United States v. Welborn

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KENDALE WELBORN, Defendant-Appellant.

No. 21-5425

United States Court of Appeals, Sixth Circuit

April 29, 2022

NOT RECOMMENDED FOR PUBLICATION

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

Before: CLAY, GRIFFIN, and WHITE, Circuit Judges.

HELENE N. WHITE, CIRCUIT JUDGE

Defendant-Appellant Kendale Welborn appeals his 140-month sentence for conspiracy to distribute 500 grams or more of a mixture containing methamphetamine. He argues that his indictment was insufficient because he was charged with and pleaded guilty of conspiring to distribute a mixture containing methamphetamine but was sentenced based on a finding that his methamphetamine was actual methamphetamine. He also contends that the district court erred in following the Sentencing Guidelines because the Guidelines improperly treat offenses involving methamphetamine of higher purity more harshly than those involving methamphetamine of lower purity. For the reasons that follow, we AFFIRM.

I.

In March 2019, police officers in Manchester, Tennessee, stopped a vehicle driven by Defendant-Appellant Kendale Welborn. Welborn consented to a search of the vehicle, and the officers found a bag containing approximately 2.5 ounces (i.e., more than 72 grams) of methamphetamine digital scales, and approximately $1, 130 in cash. The officers also found a key to a motel room rented by Welborn's co-defendant. In the room, the officers found Welborn's clothes and over 1.5 pounds (i.e. more than 653 grams) of methamphetamine.

In February 2020, a federal grand jury returned a four-count indictment against Welborn and several co-defendants. The indictment charged Welborn with conspiring to distribute "500 grams or more of a mixture and substance containing a detectable amount of methamphetamine" in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. R.1 PID 1. It also charged Welborn with possession with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C).

Pursuant to a written plea agreement, Welborn pleaded guilty to "[c]onspiracy to distribute 500 grams or more of a mixture and substance containing methamphetamine." R.72, PID 122. In exchange, the government agreed to dismiss the possession-with-intent-to-distribute count. It also agreed to a three-point reduction in the total offense level in consideration of Welborn's acceptance of responsibility. Welborn stipulated and agreed that the facts set forth in the plea agreement satisfied all the elements of the charged offense. He also agreed and acknowledged that: those facts "do not necessarily constitute all of the facts in the case. Other facts may be relevant to sentencing;" both he and the government "retain[ed] the right to present additional facts to the Court to ensure a fair and appropriate sentence in this case;" his sentence "will be determined by the Court after it receives the presentence investigation report from the United States Probation Office and any information presented by the parties;" and "the sentencing determination will be based upon the entire scope of the defendant's criminal conduct, the defendant's criminal history, and pursuant to other factors and guidelines as set forth in the Sentencing Guidelines and the factors set forth in 18 U.S.C. § 3553." R.72, PID 123, 125.

The presentence investigation report (PSR) calculated a base offense level of 36, resulting in a total offense level of 33 after a three-point reduction for acceptance of responsibility. In calculating Welborn's base offense level, the PSR noted that Welborn's supplier told law enforcement officials that she supplied him with a total of two kilograms of methamphetamine. The PSR also relied on laboratory reports from the Drug Enforcement Agency (DEA) stating that the methamphetamine it tested was 100% pure, which exceeded the 80% threshold for considering the methamphetamine as actual methamphetamine. Under the Sentencing Guidelines, quantities of at least 1.5 kilograms but less than 4.5 kilograms of actual methamphetamine result in a base offense level of 36, and the two kilograms of methamphetamine the PSR attributed to Welborn fell comfortably within that range. The PSR calculated a criminal-history category of V and, accordingly, a Guidelines imprisonment range of 210 months to 262 months.

Welborn objected to the PSR, noting that the PSR's finding that his methamphetamine was actual methamphetamine contradicted the indictment and plea agreement, which only held him responsible for a mixture containing methamphetamine. He argued that "Methamphetamine Actual and Methamphetamine mixture are separate crimes and require different elements of the crime itself and that he pled guilty to a mixture." R.141, PID 731. He also argued that he should only be held responsible for the methamphetamine found in his car and the motel room, as opposed to the two kilograms his source said she supplied him. According to Welborn, correctly calculated, his base offense level was 30, resulting in a total offense level of 27 after a three-point reduction for acceptance of responsibility, and a Guidelines imprisonment range of 120 to 150 months.^[1]

The government responded in opposition, arguing that "[t]he language of the indictment does not dictate the Guidelines range-the facts do." R.206, PID 1060. It urged the court to "reject any suggestion by [Welborn] that, because he pleaded to a mixture and substance containing methamphetamine, his Guidelines calculation categorically may not be based on an amount of methamphetamine (actual)." Id. In a slight deviation from the PSR, the government recommended a base offense level of 34.^[2] Based on a total offense level of 31 after a three-point reduction for acceptance of responsibility, and a criminal-history category of V, the government recommended a Guidelines range of 168 to 210 months' imprisonment.

At sentencing, Welborn renewed his objection to the discrepancy in the purity of the methamphetamine as reflected in the PSR on the one hand, and the indictment and plea agreement on the other, and again argued that the methamphetamine found in the motel room, which was rented by his co-defendant, should not be attributed to him. The district court overruled both objections and accepted the government's Guidelines calculation. In doing so, the district court explained that it treated the 725.65 grams of methamphetamine found in Welborn's car and the motel room as actual methamphetamine based on the laboratory reports, but "did not incorporate the additional mixture based on the source's statement." R.238, PID 1536-37.

The district court granted a downward variance and sentenced Welborn to 140 months' imprisonment, in part because Welborn's prior offenses were, in the court's view, relatively minor and a Guidelines imprisonment range would be "unduly harsh given Mr. Welborn's particular circumstances." R.238, PID 1537-41. It also dismissed the remaining count in accordance with the plea agreement.

Welborn timely appealed.

II.

A.

Welborn first argues that his indictment was insufficient because, although it charged him with conspiring to distribute a methamphetamine mixture, he was sentenced based on a finding that his methamphetamine was pure or actual methamphetamine. Welborn asserts that the indictment's failure to "state the specific purity level that the defendant is charged with," Appellant Br. at 15, which he contends is "an element of the crime itself," id. at 4, violated his "right to know exactly the crime that he [was] charged with." Id. at 16. We disagree.

1.

We review de novo the sufficiency of an indictment where a proper objection is made below. United States v. Howard, 947 F.3d 936, 942 (6th Cir. 2020). But where the defendant fails to challenge the indictment's sufficiency in the district court, "the indictment must be construed liberally in favor of its sufficiency." Id. (quoting United States v. Gatewood, 173 F.3d 983, 986 (6th Cir. 1999)). An indictment must contain "a plain, concise, and definite written statement of the essential facts constituting the offense charged." Fed. R. Crim. P. 7(c)(1); see also United States v. Schaffer, 586 F.3d 414, 422 (6th Cir. 2009). "An indictment is 'sufficient if it (1) contains the elements of the charged offense, (2) gives the defendant adequate notice of the charges, and (3) protects the defendant against double jeopardy.'" United States v. Rankin, 929 F.3d 399, 404- 05 (6th Cir. 2019) (quoting Valentine v. Konteh, 395 F.3d 626, 631 (6th Cir. 2005)). It must also include "such a statement of the facts and circumstances as will inform the accused of the specific offence, coming under the general description, with which he is charged." Id. at 405 (quoting Hamling v. United States, 418 U.S. 87, 117-18 (1974)).

The government argues that because Welborn challenges the sufficiency of the indictment for the first time on appeal, this court should review his challenge for plain error. We need not address this argument because Welborn's challenge fails even under de novo review, without construing the indictment liberally in favor of its sufficiency. See Rankin, 929 F.3d at 405 n.1.

2.

Turning to the merits of Welborn's claim, we must first determine the elements of the charged offense, and then determine if the indictment adequately charges those elements. "To sustain a conviction for drug conspiracy under section 846 the government must prove beyond a reasonable doubt: (1) an agreement to violate drug laws; (2) knowledge of and intent to join the conspiracy; and (3) participation in the conspiracy." United States v. Gardner, 488 F.3d 700, 710 (6th Cir. 2007). The indictment alleges that Welborn...