Argued: June 25, 2019
from the United States District Court for the Northern
District of Ohio at Cleveland. No. 1:18-cr-00008-1-James S.
Gwin, District Judge.
Graham, UNIVERSITY OF MICHIGAN LAW SCHOOL, Ann Arbor,
Michigan, for Appellant.
Matthew B. Kall, UNITED STATES ATTORNEY'S OFFICE,
Cleveland, Ohio, for Appellee.
Graham, Melissa M. Salinas, UNIVERSITY OF MICHIGAN LAW
SCHOOL, Ann Arbor, Michigan, for Appellant.
Matthew B. Kall, UNITED STATES ATTORNEY'S OFFICE,
Cleveland, Ohio, for Appellee.
Before: SUTTON, BUSH, and LARSEN, Circuit Judges.
K. BUSH, CIRCUIT JUDGE.
jury trial, Kitroy Brian Buchanan was convicted of one count
of possession with intent to distribute marijuana and one
count of conspiracy to distribute marijuana. The district
court sentenced him to 50 months' imprisonment followed
by three years of supervised release. Buchanan now appeals
his conviction and sentence, and he makes four arguments. We
find merit in one of his arguments-a challenge to a two-level
increase in his offense level for committing a crime "as
part of a pattern of criminal conduct engaged in as a
livelihood" under USSG §§ 2D1.1(b)(16)(E) and
4B1.3. Therefore, we AFFIRM the district
court's judgment of conviction but
VACATE Buchanan's sentence and
REMAND for the district court to reconsider,
under the proper legal standard, whether the enhancement
2015, Buchanan, who was already involved in the marijuana
trade, met a United States postal worker named Dominique
Hobbs in South Euclid, Ohio. Buchanan asked Hobbs if he would
like to "do some business," which Hobbs understood
to mean that Buchanan wanted Hobbs to help him deliver
illegal drugs. R. 73, PageID 544. Hobbs said he was
interested, and the two men exchanged phone numbers. However,
Hobbs was not able to help Buchanan immediately; he explained
to Buchanan that he did not have a consistent postal route
but was a "U-person," or utility carrier, who
substituted for those with regular routes when they had to
miss work. Id. at PageID 547-48.
November 2017, Hobbs let Buchanan know that he had obtained a
regular postal route, and the two began working together.
Buchanan promised to pay Hobbs $200 in exchange for each
package Hobbs would deliver. Hobbs also supplied Buchanan
with lists of addresses on Hobbs's postal route so
Buchanan would know where Hobbs, in conjunction with his mail
deliveries, could deliver packages of marijuana.
late in November 2017, Buchanan informed Hobbs that a package
of marijuana was due to arrive in South Euclid soon, but
Buchanan was not sure of the exact arrival date. Hobbs told
Buchanan that he would not be able to deliver the package if
it happened to arrive in town that coming Monday, because
Hobbs was not working that day. As it turned out, however,
the package arrived at the South Euclid post office that
Monday. Buchanan had been tracking the package through the
United States Postal Service's website and alerted Hobbs.
Although Hobbs reminded Buchanan that he was off duty, he
agreed to help Buchanan try to lay hands on the package.
and Hobbs both drove to the post office. Hobbs asked his
supervisor, who was covering Hobbs's route that day,
whether he had Buchanan's package; the supervisor had not
seen it. Hobbs told Buchanan.
became enraged and began shouting at Hobbs, accusing him of
stealing the package, which Hobbs denied. After Hobbs and
Buchanan unsuccessfully made another attempt to find the
package at the post office, Buchanan cornered Hobbs, searched
his car for the package, and then ordered him to chauffeur
Buchanan around other postal carriers' routes to ask the
other carriers if they had the package. While he and Hobbs
were in the car, Buchanan made "[a]t least ten"
phone calls to someone whom he told that Hobbs "had the
package" and was "hiding it from" Buchanan.
Id. at PageID 585, 589.
long and fruitless search along other carriers' postal
routes, Hobbs and Buchanan had not located the package.
Buchanan let Hobbs go home, but he continued to call and send
text messages to Hobbs, reiterating that he believed Hobbs
had stolen the package and suggesting that for Hobbs's
own safety, he had better return the package to Buchanan.
for his safety, Hobbs went to the police and made a complaint
of kidnapping against Buchanan, telling the police select
details of his interactions with Buchanan without admitting
that he had been complicit in any drug activity. Because
Hobbs was a postal worker, the police communicated
Hobbs's accusation to the Postal Inspection Service, a
law-enforcement arm of the United States Postal Service.
Hobbs reiterated his story to the postal inspectors. Having
learned from Hobbs some details about the kind of car
Buchanan drove, law-enforcement officers then used database
information to identify suspect vehicles; this investigation
eventually led them to Buchanan's car and home. On
December 8, 2017, officers conducted a drug sniff of
Buchanan's car, and the dog alerted to the smell of
narcotics from the car.
was arrested on a charge of kidnapping. Law-enforcement
officers also obtained and executed search warrants for
Buchanan's home, his car, and his cellphone. The search
of Buchanan's home revealed over 150 grams of marijuana,
a vacuum sealer, and plastic food-storage bags, among other
evidence of marijuana trafficking. The search of the
cellphone revealed that Buchanan was tracking another
package. Following the tracking information from
Buchanan's cellphone, postal inspectors determined that
the package was headed to an address on Hobbs's route;
the inspectors intercepted the package, obtained a search
warrant, and opened the package to find 4.8 kilograms of
marijuana. In addition, the inspectors determined that the
return address on the package-which purported to have come
from California-was fake.
Hobbs's complaint had led to Buchanan's arrest,
law-enforcement officers questioned Hobbs further and learned
that Hobbs had concocted a false kidnapping complaint to get
Buchanan off his back without at the same time implicating
himself in a marijuana-distribution scheme. After admitting
that he had made up the kidnapping story, Hobbs also admitted
to his agreement and cooperation with Buchanan. Hobbs
eventually pled guilty to charges of lying to law enforcement
and tampering with evidence, and he agreed to testify against
January 4, 2018, Buchanan was indicted for one count of
conspiracy to distribute a controlled substance, one count of
possession of a controlled substance with intent to
distribute, and three counts of communicating threats in
interstate commerce. Because Hobbs had admitted that Buchanan
did not really kidnap him, the government dropped the
trial, Hobbs testified about his association with Buchanan,
leading up to the day that the package went missing. Among
other evidence, the government also presented testimony by
two postal inspectors, Michael Adams and Lauren Cajuste.
Adams had participated in the search of Buchanan's home,
and Cajuste had investigated the information found on
testified that he had extensive experience and training in
narcotics investigations and had served eight years as a
narcotics agent before becoming a postal inspector. He
testified that, based on his experience, the amount of
marijuana found in Buchanan's home was a
"dealer/supplier amount" and that some of the
food-packaging supplies found there were of the sort commonly
used by drug traffickers. Adams also testified that drug
traffickers often use fake return addresses when sending
packages through the mail and that they often use express or
priority mail to reduce the risk that law enforcement will
seize and search packages. Hobbs had testified, and the
government's exhibits at trial showed, that Buchanan had
used priority mail to ship packages. Adams also testified
that some of the messages Buchanan had sent to alleged
co-conspirators contained drug-traffickers' jargon. Among
other testimony, Adams also testified that ten pounds of
marijuana-an amount comparable to that found in the
intercepted package- was worth roughly $30, 000 to $50, 000
on the "street" in Cleveland. Id. at
stated that she had worked on financial investigations for
the first six years of her time as a postal inspector before
broadening her focus to include workplace violence as well as
financial investigations. She then testified at length about
what the analysis of Buchanan's cellphone and financial
records had revealed. Buchanan had communicated extensively
with someone in California about the delivery of packages,
and he had sent the delivery addresses he received from Hobbs
to the California phone number. Buchanan's contact in
California would send Buchanan tracking information for each
package, and Buchanan would track each package on the Postal
Service's website until it was delivered. According to
Buchanan's financial records, Buchanan sent payments to
accounts given to him by the California contact. In addition
to Cajuste's testimony on these matters, the government
presented numerous exhibits showing Buchanan's phone and
and exhibits also established that, besides the California
contact, Buchanan regularly communicated with an individual
located in or near Erie, Pennsylvania about delivering
packages. Buchanan's text messages with the Erie contact
demonstrated that Buchanan and the contact appeared to take
turns driving to meet each other, and one would text the
other when he was twenty minutes away from the meeting place.
Buchanan's financial records showed that he frequently
deposited money into his bank account after Erie trips.
addition to testifying about what she had learned through the
investigation of Buchanan's cellphone and financial
records, Cajuste testified about the implications of these
findings based on her experience as a postal inspector.
Specifically, Cajuste testified (on cross-examination) that
one of the individuals with whom Buchanan had communicated
about drug deliveries had used a "burner phone"
that was not registered with any phone company. R. 74, PageID
700. She continued, "You buy a burner phone, typically
in most drug conspiracies most individuals use burner phones
so they can avoid detection." Id. at PageID
700-701. Cajuste also testified that Buchanan had sent and
received messages via an ...