United States v. Cantrell

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SCHILO W. CANTRELL, aka Shilo W. Cantrell, Defendant-Appellant.

No. 19-5391

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

March 18, 2020

NOT RECOMMENDED FOR PUBLICATION

File Name: 20a0163n.06

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY

BEFORE: MERRITT, MOORE, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge. When a police officer attempted to pull over the vehicle in which Schilo Wayne Cantrell was riding, the driver attempted to elude the officer and, after the vehicle finally came to a stop, Cantrell attempted to flee on foot. In the vehicle? Both drugs and a gun. A jury convicted Cantrell of two drug-trafficking crimes and two firearm-related crimes, and the district court sentenced him to a below-guidelines sentence of 352 months. On appeal, we consider whether sufficient evidence supported three of Cantrell's convictions, whether the district court properly admitted a police officer's opinion about the drug conspiracy, and whether Cantrell's sentence is procedurally and substantively reasonable. Finding no error, we affirm.

I

On March 16, 2018, Joshua Ison, a Morehead, Kentucky police officer, responded to a 911 call reporting that a man armed with a handgun was threatening a woman at a Days Inn motel. The caller described a black Lincoln Navigator that had left the scene. En route to the Days Inn, Ison noticed the Lincoln Navigator driving away, so he began to follow it with lights flashing. The Navigator immediately accelerated and attempted to outrun Ison's patrol car, but the car chase soon ended when the Navigator approached a dead end in a parking lot.

Near the end of that chase, but before the Navigator had completely stopped, Cantrell opened the rear driver-side door and hung his foot out of the vehicle as if preparing to run. Once the Navigator stopped, Cantrell immediately exited and attempted to flee. Ison drew his gun, saying: "Police. Stop. Show me your hands. Get on the ground." Cantrell hesitated, then jumped back into the Navigator. Ison could partially see him rummaging around inside the vehicle. Cantrell and the Navigator's two other occupants exited the vehicle and, after additional officers arrived, were taken into custody. Ison approached the Navigator to ensure that nobody else was inside. He saw a pistol box in the front, many small ziplock bags inside a "woman's satchel" on the backseat floor, and drug paraphernalia in the center console.

Ison spoke with the Navigator's occupants. Cantrell admitted to arguing with a woman at the Days Inn but denied using a gun. The other two arrestees—Mark Lockwood, the Navigator's owner and driver, and Jessica DeBarr, the front-seat passenger—told the same story. All three denied that the Navigator contained drugs or anything else illegal. Ison found evidence suggesting otherwise: Lockwood had several hundred dollars and two small bags containing a crystal substance that appeared to be methamphetamine on his person, Cantrell had a syringe on his person, and both Cantrell and DeBarr appeared to be under the influence of drugs.

Armed with this information, Ison obtained a warrant to search the Navigator. He found the following items stuffed inside a gap between the back seats where Cantrell had been sitting: a Taurus 9-millimeter handgun with a chambered round and a full or nearly full magazine, a crystal substance that appeared to be methamphetamine, and a powdery substance that appeared to be heroin, fentanyl, or cocaine. Ison also found on the back-seat floor a McDonald's bag with "a very large quantity" of what looked like methamphetamine inside, a large set of digital scales, a box containing more small ziplock bags, two smaller sets of digital scales, and a plastic-wrapped package containing yet more apparent methamphetamine.

Ison next obtained a warrant to search the adjoining motel rooms (Rooms 201 and 202) at the Days Inn where Cantrell and the others had been staying. Room 201 contained nothing incriminating, but Room 202 contained needles, syringes, and a small plastic bag containing what looked like more methamphetamine.

The United States indicted Cantrell, DeBarr, and Lockwood. It charged Cantrell with conspiring to distribute 50 grams or more of a mixture or substance containing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count 1); possessing with intent to distribute 50 grams or more of a mixture or substance containing methamphetamine (or aiding and abetting the others in doing so), in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count 2); possessing a firearm in furtherance of one or both of these drug-trafficking crimes, in violation of 18 U.S.C. § 924(c)(1) (Count 3); and being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (Count 4).

The government presented testimony from Officer Ison and three other witnesses at trial. The first of these witnesses, a forensic analyst at the Kentucky State Police crime lab, testified that she tested two of the substances seized from the Navigator's backseat area. One substance weighedabout 7.75 grams and contained methamphetamine; the other weighed about 150 grams and also contained methamphetamine.

The second witness, one of Cantrell's distant relatives, testified that she bought a Taurus 9-millimeter handgun for a cheap price at a pawn shop in March 2018. A few days later she visited Cantrell at the Days Inn, where he was then staying. Cantrell offered to buy the handgun from her for about $100 more than she had paid for it, so she sold him the gun. She identified the handgun found in the Navigator as the one she had sold to Cantrell.

The third witness was Matthew Dawkins, a police officer with nearly eight years' experience on the Drug Enforcement Agency Task Force in Lexington, Kentucky. Dawkins explained how drug-trafficking rings operate. He noted that traffickers make more money when they divide large quantities of drugs into single-use doses of a gram or half a gram, that they commonly use digital scales to prepare the smaller doses, and that they often package the doses in "small little ziplock bags." Dawkins opined that a typical drug user might carry a gram or two, but anyone carrying "30 grams, 40 grams, 50 grams" or more is "usually trafficking." He also testified that traffickers frequently use firearms—most often small handguns that are ready to fire—to protect their money and drugs. And he added that traffickers often work out of connected (or at least adjoining) motel rooms, "one room to sell dope, one room to cut it up and work." Dawkins concluded that "everything about this case leans towards trafficking in narcotics."

The jury convicted Cantrell on all counts. Cantrell's guidelines range was 360 months to life for Counts 1 and 2 (the drug-trafficking counts) and 120 months for Count 4 (the felon-in-possession count). These sentences could run concurrently with each other. But 18 U.S.C. § 924(c) required an additional consecutive sentence of 60 months for Count 3 (possessing a firearm in furtherance of a drug-trafficking offense), which raised Cantrell's final guidelines range to420 months to life. The district court varied significantly downward. It sentenced Cantrell to 352 months in prison followed by eight years of supervised release.

II

Cantrell raises two arguments attacking his conviction and two attacking his sentence.

A

Cantrell first challenges the sufficiency of the evidence supporting his two drug convictions (Counts 1 and 2) and his conviction for possessing a firearm in furtherance of a drug-trafficking offense (Count 3). (He concedes that sufficient evidence supported his felon-in-possession conviction charged in Count 4.) Cantrell bears a "very heavy burden" to succeed on this type of challenge. United States v. Garcia, 758 F.3d 714, 718 (6th Cir. 2014) (citation omitted). "Criminal defendants have a due-process right not to be convicted of a crime 'except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime for which they are charged.'" Thomas v. Stephenson, 898 F.3d 693, 698 (6th Cir. 2018) (quoting In re Winship, 397 U.S. 358, 364 (1970)) (alteration omitted). But courts defer to the jury's finding of guilt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). The question is not whether we are persuaded that a defendant is guilty. Id. Rather, the question is "whether, 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." Id. at 319. Cantrell cannot make this showing.

Start with Cantrell's drug convictions. For the government to prove the drug-conspiracy count (Count 1), many of our cases say that it needed to establish three elements: "(1) an agreement to violate drug laws, in this case 21 U.S.C. § 841; (2) [Cantrell's] knowledge and intent to join the conspiracy; and (3) [his] participation in the conspiracy." E.g., United States v. Sliwo, 620 F.3d 630, 633 (6th Cir. 2010). Yet the jury instructions in this case, following our model juryinstructions, identified only two elements for the government to prove: (1) two or more persons agreed to distribute drugs and (2) Cantrell knowingly and voluntarily joined the conspiracy. We have explained that merely a "semantic difference" divides these separate tests because our caselaw's participation element requires only that a defendant join the conspiracy. See United States v. Potter, 927 F.3d 446, 453 (6th Cir. 2019). To prove an agreement, moreover, the government did not need to "prove the existence of a formal or express agreement among the conspirators"; "a tacit or mutual understanding among the conspirators is sufficient." United States v. Gardner, 488 F.3d 700, 710 (6th Cir. 2007). And "once the existence [of] a conspiracy is shown, the evidence linking an individual to that conspiracy need only...