NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0617n.06 Case No. 09- 5853 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT UNITED STAT ES O F AMERICA, P laintif f-App ellee,

v. MELVIN L. CROMER, Defendan t-Appellant.

_______________________________________ ) ) ) ) ) ) ) ) ) ) ) ON AP P EAL FR OM THE UNITED STAT ES DIS TRICT COURT F OR THE E ASTERN DISTRICT OF K

ENTUCKY

BEFORE: BATCHELDER, Chief Judge; ROGERS and S UTTON, Circuit Judges. ALICE M. B AT CHELDER, Chief Judge. A jury convicted Melvin Cromer on two counts: conspirac y t o d i stribute and to possess with intent to distribute methamphetamine in violation of 21 U.S.C. § 846, a nd trave ling in inter state commerc e to distribute methamphetamine in violation of 18 U.S.C. § 1952. The district c ourt sentenc ed him to 169 months in prison on one count and 60 months on the other, to r un concur rently . Cromer now a

ppeals. I. On November 1, 2006, Cromer and his friend, J ohn Watkins, wer e stopped by a police office r in Geor g ia beca

use their vehicle was n o t d i s p l ay ing a reg istration plate. The vehicle belong ed to Watkins, who was sitti ng in the passeng er seat; Cromer was driving

. The men wer e trave ling from Kentucky

. During the course of the traff ic stop, the police office r asked the men what broug ht them to Geor g ia. When they responde d with conflicting stories, the office r called a K-9 unit to sear ch the

car . Be fore the K-9 unit arr ived, W atkins told the officer that t h er e wa s methamphetamine in theN o . 0 9

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g love box

. Upon retrie ving the methamphetamine (620.0 g rams), the office r arr ested both Watkins and Cromer

. Ba sed in part on their knowledg e of Cromer’s arr est in Geor g ia, fed er al authorities in Kentucky applied for and rec eived a war rant to sear ch Cromer’s Kentucky residenc e. Whil e Cromer

was still in custody in Geor g ia, the authorities sear ched his residenc e and discovere d, among other things, a ref

urbished 1971 Ply

mouth Duster (“D uster”) in Cromer’s g ara g e. The office rs seized the Duster e ven thoug h the war rant did not specif

ically authorize that ac tion. Geor g ia subsequently dismiss ed the char g es ag ainst Cromer beca use the supervising police office r failed to appea

r at the probable cause hear ing. Upon returning to Kentucky , Cromer went to the DEA’ s office , seeking the re turn of t he Duster. The ag ents wer e busy when he arr ived, but he ag ree d to wait to speak to some one. Two ag ents eventua lly led Cromer to a n interview r oom near the lobby , wher e they told him that they could not rele ase his car and that he would have to file a claim throug h the appropr iate administrative proce dures. The y th e n a s k e d h im about his rec ent arr est in Geor g ia, pref

acing their questions with assura nces that Cromer was fre e to leave at any time and did not have to answe r them. C ro m er t o l d the ag ents that he had been trave ling with Watkins to repa ir the whee l bear ings on Watkins’ car . He also discussed his rela tionshi p with Watkins and mentioned that Watkins occa sionally g ave him methamphetamine as pay ment for debts Watkins owed him. On April 26, 2007, police interviewe d Watkins pursuant to a cooper ation ag ree ment. Watkins told the police that he and Cromer had trave led to Geor g ia to buy methamphetamine, which they planned to bring back to Kentucky for distribution. He explained that beca use he had bad vision 2N o . 0 9

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and did not want to risk driving himself, he hired Cromer to drive. Severa l months later, police also interviewe d a man named Michael J oe McFer ron, who consente d to discuss his knowl edg e of the drug -traf ficking activities of Watkins, Cro m er , and others. McF err on descr ibed various methamphetamine tr ansac tions in which Cromer and Watkins had bee n involved. A Kentucky g rand jury indicted Cromer and Watkins on various drug char g es. Watkins pled g uilty and subsequently cooper ated with the g overnme nt. Cromer pled not g uilty , proce eded to jury trial, and wa s convicted of conspirac y to possess with intent to distribute and to distribute methamphetamine (Cou n t 1 ), and trave ling in interstate commerc e with intent to distribute methamphetamine (Count 2). On both counts , Cromer’s offe nse level was 34 and his criminal history cate g ory was I , resulting in a Guidelines rang e of 151 to 188 months in prison. The statutory maxi mum for Count 2 was 60 months in prison. The district court sentenc ed Cromer to 169 months in prison on Count 1 and 60 months i n prison on Count 2, to be served c oncurr ently

. Cromer filed this timely appea l in which he challeng es various aspec ts of his conviction and sentenc e. II. Cromer first arg

ues that the district court’s jury instructions wer e err oneous beca use they did not require the jury to r eac h a unanimous verdic t on Count 1. Specifica lly , he take s issue with the district court’s instruction that: Count 1 of the indictment

. . . acc uses the defe ndant of comm i t t i n g the crime of conspirac y in more than one possible way . The first is that he possessed with the intent to distribute

. . . methamphetamine. The second i s that he distributed

. . . methamphetamine. The g overnme nt does not have to prove both of these for y ou to return a g uilty verdic t on this charg e. Proof bey ond a reasonable doubt on any one 3N o . 0 9

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of these is enoug h. But in order for y ou to return a g uilty verdic t, all 12 of y ou must ag ree that one of the se, at lea st one of these , has bee n proved. H oweve r, all of y ou need not a g ree that the same one has bee n proved. “This court revie ws jury instructions as a whole to deter mine whether they fairly and adequately inform the jury of rele vant considerations and explain the applicable law to assist the jury in rea ching its decis i o n . ” United States v. Ham , 628 F.3d 801, 810 (6th Cir. 2011) (empha sis in orig inal) (interna l quotation marks omitted). Reversa l is war rante d “only if the instructions, viewed

as a whole, wer e confusing , misleading , or prejudicia l.” United States v. Harrod , 168 F.3d 887, 892 (6th Cir. 1999) (interna l quotation marks omitted). The jury instruct ions wer e not err oneous. A conspirac y char g e under 21 U.S.C. § 846 require s the g overnme nt to prove three elements bey ond a rea sonable doubt: “(1) an ag ree ment to

v i o l at e d rug laws, (2) knowledg e and intent to join the conspirac y , and (3) participa tion in t h e conspirac y .” United States v. W elch , 97 F.3d 142, 148 (6th Cir. 1996); see also 21 U.S.C. § 846. Although a jury must unanimously find that the g overnme nt has proven eac h element of a crime, it “nee d not alway s decide unanimously which of sever al possible sets of underly ing brute fac ts make up a particula

r element, say , which of sever al possible means the defe ndant used to commit an element of the crime.” Richardson v. United States , 526 U.S. 813, 817 (1999). I n the context of § 846, there fore , the jury

need only

unanimously

decide that there was an ag ree ment to violate drug laws—in this case , 21 U.S.C. § 8 4 1 ( a ) ( 1 )

. Section 841(a) (1) criminalizes both possession with intent to distribute and distributing a controlled substance. Proof of a conspirac y to possess with intent to distribute methamphetamine an d to distribute methamphetamine are simply differ ent means of establishing a

violation of § 846. 4N o . 0 9

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Fur thermore , a defe ndant g ener ally is not entitled to a specific unanimity instruction unless “1) a count is extremely complex, 2) there is varia nce betwee n the indictment and the proof at trial,

or 3) there is a tang ible risk of jury confusion.” United States v. Sanderson , 966 F.2d 184, 187 (6th Cir. 1992). None of

those conditions is met in t his case, and C romer theref ore was not entitled to a spec ific unanimity

instruction. III. I n a simil ar vein, Cromer arg ues that his indictment was duplicitous beca use it char g ed two consp i ra cy offe nses. Count 1 char g ed him with violating 21 U.S.C. § 846 by conspiring to 1) possess with intent t o d i s tribute methamphetamine and 2) distribute methamphetamine. [R

. 106 (Superc edin g I ndictment) at 1.] Whether an indictment is duplicitous is a leg al question that we revie w de novo. United States v. Dav is , 306 F.3d 398, 415 ( 6th Cir. 2002). “An indictment is duplicitous if it se ts f orth separ ate and distinct c rimes in one count.” Id. Gene rally , “‘of

fense s are separ ate if eac h requir es p ro o f o f an additional fac t that the other does not.’” Id. at 416 (quoting 2 Charles Alan Wright & Arthur R. Miller, Fede ral Practice and Procedure § 142, at 17 (3d ed. 1999)). Howeve r, we have rec og nized a “distinction betwee n means and elements,” and “[i] t is not duplicitous to alleg e in one count that multipl e means have been used to commit a single offe nse.” United States v. Damrah , 412 F.3d 618, 6 2 2 -2 3 (6th Cir. 2005). I n conspirac y char g es, “the alleg ation, in a single count of conspirac y , of an ag ree ment to commit

sever al crimes is not duplicitous, as conspirac y is itself the crime.” United States v. Dale , 178 F.3d 429, 431 (6th Cir. 1999).

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Count 1 o f C ro m er ’s indictment is not duplicitous. I t char g ed him with a single crime: conspirac y . The fact that i t al l ege d differ ent obj ects of the conspiracy —possession with intent to distribute, and distribution

— d o es n o t re nder it duplicitous. Cf. United States v. W oods , 187 F. App’x 524, 528 (6th Cir. 2006) (holding that indictment char g ing conspirac y to possess with intent to distribute and to distribute drug s was not duplicitous beca use “it char g e[d] [t he defe ndants] with

a single conspirac y ”); Dale , 178 F.3d at 431-32 (holding that an indictment char g ing conspirac y to distribute two ty

pes of dr ug s was not duplicitous).

IV. Cromer’s nex t arg ument rela t es t o s t at ements t hat he made to fede ral ag ents at t he DEA’s office when h e attempted to rec laim his Duster. The district court denied his motion to suppress those statements. On appea l, Cromer arg ues that his statements wer e tainted fruit beca use the police unconstitutionally seized his car in an eff ort “to lure him into coming into the DEA[’s] office .” He claims that the police misconduct “over bore [hi s] will,” making the statements coer ce d an d involuntary

. Id. When re v i ewing the denial of a motion to suppress, we revie w the district court’s leg al conclusions de novo and its fac tual finding s for clea r err or. United States v. Navarro-Camacho , 186 F.3d 701, 705 (6th Cir. 1999). “A fac tual finding will only be clea rly err oneous when, althoug h there may be evidenc e to support it, the revie wing court on the entire evidenc e is left with the definite and firm conviction that a mistake has been committed.” Id. We view the evidenc e produced at t h e suppression hea

ring “in the lig ht most l ikely to support the district court’s decision.” Id. (interna l quotation marks omitted). 6N o . 0 9

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As an initial matter , we ag ree with the district c ourt’s conc lusion that Cromer ’s statements

wer e voluntary

. Voluntariness is a threshold for the admission of any confe ssion, Brown v. Illinois , 422 U.S. 590, 604 (1975), and is deter mined by examining “the totality of the circ umstances,” United States v. Rutherford , 555 F.3d 190, 195 (6th Cir. 2009)

. Her e, Cromer initiated the visit to the DEA’s office , voluntarily waited to speak to the ag ents, and fre ely answe red their questions despite being told that he was fre e to leave

. There is no evidenc e that the off i ce rs b ehave d in an objectively

coer cive wa

y or that Cromer’ s will was overbor ne. Nor do we find any merit i n C ro m er’ s arg ument that his statements should have been

s u p p r essed beca

use they are “fr

uits” of the unconstitutional seizure of his Duster. Assuming, w it h o u t d eciding, that the district court corr ectly conclude d that the seizure of the Duster was unconstitutional , C ro mer’s arg ument never theless fails beca

use the connec tion betwee n the statements and the illeg al seizure wa s sufficiently attenuate d to dissipate any taint. Evidence obtained as a result of a Four th Amendment violation is g ener ally inadmissible as fruit of the poisonous t ree . See New Y ork v. Harris , 495 U.S. 14, 18-19 (1990). H oweve r, it may be admissible if it “has b ee n co m e at

. . . by means sufficie ntly distinguishable [from the initial illega l sear ch or seizure] to be purge d of t he primary taint.” W ong Sun v. United States , 371 U.S. 471, 488 (1963) (interna l quotation mar k s o m i t ted). Among the fac tors that we consider to deter mine whether the taint has dissipated are “the temporal proxi mity of the illega l conduct to the statements, the prese nce of any intervening circ umstances, and

. . . the purpose and flag ranc y of the police misconduct.” United States v. Shaw , 464 F.3d 615, 626-27 (6th Cir. 2006) (interna l quotation marks omitted). 7N o . 0 9

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Cromer’s statements at the DEA’s office wer e sufficie ntly remove d from the seizure of his Duster to dissipate any taint. The Duster was seized on November 17, 2006, and Cromer did not show up at the DEA’ s office until Decembe r 4, 2006, more than two wee ks later. Cromer went to the DEA’s office fre ely and of his own volition; n o age n t s coer ced him into g oing there

. Cf. W ilker s o n v. United States , 432 A.2d 730, 732 (D.C. 1981) (“Cer tainly [t he defe ndant] was not

coer ced into g oing to the police station mere ly beca use the poli ce h el d [ h i s] [i lleg ally ] seized proper ty .”). Fur

ther, during the time period betwee n the seizure and Crom er ’s s t at ements, the char g es ag ainst Cromer in Geor g ia wer e dismiss ed, such that he was not fac ing any criminal char g es at t he ti me he spoke t o the DE A age n t s . Finally , there was no evidenc e that the age nts seized the Duster in bad faith, or t hat t hey did so in order to “lure ” C romer to their office; i n fac t , the age nts had no rea son to expect that Cromer would come to their office at all, as they believed that he

rema ined in custody

in Georg ia. Acc ording ly , the district court did not err when it denied Crome r’s motion to suppress. V. Cromer nex t arg ues t hat the district cour t erre d in deny ing his re quest for a mitigating role adjustment pursuant to U.S.S.G. § 3B1.2, which provides that a defe ndant may rec eive a four- level reduc tion for being a minimal participa nt in the offe nse, or a two-leve l reduc tion for being a minor participa nt. “A minimal participa

nt is one who is ‘plainly among the least culpable of those involved in the conduct of a g roup,’ and a minor participa nt is one wh o ‘i s l es s culpable than most other participa nts, but whose role could not be descr ibed as minimal.’” United States v. Bartholomew , 310 F.3d 912, 924 ( 6th Cir. 2002) (quoting U .S.S.G. § 3B1.2, cmt. nn.1, 3 (1998))

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“When revie wing the district court’s application of the Sentencing Guidelines, we revie w the district court’s fac tual finding s for clea r err or and mix ed questions of law and fac t de novo .” United S t a t es v. Bridgewater , 606 F.3d 258, 260 (6th Cir. 2010) (interna l quotation marks omitted)

. “[ W ] h et h er a defe ndant is entitled to a sentenc e reduc tion pursuant to U.S.S.G. § 3B1.2 depends heavily on fac tual deter

minations . . . .” United States v. Groe nendal , 557 F.3d 419, 423 ( 6th Cir. 2009) (interna l quotation marks omitted). “The defen d an t has the burden of proving by the preponde ranc e of the evidenc e that he is entitled to the reduc tion.” United States v. Bailey , 488 F.3d 363, 369 (6th Cir. 2007). The district court did not err in deny ing Cromer’s reque st for a mitigating role adjustment. Cromer willingly drove Watkins to Geor g ia. He knew that Watkins distributed methamphetamine, and he admitted that he suspecte d t h at W at kins was trave ling to Geor g ia to purcha se methamphetamine. By driving Watkins (whose ey esig ht was too poor to drive himself) to Geor g ia, Cromer “knowing ly contributed a vital service to the distribution car tel.” See Unit ed S t a t es v. Saucedo , 226 F.3d 782, 788 (6th C ir. 2000) (upholding district court’s denial of mitigating role adjustment for defe ndant who was paid to transport 4 kilogr ams of coca ine). Fur ther, the evidenc e reg arding Cromer’s methamphetamine activities supports the district court’s conclusion that he was involved in the drug scheme as a distributor, as well as a purcha ser. The district court’s finding that Cromer wa s not a minor or minimal participant is not clea rly err oneous. VI. Finally , Cromer arg ues that his within-Guidelines-ra ng e sentence of 169 months is substantively unrea sonable. We revie w sentenc es for substantive rea sonablene ss under a defe rential 9N o . 0 9

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abuse- of-discr etion standard. United States v. Alexande r , 543 F.3d 819, 821-22 (6th Cir. 2008). “[A] sentenc e may be substantively unrea sonable when the dis t ri ct court selec ts the sentenc e arbitra rily , bases the sentenc e on impermissible fac tors, fails to consider pertinent [18 U.S.C.] § 3553(a) fac tors or g ives an unrea sonable amount of weig ht to any pertinent fa ctor.” United States

v. Brown , 557 F.3d 297, 299 (6th Cir. 2009) (interna l quota tion mar ks omitted). We pr esume that a sentence within the Guidelines rang e is rea sonable. United States v. Vonne r , 516 F.3d 382, 389 (6th Cir. 2008) (e n banc)

. Cromer makes sever al arg uments that his se ntence is substantively unrea sonable, but none is persua sive. A revie w of th e t ra n s cr i p t reve als that the district court thoughtf ully considere d Cromer’s lack of criminal history , ag e (47 y ear s), and medical condition. And Cromer’s complaint about the disparity b et we en his sentenc e and the shorter sentenc es rec eived by McF err on and Watkins misses the mark. Cromer fails to acknow ledg e that those men acc epted responsibility and cooper ated with the g overnme nt, things that Cromer declined to do. These differ ences “r esul t in leg iti ma te co-de fenda

nt disparities.” See United States v. Carson , 560 F.3d 566, 586 (6th Cir. 2009). Moreove r, “§ 3553(a) (6) is conce rned wit h n ati onal disparities among the many defe ndants with simil ar criminal backg rounds convicted of simil ar criminal conduct,” not with disparities among codefe ndants. See U

nited States v. Simmons , 501 F.3d 620, 623 ( 6th Cir. 2007). The district c ourt considere d the § 3553(a) fac tors and arr ived at a sentenc e that it believed

was “suff icient, but not g rea ter than nece ssary , to comply with the purposes of [§] 3553(a) .” There is no basis on which to conclude that the district court a bused its discretion.

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

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