NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0945n.06 No. 10-5891 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA,

Plaintiff - Appellee ,

v. MYRON YOUN G,

Def endant - Appellant. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI S T RI CT COURT FOR THE WES TERN DI STRI CT OF KE NTUCKY

OPI NI ON

Before: SUHRHEINRICH, STRANCH, and DONALD, Circ uit Jud ges. JANE B. STRANCH , C i rc uit J udg e. My ron Young appea ls his jury conviction for conspirac y to d i s t ri b u t e more than fifty g rams of cra ck coca ine, as well as the enhanc ed statutory mandatory minimum sentenc e of life imprisonment the district c ourt imposed. Be cause the issues raised on a

ppeal a re w ithout merit, we AF F IRM

. I. F ACTS AND P ROCEDURAL HISTORY A fede ral g rand jury indicted Young , his son, Z acha ry Young , Donnie Wil liams, and Br itney Wil liams on one count of drug conspirac y under 21 U.S.C. §§ 841(a) (1) and 846. The g overnme nt later dismiss ed the char g e ag ainst Br itney Wil liams, and Donnie Wil liams enter ed a g uilty plea. Both of them testified ag ainst Young and his son at a jury trial, as did L aura Callison E dwar ds Watson, a confidential infor mant for Ke ntucky

State Police Detec tive Tim Si mpson.

1Watson first met My ron Young more than twenty y ear s ag o. She had p u rchased powder

coca ine from him for y ear s. I n J anuar y 2008, Watson purcha sed cra ck coca in e fr o m Yo u ng and beca me sever ely addicted. Be tween J anuar y and April 2008 , s h e s p en t thousands of dollars, including her own funds and “buy ” money provided to her by Detec tive Simps on, to purcha se cra ck

coca ine from Young and his son. Watson descr ibed the rela tionship betwee n the Young s as “pre tty much a partne rship.” She boug ht cra ck coca ine from both of them, and if one did not have any cra ck to sell, he direc ted Watson to contact the other to make a pur chase

. I n Marc h and April 2008, Watson made numero u s controlled purcha ses of cra ck coca ine from the Young s in her role as a confide ntial informant. The police rec orded h er t el ep h o n e calls with the two men; sear ched her body and her car befor e and afte r the drug buy s; documented the state’s “buy ” money by rec ording the serial numbers of the bills in advanc e of the drug deals; fitted Watson with a wire for au d i o re co rdi ng s; documented some of the drug deals on video and in photogr aphs; and c onducted surve illance dur ing the drugdeals. On Marc h 18, Wats o n p ai d My ron Young $100 for 605 milli g rams of cra ck coca ine. On M ar ch 2 0 and 21, Watson asked My ron Young to sell her one-quar ter ounce t o one-ha lf ounce o f

cra ck. Young asked Watson if she was working with the pol ice, but Watson assure d him that she was not. Young sold W atson 5.40 g rams of c rac k coca ine. On Marc h 24, W at s on went to Z acha ry Young ’s apar

tment, wher e she paid Z acha ry ’s
g irlfriend, Br itney Wil l i am s , $ 1 0 0 while Z acha ry retrie ved the drug from another room. When Watson handed her

purcha se to Dete ctive Simpson, he rea liz ed that Z acha ry had sold Watson one g ram of powder coca ine. At Detec tive Simps on’s direc tion, Watson called Z acha ry and told him that she would kee p the powder and cook it into cra ck, but the next tim e she w anted c rac k.

2On Marc h 25, Watson called My ron Young to buy cra ck coca ine. Young met Watson in his
g ara g e, wher e he sold her 1.38 g rams of cra ck for $220. L ater the same day , Watson called My ron Young asking for more cra ck coc aine, but he told her he wa s in Tennessee . Young asked W atson
to wait for his return, but when she “showe d impatience,” he told her to contac t Z acha ry . Soon afte r this conver sation, Z acha

ry called Watson, but the police direc ted her not to answe r the call. My ron Young then called Watson asking why she did not take Z acha ry ’s call. At that point, Watson called Z acha ry to arr ang e for the purcha se of one-e ighth ounce of cra ck. Z acha ry asked Watson when she planned to pay the $120 she owed him and she promised to bring the money . Watson then went to Z acha ry ’s re sidence wher e she boug ht 1.613 gr ams of cr ack c ocaine

. On Marc h 27, Watson called My ron Young to buy one-qua rter o u n ce of cra ck. Young delivere d 4.28 g rams of c rac k to Watson’s apartment in exchang e for $400. A black ma le rode in the vehicle with My

ron Young

. On Marc h 29, Watson ag ain called My ron Young asking to buy onehalf ounc e of c rac k for $800. Younginstructed Watson to come to his house for the deal. Young direc ted Watson to lift her shirt so he could see if she was wea ring a wire. Not finding the wire, he sold W atson 9.28 g rams of c rac k coca ine. On April 8, Watson called My ron Youn g and asked to buy one-e ighth ounce of cra ck

coca ine. Young raised the price from $220 to $230. Watson went to Young ’s house as direc ted, but Young was dig g ing a

ditch. Donnie Willi ams dropped 2.35 g rams of cra ck into Watson’s car a nd told her to put her money in the g love on the picnic table. On April 9, Watson called Z acha ry Young
to buy cra ck. Z achar y , Br itney Wil liams, and an unidentified bl ack male delivered 1.51 g rams of

cra ck coc aine to Watson.

3On April 11, Watson called My ron Young asking to buy one-qua rter ounce of cra ck. Young told Watson to g o to his house wher e “Squirrel” (Donnie Wil liams) would g et the cra ck for her. When Watson arr ived at Young ’s house, Wil liams told her to g et the cra ck out of a cup in the office and to put her $420 into the cup. On April 14, Watson ag ain called My ron Young to buy cra ck. He told her to g o to his house and “see Marc o.” Watson met Marc o Mitchell in the g ara g e wher e he
g ave he r 3.98 g rams of c rac k in exchang e for $420. On April 16, Watson asked My ron Young to sell her one-qua rter ounce of cra ck coca ine for $420. Young first told Watson th at t h e coca ine was still in powder form and the cra ck was not

rea dy

. L ater , afte r Young finished cooking the coca ine powder into cra ck, he delivere d 3.90 g rams of cr ack to Watson at her apar tment. On April 18, Watson asked My ron Young to sell her one ounce of cra ck for $800, but Young did not think he had an ounce to se ll. L ater that day , Young offe red to sell Watson one-ha lf ounce

o f powder coca ine, but Watson declined beca use of the price

. Young explained t o W at s o n t h at Don n i e W i lliams had been his cra ck coca ine cook, but that Wil liams could not work for him
any more beca

use Wil liams te sted positive f or drug s while on probation. When Watson stated that she did not want to buy

powder coca ine, Young ag ree d to c ook the coca ine into c rac k himself and he deliver ed 8.28 g rams of c rac k to Watson at a bowling a lley parking lot. Watson went to My

ron Young ’s house on April 23 wher e she purcha sed 1.34 g rams of cra ck for $230. On April 25, Watson met My ron Young in an Auto Z one parking lot wher e she purcha sed

one-e ighth ounc e of c rac k for $230. Watson talked to My

ron Young on April 26 about buy i n g one-e ighth ounce of cra ck, but Young said he did not have any and to call Z acha ry Young

. When Watson could not rea ch Z acha ry

4by phone, she called My ron ag ain. He told her he had only p o wd er co ca ine. A short time later, Watson made a deal to buy $225 of cra ck from Z acha ry . Watson did not have enoug h money , so she
met Z acha

ry later in the day to pay him t h e re s t of what she owed. The last controlled drug buy

occur red on April 28. Watson boug ht one -quar ter ounce of cra ck from My ron Young at his house for $420. The next day , the police executed sear ch war rants at the residenc es o f M y ron Young and Z acha ry Young

. My

ron Young was prese nt an d co o p era tive during the sear ch of his home and
g ara g e. He showed the police wher e to find illega l drug s and cash proce eds. Police seized 60.189
g rams of powder coca ine, 7.731 g rams of cra ck coca ine, eig hty -eig ht hy drocodone p i l l s , digital scale s, over $3,340 in cash, and blue paper towels like the ones Young had used to wra p cra ck

coca ine that he de livered to Watson. Z acha ry Young and Br itney Wil liams wer e prese nt during the sear ch of their home. Offic ers found 93.13 g rams of powder coca i n e, 918 milli g rams of cra ck coca ine, digital scale s, one hy drocodone pill, 0.7 g rams of marijuana , a partially smoked marijuana cig are tte, and three $20 bills with serial number s that matched buy money Watson had used to purcha se drug s. At trial Donnie Wil li am s t estified that he conspired with My ron Young and others to knowing ly and intentionally distribute coca ine base. Athoug h Wil liams minimi zed his participa tion in the conspirac y , he admitted that My ron Young contac ted him on April 8 and 11, 2008, and asked him to make drug deliverie s to W atson. Br itney Wil liams testified that she acc ompanied Z acha ry Young when he went to his fathe r’s h o u s e “w i t h m oney and left with coca ine.” Z acha ry g ave about half the money he ear ned sellin g drug s to his fathe r to purcha se more coca in e. She estimated that Z acha ry sold fiftee n bag g ies of

5coca ine a day based on the number of telephone calls he rec eived. She identified photogr aphs kept

at their residenc e that showed Z acha ry holding coca ine and a brown paper bag full of money that he made by selling coca ine. Br itney testified that she par ticipated in Z acha

ry ’s drug sales beca

use he

was phy sically abusive to her an d fo rc ed h er to assist him. She also knew that Z acha ry cooked

coca ine into cra ck, but she ne ver w atche d him do it. Z acha ry Young testified in his own defe nse that he w as addic ted t o drug s and that he used approximately one gra

m of cocaine eac h day

. He claimed t hat Britney was also addicted and t hat they used drug s toge ther. By the time the sear ch war rant was executed, they wer e using two to three
g rams of c ocaine per day

. He denied abusing Britney , and he denied any involvement in the drug deals except for “dea ling with [W atson] direc tly .” He claimed that he used drug s with Watson and loaned he r money . My ron Young did not testify

. The district court denied Young ’s m o t i o n s for judgme nt of acquittal. Whil e the jury was delibera ting, Z acha ry Young enter ed a g uilty plea. The jury convicted Young of enga g ing in a conspiracy to distribute at l east fifty gra m s of crack coca ine. The dist rict
court imposed the statutory mandatory minimum sentenc e of life imprisonment ba sed on Young ’s prior fe lony

drug convictions, and this appea l followed. II. ANALYSIS Young raises f

our issues on appe al. We examine eac h issue in turn. A. Suf fi ciency of the evidence 1. Standard of review We revie w de novo the district court’s denial of a motion for judgme nt of acquittal. United States v. Salgado , 250 F.3d 438, 446 (6th Cir. 2 0 0 1 ). T o ev aluate whether the t rial evidence was

6sufficie nt to convict, we must consider “whe ther, afte r viewing the eviden ce i n t h e light most

favor able to the prosec ution, any rational trier of fac t could have found the essential elements of the crime bey ond a rea sonable doubt.” Jack son v. Virginia , 443 U.S. 307, 319 (1979). Although more than a scintilla of evidenc e is nece ssary , a sufficie nt verdic t may be based on entirely circ umstantial evidenc e and the jury need not rule out completely other possi biliti es besides g uilt. United States

v. Sherlin , 67 F.3d 1208, 1214 (6th Cir. 1995); Salgado , 250 F.3d at 446. I n evalua t i n g t h e sufficie ncy of the evidenc e, we do not weig h the evidenc e, assess the cre dibilit y of the witnesses, or substitut e our own judgme nt for that of the jury

. Salgado , 250 F.3d at 446. We dr aw all available infere nces a

nd resolve a ll credibility

issues in favor of

the jury verdic t. Id. 2. The evide nce was sufficient to convic t Y oung of drug conspiracy To establish the exis tence of a conspirac y under 21 U.S.C. § 846, the g overnme nt is require d
to prove bey ond a rea sonable doubt: “(1) an ag ree ment to violate drug laws; (2) k n owledg e and intent to join the conspirac y ; a nd (3) participa tion in the conspirac y .” Id

. An ag ree ment to violate the drug laws does not have to be express or formal; it is enoug h for the g overnme nt to show a tacit

or mutual understanding among the partie s . Un ited States v. Caver , 470 F.3d 220, 233 (6th Cir. 2006). Yet the evidenc e must demonstrate t h at the defe ndant had knowledg e of the object of the conspirac y and consciously committed himself in further ance of that object. Id. Conspiracy can be inferr ed throug h circ umstantial evidenc e, including evidenc e of repe ated purcha ses, or evidenc e of a lar g e quantity of drug s. Id. A defe ndant’s mere prese nce at a crime scene is not enoug h to draw

a link, but a defe ndant’s participa tion in a conspirac y may be inferr ed from his actions and rea ctions
to the circumstances. Salgado , 2 5 0 F.3d at 447. Whil e the g overnme nt must prove the exis tence

7of the conspirac y bey ond a rea sonable doubt, the defe ndant’s connec tion to the conspirac y need only

be slig ht. United States v. Gibbs , 182 F.3d 408, 422 ( 6th Cir. 1999). Young contends that the gover nment did not prove that he entered into an agr eeme nt with another person to distr i b ute cra ck coca ine. He arg ues, corr ectly , that his participa tion in a drug conspirac y could not be proved by his distribution of drug s to the confide ntial informant, see United States v. Rogers , 118 F.3d 466, 477 (6th Cir. 1997), and he alleg es that he mere ly supplied drug s to Z acha ry in a buy er- seller rela tionship for eventua l distribution to customers, see United States v. Anderson , 89 F.3d 1306, 1310 (6th Cir. 1996) (noting settled principle that mere sales do not prove the exist ence of a c onspiracy ). Reviewing the evidenc e in a light favor able to the verdic t, we cannot ag ree with Young ’s char acte ri z at i on of the evidenc e. Young ’s business rela tionship with his son, Z acha ry , was more than a simple buy er- seller rela tionship. The jury hear d evidenc e that Young and his son coordina ted d ru g d eals with Watson, and if they did so with her, the jury could rea sonably infer t h at t h ey

co o rd inated drug deals with other customers as well. I f one did not have any drug s to s el l , h e ref err ed the business to the other. When Young was out-of-state and Watson was impatient to obtain

cra ck coca ine, Young ref

err ed her to Z acha

ry , but Watson did not call Z acha ry to arr ang e for a drug purcha se; Z acha

ry called her. The jury could rationally infer from this sequence of events that Young called his son and direc t ed h i m to sell cra ck coca ine to Watson. When Z acha ry called Watson, the police instructed Watson not to answe r the ca l l

. Yo u n g t hen contac ted Watson and wanted to know why she ignor ed Z acha ry . The jury could logic ally infer that Z acha ry told his fathe r he could not rea ch Watson, which prompted Young to ca l l W at s o n himself. This exchang e of telephone calls indicates that Young and his son enter ed into a n ag ree ment to se ll c rac k coca ine to

8Watson, and Young was not simply supply ing his son with illega l drug s to sell to his own customers.

The district court instructed the jury on the l aw applicable to conspirac y , as well as buy er- seller rela tionships, and the court explained to the jury that a mere buy er- seller rela tionship was not enoug h
to return a

g uilty verdic t. By

convicting Young , the jury obviously

reje cted his theory that he wa s only a supplier, a

nd not a co- conspirator

in a cha in conspirac y . See Caver , 470 F.3d a t 233–34. I n addition, there wer e other co-c onspirators who assisted Young in d i s t ributing cra ck

coca ine t o Watson. Donnie W illiams was a cr ac k coca ine “cook” for Young

. Wil liams admitted that he enter ed into a drug conspirac y with Young to sell cra ck coca ine. He descr ibed how Young
contac ted him for assistance to provide cra ck to Watson and collect her pay ments on two occa sions when Young was not available to cond u ct t h e sales himself. The jury judge d the cre dibilit y of Donnie Willi ams and may well have deter

mined that he wa s another c o-conspira tor to Young

. Additional co-c onspirators wer e Br itney Wil liams and Marc o Mitchell. Wil liams admitted that she assisted Z acha

ry Young in distributing coca ine to Watson and in collect i n g W at s o n ’s
pay ment. She also admitted that she was i n i t i all y char g ed as a co-c onspirator, but that the
g overnme nt dismissed the char g e ag ainst her. Mitchell sold Watson cra ck coca ine at the direc tion of My ron Young. Thus, there wer e at lea st two, and perha ps three or m ore, other m ember s of t he drug conspirac y

involved in sales to Watson. The jury was a lso entitled to take into acc ount as evidenc e of conspirac y the repe ated drug purcha ses Watson made when she was not acting in the rol e o f a confide ntial informant for the police. Watson expl ained that her addiction was so seve re tha t she made a dditional crac k coca ine purcha ses from My

ron Young during the same time period she was making underc over buy s for the police, even though the office rs direc ted her not to make purcha ses for her persona l use. Watson

9also testified that she used the money the police paid her for acting as a confide ntial informant to buy

more c rac k coca ine from My ron Young for he r own pe rsonal use. I n addition, the conspirac y i n v o l v ed a larg e quantity of powder and cra ck coca ine, even excluding the amounts Watson p u rc h as ed as a confide ntial informant. Watson testified that she obtained powder coca ine from Young “for y ear s,” and Br i t n ey Wil liams estimated that Z acha ry Wil liams sold fiftee n bag g ies of coca ine eac h day

. Z acha ry obtained the coca ine he sold from My ron Young

. Thus, the jury could proper ly infer that some unnamed co-c onspir ator supplied My ron Young and the c onspiracy with a larg e quantity

of coc aine f

or distribution. Young contends that his case is like United States v. L o g a n , 3 72 F. App’x 601 (6th Cir. 2010), whe re this court reve rsed a drug conspirac y conviction for insufficient e vidence . The fa cts of Logan are distinguishable from the fac ts here

. Logan involved only two underc over drug purcha ses, and this court he ld that the gover nment did not produce suf ficient e vidence to show an
ag ree ment among the alleg ed co-c onspirators. Id. at 605–06. The court found the g ov er n m ent’s evidenc e in Logan to be “conside rably less” than the court found to be sufficie nt in other case s, such

as United States v. Robinson , 547 F.3d 632, 640–41 (6th Cir. 2008), Caver , 470 F.3d at 233–34, and Uni ted St ates v. Henley , 360 F.3d 509, 513–14 (6th Cir. 2004). Id. at 606. We con cl u d e t h at t h e prese nt case is more like Robinson , Caver, and Hen l ey than Logan. The g overnme nt proved that multipl e drug transac tions took place and that My ron Young had other co-conspira to rs , i n cluding
at a minimum : his supplier; his son, Z acha ry Young ; Donnie Wil liams; Marc o Mitchell; and Br itney Wil liams. Young has not car

ried his heavy burden to demonstrate that the evidenc e was insufficient to
prove conspirac y . See Salgado , 250 F.3d at 446. A rational trier of fac t co u l d h av e fo u n d the

10essential elements of the crime bey o n d a reasonable doubt. See Jack son , 443 U.S. at 319. Acc ording ly , we a ffirm on this issue. B. Mistrial sua spon te 1. Standard of review We ordinarily revie w a district court’s denial of a motion for a mistrial under an abuse of discretion standard. United States v. Howard , 621 F.3d 433, 458 (6th Cir. 2010). Young ’s counsel did not move for a mi strial. Thus, the par ties ag ree that the applicable s tandar d of review is plain

err or. See Caver , 470 F.3d at 245. Young must show an err or, that was plain, and that aff ecte d his substantial rig hts. I f he satisfies those three fac tors, he must also show that th e er ror seriously aff ecte d the fairne ss, integ rity , or public reputa tion of judicial proce eding s. United States v. Thomas , 11 F.3d 620, 630 (6th Cir. 1993). “Plain err or is define d as an eg reg ious err or, one that direc tly leads to a miscarr iag e of justice.” United States v. Busac ca , 863 F.2d 433, 435 ( 6th Cir. 1988). 2. Y oung did not sati sfy the plain error standard Young contends that the district court shou l d h ave g rante d a mistrial sua sponte afte r the
prosec utor elicited certain testim ony from Detective Si mpson, who appeare d as t he gover nment’s first witness. During Detec tive Simps on’s direc t examination, the g overnme nt intr o d u ced numerous audio rec ording s of Watson’s control le d drug purcha ses from My ron Young

. On cross-e x amination, defe nse counsel questioned how Detec tive Simps on rec og nized Young ’s voice on the audiotapes. On redire ct examination, Detec tive Simps on testified that he had known Young since the mid-1990' s in a “professional” and “law enforce ment context,” and that he had hear d Young ’s v o i ce “seve ral times” over that ten-y ear period during drug investiga tions. W h en t h e prosecutor asked i f Young

was an informant or a suspect in those investiga tions, Detec tive Simps on answe red, “He would have

11been a s uspect.” When the prosecutor asked Detec tive Simps on to g ive t he n u m b er o f such prior

investiga tions, defense counsel objec ted, prompting the cour t to call a benc h confe renc e. At the sidebar, the prosec utor explained that his line of questioning was intended to respond
to the cross-e x amination, but the district court advised him to “lea ve it alone.” Def ense counsel did
not move to strike any part of Detec tive Simps on’s prior testimony , nor did he reque st a mistrial or

a cura tive instruction. When the trial resumed, the district court did not state on the rec ord that the defe nse objec tion had been sustaine d, but the prosec utor moved on to a diff ere nt topic. I n evalua ting the claim raised for the first time on appea l that the district c ourt should ha ve g rante d a mistrial sua sponte , we ask whether th e ch al l en ged testimony was improper, and if so, whether it “‘w as so clea

rly improper and prejudicia l to the def endant[] that the harm could not be

era sed by any instruction which the court might g ive.’” Howard , 621 F.3d at 458–59 (quoting United States v. Smith , 601 F.3d 530, 538 (6th Cir. 2010)). I n making this det er m i n at i on, we consider five fac tors: “ ‘(1) whether the rema rk was unsolicited, (2) whether the g overnme nt’s line

o f questioning was rea sonable, (3) whether the limit ing instruction was immediate, cle ar , an d forc eful, (4) whether any bad faith was evidenc ed by the gover nment, and (5) whether the remark

was only a small part of the evidenc e ag ainst the defe ndant.’” Id. at 459 (quoting Zuern v. Tate , 336 F.3d 478, 485 ( 6th Cir. 2003)). Ap p l y i n g these factors, we first conclude that the prosecutor elicited Detec tive Simps o n ’s testimony

. Second, though we find the prosec utor’s questioning about the “drug investiga tions” to be troubling, his line of questioning was not unrea sonable as a response to the cross-e x amination of the wit ness. Reg arding the fourth fac tor, there was no need f or the prose cutor to repeat Detective Simps on’s testimony for emphasis, but this rec ord does not supp o rt a deter mination that the

12prosec utor acte d in ba d faith. Moreove r, defe nse counsel’s objection broug ht a n end to the line of questioning, and the district court was not obliga ted to strike any of the prec eding testimony or issue

a cura tive instruction beca use no defe nse reque st was made. We find the fifth fac tor weig hs heavily for the g overnme nt beca

use this portion of Detec tive Simps on’s testimony was only a small part of the other ample evidenc e prese nted ag ainst Young

. See United States v. Forrest , 17 F.3d 916, 921 (6th Cir. 1994). Under these circ umstances, we cannot say that the district court was fac ed with a “manife st

nece ssity ” requiring a mistrial. See United States v. Cameron , 953 F.2d 240, 244 (6th Cir. 1992)

. Young has not car

ried his high burden to establish plain err or that aff ecte d his substantial rig hts and that seriously aff

ecte d the fairne ss, integ rity , or public reputa tion of judicial proce eding s. Thomas , 11 F.3d a t 630. We affirm on this issue. C. Jury instruction 1. Standard of review Be cause Young did not object below to the instruction he now challeng es on appea l, the plain

err or standard applies. See Thomas , 11 F.3d at 630. We revie w the jury instructions “as a whole in order to deter

mine whether they fairly and adequately inform the jury of the rele vant considerations and provide a sound explana tion of the applicable law to aid the jury in rea ching its decision.” United States v. Harrod , 168 F.3d 887, 890 (6 t h C i r. 1999) (quoted case and internal quotation marks omitted). We will reve rse a conviction based on an improper jury instruction only if the instructions, viewed a s a whole, w ere confusing , misleading , or pre judicial. Id. at 892.

132. The court properly instructed the jury

Young arg ues that t he district court err ed in g iving I nstruction Number 6, which was patterne d afte r Six th Circuit Pattern Criminal J ury I nstruction 8.08. The instruction as rea d to the jury provided: Remember that the defe ndants are only o n trial for the particula r crime char g ed in the indictment. Your job is limited to de ciding whether the g overnme nt has proved the crime char g ed. Also reme mber that whether any one else is prosec uted and convic ted for this cr ime is not a proper matter for

y ou to consider. The possi ble gui l t of ot hers is no defe nse t o a criminal char g e. Your job is to decide if the g overnme nt has proved eac h defe ndant g uilty

. Do not let the possible g uilt of others influence y our dec ision in any way . I n United St ates v. L arch , 399 F. App’x 50, 55–56 (6th Cir. 2010), t his court considered a version of this instruction g iven to a jury

. The court acknow ledg ed that the instructi o n co u l d be misleading in case s wher e the defe ndant claimed that someone else committed the crime. Id. at 55. But as in Larch , the case before us was not about m istaken i dentity o r al ibi. Young arg ued to the jury that he did not conspire with any one else to distribute drug s, not that he did not eng ag e in drug
transac tions at all. Young repe ats this ref rain on appea l by contending that “these other individuals participa ted in drug transac tions to an ex t en t far g rea ter than the circ umstantial and innuendo evidenc e conc erning Mr. Young .” Appe llant’s Br . at 34. The instruction appropr iately advised the jury that its obliga tion was to “dete rmine whether the evidenc e conclusively proved the defe ndant g uilty of the char g ed offe nse and that it should not permit the possible additional criminal liability of others to influence its decision.” See Larch , 399 F. App’x at 55. Under t h e fac ts of t he case and in the contex t of t he other instructions g iven, t his i n s t ru ct i o n protec ted Young by preve nting the jury from finding him g uilty based solely on th e criminal conduc t of others. Young has not shown plain er ror.

14D. Sentencing enhan cem ent

1. Standard of review “[A] failure to eng ag e in the colloquy require d by section 851(b) is subject to harmless err or analy sis.” United States v. Denk ins , 367 F.3d 537, 549 (6th Ci r. 2 004) (quoted case and internal quotation marks omi tted). Under harmless error, the go v er n m en t has t he burden to show that the alleg ed err or did not aff

ect Young ’s substantial rig hts. Be ca u s e Yo ung did not object below, howeve r, the g overnme nt corr ectly contends that this issue is subject to plain err or revie w. United States v. Craft , 495 F.3d 259, 265 (6th Cir. 2007). Under plain err o r revie w, Young car ries the burden to show that the alleg ed err or aff ecte d his substantial rig hts. I n any event, the standard to be applied does not impac t the result bec ause Y oung ’s substantial rig hts were not affe cted. 2. Y oung made no attempt to challenge his prior convictions At the time of sentenc ing, the drug statute requir ed a ma ndatory minimum sentenc e of life imprisonment beca

use the offe nse involved 50 g rams or more of cra ck coca ine and Young had been convicted previously of numerous felony drug traff icking offe nses. 21 U.S.C. § 841(b)( 1)(A)

. The
g overnme nt filed a sentenc ing enhanc ement information under 21 U.S.C. § 851 alleg ing eig ht prior felony drug convictions. The statute imposes a duty on the district court, afte r conviction but befor e pronounce ment of sentenc e, to inquire if the def endant a ffirms or de nies the prior c onvictions alleg ed in the § 851 information. 21 U.S.C. § 851(b). The court must a lso advise the def endant that a

ny objection not raised befor e sentenc e is imposed may not there afte r be raised to attack the sentenc e. Id. The district court did not follow this statutory proce dure.

15The § 851 information and the prese ntence repor t informed Young that he fac ed a mandatory life sentenc e as a

result of his prior f

elony drug convictions, but Young did not make any eff ort to challeng e those convictions. I t appea rs that any challeng e would have been barr ed by the statute of limit ations beca

use the convictions occur

red in 1993, 1997 and 1999, and the § 851 information was filed in Marc h 2010. See 21 U.S.C. § 851(e) (bar ring challeng es to convictions occur ring more than five y ear s befor e the date of the information alleg ing the prior convictions). There fore , we conclude , under ha rmless err or or plain e rror revie w, that Young ’s substantial r ights we re not a ffe cted whe n the district court did not follow the statutory proce dure. Finally , Young as k s us to revie w our prec edent subjecting § 851 err ors to harmless err or revie w, citing Denk

ins and United States v. Hill , 142 F.3d 305, 313 (6th Cir. 1998)

. We cannot rea ch
t h i s issue, howeve r, beca use one panel of the court may not overr ule decisions issu ed b y o t h er panels. United States v. W ashington , 127 F.3d 510, 517 ( 6th Cir. 1997).

CONCLUSION For all of the re asons stated, we AFF I RM Young’ s conviction for drug conspirac y and the statutory mandatory

life sentenc e the district cour t imposed.

16