharpNo. 10-4145

United States v. Farid Mohamm ed Pag e 23

on his person was proper under the publ i c- s af ety exception as the question addre ssed a rea l and substantial r isk of injury during a routine se arc h or fr isk); United States v. Carrillo , 16 F.3d 1046, 1049-50 (9th Cir. 1994) (off icer ’s question if suspect had drug s or needle s on his person met publicsafe ty exception beca

use it stemmed from objectively rea s o n a b le n e e d to protec t himself). “F irea rms

an d s h arp objects, such as razor blades and hy podermic needle s, are ‘tools of the drug tr ad e’ reg ularly found on narc otics t rafficke rs.” Rey es , 353 F.3d at 154. Simi larly to other circ uits, we conclude that t h e office r’s question whether Mohammed, a suspected heroin deale r, had drug para pherna lia on his person that could harm the office r in conducting a routine pat down stems from

an objectively rea sonable conce rn for t h e office r’s safe ty

. Acc ording ly , we find that the office r’s question was proper under the public-saf ety exception to the extent that it a sked about wea pons or other harmful objects. Even if we wer e to conclude otherwis e, the admission of Mohammed’s
statements in response to the office r’s pre- Miranda question perta ining to whether Mohammed had drug s or any

thing that could “stick” the office r are harmless. Mohammed responde d to the office r’s question in the neg ative. Surely , the admission of a statement that Mohammed did not possess drug s or drug para

pherna lia on his person does not pre judice his defe nse. A Reliabil

ity Hearing on Jailhou se Inform ant Mohammed argues that the district court abused its discretion in ref using to hold a reliability hear ing on jailhouse informant Sami Elias. We revie w a d i s t ri ct court’s decision to deny an evidentiar y hear ing for an abuse of discretion. Abdus-Samad v. Bell , 420 F.3 d 6 1 4, 626 (6th Cir. 2005). On the morning of trial, May 24, 2010, Mohammed made a motion to voir dire the jailhouse i n fo rm an t o u t of the prese nce of the jury to deter mine his reliability

. The district court made aNo. 10-4145

United States v. Farid Mohamm ed Pag e 24 “ten t at i v e ruling ” not to permit a reliability hear ing and advised the parties that “if something develops in the c ourse of

the trial, [the court] would revisit that issue.” R. 76. at 40. Mohammed failed to re new a

motion for a re liability

hear ing. Elias wrote a letter to the fede ral prosec utor offe ring valuable testimony , hoping to rec eive the Gover nment’s support for an ear ly termination of fede ral supervision during his probation. Elias testified that he was assi g ned to the same unit as Mohammed and that the two of them had

conver sations re l at i n g t o Mohammed’s char g es. Elias claimed that Mohammed reve aled how he planned to me et the confide ntial inf ormant to se ll him heroin, but ha d chang ed his mind at the last second abou t h i s decision to car ry the heroin to the meeting

. Mohammed cross-e x amined Elias, exposi ng Elias’s multipl e felony convictions and desire to rec eive favor ab l e consideration in a pending matter. Other than these traditional considerations of witness cre dibilit y , Mohammed does
not point to any particula r circ umstance that would compel the district court to hold a re l iability hear ing. Fur

ther, Mohammed points to no case law from this circ uit that require s the district court to hold a reliability hear ing for a jailhouse informant, nor a ny case law in w hich we have found an abuse of discretion for failing to hold a re liability hear ing. T he jury

was a llowed to weig h critica l aspec ts of the jailhouse informant’s cre dibilit y in r ender ing a verdic t. We se e no rea son to disrupt their verdic t. I n this case , the district court did not abuse its discretion in denying Mohammed a reliabili ty hear ing. This conclusion is bolstered by the fac t that Mohammed failed to rene w his motion for a re liability

hear ing. Jailhou se Inform ant an d Moham m ed’s Sixth A m endm ent Righ t to Cou nselNo. 10-4145

United States v. Farid Mohamm ed Pag e 25 Mohammed next claims that the “Gove rnment intenti onally cre ated a situation likely to violate Mohammed’s Six th Am en d m en t ri g hts when it kept Elias housed in the same unit with Mohammed afte r Elias co n t ac t ed the Gover nment about wanting to cooper ate in exchang e for leniency .” Appellant’s Br

. at 54. Be cause Mohammed did not argue this claim in the district court, it is subject t o plain-er

ror review. United St ates v. McAuliffe , 490 F.3d 526, 539 (6th Cir. 2007). “[O]nce a defe ndant’s Six th Amendment rig ht to counsel has attache d, he is denied that rig ht when fe d er al ag ents ‘deliber ately elicit’ i ncriminating statements from him in the absence of a lawy er . ” Kuhlmann v. W

ilson , 477 U.S. 436, 457 (1986). I n Kuhlmann , the Supreme Court obser ved: Since the Six th Amendment is not violated whene ve r

— b y lu c k o r h a

p p e nstance —the State obtains incriminating statements from the acc used afte r the rig ht to counsel has attache d[] a defe ndant does not make out a violation of that rig ht simply by showing that an informant, either throug h prior arr ang ement o r v oluntarily , repor ted his incriminating statements to the police. Rather, the defe ndant must demonstrate that the pol ice and th ei r informant took some action, bey ond mere ly listening, that was desig ned deliber ately

to elicit incriminating r emar ks. Id. at 459 (interna l quotation marks and citations omitted). We have held that absent “dire ct written

or ora l instructions by the S tate to a jailhous e informant,” age ncy is deter mined by analy

zing “the fac ts and circ umstances of a particula r case to deter

mine whether there exis ts an express or implied ag ree ment betwee n the State and the informant.” Aye rs v. Hudson , 623 F.3d 301, 311-12 (6th Cir. 2010). Under a plain-er

ror re v i ew , Mohammed cannot demonstrate that the Gover nment worke d with Elias to “deliber ately elicit” incriminating statements from him. To the contra ry , Mohammed voluntarily d is c u s s e d h is c ir cumstance s with Elias, and only afte rwa rds did Elias use this information

as barg aining power by writing a letter to the Gover nment explaining the valuable information thatNo. 10-4145

United States v. Farid Mohamm ed Pag e 26 he had. The Gover

nment contends that E l i as wr o te an unsolicited letter to the Assistant United States Attorney handling Mohammed’s case, and that the AUSA had no knowledge of Eli as prior
to r ece iving his le tter. Appellee Br . at 68. Ther e had been no previous rela tionship betwe en Elias and the Gover

nment beca

use prior to M o hammed’s case , Elias had never been a jailhouse informant. Id. Mohammed does not proff er evidenc e to rebut the Go v er n m en t ’s contentions. There is no indication in the rec ord that Elias obtained i n fo rm at i o n from Mohammed afte r meeting with the AUSA. Moreove r, nothing in the rec ord sug g ests that Elias’s trial testimony is based on information obtained after sending his letter to the AUSA. I n the abse nce of evidenc e to the contr ary , we find no plain err or. Sentencing: Procedural and S ubstan tive Unreasonableness Mohammed claims that his sentenc e was both proce durally and substantively unrea sonable. We revie w a sentenc e for proce dural and substantive rea sonablene ss u sing an abuse- of-discr etion standard of revie w. Gall v. United States , 552 U.S. 38, 46 (2007). A sentenc e within the Guidelines rang e is presu m ptively rea sonable. United States v. Vonner , 516 F.3d 382, 389 (6th Cir. 2008). Mohammed was sentenc ed to 157 months of imprisonment, which repr es en ted the bottom of the Guidelines rang e. Mohammed claims the court err ed by not g iving adequate considera tion to the fac t that failed plea neg o t i ati ons resulted in a superse ding char g e for firea rm possession. The district court obser

ved: [I ]t occur s to me that perha ps the g overnme nt offe red as a part of the Plea Ag ree ment that they would not char g e y our client with the g un count. And when he reje cted the Plea Ag ree ment, the g un char g e was, in fac t, taken to the g rand jury and added to the char g es pending , which doesn’ t sound terribly vindictive to me. . . .No. 10-4145

United States v. Farid Mohamm ed Pag e 27 R. 80 at 7. We ag ree with the district court, as our case law supports the conclusion that the Gover nment did not act vindictively

. See United States v. DeJ ohn , 368 F.3d 533, 545 (6th Cir. 2004) (“This Circuit has consistently indicated that when the rig ht asser ted by the defe ndant is simply the rig ht to g o to trial, an additional char g e enter ed afte r a failed plea barg ain cannot

. . . form the substance of a viable v i n d i ct i ve prosec ution claim.”)

. Acc ording ly , we reje ct Mohammed’s arg ument. Mohammed also claims that his sentenc e was substantively unrea sonable beca use the court failed to vary downwar d from the Guidelines rang e based o n M o h am m ed ’s arguments that his immigra tion status: (1) require s him to spend a longe r amount of time in prison than a s i m i l ar ly situated United States citizen, who, unlike Mohammed, would potentially be elig ible for a halfwa y house; and (2) makes him i n el igible for minimum -sec urity prison. The district court noted that deporta tion is mandato ry an d perma nent for felony drug convictions. The district court also

rec og nized that beca

use Mohammed is a deporta ble alien, he is subject to more restric tive terms of confine ment. The court further acknow ledg ed that his status as a deporta ble alien could be, in some

case s, an appropr iate basis for depar ture, but rea soned that it was not appr opriate in Moha mmed’s

case beca use his possession of a larg e amount of narc otics and possession of a firea rm could independe ntly rende r him ineligible for a minimum -sec urity prison. The district court also rea soned that beca use halfwa

y houses are intended for inmates who are about to re- enter the community , and Mohammed as a deporta

ble alien would not r e-e nter the community reg ardle ss of the leng th of his
sentenc e, it did not fee l compelled to g rant Mohammed a downwar d varia nce. Ultimately , the d is tr ic t court conclude d that the mitigation fac tors proff ere d by Mohammed wer e not compelling andNo. 10-4145

United States v. Farid Mohamm ed Pag e 28

wer e “substantially outweig hed by the s eriousness of his conduct.” R. 80 at 14. W e fi n d that the distri c t c o u

r t p r o p e r ly c o n s id e r e d Mohammed’s mitigation arg uments and did not abuse its discretion in declining to depar

t downwar d from the bottom of the Guide lines rang e.

I I I

. For the fore g oing r easons, we AF F IRM the judg ment of the district cour t.