United States v. Histed

93 F.4th 948

UNITED STATES of America, Plaintiff-Appellee, v. Zachariah Jay HISTED, Defendant-Appellant.

No. 22-2080

United States Court of Appeals, Sixth Circuit

Argued: December 6, 2023

Decided and Filed: February 22, 2024

Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 1:22-cr-00014-1—Robert J. Jonker, District Judge.

ARGUED: Dennis C. Belli, Columbus, Ohio, for Appellant. Daniel T. McGraw, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids, Michigan, for Appellee. ON BRIEF: Dennis C. Belli, Columbus, Ohio, for Appellant. Daniel T. McGraw, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids, Michigan, for Appellee.

Before: MOORE, MURPHY, and MATHIS, Circuit Judges.

MATHIS, J., delivered the opinion of the court in which MOORE, J., joined. MURPHY, J. (pp. 962-67), delivered a separate opinion concurring in part and dissenting in part.

OPINION

MATHIS, Circuit Judge.

Zachariah Histed pleaded guilty to possessing methamphetamine with intent to distribute, and the district court sentenced him to 300 months' imprisonment. Histed appeals his sentence on procedural and substantive grounds, arguing that the district court improperly calculated the drug quantity, erroneously applied multiple sentencing enhancements, wrongfully denied him credit for acceptance of responsibility, and imposed a sentence that was too long. For the following reasons, we affirm in part, vacate Histed's sentence, and remand for resentencing.

I.

In late 2021, Histed was on parole for a state methamphetamine-trafficking conviction when the Michigan State Police began to suspect him of trafficking meth again. Two confidential informants told the police that Histed frequently trafficked "pounds" of meth from Detroit, Michigan, to western Michigan. R. 66, PageID 341-42. Their tips led police to surveil Histed on January 12, 2022. That evening, Histed drove his Ford F-150 to a Detroit residence that police suspected was a "drug house." Id. at 357-59. After he left, police tracked Histed as he drove westbound on I-96. They observed Histed speeding, littering, and improperly switching lanes, so a state trooper attempted to pull Histed over. Histed pulled over to the shoulder and began to slow down, but never came to a complete stop. Instead, he suddenly sped off, passing other vehicles on the shoulder, and weaving in and out of traffic despite the congestion on the highway.

Histed exited I-96 near Okemos, Michigan. Officers eventually found his F-150 abandoned in a parking lot and saw footprints leading into a nearby forest. Officers followed the footprints with a K9 unit, finding a bag containing 122.2 grams of pure methamphetamine ("ice") just off the path.¹ After failing to locate Histed, the officers returned to search the F-150. When they opened the driver's door, they saw what appeared to be a grenade on the vehicle's floorboard. The officers were concerned enough about the grenade that they called in the bomb squad. The bomb squad determined that the grenade did not contain any explosive materials; it was inert and harmless. Once the bomb squad cleared the grenade, the officers searched the F-150 and found a document that looked like a drug ledger, a glass methamphetamine pipe, a paper plate with a note indicating a willingness to sell a quarter pound (approximately 113 grams) of meth for $1,100, and five empty heat-sealed bags. The ledger had four names crossed off with an amount of money next to each name, which totaled over $1,000, but the ledger did not contain any information about a quantity or type of drug. Residue in one of the heat-sealed bags field-tested positive for meth, and an officer testified at sentencing that each bag could hold one to two pounds of meth.

Meanwhile, Histed continued his escape. After getting away from his F-150 on foot, he called his daughter, Tayley Histed, and asked her to pick him up from Okemos. She came to Okemos and drove her father to his principal residence in Lansing. While inside that residence, Histed handed Tayley a gun case and told her to take it with her. He also told Tayley to instruct her grandmother (Histed's mother) to report the F-150 as stolen, as the truck was registered in the grandmother's name. Tayley followed Histed's instructions.

The next day, January 13, police arrived at Tayley's residence—which was listed as Histed's parole address—with a search warrant. There, the police found a semiautomatic rifle in the trunk of Tayley's vehicle, which Tayley confirmed she had received from her father the previous night.

A federal grand jury indicted Histed for: (1) possession of 50 grams or more of methamphetamine with intent to distribute, and (2) being a felon in possession of a firearm. While Histed was in jail, officers intercepted two letters he sent to Tayley. One of the letters purported to tell someone named Burt that he forgot his rifle in Tayley's trunk after he went shooting. A second letter instructed Tayley to call Burt and tell him to say that the gun was his. Histed also sent another letter instructing a third party go to the police and accuse a person who had recently died of stealing Histed's F-150 on the night Histed fled the police. Eventually, Histed gave up on these attempts to disassociate himself from his gun and truck, and he pleaded guilty to the drug offense. In return, the government agreed to dismiss the felon-in-possession charge and agreed not to oppose Histed's request for a Guidelines reduction for acceptance of responsibility if Histed continued to accept responsibility.

In the presentence report, the probation officer calculated Histed's base offense level as 34 based on the quantity of methamphetamine allegedly attributable to him. The presentence report also recommended sentencing enhancements for possession of a dangerous weapon (for both the rifle and the inert grenade), obstruction of justice, and reckless endangerment during flight. It did not propose a reduction for acceptance of responsibility. Histed objected to all of these recommendations, arguing that his base offense level should be 30 (based on only the 122.2 grams of ice that he admitted to possessing), that no enhancements should apply, and that he should receive an acceptance-of-responsibility reduction.

At the sentencing hearing, the district court found that Histed's base offense level was 32, less than what the presentence report recommended but more than what Histed requested. The district court indicated it had "no doubt" that Histed trafficked enough methamphetamine to fall within level 32 because drug trafficking "was an ongoing activity for Mr. Histed, [and] he was regularly engaged in the drug trafficking trade." R. 66, PageID 456. The court never settled on a specific amount of methamphetamine to attribute to Histed, acknowledging that "it's very hard by a preponderance or otherwise to drill down exactly how much is fairly put on him." Id. The court overruled Histed's objections to the sentence enhancements and declined a reduction for acceptance of responsibility.

All told, the district court determined Histed's advisory Guidelines range was 360 months to life imprisonment. But the district court varied downward, sentencing Histed to 300 months' imprisonment.

II.

We review the reasonableness of criminal sentences under the deferential abuse-of-discretion standard. United States v. Battaglia, 624 F.3d 348, 350 (6th Cir. 2010); see United States v. Nunley, 29 F.4th 824, 830 (6th Cir. 2022). "A district court abuses its discretion when it relies on clearly erroneous findings of fact, when it improperly applies the law, or uses an erroneous legal standard." Bisig v. Time Warner Cable, Inc., 940 F.3d 205, 218 (6th Cir. 2019) (quoting Stough v. Mayville Cmty. Schs., 138 F.3d 612, 614 (6th Cir. 1998)).

We review the district court's legal conclusions de novo and its findings of fact for clear error. Nunley, 29 F.4th at 830. A district court's factual finding is "clearly erroneous when 'although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction' that the district court made a mistake." United States v. Ellis, 938 F.3d 757, 761 (6th Cir. 2019) (quoting United States v. Vasquez, 352 F.3d 1067, 1070 (6th Cir. 2003)).

Histed challenges the procedural and substantive reasonableness of his sentence. Procedural reasonableness requires district courts to "properly calculate the [G]uidelines range, treat the [G]uidelines as advisory, consider the [18 U.S.C.] § 3553(a) factors and adequately explain the chosen sentence." United States v. Morgan, 687 F.3d 688, 693 (6th Cir. 2012). Substantive reasonableness, on the other hand, concerns "whether the sentencing court gave reasonable weight to each" of the relevant § 3553(a) factors. United States v. Boucher, 937 F.3d 702, 707 (6th Cir. 2019); see Nunley, 29 F.4th at 830. This inquiry, when raised by a defendant, addresses "a claim that a sentence is too long." United States v. Rayyan, 885 F.3d 436, 442 (6th Cir. 2018).

III.

Histed argues that the district court erred in six ways. First, Histed argues that the district court erred in determining the quantity of methamphetamine attributable to him. Second, Histed maintains that he did not possess a dangerous weapon during his drug-trafficking activities and, therefore, the district court should not have applied the dangerous-weapon enhancement. Third, he argues that the reckless-endangerment enhancement should not apply because his flight from law enforcement did not create a substantial risk of danger to others. Fourth, he contends that he did not engage in obstructive conduct that warranted the obstruction-of-justice enhancement. Fifth, Histed believes that the district court should have applied a reduction for acceptance of responsibility. And sixth, Histed argues that his sentence was substantively unreasonable. We address each argument in turn.

A.

Drug-quantity determination. We first...