NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0233n.06
No. 08-6496 FILED
Apr 14, 2010
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
) ON APPEAL FROM THE
Plaintiff-Appellee, ) UNITED STATES DISTRICT
) COURT FOR THE WESTERN
v. ) DISTRICT OF TENNESSEE
)
VICTOR RAY THOMAS, ) OPINION
)
Defendant-Appellant. )
BEFORE: GUY, COLE, SUTTON, Circuit Judges.
COLE, Circuit Judge. Defendant-Appellant Victor Ray Thomas challenges his 360-month
sentence for conspiracy to possess with intent to distribute methamphetamine, in violation of 18
U.S.C. § 846, and being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). For
the reasons explained below, we AFFIRM his sentence.
I. BACKGROUND
On June 6, 2007, following a two-year investigation, Shelby County narcotics officers
executed a search warrant at Thomas’s Memphis residence, recovering four firearms; small
quantities of marijuana, cocaine, crack-cocaine, and Hydrocodone; two sets of scales and other drug
paraphernalia; and $ 3,195 in cash. After being advised of his Miranda rights, Thomas confessed
to dealing methamphetamine in the Memphis area since February 2006. He estimated that he had
sold between fifty and sixty pounds of the narcotic during that time, but acknowledged that it was
No. 08-6496
United States of America v. Victor Ray Thomas
difficult to be any more precise due to the large number of sales he had conducted.
On June 20, a federal grand jury indicted Thomas and three associates on various narcotics
and firearms-related charges. On July 3, Thomas entered a plea of guilty to conspiracy to possess
with intent to distribute in excess of five hundred grams of methamphetamine and being a felon in
possession of a firearm. The pre-sentence investigation report (“PSR”) set Thomas’s base offense
level at thirty-eight and recommended (i) a two-level enhancement pursuant to United States
Sentencing Guideline (“U.S.S.G.”) § 2D1.1(b)(1) for possession of a firearm, (ii) a four-level
enhancement pursuant to U.S.S.G. § 3B1.1(a) for being an organizer or leader of a criminal activity
involving five or more participants, and (iii) a three-level reduction pursuant to U.S.S.G. § 3E1.1 for
acceptance of responsibility, resulting in a total offense level of forty-one. Based on Thomas’s
sixteen criminal history points, the PSR assigned a criminal history category of VI, producing an
advisory Guidelines sentencing range of 360 months to life. Thomas objected to the four-level
enhancement under U.S.S.G. § 3B1.1(a), arguing that a two-level enhancement under U.S.S.G.
§ 3B1.1(c) would be more appropriate. This adjustment would have lowered his total offense level
to thirty-nine but produced the same advisory sentencing range of 360 months to life.
At Thomas’s sentencing hearing on December 8, 2008, the district court rejected this
objection. The court reasoned:
Under 3B1.1, aggravating role, it provides that if the defendant was an organizer or
a leader of a criminal activity that involved five or more participants or was otherwise
extensive, increase by four levels. . . . In asserting whether an organization is
otherwise extensive, all persons involved during the course of the entire offense are
to be considered. . . . The amount of material in this case was pretty phenomenal, and
it appears that the numerical minimum is met, but even if it were not, clearly, it was
a very extensive operation. A lot of methamphetamine over a significant period of
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United States of America v. Victor Ray Thomas
time. And extensive or otherwise extensive appears to be the correct characterization.
I don’t know that it makes any difference in terms of ultimate result in the case, but
it’s a case in which that’s the proper characterization. So the four-point enhancement
is appropriate.
Adopting the total offense level, criminal history category, and advisory Guidelines sentencing range
set out in the PSR, the court then considered the sentencing factors listed in 18 U.S.C.§ 3553(a).
Noting that “if anybody ever started out with everything loaded up against them, you kind of did,”
the court opined that Thomas nonetheless was “articulate” and a “caring father,” was not “a bad guy,”
and had “a lot of ability in many respects.” Against these factors the court weighed the substantial
amount of narcotics involved, Thomas’s past criminal conduct, and the need to deter others from
committing the same offense and to protect the public. Accordingly, the court sentenced Thomas to
360-months imprisonment for the narcotics-conspiracy offense, the low end of the advisory
sentencing range, to run concurrently with a ten-year sentence for the firearm-possession offense.
Thomas now appeals.
II. ANALYSIS
Thomas raises two issues on appeal. First, he argues that the district court erred in applying
a four-level enhancement pursuant to U.S.S.G. § 3B1.1(a) because his narcotics scheme involved
no more than four individuals. Second, he argues that his sentence was procedurally unreasonable
because the district court did not adequately consider his personal circumstances in its analysis of the
18 U.S.C. § 3553(a) factors.
A. U.S.S.G. § 3B1.1(a)
The standard of review that we apply to a district court’s imposition of a leader or organizer
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enhancement under U.S.S.G. § 3B1.1(a) is “subject to some debate.” United States v. Walls, 546
F.3d 728, 734 (6th Cir. 2008) (internal quotation marks omitted) (describing arguable impact of
Buford v. United States, 532 U.S. 59 (2001), on standard of review). Like previous panels of this
court, we decline to resolve this debate because Thomas’s sentence withstands scrutiny under either
de novo or deferential review. Cf. Walls, 546 F.3d at 734 (finding it “‘unnecessary to determine
whether Buford requires us to alter the standard of review we apply in reviewing § 3B1.1
enhancements because [we] would have affirmed the district court’s sentencing determination under
either standard’”) (quoting United States v. McDaniel, 398 F.3d 540, 551 n.10 (6th Cir. 2005)).
Thomas does not challenge the court’s determination that he was a leader or organizer, but
argues that the Government did not present evidence that his organization involved five or more
participants, as required under § 3B1.1(a). Rather, according to Thomas, the evidence suggested at
most four participants. However, a review of the record indicates that § 3B1.1(a)’s numerosity
requirement was more than satisfied. For the purposes of § 3B1.1, a participant is “a person who is
criminally responsible for the commission of the offense, but need not have been convicted.” U.S.
Sentencing Guidelines Manual § 3B1.1 cmt. n.1 (2008); see also United States v. Anthony, 280 F.3d
694, 698 (6th Cir. 2002) (further defining “participants” as persons “who were (i) aware of the
criminal objective and (ii) knowingly offered their assistance”). In addition to Thomas, the PSR
identifies at least eight other participants in the criminal enterprise: Ashleigh Carter, who Thomas
acknowledges was a participant; Jon Oliver, who sold methamphetamine and wired payments to
California on Thomas’ behalf; Marc Vandawalker, who acted as a middleman for Thomas and
introduced him to Oliver; Michael Thompson, who traveled with Thomas to California to transport
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United States of America v. Victor Ray Thomas
methamphetamine and purchased ten to fifteen pounds of product from Thomas over the course of
the conspiracy; Steven Ivy and Rayford Pratcher, who assisted Oliver with at least one attempted
methamphetamine deal; “Na Na,” Thomas’s main source of methamphetamine in California; and
Sergio “LNU” (last name unknown), Na Na’s middleman. In addition, testimony presented by the
Government at the sentencing hearing identified three other participants in the criminal enterprise:
Demetrius Powell, who moved drugs for Thomas; Debra Williams, who also assisted in transporting
Thomas’s drugs; and Nancy LNU, who also was involved in sourcing and / or transporting the drugs.
Thomas presents no argument why any of these eleven individuals should not be considered a
participant in the conspiracy.
We do not include in the tally several individuals, including one or more undercover officers,
who merely purchased methamphetamine from Thomas, since they do not qualify under § 3B1.1(a)
as participants in his narcotics distribution conspiracy. See U.S. Sentencing Guidelines Manual
§ 3B1.1 cmt. n.1 (2008) (“A person who is not criminally responsible for the commission of the
offense (e.g., an undercover law enforcement officer) is not a participant.”); cf. United States v.
Wheeler, 67 F. App’x 296, 304 (6th Cir. 2003) (finding that individuals were participants in criminal
scheme, not merely customers); United States v. Cashin, No. 92-2555, 1994 WL 47784, at *8 (6th
Cir. 1994) (same). Moreover, while the numerosity requirement was satisfied, we note that the
district court’s alternative finding—that even were this requirement not satisfied, the enterprise
should be considered “otherwise extensive” under § 3B1.1(a) because it involved “a lot of
methamphetamine over a significant period of time”—appears to disregard our holding that the
“width, breadth, scope, complexity and duration of the scheme” are not relevant to the § 3B1.1(a)
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United States of America v. Victor Ray Thomas
analysis. See Anthony, 280 F.3d at 699 (rejecting totality of the circumstances analysis and holding
that criminal enterprise may be found “otherwise extensive” under § 3B1.1 only “when the
combination of knowing participants and non-participants in the offense is the functional equivalent
of an activity involving five criminally responsible participants”). Finally, we also note that our
review would be assisted greatly by the district court’s identifying the individuals it found were
participants in Thomas’s scheme. But since the court properly held that the numerosity requirement
of § 3B1.1 was satisfied, we find no error. Cf. United States v. Vandeberg, 201 F.3d 805, 809-811
(6th Cir. 2000) (noting that failure to specify factual basis for application of § 3B1.1 enhancement
is not grounds for vacating the sentence but may necessitate de novo review).
B. Reasonableness of the sentence
Thomas next argues that his sentence was unreasonable because the district court failed to
consider adequately his personal circumstances in its analysis of the 18 U.S.C. § 3553(a) factors. The
PSR details that Thomas indeed faced difficult circumstances growing up. Abandoned as an infant
by his mother, a drug addict who has been missing since 2003, Thomas was raised in South Central
Los Angeles by his grandmother and (after her death when he was ten years old) his great-
grandparents, and did not meet his father, who is now serving two life sentences for drug offences,
until he was seventeen years old. Nonetheless, the record clearly demonstrates that the district court
considered Thomas’s circumstances and character, weighing these against the substantial amount of
narcotics Thomas had distributed, his past criminal conduct, and the need to deter crime and protect
the public in handing down a sentence at the bottom end of the advisory Guidelines range. A district
court need only “set forth enough to satisfy the appellate court that he has considered the parties’
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arguments and has a reasoned basis for exercising his own legal decisionmaking authority.” Rita
v. United States, 551 U.S. 338, 356 (2007). The district court has done so here.
III. CONCLUSION
For these reasons, we AFFIRM Thomas’s sentence.
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