NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 19a0300n.06

                               Case Nos. 17-3862/3877/3901/4076

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

                                                                                 FILED
                                                                           Jun 11, 2019
UNITED STATES OF AMERICA,                           )
                                                                       DEBORAH S. HUNT, Clerk
                                                    )
       Plaintiff-Appellee,                          )
                                                    )       ON APPEAL FROM THE UNITED
v.                                                  )       STATES DISTRICT COURT FOR
                                                    )       THE NORTHERN DISTRICT OF
CARL D. PENNY; ADOLFO MAGADAN;                      )       OHIO
RENEE SERNA; MARTY MCCAULLEY,                       )
                                                    )
       Defendants-Appellants.                       )


       BEFORE: SILER, COOK, and BUSH, Circuit Judges.

       COOK, Circuit Judge. These consolidated appeals arise from a drug trafficking conspiracy

to which all appellants pleaded guilty. Carl D. Penny, Adolfo Magadan, Renee Serna, and Marty

McCaulley challenge their sentences as procedurally and substantively infirm. Because the district

court abused its discretion when it denied Penny safety valve consideration, employed the incorrect

legal standard to deny Magadan a minor participant reduction, and clearly erred when it imposed

on McCaulley a life term of supervised release, we vacate in part and remand for resentencing.

We affirm Serna’s sentence.

                                      I. BACKGROUND

       This case involves a large-scale conspiracy to distribute cocaine. Adolfo Magadan, a

tractor-trailer driver, transported the drugs; Marty McCaulley funded the scheme; and Renee Serna
Case Nos. 17-3862/3877/3901/4076, United States v. Penny, et al.


worked as their go-between.

       In February 2017, Serna picked up six kilograms of cocaine from Magadan and delivered

them to McCaulley’s apartment. There, McCaulley, Serna, and Carl Penny weighed the drugs

before parting ways. Unbeknownst to the coconspirators, law enforcement agents had been

watching them for hours, observing Serna, Magadan, and McCaulley trading duffel bags of drugs

and money.

       After the meeting, Penny dropped Serna off at a hotel, where Penny watched DEA agents

arrest Serna. Panicking, Penny hurried home, but agents caught him too. A post-arrest search of

Penny produced multiple cell phones, digital scales with cocaine residue, nineteen rounds of

ammunition, more than $100,000 in cash, and other drug paraphernalia. Agents also stopped

Magadan on his way from Cleveland to Chicago with another 7.9 kilograms of cocaine and

$169,000 in his truck.

       By the time agents arrested McCaulley, he had distributed one of the six kilograms of

cocaine to another coconspirator, Paul Cramer. Agents searched McCaulley’s apartment and

found the remaining kilograms, sixteen cell phones, ammunition, and other drug paraphernalia.

       A federal grand jury charged Penny, Magadan, Serna, and McCaulley, among others, in a

seven-count, six-defendant indictment. All four appellants pleaded guilty to Count 1: conspiracy

to possess with intent to distribute approximately six kilograms of cocaine, in violation of 21

U.S.C. §§ 846, 841(a)(1) and (b)(1)(A). Magadan, Serna, and McCaulley also entered guilty pleas

to Count 2: possession with intent to distribute cocaine, 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 18

U.S.C. § 2. Magadan pleaded guilty to another count for possessing cocaine with intent to

distribute for the additional 7.9 kilograms of cocaine destined for Chicago—Count 3, and




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McCaulley pleaded guilty to possessing a firearm as a felon—Count 7, 18 U.S.C. §§ 922(g)(1) and

924(a)(2).

       The court sentenced each defendant separately. Penny, Magadan, Serna, and McCaulley

raise distinct issues on appeal.

                                    II. PENNY’S SENTENCE

       Penny appeals his ninety-seven-month sentence and $100,000 fine, asserting both

procedural and substantive error.

                                    A. Safety Valve Application

       We first address Penny’s claim that the district court committed procedural error when it

denied him the benefit of USSG § 5C1.2(a), the safety valve provision permitting the court to

“impose a sentence . . . without regard to any statutory minimum sentence . . . .” 18 U.S.C.

§ 3553(f); USSG § 5C1.2(a).

       To be eligible for a safety valve sentence, Penny must satisfy five requirements by a

preponderance of the evidence. United States v. Haynes, 

, 427 (6th Cir. 2006). The

only requirement at issue in this appeal concerns whether Penny “possess[ed] a firearm or other

dangerous weapon (or induce[d] another participant to do so) in connection with the offense.”

18 U.S.C. § 3553(f)(2).

       At sentencing, the government conceded that “the facts that we have do not support putting

a firearm in Mr. Penny’s possession.” Nevertheless, the district court found that possession of a

firearm disqualified Penny from consideration for a safety valve sentence. The court managed this

by inferring possession of a firearm from the nineteen rounds of ammunition agents recovered

from Penny. Questioning the government’s choice even to recommend safety valve relief, the

court mused:


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       [P]eople don’t have ammunition along with their tools of their trade in the drug
       trade unless they either have a gun, had a gun, have a gun stashed somewhere, are
       using a gun. Makes no sense whatsoever you have .44 caliber ammunition and then
       you want me to at least make the inference [Penny] didn’t possess a firearm.

R.120, PageID 991–92. The record of the proceeding confirms that the court viewed ammunition,

found near “other accoutrements of the drug trade,” as support for finding either that Penny

possessed a firearm or that the ammunition itself qualified as a dangerous weapon. This, despite

acknowledging the dearth of precedent supporting either of these rationales: “And I’ve looked at

some case law. And it appears to be silent as to whether the possession of . . . the ammunition,

would give rise to the disqualification for safety valve.” 

992–93.

       Unsurprisingly, we reach the opposite conclusion. True, actual or constructive possession

of a firearm can serve to disqualify a defendant from safety valve consideration. See United States

v. Stewart, 

, 327 n.19 (6th Cir. 2002) (“[W]here a defendant had actual or constructive

possession over a firearm such that an increase to his or her base offense level under § 2D1.1 is

appropriate, such possession ‘defeats application of the safety valve.’”) (emphasis added) (citation

omitted). But our precedent demands evidence of a firearm—not evidence of ammunition for a

firearm. Here, as acknowledged by the government at the outset of the proceedings, a thorough

search of Penny’s person, apartment, and vehicle produced no firearm.

       The same sort of thinking had the district court considering the ammunition itself to be a

“dangerous weapon” within the meaning of Guidelines § 1B1.1:

       [T]he next question becomes is a bullet a dangerous weapon?

       And I’ve looked at 1B1.1 which provides definitions. And I’ve looked at some
       case law. And it appears to be silent as to whether the possession of the bullets
       would give rise, or the ammunition, would give rise to the disqualification for safety
       valve.

        ...


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       In the alternative, even if the firearm itself, the possession of the gun doesn’t give
       rise to the inference of the possession of the firearm, the possession of the
       ammunition, or the ammunition, I should say, at least in my view, could be treated
       as a dangerous weapon.

       It’s a projectile which is designed to inflict harm. Typically a .44 magnum is
       certainly a large-scale -- a large magazine. And the volume of the -- the sheer
       number of the rounds of ammunition, 19 rounds, is such that I believe it would
       qualify as a dangerous weapon.

       And so for those reasons I will not provide two levels for the so-called safety valve.

R. 120, PageID 992, 994.

       Both parties agree that neither the Guidelines nor any of our cases supports such a

conclusion. Without a weapon, the ammunition fails the definition the court invoked: “(i) an

instrument capable of inflicting death or serious bodily injury; or (ii) an object that is not an

instrument capable of inflicting death or serious injury but” closely resembles one. USSG § 1B1.1,

Application Note 1(E). This record includes no evidence that Penny used the ammunition, much

less brandished it as a dangerous weapon. Plainly, ammunition is incapable of inflicting death or

serious injury without a firearm.

       These misconceptions employed by the district court to deny Penny safety valve

consideration amount to an abuse of discretion warranting resentencing.

                     B. Reliance on Codefendant’s Confidential Proffer

       Penny next contends that the court improperly drew information from his codefendant’s

confidential proffer to impose an upward variance. This being the first time Penny presents this

argument, we review for plain error. United States v. Vonner, 

, 391–92 (6th Cir.

2008) (en banc). To prevail, Penny must persuade us that the district court erred in an obvious

fashion that affected his substantial rights and seriously undermined the fairness, integrity, or

public reputation of his judicial proceedings. United States v. Olano, 

, 736 (1993).


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       At sentencing, the court did consider information “from Mr. Cramer’s proffer which

outline[d] and assist[ed] the court in deciding Mr. Penny’s role [and] which is much like the

government appears to set forth.” R. 120, PageID 993. That information specifically “tie[d] in

and describe[d] Mr. Penny’s direct involvement with individuals in Mexico in bringing cocaine

into our country and his travels to Mexico to bring these large multiple kilos of drugs into our

country.” R. 120, PageID 1009. The court referenced Cramer’s proffer repeatedly: when it

declined to apply the safety valve, when it granted Penny a substantial assistance reduction, and

again when it decided to vary upward after considering the nature and circumstances of Penny’s

offense. But because the court never summarized the information in Cramer’s proffer for him,

Penny contends that the court denied him a “reasonable opportunity to comment on that

information.”

       Penny couches his argument in terms of disclosures required to be made to him or his

counsel by Federal Rule of Criminal Procedure 32(i)(1)(B). Without “impos[ing] a categorical

requirement of prior notice of the court’s intent to vary based on information not contained in the

presentence report,” Rule 32(i)(1)(B) “clearly requires the sentencing court to use a procedure that

affords the defendant a reasonable opportunity to respond.” United States v. Coppenger, 

, 804 (6th Cir. 2015) (vacating a sentence because the district court “undeniably placed heavy,

if not exclusive, reliance” on confidential information outside of the presentence report to justify

a twenty-three-month variance). Courts grant relief when a defendant “demonstrates that the facts

or issues on which the district court relied to impose a variance came as a surprise and that his or

her presentation to the court was prejudiced by the surprise.” 

surprise, as nothing in his presentence report signaled that the court

would consider “direct involvement” with Mexican traffickers or “travels to Mexico”—“specific[,]


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detailed information not disclosed to the defendant,” 

and relied upon to vary upward.

The court relied on confidential information in Cramer’s proffer to justify harsher sentencing at

the expense of Penny’s “right to review other information relied on by a court at sentencing.”

United States v. Hamad, 

, 245 (6th Cir. 2007).

       But Penny presents no argument to explain how this surprise regarding the Mexico aspect

of his transactions prejudiced him. Specifically, he never suggests what approach he would have

taken to challenge the court’s view of his role in the conspiracy once armed with this information.

See United States v. Rossi, 422 F. App’x 425, 433 (6th Cir. 2011) (denying relief because the

defendant did not demonstrate what he would have done differently had he been given an adequate

opportunity to confront and debate the relevant issues). Recall that Penny failed to object when

the court announced it would rely on Cramer’s proffer.           To now contend that the court’s

consideration of the confidential proffer left him “completely unable to formulate an appropriate

argument in response” leaves this court without a basis to find that error in this regard satisfies the

plain error standard.

                        C. Relying on Policy Grounds to Vary Upward

       Before the hearing, the court announced it was considering an upward variance from the

Guidelines and provided counsel a copy of an article with statistics from the county medical

examiner on cocaine-related deaths in 2016. When proceedings resumed, the court linked “the

consequences of [Penny’s] behavior” to the sharp increase in cocaine-related deaths. R. 120,

PageID 1011. Without attributing any specific overdose death to Penny, the court found “a long

sentence” necessary “to reflect the seriousness of the offense and the damage that’s being done.”

R. 120, PageID 1011–13. Invoking its discretion under 18 U.S.C. § 3553(a), the court varied




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upward by three levels, imposing a within-Guidelines sentence of 97-months’ imprisonment.

Penny’s counsel objected, arguing that none of the overdose deaths were attributable to Penny.

       Penny now contends that the district court imposed a substantively unreasonable sentence

in giving undue weight to the medical examiner’s statistics in its consideration of the 18 U.S.C.

§ 3553 factors. We review his challenge for abuse of discretion. A sentence is substantively

unreasonable when the district court selects the sentence arbitrarily, relies on impermissible

factors, fails to consider pertinent § 3553(a) factors, or gives unreasonable weight to any pertinent

factor. United States v. Jones, 

, 252 (6th Cir. 2007).

       On this record, we find the district court acted within its discretion in considering cocaine-

overdose deaths in the county where Penny conspired to sell cocaine together with the seriousness

of his offense conduct. In United States v. Hubbard, 744 F. App’x 273, 276 (6th Cir. 2018), we

upheld this judge’s using such statistics as grounds for varying upward. The court “had discretion

to vary from the guidelines on policy grounds” and could “partially rely upon the need to protect

the public from further crimes of the defendant . . . in light of the community’s serious drug

epidemic.” 

Same story with this same judge in a third case, United States v.

Robinson, 

, 215 (6th Cir. 2018). As in those cases, we find the court’s consideration

of the cocaine-overdose data substantively sound.

                                              D. Fine

       In addition to Penny’s custodial sentence, the district court imposed a $100,000 fine. Penny

argues error in that the court did not make factual findings on the record concerning his ability to




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pay. He did not object to the fine at sentencing, so we review his within-Guidelines fine for plain

error. United States v. Blackwell, 

, 770–71 (6th Cir. 2006).

          A district court must impose a fine within the Guidelines range unless a defendant

establishes his inability to pay any fine. USSG § 5E1.2(a), (f). In assessing a defendant’s ability

to pay, a court considers several statutory factors, including the defendant’s income, earning

capacity, and financial resources. 18 U.S.C. § 3572(a); USSG § 5E1.2(d).

          After considering each of the § 3553(a) factors for Penny’s custodial sentence, the court

stated:

          [T]here will be a fine. This defendant has over $300,000 in assets, and a substantial
          fine is also warranted so that we have – again, we will make sure the monies can
          be used, perhaps, hopefully by the government to deter others.

          His total assets are $313,000. His net worth is $304,000.

          The advisory guideline calculation counsels, for guidelines purpose, the provisions
          of a fine are $20,000 to $10 million.

          He has accumulated a substantial sum of money. And so I don’t misstate it, in his
          accounts – I say the net worth is $300,000.

          ...

          The fine in this case will be $100,000. It’s a large fine. It’s appropriate because of,
          again, the kind of drug trafficking this defendant engaged in. He has the
          wherewithal to pay it. He has the assets to pay it. He had $100,000 in drug proceeds
          with him at the time this all occurred. So that gives you an idea of how much money
          was coming and going and how much he was earning in the drug trade.

R. 120, PageID 1014–15.

          Though it did not explicitly invoke any statutory factors before fining Penny, the court’s

analysis adequately supports its exercise of discretion. See United States v. Tosca, 

,

1355 (6th Cir. 1994) (finding the district court satisfied § 3572(a), despite not making express




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findings of fact, where it could be fairly inferred that it considered the statutory factors in imposing

the fine). Penny fails to demonstrate that the court plainly erred.

       To the extent Penny argues that his sentence is substantively unreasonable because his co-

conspirators’ sentences did not include fines, this argument also fails. The district court was not

required to consider sentencing disparities between co-defendants. See United States v. Mitchell,

, 883 (6th Cir. 2012).

                                 III. MAGADAN’S SENTENCE

       Magadan, the tractor-trailer driver, challenges only the procedural reasonableness of his

seventy-one-month sentence. He contends that the district court erred in failing to grant him an

adjustment for a mitigating role in the conspiracy under USSG § 3B1.2. Because Magadan

objected to the court’s reasoning during sentencing, we review the court’s denial of the minor

participant reduction for abuse of discretion. See Gall v. United States, 

, 51 (2007).

       Section 3B1.2 authorizes a sentencing court to reduce a defendant’s offense level by two

if he was a “minor participant,” defined as someone “less culpable than most other participants in

the criminal activity, but whose role could not be described as minimal.” USSG § 3B1.2(b),

Application Note 5. Magadan’s plea agreement and presentence report both included the two-

level minor-role reduction, but the district court declined to adopt that recommendation because it

considered Magadan a “very, very important cog in the system.” Magadan was “essential”—

“[w]ithout him moving the goods, then they would not be on the streets of Cleveland.” More

generally, the court did not “believe [the minor participant reduction] applies at all in this case or

in the case of these large-scale drug couriers.”

       For this, the district court relied on language from our decision in United States v. Skinner,

(6th Cir. 2012), which held “[a] defendant who plays a lesser role in a criminal


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Case Nos. 17-3862/3877/3901/4076, United States v. Penny, et al.


scheme may nonetheless fail to qualify as a minor participant if his role was indispensable or

critical to the success of the scheme, or if his importance to the overall scheme was such as to

justify his sentence.” 

(quoting United States v. Salgado, 

, 458 (6th Cir.

2001)). Applying Skinner, the court found “[Magadan’s] role here, of course, is essential. He

facilitated, in the words of Skinner, the transportation of vast amounts of” cocaine and “[t]he

conspiracy would not have been successful without the participation of the driver.”

       But the district court failed to review amendments to § 3B1.2’s Application Notes, or our

later cases disavowing Skinner’s logic, and therefore employed an erroneous legal standard. The

amendment to § 3B1.2’s notes clarify that “a finding that the defendant was essential to the offense

does not alter the requirement, expressed in Note 3(A), that the court must assess the defendant’s

culpability relative to the average participant in the offense.” U.S. Sentencing Guidelines Manual,

suppl. to App. C, amend. 794 at 114-17 (2015). Application Note 3(C) confirms that “perform[ing]

an essential or indispensable role in the criminal activity is not determinative” and that “[s]uch a

defendant may receive an adjustment under this guideline if he or she is substantially less culpable

than the average participant.” 

Sentencing Commission specifically referenced Skinner

as an example of a case misconstruing the guideline as inapplicable where the defendant’s conduct

was central to the commission of the crime. 

       In light of these changes, this court has disavowed Skinner’s reasoning and instead defers

to the Sentencing Guidelines application notes. United States v. Hernandez-Fierrosi, 

, 313 (6th Cir. 2006). Another example of sentencing error stemming from Skinner occurred

in United States v. Ednie, 707 F. App’x 366, 371–72 (6th Cir. 2017). There, we found legal error

requiring resentencing when a district court declined to apply the minor-role reduction because the

defendant played a “vital” role in the conspiracy. 

That reasoning employed “precisely


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the analysis the Commission sought to end with [the] Amendment.” 

focused on the

absence of evidence that the court reviewed the non-exhaustive list of factors under Application

Note 3(C).

       Here, too, the record shows that the court incorrectly found Magadan ineligible for

treatment as a minor participant because he performed an “essential” role in the conspiracy by

driving the drugs to Ohio. The government presses the feature of the court considering Magadan’s

culpability relative to other members of the conspiracy because Magadan admitted to transporting

the drugs into Ohio with plans for a second delivery in Chicago. But the court referenced these

facts only to confirm that Magadan, like all mules and couriers, completed an essential function

for the drug trafficking conspiracy. This argument would be more convincing had the government

been able to point to the court weighing whether Magadan was substantially less culpable than the

average participant, or the five factors intended to guide the determination. See United States v.

Daneshvar, No. 18-1101, 

, at *19 (6th Cir. Apr. 29, 2019) (“In determining

whether [the defendant] was ‘less culpable than most other participants’ . . . .we turn to the

U.S.S.G. advisory committee notes to § 3B1.2, which provides a non-exhaustive list of factors for

a court’s consideration.”). Instead, the district court overruled Magadan’s objection because his

role was “essential.” That’s legal error requiring resentencing. See United States v. Kaminski, 

, 672–73 (6th Cir. 2007) (vacating sentence and remanding for resentencing because

district court enhanced defendant’s offense level in contravention of application note).

       We therefore vacate Magadan’s sentence and remand for resentencing for the district court

to consider Magadan’s relative culpability using the five factors in Application Note 3(C).




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                                    IV. SERNA’S SENTENCE

          Serna alleges that the court violated his Sixth and Fourteenth Amendment rights when it

varied upward and imposed a seventy-one-month sentence. Like Penny, Serna takes issue with

the court’s use of information his codefendant proffered and an article reporting increased cocaine-

overdose death numbers. But Serna does not argue that the court imposed an unreasonable

sentence because that information was never disclosed to him. Instead, he argues the court

performed unconstitutional factfinding when it drew on facts that a jury did not find beyond a

reasonable doubt. This claim too, forfeited at sentencing, gets plain error review. See 

–92.

          As when sentencing Penny, the court relied on the proffers of Serna’s coconspirators and

the article about cocaine related overdose deaths, characterizing Serna’s role as “much, much more

than a mule” in an international drug trafficking conspiracy. Responding to argument in favor of

a minor participant reduction, the court warned Serna’s counsel not to “paint him in a way which

is completely contrary to what we know about his role, not from his proffers, but from proffers

and statements made by others.” R. 130, PageID 1123.

          Serna relies on Apprendi v. New Jersey’s requirement that “any fact that increases the

penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.” 

, 490 (2000). But the Court has since clarified

that its holding applies only to factual findings that enhance mandatory minimum sentences—not

factual findings that influence judicial discretion. Alleyne v. United States, 

, 116

(2013).

          Here, the district court’s consideration of Serna’s codefendant’s proffer and the rate of

cocaine-overdose deaths did not affect his maximum possible sentence—life imprisonment—


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obviating his claims under the Sixth and Fourteenth Amendments. The court calculated Serna’s

Guidelines range to be 37 to 46-months, and a sentence within that range, in the court’s view,

would not reflect the seriousness of the drug trafficking conspiracy or adequately address

deterrence. Thus, the court varied upward two levels, finding 57 to 71-months as a more

appropriate Guidelines range given Serna’s role in the conspiracy and its effect on the community.

       Finding no error, we affirm Serna’s sentence.

                              V. MCCAULLEY’S SENTENCE

       The court sentenced McCaulley to 200 months’ imprisonment on the conspiracy count and

a concurrent 120-month imprisonment term on the felon-in-possession count. The court also

imposed a life term of supervised release. McCaulley alleges procedural error, arguing that the

court (1) failed to adequately explain the length of his supervised release term in light of the

statutory factors, and (2) relied on an impermissible factor: the government’s decision not to file

an information that would have subjected McCaulley to a twenty-year mandatory minimum

sentence based on his prior felony drug convictions. He also contends that the court erred by

imposing a sentence exceeding the advisory Guidelines range calculated in his presentence report,

arguing that his plea agreement bound the court to impose a shorter sentence.

                                A. Lifetime Supervised Release

       McCaulley contends that the district court selected a life term of supervised release without

adequate justification. He did not object below to the length of term, so we limit our review to

plain error. See 

–92.

       In determining the procedural reasonableness of McCaulley’s term of supervised release,

we consider “whether the district court adequately stated in open court at the time of sentencing

its rationale for mandating” supervision. United States v. Brogdon, 

, 563 (6th Cir.


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2007) (citation omitted). The reasons justifying supervised release commonly overlap with the

facts supporting the defendant’s custodial sentence. 18 U.S.C. § 3583(c) (mandating that district

courts consider several factors set forth in § 3553(a) when deciding term of supervised release).

Thus, if the district court addresses these facts elsewhere on the record, we do not require it to

review these factors twice. We look only for some explanation about why the factors justify the

term of supervised release it imposes. United States v. Inman, 

, 1004 (6th Cir. 2012);

United States v. Giganti, 405 F. App’x 31, 40 (6th Cir. 2010). “Failing to do so warrants reversal,

even under plain-error review.” United States v. Bunkley, 732 F. App’x 388, 395 (6th Cir. 2018);

see also United States v. Emmons, 524 F. App’x 995, 1000 (6th Cir. 2013).

        The court never explained the choice of a life term, noting only that, by supervising

McCaulley for life, “we will know if he does return to the drug trafficking trade, there will be a

consequence. He’ll return to Federal Court where the sentencing will be lengthy.” R. 151, PageID

1279–80. Our precedent requires more. See, e.g., 

, 1007; Bunkley, 732

F. App’x at 395; Emmons, 524 F. App’x at 1000. We vacate McCaulley’s sentence and remand

for the district court to resentence and properly explain any term of supervised release imposed.

See 

, 1007.

                              B. Guidelines Range Calculation

        McCaulley also alleges that the court failed to properly calculate his advisory Guidelines

range. Though true that a “sentence is procedurally unreasonable where a district court fails to

calculate or improperly calculates the Guidelines range,” United States v. Hall, 

, 335

(6th Cir. 2011), the district court got it right.

        At the start of proceedings, the court announced that McCaulley’s offense level of twenty-

nine and category IV criminal history yielded a 121 to 151-month Guidelines range, as set forth in


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the PSR. Yet later, the court stated that it would start calculating from a lower, 84 to 105-month

range.    McCaulley contends that because the district court announced these two different

Guidelines range calculations as the “starting point and initial benchmark,” the district court failed

to properly calculate the applicable Guidelines range.

         The record supports just the opposite and resolves the discrepancy McCaulley now sees as

error. When the court raised the specter of an upward variance to account for McCaulley’s prior

drug trafficking convictions, the government requested a sidebar where it moved for a four-level

substantial-assistance downward departure and explained its grounds. The court granted the

government’s request and after resuming proceedings in open court, announced its lower

Guidelines range calculation of 84 to 105-months, reflecting McCaulley’s adjusted offense level

of twenty-five. As the record confirms, the district court properly recognized the applicable

Guidelines range and, thus, did not err in this regard.

                             C. 21 U.S.C. § 851 Information

         McCaulley also claims that the court imposed a substantively unreasonable sentence by

relying on an impermissible factor: the government’s decision not to file an information under 21

U.S.C. § 851, which would have established McCaulley’s prior drug convictions and subjected

him to a 20-year mandatory minimum sentence.

         Section 851 provides that increases in sentences premised on prior felony drug convictions

may not be imposed unless “the United States Attorney files an information . . . stating the previous

convictions relied upon.” 21 U.S.C. § 851(a)(1). The court acknowledged the government’s

decision not to file for the enhancement just before varying upward, stating:

      This case would have been, but for the parties’ plea agreement, should have been, at
      least in my view, should have been a mandatory 20 years. The 851 would have
      brought him a minimum 20 years to life. Minimum.


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Case Nos. 17-3862/3877/3901/4076, United States v. Penny, et al.


      I can’t get into plea negotiations. That’s between the government and the defendant.
      But I do have the discretion and the authority to impose the kind of sentence that will
      deter Mr. McCaulley, make certain he does not come back to the community and
      begin to sell drugs because that’s where he will be. He has continued, even after long
      periods of incarceration, to come right back in our community. And he is a danger,
      serious danger, to the safety, the health, the well-being of our community.
      So having said all those things, I’m cognizant of the fact the Court’s upward variance
      is going to be substantial. I’ll note that for the record.
      But for all the reasons that I’ve just stated, this defendant must be removed from
      society for as long a period of time as reasonable to make certain he doesn’t continue
      on.
R. 151, PageID 1278–79.

          McCaulley contends that the court unfairly relied on the government’s omission in its

consideration of the § 3553(a) factors and to justify an upward variance. True, § 851 gives the

government “sole and unreviewable discretion” to seek an enhanced sentence. See United States

v. Watford, 

, 911 (6th Cir. 2006). But that statutory commitment still leaves discretion

with the court to consider the defendant’s prior drug felony convictions. Indeed, § 3553(a)

requires the court to consider the history and characteristics of the defendant and the need to afford

adequate deterrence in determining the particular sentence to be imposed. See § 3553(a)(1),

(2)(B).

          The record shows that the court did just that. Though the court opined that McCaulley

should have faced the twenty-year mandatory minimum sentence, it did so only after finding

McCaulley’s thirteen adult convictions demonstrated that “he ha[d] not been deterred by any prior

periods of incarceration.” R. 151, PageID 1273–76. Further, the court’s acknowledgement that it

would not question the plea agreement and that the government’s decision not to file an

information was “between the government and the defendant” belies McCaulley’s suggestion that

the court substituted the government’s discretion for its own. R. 151, PageID 1278. The district

court retained discretion to vary, and McCaulley’s record warranted its choice.

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Case Nos. 17-3862/3877/3901/4076, United States v. Penny, et al.


       McCaulley fails to show that the court relied on an impermissible factor in determining his

sentence.

                             D. Binding Plea Agreement

       Finally, McCaulley argues that his 200-month sentence was unreasonable because it

exceeded the advisory Guidelines range calculated in his Rule 11(c)(1)(B) plea agreement.

Strangely, McCaulley relies on the Guidelines range calculated in his presentence report for his

argument. But neither the plea agreement nor the presentence report limited the court in its

discretion from determining an appropriate sentence, as McCaulley acknowledged in both. R. 101,

PageID 801 (“Such a recommendation or request does not bind the Court.”); R. 34, PageID 290

(“Defendant understands that the recommendations of the parties will not be binding upon the

Court, that the Court alone will decide the advisory guideline range under the Sentencing

Guidelines, whether there is any basis to depart from that range or impose a sentence outside the

advisory guideline range, and what sentence to impose.”). Thus, McCaulley failed to support his

claim of unreasonableness.


                                              VI.

       For these reasons, we VACATE in part Penny, Magadan, and McCaulley’s sentences and

REMAND for resentencing in accordance with this opinion. We AFFIRM Serna’s sentence.




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