NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0237n.06
No. 15-6155
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Apr 26, 2017
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE WESTERN DISTRICT OF
HUNTER ELLS, ) TENNESSEE
)
Defendant-Appellant. )
)
)
BEFORE: SUHRHEINRICH, WHITE, and STRANCH, Circuit Judges.
PER CURIAM. Hunter Ells appeals his sentence for methamphetamine conspiracy. As
set forth below, we affirm.
A federal grand jury charged Ells and eleven others with various methamphetamine
offenses. (RE 4, Indictment, Page ID ## 15-25; RE 133, First Superseding Indictment, Page ID
## 167-77). Ells subsequently pleaded guilty without a written plea agreement to conspiracy to
possess with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and
846. (RE 241, 5/6/15 Minute Entry; RE 430, 5/6/15 Change of Plea Tr., Page ID ## 997-98;
1010).
At sentencing, after hearing testimony from the case agent and Ells, the district court
attributed to Ells 52.92 grams of pseudoephedrine1 and three-quarters of an ounce of “ice,”2
1
Pseudoephedrine is a key ingredient used in the manufacture of methamphetamine. Legal
Requirements for the Sale and Purchase of Drug Products Containing Pseudoephedrine,
No. 15-6155, United States v. Ells
corresponding to a base offense level of 26. (Presentence Report ¶¶ 16, 23; RE 403, 9/25/15
Sentencing Tr., Page ID ## 859-60). Ells received a two-level increase for obstruction of justice
for threatening a co-defendant and failing to appear for court. (Presentence Report ¶ 27; RE 403,
9/25/15 Sentencing Tr., Page ID # 845). See USSG § 3C1.1. Based on a total offense level of
28 and a criminal history category of IV, the district court calculated Ells’s guidelines range as
110 to 137 months. (RE 403, 9/25/15 Sentencing Tr., Page ID ## 859-60). Considering the
sentencing factors in 18 U.S.C. § 3553(a), the district court varied downward from that range
and sentenced Ells to 96 months of imprisonment. (Id. Page ID # 911; RE 390, Judgment, Page
ID # 646).
Pursuant to Federal Rule of Criminal Procedure 35, Ells moved to correct his sentence,
asserting that, in light of the district court’s rulings at sentencing, he should have received a total
of six criminal history points, placing him in criminal history category III. (RE 396, Def.’s Mot.
Correct Sentence, Page ID ## 679-81). The government agreed. (RE 397, Government’s Resp.
Def.’s Rule 35 Mot., Page ID ## 682-83). The district court granted Ells’s motion and
recalculated his guidelines range as 97 to 121 months and resentenced him to 90 months of
imprisonment. (RE 414, Am. Judgment, Page ID # 946; RE 431, 11/19/15 Sentencing Tr., Page
ID ## 1025, 1033).
In this timely appeal, Ells contends that he is entitled to a mitigating-role reduction under
USSG § 3B1.2. (Appellant Br. 9). We typically review the denial of a mitigating-role reduction
for clear error. United States v. Randolph, 794 F.3d 602, 616 (6th Cir. 2015). But because Ells
failed to request a mitigating role reduction, we review for plain error. See United States v.
Ephedrine, and Phenylpropanolamine, U.S. FOOD & DRUG ADMIN. (last updated Sept. 13,
2016), https://www.fda.gov/Drugs/DrugSafety/InformationbyDrugClass/ucm072423.htm.
2
“Ice” refers to concentrated methamphetamine chunks that the user smokes.
Methamphetamine, DRUG ENF’T ADMIN. (July 2013), https://www.deadiversion.usdoj.gov/drug_
chem_info/meth.pdf.
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No. 15-6155, United States v. Ells
Miller, 562 F. App’x 272, 305 (6th Cir. 2014); United States v. Ellerbee, 73 F.3d 105, 108 (6th
Cir. 1996).
USSG § 3B1.2 “provides a range of adjustments for a defendant who plays a part in
committing the offense that makes him substantially less culpable than the average participant.”
USSG § 3B1.2, comment. (n.3(A)) (2014). Section 3B1.2 authorizes a four-level reduction for a
minimal participant, a two-level reduction for a minor participant, and a three-level reduction for
a defendant whose role falls between minimal and minor.
Ells argues that he is entitled to a mitigating-role reduction in light of an amendment to
USSG § 3B1.2’s commentary, which became effective on November 1, 2015, between his two
sentencing hearings. Amendment 794 left the text of § 3B1.2 unchanged but revised the
commentary to clarify that courts should compare the defendant’s culpability to the defendant’s
co-participants’, not the typical offender of the alleged offense.3 USSG App. C, Amend. 794, at
115-16 (Suppl. 2016). As this court has held, “clarifications of the [sentencing] guidelines have
retroactive application while substantive changes do not.” United States v. Monus, 356 F.3d 714,
718 (6th Cir. 2004). In United States v. Carter, an unpublished opinion, this court held that
Amendment 794 applies retroactively because the Sentencing Commission characterized the
amendment as a clarification, the amendment changed only the commentary, and the amendment
addressed a circuit conflict regarding USSG § 3B1.2. 662 F. App’x 342, 349 (6th Cir. 2016). In
Carter, this court remanded for resentencing because the district court did not have the benefit of
the amended commentary to § 3B1.2 when it ruled on the defendant’s request for a mitigating-
3
The amendment sought to resolve a circuit conflict. Before the amendment, the Seventh and
Ninth Circuits compared the defendant’s culpability to the defendant’s co-participants. The First
and Second Circuits compared the defendant’s culpability to co-participants’ and the typical
offender of the alleged conduct. USSG App. C, Amend. 794, at 115-16 (Suppl. 2016),
http://www.ussc.gov/sites/default/files/pdf/guidelines-manual/2016/ APPENDIX_C Supplement.
pdf.
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No. 15-6155, United States v. Ells
role reduction. Id. Unlike the defendant in Carter, Ells did not request a mitigating-role
reduction in his presentence filings or during his two sentencing hearings.
We find no error, much less plain error, even under the amended commentary to USSG
§ 3B1.2. Ells contends that he was less culpable than co-defendants Nathan Austin and Rickey
Poole but fails to point to evidence of their relative participation in the methamphetamine
conspiracy. Ells argues that his role in the conspiracy was limited to cooking and using
methamphetamine; however, the record demonstrates that Ells was also a major distributor of
methamphetamine. In executing a search warrant at Poole’s house, law enforcement found
indicia of drug distribution—digital scales and plastic bags—in Ells’s locked bedroom.
(Presentence Report ¶ 7; RE 403, 9/25/15 Sentencing Tr., Page ID # 720). According to the case
agent’s testimony, Poole told law enforcement that Ells bought “ice” in Memphis and then sold it
in Tipton County. (RE 403, 9/25/15 Sentencing Tr., Page ID # 724). The case agent testified
that a confidential source purchased “ice” from Ells and went with Ells to Memphis to purchase
“ice” on thirty to forty occasions. (Id. Page ID # 723). GPS tracking records confirmed Ells’s
frequent trips to Memphis. (Id. Page ID # 727). Based on statements from Ells, Poole, and the
confidential source, the case agent concluded that Ells was responsible for distributing more than
50 grams of methamphetamine. (Id. Page ID ## 727-28). As the government notes, out of a
dozen people indicted, Ells was one of only five defendants who were charged with
manufacturing or distributing more than 50 grams of methamphetamine. (RE 134, First
Superseding Indictment (Penalty Copy), Page ID ## 178-88).
Ells has failed to show that he was substantially less culpable than the average participant
in the methamphetamine conspiracy. “The defendant, as the proponent of the downward
adjustment, bears the burden of proving a mitigating role in the offense by a preponderance of
the evidence.” United States v. Salgado, 250 F.3d 438, 458 (6th Cir. 2001). A defendant may
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No. 15-6155, United States v. Ells
receive a mitigating-role reduction when the defendant is “substantially less culpable than the
average participant.” USSG § 3B1.2.
Here, the indictment charged twelve defendants. (RE 134, First Superseding Indictment
(Penalty Copy)), Page ID ## 178-88). Ells argues two codefendants, Austin and Poole, were
more culpable than he was. (Appellant Br. 14). As this court has held, the existence of higher-
ranking conspirators does not entitle a defendant to a mitigating-role reduction. United States v.
Miller, 56 F.3d 719, 720 (6th Cir. 1995). Even if it is true that Ells was less culpable than two
co-participants, that does not establish Ells was “substantially less culpable than the average
participant,” of a twelve-person criminal conspiracy. USSG § 3B1.2. Because Ells cannot meet
the “substantially less culpable” requirement, the district court did not err by declining to apply
the reduction.
For these reasons, we AFFIRM Ells’s sentence.
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