NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0249n.06
No. 19-1587
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA, ) May 05, 2020
) DEBORAH S. HUNT, Clerk
Plaintiff - Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
JIMMIE BUTLER, ) WESTERN DISTRICT OF MICHIGAN
)
Defendant - Appellant. )
BEFORE: BATCHELDER, GIBBONS, and SUTTON, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Jimmie Butler pled guilty to one count of
conspiracy to distribute and possess with intent to distribute heroin, cocaine powder, and cocaine
base. The district court sentenced Butler to 262 months’ imprisonment. He raises three challenges
to his sentence on appeal. First, Butler argues that the district court erred in designating him as a
career offender under § 4B1.1 of the United States Sentencing Guidelines (“Guidelines”). Second,
assuming that he is no longer a career offender, Butler argues that the district court erred in
applying a four-level enhancement for a leadership role under § 3B1.1 of the Guidelines. Finally,
and again assuming that he is no longer a career offender, Butler argues that the district court erred
in applying an upward departure pursuant to § 4A1.3 of the Guidelines. As the government
concedes, Butler no longer qualifies as a career offender following our decision in United States
v. Havis, 927 F.3d 382 (6th Cir. 2019) (en banc). Nevertheless, because the district court
reasonably provided for the same 262-month sentence even if Butler were no longer a career
offender, we find that the error was harmless. We therefore affirm.
Case No. 19-1587, United States v. Butler
I.
Butler pled guilty to conspiring to distribute and possess with intent to distribute heroin,
cocaine powder, and cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1). As described
in the Amended Presentence Investigation Report (“PSR”), Butler and several of his co-
conspirators transported cocaine and heroin from Chicago and Detroit to Holland, Michigan.
Butler supplied this cocaine and heroin to at least five of his co-conspirators for distribution to
customers in Holland. Butler also recruited several of these individuals to join the conspiracy,
including Monique Molina, Jimmy Moore, and Donald Brake. Molina and Brake, in addition to
selling and transporting drugs for Butler, completed errands and local work on his behalf.
The PSR recommended that Butler be scored as a “career offender” under § 4B1.1 of the
Guidelines. Based on his offense conduct, the PSR also recommended that, if Butler was not
sentenced as a career offender, he receive a four-level enhancement for a leadership role under §
3B1.1(a) of the Guidelines. Prior to his hearing, Butler raised two main objections to the PSR,
arguing that he did not qualify as a career offender and had not acted as a leader of the conspiracy.
Butler also contested the drug quantity calculation contained in the PSR.
At Butler’s sentencing, the district court acknowledged its duty to consider the 18 U.S.C.
§ 3553(a) factors—listing each in full—and detailed Butler’s offense conduct. Butler’s
distribution scheme, the court found, was “a major conspiracy in the Holland community” and
“extremely serious” given the deadly opioid epidemic in Western Michigan. DE 267, Sentencing
Tr., Page ID 1667–69. The district court also found that Butler was a leader of the conspiracy,
noting that, of the “five or more participants involved,” Butler had recruited “at least one, perhaps
more.” Id. at 1647. It explained that, despite the potential overlap with other conspiracies, the
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uncontested facts of the PSR “paint the picture . . . that [Butler] was indeed an organizer or leader
of the conspiracy.” Id. at 1647–48.
The district court also determined that Butler was a career offender. See U.S.S.G. § 4B1.1.
It rejected Butler’s argument that inchoate crimes like conspiracy fall outside the definition of a
“controlled substance offense,” holding that Butler’s offense of conviction supported the career
offender designation. See U.S.S.G. § 4B1.2(b). Accordingly, after applying a three-level
reduction for Butler’s acceptance of responsibility, the court calculated Butler’s offense level as
34 and his criminal history category as VI. This resulted in a final Guidelines range of 262 to 327
months’ imprisonment. The district court sentenced Butler to 262 months.
Nevertheless, recognizing that Havis could affect Butler’s career offender designation, the
district court “state[d] for the record” that it would impose the same “262 months that I am about
to impose” even if Butler was not a career offender.1 DE 267, Sentencing Tr., Page ID 1671. To
do so, the district court explained that it would “depart upward” one level based on Butler’s
extensive criminal history. Id. A one-level departure would result in a Guidelines range of 210 to
262 months. “And at that level,” the district court explained, “considering all of the 3553 factors,
as well as offense seriousness [and] just punishment, [I] would find that a sentence at the top end
of that range would be the appropriate sentence.”2 Id.
II.
On appeal, Butler challenges his sentence on three grounds. First, he argues that the district
court erred in designating him as a career offender. Second, Butler argues that the district court
1
The district court notified Butler prior to the hearing that it might depart upward under § 4A1.3 of the Guidelines.
Butler objected at the hearing.
2
Although the district court addressed Butler’s objection to its application of the leadership enhancement before
discussing its alternative basis for imposing the 262-month sentence, the record makes clear that the enhancement was
only relevant to the alternative sentence. That is, the district court did not factor in the four-level leadership
enhancement to Butler’s career offender Guidelines range, using it only to enhance his non-career offender range.
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erred in enhancing his Guidelines range based on its finding that he was an organizer or leader of
the drug conspiracy. Finally, Butler argues that the district court erred in departing upward from
his Guidelines range based on his extensive criminal history. We address each issue in turn.
A.
Butler first argues that he is not a career offender because his conspiracy conviction no
longer qualifies as a predicate “controlled substance offense.” We review de novo a district court’s
determination that a defendant’s conviction qualifies as a “controlled substance offense.” Havis,
927 F.3d at 384. Under § 4B1.1 of the Guidelines, a defendant is a career offender if, among other
things, his offense of conviction is a “controlled substance offense.” U.S.S.G. § 4B1.1(a).
A “controlled substance offense,” in turn, is defined as an offense under state or federal law “that
prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance . .
. or the possession of a controlled substance . . . with intent to manufacture, import, export,
distribute, or dispense.” U.S.S.G. § 4B1.2(b). Although the definition in § 4B1.2(b) makes no
mention of inchoate crimes like conspiracy, an accompanying application note provides that the
term “controlled substance offense” also “include[s] the offenses of aiding and abetting,
conspiring, and attempting to commit such offenses.” U.S.S.G. § 4B1.2 cmt. n.1.
Butler relies on our decision in Havis to argue that, because conspiracy crimes are not listed
in the text of § 4B1.2(b), his conspiracy conviction cannot qualify as a “controlled substance
offense.” As the government concedes, Butler is right. Our decision in Havis provides that crimes
not expressly identified in the text of § 4B1.2(b) cannot be added by the Sentencing Commission
through commentary to the Guidelines. 927 F.3d at 386–87. Although the specific facts of Havis
involved an attempt crime, its reasoning applies with equal force to other inchoate crimes not listed
in the text of § 4B1.2(b). Accordingly, because the Guidelines’ definition of “controlled substance
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offense” does not include conspiracy crimes, the district court erred in basing Butler’s career
offender designation on his conspiracy conviction.3
B.
The district court’s error in calculating Butler’s advisory Guidelines range does not end
our analysis: we must still decide whether the error was harmless. See Fed. R. Crim. P. 52(a). It
is the government’s burden to prove harmlessness. United States v. Lanesky, 494 F.3d 558, 561
(6th Cir. 2007). A sentencing error is harmless only if the government demonstrates “with
certainty that the error . . . did not cause the defendant to receive a more severe sentence.” United
States v. Gillis, 592 F.3d 696, 699 (6th Cir. 2009) (quoting Lanesky, 494 F.3d at 561). This is a
heavy burden and, “[i]n the usual case, . . . the systemic function of the selected Guidelines range
will affect the sentence.” Molina-Martinez v. United States, 136 S. Ct. 1338, 1346 (2016).
Nevertheless, we have consistently found that errors in calculating a defendant’s Guidelines range
are harmless if the “district court made clear that ‘it would have given [the defendant] the same
sentence’ even if it had started” from the properly-calculated range. United States v. Collins, No.
19-3369, 2020 WL 398537, at *1 (6th Cir. Jan. 23, 2020) (alteration in original) (quoting United
States v. Bishop, 797 F. App’x 208, 212 (6th Cir. 2019)).
Here, the record is clear that the district court would have imposed the same 262-month
sentence even absent Butler’s erroneous career offender designation. The district court repeatedly
discussed Havis—which was pending en banc rehearing before this court—and acknowledged that
it could affect Butler’s career offender status. It thus outlined “for the record” how it would reach
the identical 262-month sentence “if indeed [Butler] is not a career offender.” DE 267, Sentencing
3
Because Butler’s offense of conviction is not a “controlled substance offense,” we do not address Butler’s separate
argument, raised for the first time on appeal, that his prior Michigan convictions for delivery or manufacture of a
controlled substance no longer qualify as predicate offenses.
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Tr., Page ID 1671. This unequivocal language—included for precisely the eventuality encountered
here—leaves us certain that Butler would have received the same sentence even absent the district
court’s error. See, e.g., United States v. Morrison, 852 F.3d 488, 491–92 (6th Cir. 2017) (finding
harmless error where the trial court stated that it would have imposed the same sentence regardless
of career offender status).
Butler, recognizing as much, focuses his challenge on the procedural and substantive
reasonableness of the district court’s alternative sentence. Specifically, he argues that the district
court erred (1) in applying a four-level leadership enhancement to his non-career offender
Guidelines range, and (2) in departing upward from his non-career offender Guidelines range.
With respect to the upward departure, Butler contends both that it was inadequately explained by
the district court and that it resulted in an excessive sentence. Our harmless error analysis thus
turns on whether the district court’s alternative grounds for the 262-month sentence were
procedurally and substantively reasonable. See Collins, 2020 WL 398537, at *1–2 (noting that
harmless error review includes an assessment of the reasonableness of a district court’s alternative
grounds for imposing a sentence); see also United States v. Ruska, 926 F.3d 309, 313 n.5 (6th Cir.
2019) (suggesting the same).
1.
Butler first argues that the district court’s application of the leadership enhancement was
procedurally unreasonable. “We review the factual findings of the district court on this issue for
clear error and accord deference to the legal conclusion that a person is an organizer or leader
under Section 3B1.1.” United States v. Olive, 804 F.3d 747, 759 (6th Cir. 2015). Under
§ 3B1.1(a), a defendant is subject to a four-level enhancement if he “was an organizer or leader of
a criminal activity that involved five or more participants.” To determine whether a defendant
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qualifies as an “organizer or leader,” the commentary instructs district courts to consider “the
exercise of decision making authority, the nature of participation in the commission of the offense,
the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the
degree of participation in planning or organizing the offense, the nature and scope of the illegal
activity, and the degree of control and authority exercised over others.” U.S.S.G. § 3B1.1 cmt.
n.4. More than one person may qualify as a “leader or organizer,” id., and a defendant need only
have led “one . . . other participant[],” id. § 3B1.1 cmt. n.2.
Butler’s main contention is that the record does not support application of the four-level
enhancement. As the district court explained, however, the uncontested facts in the PSR show that
Butler recruited “at least one” other person into the conspiracy and, “as a whole[,] . . . paint the
picture” that Butler was “indeed an organizer or leader of the conspiracy.” DE 267, Sentencing
Tr., Page ID 1647–48. To that end, the PSR painstakingly outlines how Butler directed multiple
co-conspirators to transport drugs, distribute drugs, run local errands, package drugs, and make
and collect payments for drugs. The uncontested facts also show that Butler recruited multiple
people to join the conspiracy, including co-defendants Monique Molina and Jimmy Moore.
Although Butler contends that many of his co-conspirators had other suppliers and freely chose to
participate, we have never required exclusivity or coercion to justify application of the leadership
enhancement. See, e.g., United States v. Bennett, 291 F.3d 888, 898 (6th Cir. 2002).
Butler also maintains that the district court failed to support its legal conclusion with more
than “general references” to the record. CA6 R. 14, Appellant Br., at 19. The reasons for the
district court’s holding, however, are clear. It found that: (1) there were at least five participants
in the conspiracy; (2) Butler recruited at least one of those participants; and (3) the uncontested
facts in the PSR “paint[ed] the picture” that Butler was “indeed an organizer or leader of the
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conspiracy.” DE 267, Sentencing Tr., Page ID 1647–48. Although Butler now protests that the
district court should have walked through each of the facts underpinning these findings, the court
was entitled to rely on the detailed and uncontested facts contained in the PSR. See Fed. R. Crim.
P. 32(i)(3)(A); United States v. House, 872 F.3d 748, 751 (6th Cir. 2017) (observing that detailed
factual findings “would have established a clearer record,” but holding that “the court was under
no obligation to do so since it expressly adopted” the PSR’s uncontested facts).
2.
Butler next argues that the district court’s decision to depart upward from his Guidelines
range was procedurally and substantively unreasonable. He takes issue with both the explanation
offered by the district court and the length of his resulting sentence. We review a district court’s
decision to upwardly depart in the same way we “judge the procedural and substantive
reasonableness of a variance from any [G]uidelines range.” United States v. Erpenbeck, 532 F.3d
423, 440 (6th Cir. 2008) (quoting United States v. Vowell, 516 F.3d 503, 510 (6th Cir. 2008)).
That is, we apply the familiar abuse-of-discretion standard. Id. (citing Gall v. United States,
552 U.S. 38, 46 (2007)).
a.
Butler contends that the district court committed procedural error by failing to adequately
explain the basis for its departure. Under § 4A1.3, a district court may depart upward from a
defendant’s Guidelines range when “reliable information indicates that [his] criminal history
category substantially under-represents the seriousness of [his] criminal history or the [risk or
recidivism].” U.S.S.G. § 4A1.3(a)(1). Although a district court must “adequately explain why it
has opted to depart,” United States v. Potts, 947 F.3d 357, 371 (6th Cir. 2020), its explanation
“generally need not be lengthy,” United States v. Wilms, 495 F.3d 277, 280 (6th Cir. 2007), or
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include a “rote listing or some other ritualistic incantation,” United States v. Trejo-Martinez,
481 F.3d 409, 413 (6th Cir. 2007). Instead, the aim of an explanation is to “allow for meaningful
appellate review.” Gall, 552 U.S. at 50.
Here, we have no trouble discerning the district court’s rationale for its one-level upward
departure. The district court observed that Butler had a “terrible criminal history[,] . . . rack[ing]
up 18 criminal history points.” DE 267, Sentencing Tr., Page ID 1669. To put that number in
context, the district court explained that the highest criminal history category available under the
Guidelines requires only thirteen points, effectively placing Butler in a “mythical Criminal History
Category VII.” Id. An upward departure, the court thus reasoned, was justified because “nothing
seems to have deterred Mr. Butler up to now.” Id. “[T]he public,” it added, “needs to be protected
from Mr. Butler.” Id. at 1670. The district court also tied its discussion into the 18 U.S.C.
§ 3553(a) factors, emphasizing the nature and seriousness of Butler’s offense, past lenient
sentences, the need to promote respect for the rule of law, and the need for general and specific
deterrence, among other factors. This was an adequate explanation. See United States v.
Grossman, 513 F.3d 592, 595 (6th Cir. 2008) (stating that “district court judges are involved in an
exercise of judgment, not a ritual”).
b.
Butler lastly argues that his resulting 262-month sentence is substantively unreasonable.
A sentence is substantively unreasonable if “the district court selects a sentence arbitrarily, bases
the sentence on impermissible factors, fails to consider relevant sentencing factors, or gives an
unreasonable amount of weight to any pertinent factor.” United States v. Conaster, 514 F.3d 508,
520 (6th Cir. 2008). When reviewing a sentence for substantive reasonableness, we “take into
account the totality of the circumstances,” including the extent of any departure or variance from
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a defendant’s Guidelines range. Gall, 552 U.S. at 51. Although we apply a rebuttable presumption
of reasonableness to within-Guidelines sentences, a sentence falling outside of the Guidelines is
not similarly presumed unreasonable. Id.
Butler maintains that the district court placed excessive weight on his criminal history and
the nature of his offense. The district court, however, reasonably weighed each of the § 3553(a)
factors. After acknowledging Butler’s contrition, the court emphasized that Butler had led a major
drug-trafficking operation amidst an opioid epidemic and, based on his past recidivism, continued
to pose a serious threat to the public. Butler’s extensive criminal history, which the court discussed
at length, also meant that a lesser sentence would provide inadequate specific and general
deterrence, as well as erode respect for the law. It was reasonable for the district court to base
Butler’s above-Guidelines sentence on these considerations. See, e.g., Potts, 947 F.3d at 372–73;
United States v. Griffin, 530 F.3d 433, 441 (6th Cir. 2008). Although Butler argues that the district
court failed to consider sentencing disparities with his co-defendants, § 3553(a) “is not concerned
with disparities between . . . co-defendants.” United States v. Simmons, 501 F.3d 620, 623 (6th
Cir. 2007). And to the extent Butler disagrees with the tough-on-crime policies underlying his
statutory sentencing range, the district court was not required to share his views.
We affirm.
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