United States v. Manuel Soto

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0165p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
│ Nos. 13-2300/2389/2510/ 2582
v. │
>
│
MANUEL ANTONIO SOTO (13-2300); HECTOR │
SANTANA (13-2389); CHRISTOPHER ESPINOZA (13- │
2510); JUAN RAMON RESPARDO-RAMIREZ (13- │
2582); │
Defendants-Appellants. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:10-cr-20635-15—David M. Lawson, District Judge.
Argued: November 19, 2014
Decided and Filed: July 24, 2015

Before: NORRIS, MOORE, and GIBBONS, Circuit Judges.

_________________

COUNSEL

ARGUED: Mark J. Kriger, LARENE & KRIGER P.L.C., Detroit, Michigan, for Appellant in
13-2300. Kevin M. Schad, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cincinnati,
Ohio, for Appellant in 13-2389. Joseph A. Niskar, Royal Oak, Michigan, for Appellant in 13-
2510. Sanford A. Schulman, Detroit, Michigan, for Appellant in 13-2582. Mark Chasteen,
UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee. ON BRIEF:
Mark J. Kriger, N. C. Deday LaRene, LARENE & KRIGER P.L.C., Detroit, Michigan, for
Appellant in 13-2300. Zenaida R. Lockard, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Cincinnati, Ohio, for Appellant in 13-2389. Joseph A. Niskar, Royal Oak,
Michigan, for Appellant in 13-2510. Sanford A. Schulman, Detroit, Michigan, for Appellant in
13-2582. Mark Chasteen, UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for
Appellee.

1
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______________________

AMENDED OPINION
______________________

KAREN NELSON MOORE, Circuit Judge. This case involves the drug-trafficking,
kidnapping, and firearms convictions of Defendants-Appellants Hector Santana, Manuel Antonio
Soto, Christopher Espinoza, and Juan Ramon Respardo-Ramirez. A grand jury indicted them on
two conspiracies and two firearms charges: conspiracy to possess cocaine with the intent to
distribute and to distribute it, 21 U.S.C. §§ 846, 841(a)(1) & 841(b)(1)(A)(ii)(II) (2012) (Count
1); conspiracy to kidnap, 18 U.S.C. § 1201(a)(1)(c) (Count 5); possession of a firearm in
furtherance of and during and in relation to a drug trafficking crime, 18 U.S.C. § 924(c) (2012)
(Count 7); and possession of a firearm in furtherance of and during and in relation to a crime of
violence, 18 U.S.C. § 924(c) (Count 8). The indictment permitted the government to try the
appellants as aiders and abettors for Counts 7 and 8. In addition, the grand jury indicted Santana,
Soto, and Espinoza as principals and as aiders and abettors for possession of 500 or more grams
of cocaine with the intent to distribute it in violation of 21 U.S.C. §§ 841(a)(1) &
841(b)(1)(B)(ii)(II) (2012), 18 U.S.C. § 2 (2012) (Count 2). Count 6 charged all four with
kidnapping as principals and as aiders and abettors in violation of 18 U.S.C. §§ 1201, 2. The
grand jury indicted only Soto for obstruction of justice in violation of 18 U.S.C. § 1512(b)(1)–
(2)(A) (Count 9).

At the conclusion of a trial, a jury convicted the defendants-appellants on all counts with
two exceptions: the jury acquitted Espinoza of Count 1, conspiracy to distribute cocaine, and
Respardo-Ramirez of Count 5, conspiracy to kidnap. The four defendants appeal their
convictions, and Soto and Santana also appeal their sentences. For the reasons set forth in this
opinion, we AFFIRM the judgments.

I. BACKGROUND

A. Evidence at Trial

At trial, in addition to various law-enforcement officers, three witnesses who had
originally been charged as co-conspirators testified: Erik Freeman, Vanessa Gudino, and Jose
Nos. 13-2300/2389/2510/2582 United States v. Soto et al Page 3

Bravo-Garcia. Bravo-Garcia sold cocaine in Chicago and received cocaine deliveries from
Santana, who worked for Soto. Respardo-Ramirez also delivered cocaine to Bravo-Garcia on
Soto’s behalf approximately twenty times. Bravo-Garcia and Santana sold Soto’s cocaine to two
Detroit-based sellers, Jose and Francisco Enriquez-Enriquez, who resold the cocaine to Erik
Freeman, another seller in Detroit.

One of these drug transactions from Soto to all of these middlemen went awry when
another middleman, El Cartero, disappeared without paying Soto for a ten-kilogram cocaine
delivery to the Enriquez-Enriquez brothers. In response to this failed delivery, Soto told Garcia-
Bravo, who had brokered the deal, to find the Enriquez-Enriquez brothers or El Cartero. Santana
was able to help: he knew where the Enriquez-Enriquez brothers lived. In October 2009,
Garcia-Bravo, Santana, Gudino, Anthony Ramirez, and Christopher Espinoza hatched a plan to
go to Detroit to look for the Enriquez-Enriquez brothers in order to collect the money or to bring
them back to Chicago. To accomplish that goal, they took two or three guns.

The plan was to pretend to meet with Jose Enriquez-Enriquez (“Enriquez-Enriquez”) for
a drug transfer and then use the guns to scare him. When Enriquez-Enriquez arrived at the
parking lot, Espinoza, Santana, and Anthony Ramirez confronted Enriquez-Enriquez and his
cousin, Victor, and forced them into the van at gunpoint. The group tied Enriquez-Enriquez’s
and Victor’s hands with zip ties and duct tape and returned to Chicago, where they brought them
to a garage. Soto and Respardo-Ramirez met the group in the garage with guns. Soto questioned
Enriquez-Enriquez and Victor about the missing money. After an hour of questioning, the
kidnapping participants left the garage, but Respardo-Ramirez remained to guard Enriquez-
Enriquez and Victor. While Respardo-Ramirez was guarding, he placed his gun on a table in the
garage.

The next day, Gudino, Bravo-Garcia, Anthony Ramirez, Espinoza, Santana, and
Enriquez-Enriquez returned to Detroit. The plan was to lure Freeman to meet with them by
offering to sell three kilos of cocaine. Once in the meeting, the group planned to force Freeman
to deliver Soto’s money. The group brought the same two or three guns used during the first
Detroit trip. Bravo-Garcia confirmed that Respardo-Ramirez did not touch, use, or own the
firearms used during the trip to Detroit.
Nos. 13-2300/2389/2510/2582 United States v. Soto et al Page 4

Once in Detroit, the group met with Freeman, who insisted on cooking the cocaine to test
its purity one kilo at a time. Freeman rejected the first two kilos, but liked the third. Next,
Freeman took the group to a second house, where he kept his money. Bravo-Garcia, Espinoza,
Ramirez, and Santana followed Freeman into the house, guns in tow. Bravo-Garcia, Espinoza,
and Ramirez pointed their guns at Freeman, and Freeman and Enriquez-Enriquez fell to the floor.
After handing his gun to Santana, Bravo-Garcia took Freeman’s money to the car. By the time
Bravo-Garcia had returned to the house, Santana, Ramirez, and Espinoza had tied Freeman to a
pole in the basement of the house, where they left him.

Before driving back to Chicago, the group picked up a second car. On the return drive to
Chicago, police officers stopped and searched the cars and found the three kilos of cocaine,
currency, and the three handguns in the car in which Gudino, Bravo-Garcia, and Ramirez were
traveling.

B. Post-Trial Motions for Acquittal or New Trial

After the trial, all defendants-appellants filed motions for judgment of acquittal or a new
trial. Santana argued that the evidence was insufficient for a rational jury to find him guilty of
conspiracy to kidnap, kidnapping, and brandishing a firearm in furtherance of a crime of
violence, namely the kidnapping. Espinoza contended that there was insufficient evidence for a
rational jury to reach the following conclusions: that he specifically intended to deliver cocaine;
that he joined the conspiracy to kidnap; that he participated in the kidnapping; and that he
possessed a firearm. Soto retained new counsel and argued that he was entitled to a judgment of
acquittal because there was insufficient evidence of a specific intent to deliver cocaine. Soto also
asserted that he was entitled to a new trial because his original trial counsel was ineffective
because he did not move to exclude evidence seized from 4309 W. 77th Place and 5318 S.
Mozart Street in Chicago, Illinois. Respardo-Ramirez joined Soto’s motion for a new trial on the
basis that the court should have excluded the evidence seized from the two locations. Respardo-
Ramirez filed an additional motion for acquittal on the basis that the evidence was insufficient to
convict him of the conspiracy to possess and distribute cocaine, kidnapping, and possession of a
firearm in relation to a drug trafficking crime. Respardo-Ramirez focused on the sufficiency of
Nos. 13-2300/2389/2510/2582 United States v. Soto et al Page 5

the evidence showing that he joined the conspiracy, that the kidnapping victims were taken
across state lines forcibly, and that he owned or possessed the firearms listed in the indictment.

On August 12, 2013, the district court issued an opinion and order granting in part and
denying in part the defendants’ motions for judgment of acquittal, rejecting most of the
defendants’ claims. R. 515 (Dist. Ct. Op. and Order) (Page ID #3444–79). There was one
exception: the district court granted Respardo-Ramirez’s motion for a judgment of acquittal as
to Count 8, possessing and brandishing a firearm during and in relation to a crime of violence.
R. 515 at 22–23, 36 (Page ID #3465–66, 3479).

C. Sentencing

Before the sentencing hearing, Santana filed a sentencing memorandum and objections to
the Presentence Report (“PSR”). At the sentencing hearing, Santana’s trial counsel objected to
the classification of Counts 7 and 8 as mandatory consecutive sentences. Soto also challenged
the probation office’s determination that his convictions for Counts 7 and 8 must run
consecutively. The district court rejected Soto’s and Santana’s Sixth Amendment challenges.

Santana received a 120-month sentence for Counts 1, 2, 5, and 6 to be served
concurrently; an eighty-four-month sentence for Count 7 to be served consecutively to Counts 1,
2, 5, and 6; and also a 300-month sentence for Count 8 to be served consecutively to Count 7.
Soto’s sentence was 516 months of imprisonment: 132 months for Counts 1, 2, 5, 6, and 9 to run
concurrently; eighty-four months for Count 7 to run consecutively to Counts 1, 2, 5, 6, and 9;
and 300 months for Count 8 to run consecutively to the other terms of imprisonment.

D. Appeal

Soto, Santana, Espinoza, and Respardo-Ramirez appeal their convictions. Soto and
Santana appeal their sentences, as well.

Soto raises two issues on appeal. First, he contends that his trial counsel was
constitutionally ineffective because he did not move to suppress the evidence seized at 77th
Place and Mozart Street. Soto argues that had his trial counsel filed a motion to exclude the
evidence, all of the evidence would have been suppressed because the good-faith exception to
Nos. 13-2300/2389/2510/2582 United States v. Soto et al Page 6

the exclusionary rule does not apply. Second, Soto argues that the imposition of the twenty-five
year mandatory minimum sentence for a second or subsequent conviction under 18 U.S.C.
§ 924(c)(1)(C)(I) violates the Sixth Amendment and Alleyne v. United States, --- U.S. ---, 133 S.
Ct. 2151 (2013), because a jury did not find that Counts 7 and 8 were second or subsequent
offenses.

Santana raises three issues on appeal. First, he argues that there was a fatal variance in
the indictment because, under Count 2, the government had to prove a drug-distribution offense,
but the evidence at trial established only a robbery. Second, he asserts that the district court
should have severed the drug-trafficking and kidnapping offenses so that they would be tried on
different dates. Third, he joins Soto’s challenge to the mandatory twenty-five-year sentence for
second or subsequent weapons convictions.

Espinoza argues only that the evidence does not support his convictions for Count 2,
possession of cocaine with the intent to distribute, and Count 7, the related firearm charge.
Specifically, he argues that the government did not provide sufficient evidence of the specific
intent to distribute the cocaine.

Finally, Respardo-Ramirez raises five issues on appeal. First, he argues that the district
court admitted unduly prejudicial evidence of the stop and arrest of John and Valarie Boston in
Las Vegas, Nevada. Second, Respardo-Ramirez contends that the district court erroneously
admitted evidence seized at 77th Place and Mozart Street in violation of the Fourth Amendment.
Third, he claims that he is entitled to a judgment of acquittal with respect to Count 1, conspiracy
to distribute cocaine, because the evidence did not establish that he possessed the specific intent
to distribute cocaine. Fourth, he asserts that this court should enter a judgment of acquittal as to
Count 5 for kidnapping because the government failed to provide evidence that the victims were
transported forcibly across state lines. Fifth, he argues that the evidence was insufficient to hold
him criminally liable for Count 7, brandishing a firearm during a crime of violence, under a
theory of aiding and abetting because he never owned, possessed, or used the firearms listed in
the indictment.
Nos. 13-2300/2389/2510/2582 United States v. Soto et al Page 7

II. ANALYSIS

A. The Warrants

Officers from the Chicago Police Department executed two search warrants at 4309 West
77th Place (“77th Place”) and 5318 South Mozart Street (“Mozart Street”). The search of
77th Place uncovered nearly $300,000 in United States currency, cocaine, marijuana, firearms,
money counters, and drug packaging materials. Officers seized items including firearms, Soto’s
false identifications, and banking records from the residence on Mozart Street.

Appellants Soto and Respardo-Ramirez seek either a new trial or a judgment of acquittal
on the basis that the district court erred by admitting that evidence seized from 77th Place and
Mozart Street on the grounds that the searches violated the Fourth Amendment. Soto appeals the
district court’s denial of his post-trial motion for a new trial based on his claim of ineffective
assistance of counsel because, he contends, his trial counsel was ineffective because he did not
file a motion to suppress the drug evidence seized at 77th Place and Mozart Street. Respardo-
Ramirez argues that the district court erred by admitting the evidence but does not claim that his
attorney was ineffective.

1. Soto’s Ineffective-Assistance-of-Counsel Claim

a. Standard of Review

The district court addressed Soto’s ineffective-assistance-of-counsel of claim in the
context of his motion for a new trial. Rule 33 allows a district court, upon defendant’s motion, to
“vacate any judgment and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P.
33(a). “A violation of [a defendant’s] Sixth Amendment right to effective assistance of counsel
clearly meets [the interest-of-justice] standard.” United States v. Munoz, 605 F.3d 359, 373 (6th
Cir. 2010). Usually we do not review claims of ineffective assistance of counsel on direct
appeal. United States v. Angel, 355 F.3d 462, 469 (6th Cir. 2004). We may do so, however, if a
claim rests “entirely upon facts within the record or present[s] purely legal questions.” Id. This
record provides sufficient evidence to evaluate Soto’s particular ineffective-assistance-of-counsel
claim because it presents purely legal questions: whether the search warrants were facially
defective and whether the good-faith exception to the exclusionary rule applies.
Nos. 13-2300/2389/2510/2582 United States v. Soto et al Page 8

The district court denied Soto’s motion for a new trial. R. 515 at 35 (Dist. Ct. Op.
& Order) (Page ID #3478). In general, we review a district court’s denial of a motion for a new
trial for an abuse of discretion including when the defendant asserts that his counsel was
ineffective. United States v. Dado, 759 F.3d 550, 563 (6th Cir. 2014). “The district court abuses
its discretion when it relies on clearly erroneous findings of fact, uses an erroneous legal
standard, or improperly applies the law.” Id. at 559 (internal quotation marks omitted).

b. Deficient Performance and Prejudice

In order to demonstrate ineffective assistance of counsel, Soto must show that his
counsel’s performance was deficient and that he was prejudiced. Strickland v. Washington,
466 U.S. 668, 688 (1984). An attorney’s performance is deficient if his representation “fell
below an objective standard of reasonableness.” Id. Courts owe trial counsel deference when
reviewing his actions and omissions during trial. Id. at 689. When a defendant claims that his
counsel was ineffective because counsel failed to litigate a Fourth Amendment claim, he must
also show “that his Fourth Amendment claim is meritorious and that there is a reasonable
probability that the verdict would have been different absent the excludable evidence in order to
demonstrate actual prejudice.” Kimmelman v. Morrison, 477 U.S. 365, 375 (1986).

Soto cannot show prejudice, if the evidence was admissible under the good-faith
exception to the Fourth Amendment’s warrant requirement. United States v. Baker, 719 F.3d
313, 320–21 (4th Cir. 2013) (holding that the good-faith exception to the exclusionary rule
applied, and therefore the defendant could not show Strickland prejudice). Courts do not
suppress the evidence that officers “obtain in objectively reasonable reliance on a subsequently
invalidated search warrant.” United States v. Leon, 468 U.S. 897, 922 (1984). The good-faith
exception does not apply in the following four situations:

(1) where the issuing magistrate was misled by information in an affidavit that the
affiant knew was false or would have known was false except for his reckless
disregard for the truth; (2) where the issuing magistrate wholly abandoned his
judicial role and failed to act in a neutral and detached fashion, serving merely as
a rubber stamp for the police; (3) where the affidavit was nothing more than a
“bare bones” affidavit that did not provide the magistrate with a substantial basis
for determining the existence of probable cause, or where the affidavit was so
lacking in indicia of probable cause as to render official belief in its existence
Nos. 13-2300/2389/2510/2582 United States v. Soto et al Page 9

entirely unreasonable; and (4) where the officer’s reliance on the warrant was not
in good faith or objectively reasonable, such as where the warrant is facially
deficient.

United States v. Hython, 443 F.3d 480, 484 (6th Cir. 2006) (citing Leon, 468 U.S. at 923).

Soto challenges the applicability of the good-faith exception on the third ground. The
district court concluded that both affidavits were lacking in indicia of probable cause. R. 515 at
31–32 (Dist. Ct. Op. & Order) (Page ID #3474–75). Nevertheless, the district court concluded
that the affidavits were not so lacking as to render the officers’ reliance on those warrants
objectively unreasonable. Id. at 34–35 (Page ID #3477–78).

“The conclusion that the officers’ reliance on the warrant was objectively reasonable
requires a ‘less demanding showing than the “substantial basis” threshold required to prove the
existence of probable cause.’” United States v. Higgins, 557 F.3d 381, 391 (6th Cir. 2009)
(quoting United States v. Carpenter, 360 F.3d 591, 595 (6th Cir. 2004) (en banc)) (internal
quotation marks omitted). Neither affidavit in question here is “bare bones” or “boilerplate.”
See United States v. Weaver, 99 F.3d 1372, 1378 (6th Cir. 1996). Moreover, both warrants
provide “a sufficient link between” 77th Place and Mozart Street and drug activity and the
presence of illegal firearms “such that a reasonably well-trained officer would not have known
that the search was illegal.” Higgins, 557 F.3d at 391. In the affidavit for the 77th Place
warrant, the attesting officer wrote that J. Doe claimed that Tony stored the sawed-off shotgun
under a bed in the house at 77th Place. R. 476-2 at 2–3 (77th Pl. Warrant) (Page ID #1980–81).
In the affidavit for a search warrant of the Mozart Street address, the attesting officer stated that,
on that day, a J. Doe1 said that he went to the Mozart Street address to buy cocaine. R. 476-3 at
1–2 (Mozart St. Warrant) (Page ID #1982–83). While at the residence, he said that he saw
“Tony” hold a large, clear ziplock bag with small knotted plastic bags inside containing a white
powder. Id. at 2 (Page ID #1983). Doe handed Tony $125.00 U.S. currency, and Tony gave J.
Doe one of the small bags. Doe concluded that the substance was cocaine because he opened the
knotted plastic bag and tested the substance by rubbing the powder against his gums. The

1
It is unclear whether the J. Doe referenced in the Mozart Street warrant application is the same J. Doe who
provided the information for the search warrant of 77th Place. The affidavits were signed by different police
officers, and the conversations with the unidentified informant(s) occurred almost nine months apart. Compare R.
476-2 at 2–3 (77th Pl. Warrant) (Page ID #1980–81), with R. 476-3 at 1–2 (Mozart St. Warrant) (Page ID #1982–
83).
Nos. 13-2300/2389/2510/2582 United States v. Soto et al Page 10

attesting officer took J. Doe to 5318 S. Mozart Street, and J. Doe identified the house as the place
where he received the white powder. Accordingly, we conclude that the district court did not
abuse its discretion by concluding that the challenged evidence would have been admitted under
the good-faith exception to the exclusionary rule, and therefore Soto could not establish the
prejudice required for his ineffective-assistance-of-counsel claim. See Dado, 759 F.3d at 563;
Kimmelman, 477 U.S. at 375.

2. Respardo-Ramirez’s Motion for New Trial

Respardo-Ramirez joins Soto’s challenge to the admissibility of the evidence seized at
77th Place and Mozart Street, asserting that he has standing to pursue the claim because he
resided at 77th Place. We review a district court’s denial of a motion for a new trial for an abuse
of discretion. Dado, 759 F.3d at 559. Respardo-Ramirez’s claim fails for the same reason
Soto’s fails: the evidence would have been admitted under the good-faith exception to the
exclusionary rule. We therefore conclude that the district court did not abuse its discretion.

B. Santana’s Severance Claim

1. Standard of Review

On appeal, Santana argues for the first time that the district court erred by trying the
kidnapping counts at the same time as the drug-trafficking counts. None of the co-defendants
filed a motion to sever the trials for the kidnapping offenses from the drug-trafficking offenses
either. The government argues that Santana waived his right to challenge the district court’s
decision to try the counts together because Santana did not file a motion to sever the counts
before trial, and therefore we should not review Santana’s challenge to the joinder of counts at
all. Santana responds that the proper standard of review is the plain-error standard because he
only forfeited the issue of severance and did not waive it when he failed to file a motion to sever
the counts before the pretrial motion deadline.

Federal Rule of Criminal Procedure 12(b)(3) lists the motions that “must be raised by
pretrial motion.” Included among them is a motion for “severance of charges or defendants
Nos. 13-2300/2389/2510/2582 United States v. Soto et al Page 11

under Rule 14.” Fed. R. Crim. P. 12(b)(3)(D) (effective Dec. 1, 2014).2 Had Santana raised this
issue after the district court’s deadline, then Rule 12(c)(3) would govern the district court’s
ability to review his claim: “If a party does not meet the deadline for making a Rule 12(b)(3)
motion, the motion is untimely. But a court may consider the defense, objection, or request if the
party shows good cause.” Fed. R. Crim. P. 12(c)(3).

Here, Santana raises this issue for the first time on appeal. We previously treated the
failure to file a timely motion listed in Rule 12(b)(3) as a waiver. United States v. Walden,
625 F.3d 961, 967 (6th Cir. 2010). We based this treatment on the previous wording of Rule
12(e), which “provide[d] that a party waives the ability to bring a motion [listed in Rule
12(b)(3)] by failing to file a motion before the pretrial motion deadline.” Id. (citing Fed. R.
Crim. P. 12(b)(3), (e)).3 However, the recently amended version of Rule 12—which deletes the
former Rule 12(e) and transfers applicable principles to Rule 12(c)(3)4—no longer refers to a
“waiver.”

When the term “waiver” first appeared in Rule 12(b)(2) in 1944,5 and then moved to Rule
12(f) in 1975, and still later to Rule 12(e), the term “may have been unremarkable,”6 1A Charles

2
The amended Federal Rules of Criminal Procedure modifying Rule 12 became effective on December 1,
2014, while this appeal was pending. The Supreme Court’s order adopting this amendment states that the
amendment “shall govern in all proceedings in criminal cases thereafter commenced and, insofar as just and
practicable, all proceedings then pending.”
3
Federal Rule of Criminal Procedure 12(e) used to state, “A party waives any Rule 12(b)(3) defense,
objection, or request not raised by the deadline the court sets under Rule 12(c) or by any extension the court
provides. For good cause, the court may grant relief from the waiver.” Fed. R. Crim. P. 12(e) (effective until Dec.
1, 2014).
4
The 2014 Advisory Committee’s Note states, “Rule 12(e). The effect of failure to raise issues by a pretrial
motion has been relocated from (e) to (c)(3).”
5
The original rule adopted in 1944 provided that, “Failure to present any such defense or objection
[required to be raised by pretrial motion] constitutes a waiver thereof, but the court for good cause shown may grant
relief from the waiver.” Rule 12(b)(2) (1944); 1A Charles Alan Wright et al., Federal Practice and Procedure:
Federal Rules of Criminal Procedure § 190 n.2 (4th ed. 2008).
6
The Advisory Committee’s Note, which discusses the initial adoption of the rule, does not include an
explanation of the term “waiver.” See Fed. R. Crim. P. 12, 1944 advisory committee’s note. Instead, the committee
differentiated between the types of defenses and objections subject to waiver, and those that were not. See id.
Notably, the 1944 Advisory Committee did not refer to Johnson v. Zerbst, 304 U.S. 458, 464 (1938), which first
defined the term “waiver” as “an intentional relinquishment or abandonment of a known right or privilege.” “Under
the original rule it was unclear whether[] the waiver resulted only from a failure to raise the issue prior to trial or
from the failure to do so by the deadline fixed by the judge. The 1975 change made it clear that the latter view was
intended.” Wright et al., supra § 190 n.24.
In 2002, the Advisory Committee moved the contents of Rule 12(f) to Rule 12(e) and made a few stylistic
changes, but did not “intend[] to make [a] change in the current law regarding waivers of motions or defenses.” Fed.
R. Crim. P. 12, 2002 advisory committee’s note; see also Wright et al., supra § 190.
Nos. 13-2300/2389/2510/2582 United States v. Soto et al Page 12

Alan Wright et al., Federal Practice and Procedure: Federal Rules of Criminal Procedure § 193
(4th ed. 2008), because the Supreme Court had not articulated a clear differentiation between a
“waiver” and a “forfeiture.”7 See United States v. Olano, 507 U.S. 725, 733–34 (1993).
“Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the
‘intentional relinquishment or abandonment of a known right.’” Id. at 733 (quoting Johnson v.
Zerbst, 304 U.S. 458, 464 (1938)). Since Olano, the term “waiver” in the context of Rule 12(e)
caused great confusion among circuit courts about how the rule restricts appellate review.
Wright et al., supra § 193.8 Prior to the 2014 rule revision, we were inconsistent as well. Often
we treated a party’s failure to file a timely pretrial motion as a “true wavier,”9 sometimes we
considered the failure to file a pretrial motion as a forfeiture subject to plain-error review,10
sometimes we avoided resolving the proper characterization and conducted plain-error review in

7
Olano was the first time a majority of the Supreme Court differentiated between “waiver” and
“forfeiture.” As support, the Court cited a concurrence authored by Justice Scalia and numerous law review articles.
Olano, 507 U.S. at 733 (citing Freytag v. Commissioner, 501 U.S. 868, 894 n.2 (1991) (Scalia, J., concurring in part
and concurring in the judgment); Ralph S. Spritzer, Criminal Waiver, Procedural Default and the Burger Court, 126
U. Pa. L. Rev. 473, 474–77 (1978); Peter Westen, Away from Waiver: A Rationale for the Forfeiture of
Constitutional Rights in Criminal Procedure, 75 Mich. L. Rev. 1214, 1214–15 (1977)). Thus, courts and scholars
did not use the terms consistently until the Supreme Court clarified the difference in 1993.
8
Some courts took the position that “Rule 12(e) says what it means and means what it says,” and therefore
a party’s failure to file a motion before the deadline is a “true waiver”—an intentional relinquishment of a known
right—and appellate review is completely foreclosed. United States v. Walker, 665 F.3d 212, 228 (1st Cir. 2011);
see also United States v. Rose, 538 F.3d 175, 183 (3d Cir. 2008) (concluding that failure to file a motion to suppress
before the pretrial deadline resulted in a true waiver, unless the appellant showed good cause to excuse the waiver).
Other courts have used plain-error review instead. See, e.g., United States v. Robinson, 627 F.3d 941, 957 (4th Cir.
2010) (applying plain-error review of an issue that should have been raised before the pretrial deadline “[o]ut of an
abundance of caution”); United States v. Mahdi, 598 F.3d 883, 887–88 (D.C. Cir. 2010) (“We need not resolve the
parties’ waiver dispute. Because [the defendant] did not object in the district court to the alleged multiplicity, we
review his arguments for plain error.”). And other courts have held that “in context the word ‘waiver’ in Rule 12(e)
does not carry the strict implication of an intentional relinquishment of a known right that precludes all appellate
review,” but in order for the appellate court to conduct plain-error review, the party seeking appellate review must
show good cause for the failure to file the motion. United States v. Johnson, 415 F.3d 728, 730 (7th Cir. 2005)
(internal quotation marks omitted).
9
In United States v. Crismon, we held that “objections that appear for the first time on appeal are
conclusively deemed to be waived, with the effect that we are deprived of jurisdiction.” 905 F.2d 966, 969 (6th Cir.
1990). Since Crismon, the Supreme Court overruled the jurisdictional aspect of our holding. United States v.
Cotton, 535 U.S. 625, 631 (2002). Nevertheless, in United States v. Brown, which we decided after Cotton, we
strictly applied Rule 12(e) and held that “‘failure to raise 12(b) motions in a timely fashion precludes appellate
review.’” 498 F.3d 523, 528 (6th Cir. 2007) (quoting United States v. Oldfield, 859 F.2d 392, 396 (6th Cir. 1988));
see also United States v. Hackworth, 483 F. App’x 972, 979 (6th Cir. 2012).
10
In United States v. Buchanon, relying on Olano, we held that the appellant-defendants who had not
argued their motions to suppress with specificity had forfeited the arguments raised on appeal in favor of
suppression. 72 F.3d 1217, 1226–27 (6th Cir. 1995) (citing Fed. R. Crim. P. 12(f)). We therefore reviewed the
district court’s decision to deny the motion to suppress for plain error. Id. at 1227 (citing Olano, 507 U.S. at 732–
33)).
Nos. 13-2300/2389/2510/2582 United States v. Soto et al Page 13

the alternative,11 and sometimes we examined whether the appellant had shown good cause for
the failure to file a timely pretrial motion.12

In an apparent attempt to add some clarity to these muddy waters, the Advisory
Committee recently recommended omitting the “non-standard use of the term ‘waiver’” from
Rule 12. Advisory Committee on Criminal Rules, Minutes 3 (Apr. 25, 2013) (hereinafter April
25, 2013 Advisory Committee Minutes). The Advisory Committee made clear the reason for the
recommended change:

New paragraph (c)(3) governs the review of untimely claims, previously
addressed in Rule 12(e). Rule 12(e) provided that a party “waives” a defense not
raised within the time set under Rule 12(c). Although the term waiver in the
context of a criminal case ordinarily refers to the intentional relinquishment of a
known right, Rule 12(e) has never required any determination that a party who
failed to make a timely motion intended to relinquish a defense, objection, or
request that was not raised in a timely fashion. Accordingly, to avoid possible
confusion the Committee decided not to employ the term “waiver” in new
paragraph (c)(3).
New paragraph 12(c)(3) retains the existing standard for untimely claims.
The party seeking relief must show “good cause” for failure to raise a claim by
the deadline, a flexible standard that requires consideration of all interests in the
particular case.
Rule 12(e). The effect of failure to raise issues by a pretrial motion has
been relocated from (e) to (c)(3).

Fed. R. Crim. P. 12, 2014 advisory committee’s note.

11
In United States v. Lopez-Medina, we acknowledged the tension between then-Rule 12(e) and Rule
52(b). 461 F.3d 724, 739 (6th Cir. 2006). We recognized our prior cases in which we had held that the failure to
file a pretrial suppression motion was a categorical bar to appellate review. Id. (citing Crismon, 905 F.2d at 969).
We also noted that we had applied plain-error review to new suppression arguments raised for the first time on
appeal when the defendant had filed a pretrial motion to suppress on other grounds. Id. (citing United States v.
Critton, 43 F.3d 1089, 1094 (6th Cir. 1995)). Without resolving the tension between those cases, however, we
rejected the appellant-defendant’s argument under plain-error review. Id.; see also United States v. Harper, 488 F.
App’x 63, 66 (6th Cir. 2012) (after concluding that the appellant-defendant had not made an argument about why
there was good cause for his untimely argument and that the issue had been waived, we held that even if the
defendant had shown good cause for the untimely objection, the defendant had not satisfied the plain-error
standard).
12
We have usually considered whether an appellant has shown good cause to excuse the failure to file a
Rule 12(b)(3)(C) pretrial motion when the appellant had filed an untimely motion in the district court. Walden, 625
F.3d at 964. In Walden, we noted that “[t]he potential harshness of a strict application of [Rule 12(e)] is mitigated
by a safety valve that allows district courts to grant relief from the waiver for ‘good cause.’” Id. (citing Fed. R.
Crim. P. 12(e)). Because the appellant-defendant had filed the untimely motion in the district court, and the district
court had found good cause lacking, we reviewed for abuse of discretion the district court’s denial of a motion to file
an untimely pretrial motion to suppress. Id. (citing United States v. Lewis, 605 F.3d 395, 401 (6th Cir. 2010)).
Nos. 13-2300/2389/2510/2582 United States v. Soto et al Page 14

Santana argues that the deletion of the term “waiver” was a “substantive” change to the
rule, and therefore we may no longer treat the failure to file a timely pretrial motion as an
intentional relinquishment of a known right that forecloses appellate review. Santana Resp. to
Pet. for Rehr’g at 2. In contrast, the government contends that the retention of “‘the existing
standard for untimely claims’” includes retention of our prior standard of review—a complete
bar to appellate review.13 Pet. for Panel Rehr’g at 8–9 (quoting Fed. R. Crim. P. 12, 2014
advisory committee’s note). To resolve this dispute, we begin by looking at the government’s
argument.

Contrary to the government’s claim, the sentence from the 2014 Advisory Committee’s
Note does not lead to the ineluctable conclusion that the amendments to Rule 12(c)(3) do not
alter the standard of review that appellate courts must apply to Rule 12(b)(3) issues raised for the
first time on appeal. The government relies heavily on a topic sentence of a paragraph that reads
as follows:

New paragraph 12(c)(3) retains the existing standard for untimely claims.
The party seeking relief must show “good cause” for failure to raise a claim by
the deadline, a flexible standard that requires consideration of all interests in the
particular case.

Fed. R. Crim. P. 12, 2014 advisory committee’s note. In context, the sentence appears to refer to
the good-cause standard, not to the impact of that standard on appellate review.

The rulemaking history adds support for this conclusion. In September 2013, the
Committee on Rules of Practice and Procedure transmitted the proposed changes to Rule 12 to
the Supreme Court. Addendum to the Report of the Judicial Conference Committee on Rules of
Practice and Procedure 2 (Mar. 2014) [hereinafter Addendum to the 2014 Committee on Rules
Report]. One of the proposed changes to Rule 12 was to amend Rule 12(c)(3) to read as follows:

(3) Consequences of Not Making a Timely Motion Under Rule 12(b)(3). If a
party does not meet the deadline for making a Rule 12(b)(3) motion, the motion is
untimely. But a court may consider the defense, objection, or request if:
(A) the party shows good cause; or
(B) for a claim for failure to state an offense, the defendant shows prejudice.
13
The government and Santana have differing opinions about whether this is, in fact, the standard required
by our precedent.
Nos. 13-2300/2389/2510/2582 United States v. Soto et al Page 15

Id. app. C at 5–6; see also Addendum B1 to the Report of the Advisory Committee on Criminal
Rules to the Standing Committee on Rules of Practice and Procedure 2 (May 2013) [hereinafter
May 2013 Report to the Standing Committee]. The Supreme Court had three concerns about the
proposed change to Rule 12(c)(3): “(1) to whom is prejudice relevant—the government, the
defendant, both?; (2) how does one show prejudice pre-trial?; and (3) why use good cause alone
as the test in subdivision (c)(3)(A) and prejudice alone as the test in subdivision (c)(3)(B), and
does this anomaly create unintended consequences?” Addendum to the Committee on Rules
Report, supra, at 2. In light of these questions, “the advisory committee unanimously agreed to
change the proposed amendment to subdivision (c)(3) to apply a good cause standard to all late-
filed non-jurisdictional motions.” Id. at 3. The resulting rule reads as follows:

(3) Consequences of Not Making a Timely Motion Under Rule 12(b)(3). If a
party does not meet the deadline for making a Rule 12(b)(3) motion, the motion is
untimely. But a court may consider the defense, objection, or request if the party
shows good cause.

Id. app. B at 5. Thus, the Advisory Committee’s Note about the “existing standard for untimely
claims” simply clarifies that district courts should not apply different standards to different types
of Rule 12(b)(3) motions, as the original proposal had suggested. The Advisory Committee’s
Note therefore does not resolve the question now before us: Does the failure to file a timely Rule
12(b)(3) motion result in a waiver, barring all appellate review?

To answer that question, we begin with the text of the new Rule 12(c)(3). When
interpreting rules, we must give effect to the plain meaning of the text. Perez v. Postal Police
Officers Ass’n, 736 F.3d 736, 740 (6th Cir. 2013). When examining the plain meaning of the
rule, we “‘look[] at the language and design of the [rule] as a whole,’” and “[i]f the [rule’s]
language is not clear, we may examine the relevant legislative history.” United States v. Parrett,
530 F.3d 422, 429 (6th Cir. 2008) (quoting United States v. Wagner, 382 F.3d 598, 606–07 (6th
Cir. 2004)). The Advisory Committee’s decision to delete the word “waiver” was quite
intentional, as the Advisory Committee explained in its 2014 note. Indeed, one of the primary
reasons to eliminate the term “waiver” from the rule was because the committee believed that
courts were incorrectly treating the failure to file a timely pretrial motion as an intentional
relinquishment of a known right, and therefore an absolute bar to appellate review. During the
Nos. 13-2300/2389/2510/2582 United States v. Soto et al Page 16

drafting process, Judge Sutton, the chair of the Standing Committee, emphasized that it was
“imperative to get rid of the term ‘waiver’ in Rule 12(e),” noting that the language was drafted
before Olano and “makes no sense now.” April 25, 2013 Advisory Committee Minutes, supra, at
6.

The Advisory Committee’s Note about Rule 12 provides additional evidence to support
the conclusion that appellate courts are not to presume that a defendant’s failure to file a timely
pretrial motion is a waiver. Fed. R. Crim. P. 12, 2014 advisory committee’s note (“Although the
term waiver in the context of a criminal case ordinarily refers to the intentional relinquishment of
a known right, Rule 12(e) has never required any determination that a party who failed to make a
timely motion intended to relinquish a defense, objection, or request that was not raised in a
timely fashion.”). Thus, the drafters apparently believed the term “waiver” was “outdated in
light of Olano,” and therefore “changed the term” to give the rule new meaning. See United
States v. Rose, 538 F.3d 175, 183 (3d Cir. 2008) (relying on the failure to revise Rule 12(e) to
eliminate the term “waiver” in 2002, after Olano, when Rule 12(f) was moved to Rule 12(e) and
other revisions were made); see also Walker, 665 F.3d at 228 (“We believe that Rule 12(e) says
what it means and means what it says . . . particularly since Congress amended it in 2002 (after
the Supreme Court had made the distinction between waiver and forfeiture pellucid) and left the
‘waiver’ terminology intact.”). The Advisory Committee’s conscious decision to abandon the
term “waiver” makes its intent crystal clear: courts may no longer treat a party’s failure to file a
timely Rule 12(b)(3) pretrial motion as an intentional relinquishment of a known right.

The more difficult question is whether the change to Rule 12(c)(3) means that we may
review Santana’s claim for plain error. Santana argues that the good-cause standard applies to
district courts, and therefore appellate courts are free to consider how the change in the rule
impacts appellate review. Santana Resp. to Pet. for Rehr’g at 2. As always, we begin with the
text of the rule, keeping in mind that “reasonable [rule] interpretation must account for ‘both the
specific context in which language is used’ and ‘the broader context of the statute as a whole.’”
Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2442 (2014) (quoting Robinson v. Shell Oil
Co., 519 U.S. 337, 341 (1997)) (alteration omitted).
Nos. 13-2300/2389/2510/2582 United States v. Soto et al Page 17

Federal Rule of Criminal Procedure 1(a)(1) provides that “[t]hese rules govern the
procedure in all criminal proceedings in the United States district courts, the United States courts
of appeals, and the Supreme Court of the United States.” Furthermore, Rule 1(b)(2) provides the
following definition of “Court”: “a federal judge performing functions authorized by law.” And
a “federal judge” is “a justice or judge of the United States as these terms are defined in 28
U.S.C. § 451,” which “includes judges of the courts of appeals [and] district courts.” The logical
extension of Rule 1 would mean that Rule 12(c)(3) applies to the courts of appeals, and any use
of the word “court” in Rule 12 would similarly apply to appellate courts. But the more specific
Rule 12 refers repeatedly to “the court” in nearly all of its subparts, and each subpart clearly
addresses the functions of district courts—not appellate courts.14 There is one notable exception.
Rule 12(c)(3) provides, “If a party does not meet the deadline for making a Rule 12(b)(3)
motion, the motion is untimely. But a court may consider the defense, objection, or request if
the party shows good cause.” Fed. R. Crim. P. 12(c)(3) (emphasis added). This is the only
instance where Rule 12 refers to “a court,” and therefore the Advisory Committee’s decision to
use “a court” may have been a conscious decision to refer to all courts because “a” is an
indefinite article.15 “In a few usages,” however, “the indefinite article provides a specific
reference {I saw a great movie last night} and the definite article a generic reference {the Scots
are talking about independence} . . . .” The Chicago Manual of Style § 5.71 (16th ed. 2010).
The text of the Rule does not resolve whether “a court” in Rule 12(c)(3) applies to appellate
courts’ review of an untimely Rule 12(b)(3) motion, and therefore we now turn to the canons of
statutory construction to attempt to resolve the ambiguity.

14
Substituting the words “the appellate court” for “the court” demonstrates how Rule 1(b)(2) is
inapplicable in the context of much of Rule 12(c). For example: “The court may, at the arraignment or as soon
afterward as practicable set a deadline for the parties to make pretrial motions and may also schedule a motion
hearing.” Fed. R. Crim. P. 12(c)(1). In the appellate context, the rule does not make sense because appellate courts
do not conduct arraignments, nor do they set deadlines for pretrial motions and hearings because appellate courts do
not conduct trials. It is similarly absurd to read Fed. R. Crim. P. 12(d) to control the function of appellate courts:
“The court must decide every pretrial motion before trial unless it finds good cause to defer a ruling. . . . When
factual issues are involved in deciding a motion, the court must state its essential findings on the record.” Again, the
rule is inapplicable to appellate courts because appellate courts cannot defer rulings until after trial because they do
not conduct trials, and appellate courts cannot find facts.
15
Indefinite articles, such as “a judge” or “a defendant” “point[] to nonspecific objects, things, or persons
that are not distinguished from the other members of class.” The Chicago Manual of Style § 5.70 (16th ed. 2010).
In contrast, definite articles, such as “the sights of Chicago” or “the grand prize,” “point[] to a definite object that (1)
is so well understood that it does not need description . . . (2) is a thing that is about to be described . . . or (3) is
important.” Id. § 5.69.
Nos. 13-2300/2389/2510/2582 United States v. Soto et al Page 18

A few canons of construction lead toward the conclusion that Rule 12(c)(3) applies to the
district courts alone. First, “it is a commonplace of statutory construction that the specific
governs the general.” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992).
Accordingly, because Rule 12 is more specific than the general Rule 1(b)(2), we should construe
Rule 12(c) as an exception to the general rule that the Federal Rules of Criminal Procedure apply
to the district and appellate courts. See RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 132
S. Ct. 2065, 2071 (2012). Second, “under the in pari materia canon of statutory construction,
statutes addressing the same subject matter generally should be read as if they were one law.”
Wachovia Bank, N.A. v. Schmidt, 546 U.S. 303, 315–16 (2006) (internal quotation marks
omitted). Although it would be strange to apply only one of Rule 12’s subparts to the appellate
courts and the others to only district courts, we cannot discount the apparently intentional
decision to use the term “a court” instead of “the court,” and thus we now turn to the rulemaking
history to resolve the lingering ambiguity in the text.

The rulemaking history of the 2014 amendment to Rule 12 strongly indicates that the
Rule’s drafters were crafting a rule to apply to the district courts, and not to the courts of appeals.
Records available suggest that the Advisory Committee considered and rejected an amendment
to include a cross reference to Rule 5216 from a draft version of Rule 12(c)(3) because it was
“unnecessarily controversial.” Fed. R. Crim. P. 12, 2014 advisory committee’s note. The
Criminal Rules Subcommittee minutes reveal why: “The Subcommittee ultimately agreed it was
best not to try to tie the hands of appellate courts.” April 25, 2013 Advisory Committee Minutes,
supra, at 4; see also May 2013 Report to the Standing Committee, supra, at 5–6 (“The amended
rule, like the current one, continues to make no reference to Rule 52 (providing for plain error
review of defaulted claims), thereby permitting the Courts of Appeals to decide if and how to
apply Rules 12 and 52 when arguments that should have been the subject of the required Rule
12(b)(3) motions are raised for the first time on appeal.”). For that reason, the subcommittee
deleted the proposed reference to Rule 52 in order to “allow the appellate courts to determine

16
Federal Rule of Criminal Procedure 52 defines harmless and plain error:
(a) HARMLESS ERROR. Any error, defect, irregularity, or variance that does not affect
substantial rights must be disregarded.
(b) PLAIN ERROR. A plain error that affects substantial rights may be considered even
though it was not brought to the court’s attention.
Nos. 13-2300/2389/2510/2582 United States v. Soto et al Page 19

whether to apply the standards specified in Rule 12(c) or the plain error standard specified in
Rule 52 when untimely claims are raised for the first time on appeal.” Id. at 4. When the
subcommittee opened the floor to further discussion or proposed amendments, however, Judge
Sutton emphasized that “[g]iving district judges more flexibility before trial is very important,”
and he stated, “It’s becoming clearer that this is a rule addressed to the district courts.” Id. at 6.

In an attempt further to clarify the rule, Judge Sutton suggested that the subcommittee
substitute the word “forfeiture” for “waiver.” Id. After discussion, the subcommittee
unanimously rejected the proposal, because some committee members expressed concern that
“forfeiture” “was the language of appellate courts, and the rule was principally directed at the
district courts.” Id. at 9. Other subcommittee members also noted “the disagreement in the
application of forfeiture in the appellate cases” and “that forfeiture is generally associated with
the plain error standard, not the good cause/cause and prejudice standards.” Id. In context, the
subcommittee members’ primary concern was that district judges would apply a plain-error
standard to late motions, and the subcommittee did not wish to tie the hands of district courts in
exercising their discretion. Accordingly, the rulemaking history clarifies that Rule 12 is
generally directed at the district courts, not the appellate courts, and we, as the court of appeals,
must now determine whether to apply the good-cause or plain-error standard to issues raised for
the first time on appeal.

We hold that under the current version of Rule 12(c)(3), we do not treat the failure to file
a motion as a waiver unless the circumstances of the case indicate that the defendant
intentionally relinquished a known right. When a party files an untimely motion in the district
court, and the district court finds facts to determine whether the late movant has satisfied the
good-cause standard, we review that determination for an abuse of discretion as we did before.
Walden, 625 F.3d at 967. We believe this will give effect to the Advisory Committee’s decision
to retain the good-cause language in Rule 12(c)(3). Fed. R. Crim. P. 12, 2014 advisory
committee’s notes. In addition, we believe that the good-cause standard may be difficult to
apply on appeal if the issue was not first raised at the district court because review for good
Nos. 13-2300/2389/2510/2582 United States v. Soto et al Page 20

cause often requires developing and analyzing facts to determine whether a defendant has shown
good cause for the late filing.17

We also hold that plain-error review applies to claims of misjoinder raised for the first
time on appeal. There are four parts to plain-error review. “First, there must be an error or
defect—some sort of ‘deviation from a legal rule’—that has not been intentionally relinquished
or abandoned, i.e., affirmatively waived by the appellant.” Puckett v. United States, 556 U.S.
129, 135 (2009) (quoting Olano, 507 U.S. at 732–33 (1993)). “Second, the legal error must be
clear or obvious, rather than subject to reasonable dispute.” Id. “Third, the error must have
affected the appellant’s substantial rights,” which usually “means he must demonstrate that it
affected the outcome of the district court proceedings.” Id. (internal quotation marks omitted).
Fourth, if the first three prongs are satisfied, the “the court of appeals has the discretion to
remedy the error—discretion which ought to be exercised only if the error seriously affects the
fairness, integrity or public reputation of judicial proceedings.” Id. (citation, internal alterations,
and internal quotation marks omitted).

Plain-error appellate review serves important policy objectives. First, the standard
encourages parties to meet deadlines set by district courts and to seek leave in the district courts
to file late motions. By bringing the error to the district court’s attention in the first instance, the
late movant has a better opportunity to develop a record to address why the motion is untimely
and how the error is prejudicial.18 District courts may also address non-obvious defects, which
an appellate court would not be authorized to correct because plain-error review permits
appellate courts to rectify only plain error, and the error may not be obvious or appear prejudicial
in an undeveloped record.

17
Indeed, at least one scholar noted that “[i]n determining whether to grant relief, a court will sometimes
reach the merits of [the] defendant’s argument to determine whether [the] defendant would be prejudiced by
enforcing the waiver,” which the scholar noted “is really no more than the application of the plain error rule.” 24-
612 Moore’s Federal Practice—Criminal Procedure § 612.06 (2015) (collecting cases).
18
Courts have found cause to excuse the untimely filing of a pretrial motion when “the defendant had
insufficient time to act or had no prior notice of the error, defect, or objectionable action despite due diligence, or the
ineffective assistance of counsel.” 24-612 Moore’s Federal Practice § 612.06 (footnotes omitted). In many of these
instances, the late movant would have to develop a factual record of late notice, due diligence, or ineffective
assistance of counsel. Some courts have held that “a change in the law during the pendency of an appeal”
constitutes good cause. Id.
Nos. 13-2300/2389/2510/2582 United States v. Soto et al Page 21

Second, plain-error review discourages deleterious defense practices. Appellate courts
may exercise their discretion to remedy the error only if the error seriously affects the fairness
and integrity of the proceedings. Thus, if there is evidence to suggest that the defense attorney
sat “silently by” in order to “take his chances with the jury” with full knowledge of the error and
then “ambush[ed] the prosecution through a post-trial attack,” then the appellate court could and
should decline to exercise its discretion. Walker, 665 F.3d at 228.

Third, plain-error review discourages overzealous advocacy by the government.19 For
example, the government might knowingly join charges that would prejudice a defendant at trial,
thereby making conviction more likely, and hope that neither the defense attorney nor the district
court would notice the misjoinder of counts. In such a case, plain-error review would permit an
appellate court to correct the error and thereby discourage the government from taking advantage
of a known prejudicial error. For these reasons, we hold that, when a defendant fails to file a
Rule 14 motion to sever counts before trial, and argues for the first time on appeal that offenses
were improperly joined, we review his or her claim for plain error.

Given that the record does not establish that Santana intentionally relinquished a known
right, we treat Santana’s failure to file a motion to sever the counts before trial as a forfeiture:
“the failure to make the timely assertion of a right.” Olano, 507 U.S. at 733. Because Santana
did not raise this issue in the district court, we review the joinder of counts for plain error.

2. Misjoinder and Severance

Rule 8 permits the government to join multiple offenses “if the offenses charged . . . are
of the same or similar character, or are based on the same act or transaction, or are connected
with or constitute parts of a common scheme or plan.” Fed. R. Crim. P. 8(a). Rule 14 authorizes
a district court to sever the joined offenses if it appears that the consolidation will prejudice the
defendant. Fed. R. Crim. P. 14. The government has met the requirements of Rule 8(a) because
the kidnapping and drug-trafficking offenses are part of a common scheme or plan. Prejudice
arises when “there is a serious risk that a joint trial would compromise a specific trial right of one

19
Although most discussions of plain-error review expresss concerns about underhanded or overzealous
conduct by defense lawyers, we have no reason to believe that overzealousness or underhandedness is a problem
exclusive to the defense bar.
Nos. 13-2300/2389/2510/2582 United States v. Soto et al Page 22

of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.”
Zafiro v. United States, 506 U.S. 534, 539 (1993). To determine whether prejudice arose as a
result of the joinder, we “consider such factors as whether spillover evidence would incite or
arouse the jury to convict on the remaining counts, whether the evidence was intertwined, the
similarities and differences between the evidence, the strength of the government’s case, and the
ability of the jury to separate the evidence.” United States v. Dale, 429 F. App’x 576, 579 (6th
Cir. 2011) (citing United States v. Rooney, 37 F.3d 847, 855–56 (2d Cir. 1994); United States v.
Pelullo, 14 F.3d 881, 898–99 (3d Cir. 1994); United States v. Murphy, 836 F.2d 248, 256 (6th
Cir. 1988)).

Santana cannot show that the joinder of the cocaine counts with the kidnapping counts
prejudiced his defense. Santana concedes that the charges were interrelated. But he contends
that his role in the kidnapping venture was minor, and therefore trying the two charges together
made Santana seem like a hard-core drug trafficker when he was small-time participant. Had the
charges been tried separately, he argues, the jury would have been able to evaluate his minimal
role in the kidnapping more dispassionately. Santana, however, needs to offer more than
conclusory statements to show that the joinder prejudiced his defense. See United States v. Hang
Le-Thy Tran, 433 F.3d 472, 478 (6th Cir. 2006). The jury’s demonstrated ability to
compartmentalize the evidence and evaluate how the evidence applies to separate, interrelated
charges undermines Santana’s prejudice argument because the jury acquitted Espinoza of Count
1 and Respardo-Ramirez of Count 5. Santana has not met his burden to show that the joinder of
the counts prejudiced his defense. Accordingly, the joinder of the kidnapping and drug-
trafficking counts was not error, let alone plain error.

C. The Sufficiency of the Evidence that Respardo-Ramirez Joined the Cocaine Conspiracy

Respardo-Ramirez challenges the sufficiency of the evidence to support a conviction for
Count 1, conspiracy to possess with intent to distribute cocaine. When reviewing the sufficiency
of the evidence after a jury votes to convict, we review the evidence in the light most favorable
to the prosecution and determine whether “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” United States v. Lutz, 154 F.3d 581,
587 (6th Cir. 1998) (quoting United States v. Atkin, 107 F.3d 1213, 1218 (6th Cir. 1997)).
Nos. 13-2300/2389/2510/2582 United States v. Soto et al Page 23

To find Respardo-Ramirez guilty of a conspiracy under 21 U.S.C. § 846 the government
had to prove (1) that there was an agreement to violate federal narcotics laws, (2) that Respardo-
Ramirez had knowledge of and the intent to join the conspiracy, and (3) that Respardo-Ramirez
participated in the conspiracy. See United States v. Welch, 97 F.3d 142, 148 (6th Cir. 1996). “A
tacit or material understanding among parties to a conspiracy is sufficient to establish
agreement.” United States v. Beals, 698 F.3d 248, 259 (6th Cir. 2012). Circumstantial evidence
may establish an agreement if a reasonable interpretation of the evidence is that a defendant
participated in a common plan. Id.

The only evidence linking Respardo-Ramirez to the drug conspiracy is Bravo-Garcia’s
testimony. Bravo-Garcia testified that Respardo-Ramirez delivered cocaine to Bravo-Garcia on
behalf of Soto approximately twenty times. Moreover, Bravo-Garcia stated that Respardo-
Ramirez was at the garage where Soto and the others brought Enriquez-Enriquez and Victor after
the first trip to Detroit. And Respardo-Ramirez remained in the garage to guard Victor while
Soto and the others returned to Detroit to rob Freeman. We believe therefore that a reasonable
jury could have concluded that the plots to rob Freeman and to kidnap Enriquez-Enriquez were
all part of a plan to help Soto collect a drug debt, and thus related to the drug conspiracy.

The district court concluded that Bravo-Garcia’s testimony alone was sufficient to allow
a reasonable jury to conclude that Soto and Respardo-Ramirez had an agreement. R. 515 at 9
(Dist. Ct. Op. & Order) (Page ID #3452). There is no reason to disturb that finding. “Testimony
by co-conspirators alone can be sufficient to prove the existence of a conspiracy.” United States
v. Copeland, 321 F.3d 582, 600 (6th Cir. 2003).

Respardo-Ramirez raises reasons to doubt Bravo-Garcia’s testimony, namely that Bravo-
Garcia mentioned Respardo-Ramirez’s involvement in the conspiracy only after agreeing to
cooperate with the government and entering plea negotiations. But there is nothing in the record
that leads us to believe that no reasonable jury could find him credible. Accordingly, there is
sufficient evidence for a rational jury to find that Respardo-Ramirez participated in the
conspiracy to distribute narcotics.
Nos. 13-2300/2389/2510/2582 United States v. Soto et al Page 24

D. Respardo-Ramirez’s Variance Claim

Respardo-Ramirez argues that the district court erred by admitting testimony and drug
evidence related to the search and arrest of Valerie and John Boston. Special Agent Rande, with
the Drug Enforcement Administration (“DEA”), received information from a confidential
informant about a GMC van with hidden compartments designed to transport narcotics. A
magistrate judge approved Rande’s application for a warrant to place a GPS tracking device on
the van. The DEA tracked the van from Detroit, Michigan, to Dayton, Ohio, and then to Las
Vegas, Nevada. The van was registered in Valerie Boston’s name. On May 18 or 19, 2009,
Nevada State Trooper Officer Moonin stopped and searched the van, uncovering cell phones,
U.S. currency, cocaine, and firearms. After that search, the DEA received a warrant to wiretap
the cell phone and monitored calls to Valerie Boston’s phone. The intercepted phone calls
included conversations with Freeman and Enriquez-Enriquez.

Respardo-Ramirez now argues that the admission of the drug evidence prejudiced him
because it resulted in a variance between the indictment and the evidence presented at trial. He
contends that the evidence established the existence of multiple drug conspiracies: the Freeman
conspiracy and the Soto conspiracy. He claims that the admission of the evidence from the
Nevada seizure confused the jury, and therefore the jury overlooked the lack of evidence
connecting Respardo-Ramirez to either conspiracy and, instead, transferred the Bostons’ guilt
onto Respardo-Ramirez.

“Ordinarily, this court reviews de novo the question of whether a variance has occurred.”
United States v. Adams, 722 F.3d 788, 805 (6th Cir. 2013). But if the defendant argues that there
was a variance for the first time on appeal, then we review for plain error. Id. The government
contends that Respardo-Ramirez has waived his right to challenge the admission of the Nevada
evidence and to assert that a fatal variance occurred, and that therefore we cannot review either
claim. Appellee Br. at 34 (citing Olano, 507 U.S. at 732–33). In the government’s view,
Respardo-Ramirez “intentionally relinquish[ed] or abandon[ed] . . . a known right” to object to
the admission of the evidence, Olano, 507 U.S. at 733 (internal quotation marks omitted),
because he failed to object at trial to the introduction of the evidence seized in Nevada and his
trial counsel eventually said he was “satisfied” with the district court’s decision not to submit the
Nos. 13-2300/2389/2510/2582 United States v. Soto et al Page 25

two-conspiracy jury instruction. See R. 486 at 79–80 (Trial Tr. Apr. 19, 2013) (Page ID #2165–
66); R. 546 at 7 (Trial Tr. May 3, 2013) (Page ID #3981).

We need not decide the issue, however, because—even under plain-error review—
Respardo-Ramirez would not prevail. Under that standard, we have discretion to remedy a clear
or obvious error that affected a defendant’s substantial rights. Puckett, 556 U.S. at 135. There
was not a plain or obvious error here. “In conspiracy cases, ‘a variance constitutes reversible
error only if . . . the indictment alleged one conspiracy, but the evidence can reasonably be
construed only as supporting a finding of multiple conspiracies.’” Adams, 722 F.3d at 805–06
(quoting Caver, 470 F.3d at 235–36). Respardo-Ramirez fails to meet this standard and also fails
to show the prejudice required to establish any impact on his substantial rights. His variance
challenge therefore fails.

E. The Sufficiency of the Evidence of Specific Intent to Distribute Cocaine

Santana and Espinoza challenge their convictions for Count 2, aiding and abetting
possession with intent to distribute cocaine. Santana argues that there was a variance between
the indictment and the evidence. Espinoza argues that the government failed to present sufficient
evidence of his specific intent to distribute the cocaine. Both appellants argue that although the
evidence at trial established that Espinoza and Santana possessed 500 or more grams of cocaine,
nonetheless they never intended to distribute the cocaine because the cocaine was just a ruse to
lure Freeman to a meeting.

1. Variance

Santana couches his argument in terms of a fatal variance, but the government contends
that Santana is actually challenging the sufficiency of the evidence. When the defendant-
appellant “is really claiming that the evidence in this case was insufficient to convict him,” we
employ the typical sufficiency standard of review by viewing the evidence in the light most
favorable to the government. United States v. Bearden, 274 F.3d 1031, 1040 (6th Cir. 2001).
The gravamen of Santana’s argument is that the government proved robbery—not possession
with intent to distribute cocaine—because the government failed to prove the requisite specific
intent to distribute cocaine. We agree with the government that Santana’s argument is actually
Nos. 13-2300/2389/2510/2582 United States v. Soto et al Page 26

about the sufficiency of the government’s evidence, and therefore we analyze his claim as a
challenge to the sufficiency of the evidence.

2. Sufficiency of the Evidence

Santana and Espinoza argue that the government did not present sufficient evidence of
their specific intent to distribute cocaine. Read together, 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B)(ii)(II) prohibit “knowingly or intentionally . . . possess[ing] with intent to
manufacture, distribute, or dispense” 500 grams or more of cocaine. It is a specific-intent crime;
the government must prove that the defendants specifically intended to distribute the drugs.
United States v. Hardy, 643 F.3d 143, 151 (6th Cir. 2011). Title 21 U.S.C. § 802(11) defines
“distribute” as “to deliver (other than by administering or dispensing) a controlled substance.”
Subsection eight defines “deliver” as “the actual, constructive, or attempted transfer of a
controlled substance.” Id. § 802(8). The statute does not define “transfer.” See id. § 802.
Santana and Espinoza argue that a “transfer” requires an actual showing that a defendant
intended to relinquish his superior right to exercise control over the narcotics. The government
offers two arguments in response. First, it argues that “the statute does not require intent to
permanently transfer control.” Appellee Br. at 37. Second, the government argues that “[t]he
jury could reasonably infer that Santana and Espinoza knew that Soto did not intend to allow
them to keep the three kilograms of cocaine he provided as bait, but that they would have to
return it to him or take it to a customer.” Id. at 40.

We decline to address the appellants’ statutory argument because we conclude that the
evidence was sufficient to convict Espinoza and Santana even under the meaning of “transfer”
they advocate. “[E]vidence is sufficient to support a conviction if, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Coleman v. Johnson, 132 S. Ct.
2060, 2064 (2012) (emphasis in original) (internal quotation marks omitted). That standard
“requir[es] only that jurors draw reasonable inferences from basic facts to ultimate questions.”
Id. (internal quotation marks omitted). We agree with the government that a jury could
reasonably infer that Santana and Espinoza aided and abetted Soto to possess cocaine with the
intent to distribute it.
Nos. 13-2300/2389/2510/2582 United States v. Soto et al Page 27

The evidence at trial established that the plot to rob Freeman was part of the broader
drug-distribution conspiracy. The group went to Detroit to collect a drug debt after El Cartero
disappeared without paying Soto for the drug delivery. Soto gave the group three kilograms of
cocaine as bait. After the robbery in Detroit, Espinoza, Santana and the others began driving
back to Chicago with the cocaine in Soto’s car. The evidence established that Soto was in the
cocaine business and sold Bravo-Garcia six to eight kilos of cocaine every week. In addition,
Soto sold cocaine to Freeman, who cooked, packaged, and sold the cocaine to customers in
Detroit. These facts are sufficient for the jury reasonably to infer that Espinoza and Santana
would return the cocaine to Soto in Chicago, where it would be sold to other buyers like Bravo-
Garcia and Freeman. Accordingly, Espinoza’s and Santana’s argument fails.

F. Sufficiency of the Evidence of a Forcible Transport Across State Lines

Respardo-Ramirez challenges the sufficiency of the evidence to support his conviction on
Count 6, kidnapping in violation of 18 U.S.C. § 1201. Respardo-Ramirez argues that there is no
evidence to support a finding that the kidnapping victims did not consent to the transportation
across state lines. If the victims were released before crossing state lines from Michigan into
another state, or if the victims consented to crossing state lines, then the government’s proof
fails. See United States v. Toledo, 985 F.2d 1462, 1467 (10th Cir. 1993); United States v. Dixon,
592 F.2d 329, 340 (6th Cir. 1979) (citing the elements of kidnapping for 18 U.S.C. § 1201(a)).

We turn to the evidence in the record. Gudino and Bravo-Garcia testified that they
pointed guns at Enriquez-Enriquez and Victor to force them into the van. Santana, Ramirez, and
Espinoza used zip ties and tape to bind Enriquez-Enriquez and Victor, and the victims’ hands
were still tied behind their backs when they arrived in Chicago. Based on that evidence, a
reasonable jury could conclude that the victims’ hands were tied when Santana, Ramirez, and
Espinoza transported them across state lines. And it is reasonable to infer that Enriquez-
Enriquez and Victor did not consent to being tied up in the van as they crossed the borders of
Michigan, Indiana, and Illinois. Thus, we reject Respardo-Ramirez’s argument.
Nos. 13-2300/2389/2510/2582 United States v. Soto et al Page 28

G. Sufficiency of the Evidence of Aiding and Abetting the Brandishing of a Firearm

Espinoza and Respardo-Ramirez challenge the sufficiency of the evidence to support
their convictions on Count 7, brandishing a firearm during and in relation to a drug trafficking
offense in violation of 18 U.S.C. § 924(c).

Espinoza challenges the sufficiency of the evidence establishing that he aided and abetted
the brandishing of a firearm in furtherance of a drug-trafficking crime. He argues that the
government failed to prove that he had the requisite specific intent to distribute cocaine because
the jury acquitted him of conspiracy to distribute cocaine. Because we hold that the evidence is
sufficient to support Espinoza’s conviction on Count 2, possession with intent to distribute
500 or more grams of cocaine, supra Section E, there was sufficient evidence for a rational jury
to find that Espinoza had the specific intent to distribute cocaine. Thus, there is sufficient
evidence that he aided and abetted the brandishing of a firearm in furtherance of a drug-
trafficking crime.

Respardo-Ramirez also challenges the sufficiency of the evidence for his conviction on
Count 7, brandishing a firearm during and in relation to a drug trafficking offense in violation of
18 U.S.C. § 924(c).20 Unlike Espinoza, Respardo-Ramirez was not charged or convicted on
Count 2. In his case, the predicate offense was the conspiracy to possess with intent to distribute
cocaine.

There was no evidence that Respardo-Ramirez owned, possessed, or used the firearms
listed in the indictment. Santana, Espinoza, Ramirez, Gudino, and Bravo-Garcia brandished the
firearm in Detroit, but Respardo-Ramirez was in Chicago at the time the others brandished their
guns. Instead, the grand jury charged Respardo-Ramirez as an aider and abettor of the firearm
brandishing.

To find a defendant criminally liable as an aider and abettor under 18 U.S.C. §§ 2 and
924(c), the government must offer sufficient proof that the defendant “(1) [took] an affirmative
act in furtherance of that [drug trafficking] offense, (2) with the intent of facilitating the offense’s

20
The district court entered a judgment of acquittal for Respardo-Ramirez on Count 8, brandishing a
firearm in furtherance of and during and in relation to a crime of violence. R. 515 at 23 (Dist. Ct. Op. & Order)
(Page ID #3466).
Nos. 13-2300/2389/2510/2582 United States v. Soto et al Page 29

commission.” Rosemond v. United States, --- U.S. ---, 134 S. Ct. 1240, 1245 (2014). Liability
attaches even where the defendant aids “only one (or some) of a crime’s phases or elements.” Id.
at 1247. Thus, Respardo-Ramirez’s conviction must stand if, viewing the evidence in the light
most favorable to the government, there is evidence that he “facilitat[ed] either the drug
transaction or the firearm use (or of course both).” Id. There is one limitation: the government
must also prove that the defendant knew in advance “that one of his confederates will carry a
gun” to further the drug offense. Id. at 1249.

Even though the government did not charge Respardo-Ramirez for possession of cocaine
with intent to distribute it, the grand jury charged him for joining a conspiracy to distribute
cocaine. Thus, we must affirm the firearm conviction if there is sufficient evidence from which a
reasonable jury could find that the fake drug deal with Freeman furthered the drug conspiracy,
and that Respardo-Ramirez had foreknowledge that his confederates would brandish guns.

We return to the record. Bravo-Garcia testified that Respardo-Ramirez had a gun in the
garage in Chicago where the confederates questioned and held Victor and Enriquez-Enriquez.
Bravo-Garcia also stated that Respardo-Ramirez was present during the planning meeting for the
second trip to Detroit. While the group went to Detroit for the second time, Respardo-Ramirez
guarded the kidnapping victim who remained in Chicago—an act that helped the people involved
in the fake drug deal because none of them had to remain in Chicago to guard Victor. From this
evidence we conclude that there was sufficient evidence to find that Respardo-Ramirez knew in
advance that his accomplices had firearms that they would use to further the conspiracy to
distribute cocaine.

Moreover, we hold that the evidence at trial was sufficient to establish that those who
brandished the firearms did so to further the drug conspiracy. Enriquez-Enriquez and Victor’s
kidnapping and the heist of Freeman were all planned to further the broader conspiracy to sell
cocaine in Chicago and Detroit. We must draw inferences in favor of the government, and
therefore it is not unreasonable to conclude that Respardo-Ramirez knew that his friends had
guns, that they intended to use cocaine to rob Freeman, and that the robbery related to the
conspiracy. Thus, the district court did not err when it concluded that the evidence was sufficient
to support a conviction on Count 7.
Nos. 13-2300/2389/2510/2582 United States v. Soto et al Page 30

H. Sentencing Issue: Second or Successive Convictions under § 924(c)

Santana and Soto challenge their sentences. They argue that the district court violated the
Sixth Amendment when it imposed a mandatory twenty-five-year sentence to run consecutively
with the other sentences without a jury finding that the convictions were second or successive.

1. Standard of Review

We review de novo legal determinations about whether a prior offense triggers a
mandatory minimum. United States v. Davis, 751 F.3d 769, 773 (6th Cir. 2014). When the
defendant does not properly preserve the error, we review the district court’s sentencing
determination for plain error. Id. The government agrees that Soto properly preserved his
challenge to the application of the mandatory minimum sentence. Consequently, we will review
Soto’s challenge de novo.

With respect to Santana, however, the government disagrees about the proper standard of
review. “When determining whether a party has adequately preserved a claim for appeal, this
court examines the record with an eye to the realities of the facts and circumstances of each
sentencing proceeding.” Davis, 751 F.3d at 773 (internal quotation marks omitted). In his
sentencing memorandum, Santana did not raise a Sixth Amendment challenge to the imposition
of a mandatory minimum on the basis that the jury did not find consecutive offenses. But
Santana’s counsel raised his Sixth Amendment objection at the sentencing hearing. And the
district court considered and ruled on the objection. Thus, Santana adequately preserved his
Sixth Amendment challenge, and we review the district court’s holding de novo.

2. Jury Fact-Finding and the Sixth Amendment

Although the district court acknowledged that it is “fair to characterize what happened as
a single course of conduct,” it held that the evidence established two separate offenses on two
different days. R. 534 at 26 (Santana Sentencing Hr’g) (Page ID #3591); R. 549 at 19–20 (Soto
Sentencing Hr’g) (Page ID #4138–39). Santana and Soto argue that whether there were two
distinct offenses or one course of conduct was a question for the jury—not a judge—to decide.
That judicial factfinding, they argue, violated the Sixth Amendment because the jury verdict
forms do not establish whether either act was a second or subsequent offense. The jury found
Nos. 13-2300/2389/2510/2582 United States v. Soto et al Page 31

Soto and Santana guilty of Count 7, brandishing a firearm during and in relation to a drug
trafficking crime, and Count 8, brandishing a firearm during and in relation to a crime of
violence. Both counts reference the same firearms and the same date ranges, October 20–22,
2009. The counts differ in that Count 7 alleges that the defendants brandished the firearms in
furtherance of two drug-trafficking crimes—the inchoate crime of conspiracy to possess with the
intent to distribute cocaine, and the substantive crime of possession with intent to distribute
cocaine, whereas Count 8 relates to a “crime of violence,” namely the substantive offense of
kidnapping and the inchoate crime of conspiracy to kidnap. Compare R. 413 at 6 (4th
Superseding Indictment) (Page ID #1743), with id. at 7 (Page ID #1744). Thus, based on the
indictment and verdict form alone, it is not clear that one § 924(c) offense is prior or subsequent
to the other because the substantive offenses have overlapping dates,21 and the inchoate offenses
span a broad period of time, which includes the dates of the substantive offenses.22 See id. at 1–
6 (Page ID #1738–43).

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by an impartial jury . . . .” U.S. CONST. amend. VI.
The right to an impartial jury trial combined with the Due Process Clause of the Fifth
Amendment requires that the government prove “each element of a crime” to a jury “beyond a
reasonable doubt.” Alleyne v. United States, 133 S. Ct. 2151, 2156 (2013). If a fact is “an
‘element’ or ‘ingredient’ of the charged offense,” then a jury must find that fact beyond a
reasonable doubt. Id. at 2158. “Facts that increase the mandatory minimum sentence are . . .
elements and must be submitted to the jury and found beyond a reasonable doubt.” Id. “It is
impossible to dissociate the floor” and ceiling “of a sentencing range” from the ingredients of the
charged offense. Id. at 2160. When a fact “alters the legally prescribed punishment so as to
aggravate it, the fact necessarily forms a constituent part of a new offense and must be submitted
to the jury.” Id. at 2162. Juries need not find facts that influence a judge’s discretion to sentence
within the prescribed range. See id. at 2163. Soto’s and Santana’s claim turns on whether a

21
The indictment alleges that Soto and Santana possessed with the intent to distribute more than 500 grams
of cocaine “on or about October 22, 2009.” R. 413 at 2 (4th Superseding Indictment) (Page ID #1739). The
kidnapping is alleged to have occurred “on or about October 20–22, 2009.” Id. at 5 (Page ID #1742).
22
The drug-trafficking conspiracy allegedly began on or about November 26, 2008, and continued until the
date of the indictment. R. 413 at 1 (4th Superseding Indictment) (Page ID #1738). The kidnapping conspiracy
formed in October 2009 and ended on October 22, 2009. Id. at 4 (Page ID #1741).
Nos. 13-2300/2389/2510/2582 United States v. Soto et al Page 32

finding that an offense is a second or subsequent § 924(c) conviction is an element of a charged
offense that the government must prove beyond a reasonable doubt, or whether it is a fact that
affects judicial discretion. Accordingly, we turn to the statutory text.

Section 924(c)(1) requires judges to impose various mandatory minimum sentences for
using a deadly or dangerous weapon “during and in relation to any crime of violence or drug
trafficking crime.” 18 U.S.C. § 924(c)(1)(A). The sentencing scheme begins with a five-year
mandatory term of imprisonment, id. § 924(c)(1)(A)(i), and increases to seven years “if the
firearm is brandished,” id. § 924(c)(1)(A)(ii), and ten years “if the firearm is discharged.” Id.
§ 924(c)(1)(A)(iii). However, “[i]n the case of a second or subsequent conviction under this
subsection,” then the judge must impose a sentence of not less than twenty-five years. Id.
§ 924(c)(1)(C)(i). In Alleyne, the Supreme Court held that, if a judge imposes the seven-year
mandatory minimum sentence required for brandishing a weapon under § 924(c)(1)(A)(ii), then a
jury must find beyond a reasonable doubt that the firearm was brandished. 133 S. Ct. at 2163.
The logical extension of Alleyne strongly suggests that a jury must find whether a § 924(c)
conviction is second or subsequent before the judge can increase the minimum sentence from
five to twenty-five years.

It is not so simple. The Supreme Court left one exception to this general proposition:
judges may find the fact that the defendant has a prior conviction. Id. at 2160 n.1 (citing
Almendarez-Torres v. United States, 523 U.S. 224 (1998)). And a “prior conviction” includes a
finding of guilt even “when a defendant is convicted of multiple offenses in the same
proceeding.” United States v. Washington, 714 F.3d 962, 970 (6th Cir. 2013) (citing Deal v.
United States, 508 U.S. 129, 135–36 (1993)). Thus, a judge may find that the defendant has
been convicted of a second or subsequent § 924(c) offense even when the convictions arise from
the same trial and even though Almendarez-Torres “stand[s] on shifting sands.” United States v.
Mack, 729 F.3d 594, 609 (6th Cir. 2013).

Soto’s and Santana’s Sixth Amendment claim presents a different situation, however,
because, unlike our prior cases, there was nothing in the indictment from which to determine the
dates of the two offenses. In Mack, the defendant was charged with three carjackings and armed
robberies on three different dates. Id. at 598. In Davis, we adhered to the holding of
Nos. 13-2300/2389/2510/2582 United States v. Soto et al Page 33

Almendarez-Torres, but the terms of the prior judgments provided the temporal information
necessary to find that the convictions were second and subsequent because we could identify the
date of the offense from the judgment. See 751 F.3d at 774.

We do not need to decide whether this case presents an Alleyne issue, however, because
any error was harmless. An error is harmless when “it is clear to us beyond a reasonable doubt
that the outcome would not have been different even if the district court had instructed the jury
on the element [in question] and required the jury to make a finding on that element.” Mack,
729 F.3d at 608.

Soto and Santana argue that a jury could have found that Counts 7 and 8 were all part of
the same course of conduct, namely the drug conspiracy. To determine whether § 924(c)
offenses occurred on different occasions, we consider whether

(1) it is possible to discern the point at which the first offense is completed, and
the subsequent point at which the second offense begins; (2) it would have been
possible for the offender to cease his criminal conduct after the first offense, and
withdraw without committing the second offense; or (3) the offenses are
committed in different residences or business locations.

United States v. Paige, 634 F.3d 871, 873 (6th Cir. 2011) (internal quotation marks omitted).

Based on our review of the record, we believe that it is clear beyond a reasonable doubt
that the convictions on Count 7 and Count 8 were separate offenses. As for the two substantive
offenses, we can identify the start and endpoint of each offense because the jury found Santana
and Soto guilty of the substantive predicate offenses referenced in Counts 7 and 8: Count 2,
possession of cocaine with the intent to distribute it; and Count 6, kidnapping. The
kidnapping—the predicate offense for Count 8—occurred before the defendants possessed the
cocaine. Santana and the others went to Detroit initially to question Enriquez-Enriquez about El
Cartero’s whereabouts. R. 490 at 56–71 (Trial Tr. Apr. 30, 2013) (Page ID #2749–64). The
group hatched the plan to use the cocaine as a ruse to meet with Freeman only after kidnapping
and questioning Enriquez-Enriquez. See R. 488 at 16–19 (Trial Tr. April 23, 2013) (Page ID
#2460–63); R 490 at 86–89 (Trial Tr. Apr. 30, 2013) (Page ID #2779–82). And the evidence at
trial established that the act of possessing the cocaine for the purpose of the fake meeting with
Freeman was the factual basis for Count 7’s predicate drug-trafficking offense. It is therefore
Nos. 13-2300/2389/2510/2582 United States v. Soto et al Page 34

logically consistent that the jury found Soto and Santana guilty of the two firearms offenses
linked with the two predicate substantive offenses, which the evidence established occurred on
two different days.

It is also possible, of course, that the jury’s verdicts with respect to Counts 7 and 8 were
based on the two inchoate predicate offenses charged in Counts 1 and 5; however, that does not
make the alleged Alleyne error harmful. The jury found Soto and Santana guilty of both inchoate
offenses, as well. But it is clear beyond a reasonable doubt that the inchoate offenses were
separate. We can identify the beginning and the end of each offense. The conspiracy to kidnap
began sometime in October 2009 and ended on October 22, 2009. R. 413 at 4 (4th Superseding
Indictment) (Page ID #1741). In contrast the drug conspiracy began “on or about November 26,
2008, and continu[ed] to on or about the date of [the] Indictment,” April 2, 2013. Id. at 1, 11
(Page ID #1738, 1748). It was possible for Soto and Santana to join the drug conspiracy and not
the kidnapping conspiracy, or vice versa. And the evidence definitively established that there
were two incidents of brandishing, each of which occurred on a different day and in a different
location.

Finally, even if, for example, the jury based the conviction for Count 7 by using the drug
conspiracy as the predicate offense, and the conviction for Count 8 by using the substantive
kidnapping offense, any alleged error was harmless beyond a reasonable doubt. Each
substantive and inchoate crime required proof of different facts. And offenses are separate
§ 924(c) convictions even if they occur close in time or as part of one overarching scheme if the
offenses require proof of different facts. See United States v. Graham, 275 F.3d 490, 520 (6th
Cir. 2001). Because each listed predicate offense required proof of different facts and the
evidence overwhelmingly established that there were two separate incidents of brandishing, any
alleged Alleyne error was harmless.

III. CONCLUSION

For the reasons explained in this opinion, we AFFIRM the district court’s judgments.