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United States v. Buchanan

United States Court of Appeals, Sixth Circuit

July 31, 2019

United States of America, Plaintiff-Appellee,
Kitroy Brian Buchanan, Defendant-Appellant.

          Argued: June 25, 2019

          Appeal 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.


          David Graham, UNIVERSITY OF MICHIGAN LAW SCHOOL, Ann Arbor, Michigan, for Appellant.

          Matthew B. Kall, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.

         ON BRIEF:

          David 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.



         After a 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 applies.

         I. BACKGROUND

         A. Factual Background

         In 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.

         In 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.

         One day 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.

         Buchanan 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.

         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.

         After a 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.

         Fearing 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.

         Buchanan 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.

         Because 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 Buchanan.

         B. The Trial

         On 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 kidnapping charge.

         At 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 Buchanan's cellphone.

         Adams 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 PageID 482.

         Cajuste 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 tracking activity.

         Testimony 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.

         In 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 ...

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