United States v. John Shields

U
                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 21a0174n.06

                                        Nos. 19-6428/6429

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                         FILED
                                                          )                        Apr 06, 2021
 UNITED STATES OF AMERICA,
                                                          )                   DEBORAH S. HUNT, Clerk
                                                          )
         Plaintiff-Appellee,
                                                          )
                                                          )       ON APPEAL FROM THE
 v.
                                                          )       UNITED STATES DISTRICT
                                                          )       COURT FOR THE WESTERN
 JOHN SHIELDS,
                                                          )       DISTRICT OF TENNESSEE
                                                          )
         Defendant-Appellant.
                                                          )


       Before: STRANCH, LARSEN, and NALBANDIAN, Circuit Judges.

       LARSEN, Circuit Judge. John Shields was charged with and convicted of committing

several offenses related to his participation in a drug-trafficking enterprise. On appeal, he raises a

host of issues, ranging from the district court’s refusal to hold an evidentiary hearing on his double

jeopardy claim to the procedural reasonableness of his sentence. We AFFIRM.

                                                  I.

                                                 A.

       Sometime around March 2013, law enforcement began investigating the Memphis Peda

Roll Mafia (PRM), a street gang associated with the Los Angeles-based Grape Street Crips. Fred

McCaster, Jr. was the leader of the Memphis PRM, and he testified that his membership in the

gang “enhanced” his ability to obtain drugs from suppliers in California. For instance, a fellow

gang member introduced McCaster to Eric and Calvin Avendano, two members of what appears

to be a different gang—the Grape Street Tiny Wynos. And McCaster also began working with
Nos. 19-6428/6429, United States v. Shields


Reginald Wright, Jr., a “close associate of [the] Grape Street Crips.” McCaster eventually

leveraged these connections to distribute a variety of drugs in Memphis: Wright supplied him with

marijuana, and the Avendanos provided harder drugs as well, including crystal meth, heroin, and

cocaine.

       At some point, McCaster initiated Shields into the Memphis PRM. With McCaster’s

blessing and introduction, Shields was then able to work with the Avendano brothers and Wright

as his own suppliers. But the law soon caught up with Shields. Based on a multi-year investigation

into the Memphis PRM, the government discovered that Shields had engaged in the trafficking of

a number of drugs, including marijuana, heroin, and methamphetamine. On May 25, 2017, a grand

jury returned separate indictments charging Shields with participation in the Avendano and Wright

drug-trafficking conspiracies, and with associated drug-trafficking charges.

       According to the Wright indictment—to which Shields pleaded guilty—Shields

participated in a conspiracy to possess and distribute marijuana on behalf of Wright’s organization

from March 2013 through May 2017. The plan was straightforward. Using mainly the U.S. Postal

Service as an unwitting courier, Wright would ship the marijuana from California to Shields and

others in Tennessee. In exchange, Shields would deposit cash into certain Wells Fargo and Bank

of America accounts, and Wright and his associates would withdraw the money in California.

Based on these allegations, Shields pleaded guilty to: (1) conspiracy to possess with intent to

distribute marijuana; (2) possession with intent to distribute marijuana; and (3) conspiracy to

commit money laundering.

       The Avendano indictment charged Shields with participating in a separate conspiracy from

March 2013 until September 2015 to possess and distribute two different drugs—heroin and

methamphetamine—on behalf of the Avendano organization. As alleged in the indictment, the



                                               -2-
Nos. 19-6428/6429, United States v. Shields


Avendanos would mail heroin and methamphetamine to Shields, who would then pay for the drugs

by depositing cash into various Wells Fargo and Bank of America accounts controlled by the

Avendanos. The grand jury accordingly charged Shields with: (1) conspiracy to possess with the

intent to distribute heroin (Count 1); (2) conspiracy to possess with the intent to distribute

methamphetamine (Count 2); and (3) conspiracy to money launder (Count 9). As further described

below, the grand jury also indicted Shields on one count of (4) aiding or abetting possession with

the intent to distribute heroin (Count 6), based on the interception of a Memphis-bound package

containing the drug.

       Following his guilty plea in the Wright case, Shields joined a codefendant’s motion to

dismiss the methamphetamine and heroin conspiracy charges in the Avendano indictment on

double jeopardy grounds. The defendants argued that the Wright and Avendano indictments

separately charged what was, in reality, “a single, unified conspiracy.” After a hearing on the

merits, the district court disagreed and denied the defendants’ motion to dismiss. It also denied

the defendants’ request for an evidentiary hearing.

                                                B.

       Shields then proceeded to trial on the Avendano charges. As to the conspiracy counts,

Shields’ strategy was to admit to the jury that he dealt marijuana but to argue that he was not

involved in the Avendanos’ distribution of methamphetamine and heroin.             However, the

government introduced extensive evidence contradicting this theory.

       First, many of Shields’ coconspirators testified against him. McCaster testified that the

Avendanos provided Shields with “[c]rystal meth and heroin” and explained how he had initially




                                               -3-
Nos. 19-6428/6429, United States v. Shields


vouched for Shields so that he could work with the Avendanos. Timothy Wright1 testified that

Shields told him “something about” receiving “ice water” or “meth” from the Avendanos. Jeremy

Davis spoke extensively about his and Shields’ dealings with heroin and said that they had received

shipments of heroin from the Avendanos. And Eric Avendano explained how his family’s

organization operated—by sending drug-filled packages through the mail and using Bank of

America and Wells Fargo accounts to collect payment from their Memphis associates. Eric further

testified that he knew that his brothers, Calvin and Jeffrey Avendano, provided Shields with heroin

and other drugs.

       In addition, the government introduced text messages sent to a Los Angeles-area number

from a phone seized from Shields’ pocket. The messages contained several pieces of incriminating

evidence linking Shields to the conspiracy: tracking numbers for packages; requests for Memphis

addresses to mail drugs to; texts confirming payment; references to Wells Fargo and Bank of

America accounts that Eric Avendano recognized as accounts his organization used for funneling

money; and requests by Shields for “bottles” of “glass,” which Eric identified as code in his

organization for “pounds of meth.” The call logs on the phone also showed multiple calls between

Shields and two of the Avendano brothers.

       Furthermore, a forensic auditor discussed his investigation into the bank accounts

referenced in the text messages on Shields’ phone. His review of Bank of America and Wells

Fargo bank statements showed that, on dozens of occasions, an individual in Memphis had

deposited $9,000 into the accounts, and that same amount was quickly withdrawn in California.




1
  Based on the record, there does not appear to be any relation between Timothy Wright, a
Memphis resident, and Reginald Wright, Jr., the California-based supplier named in the Wright
indictment.
                                                -4-
Nos. 19-6428/6429, United States v. Shields


The government connected those deposits to Shields by introducing surveillance video from the

Memphis-area banks that captured Shields making large cash deposits into the listed accounts.

       A postal inspector next testified that he had identified over 200 suspicious packages

throughout the investigation into the Memphis PRM. Several of them had been seized by law

enforcement and were found to contain methamphetamine, heroin, cocaine, or marijuana.

       One of those seized packages is relevant to Shields’ charge for aiding and abetting

possession with the intent to distribute heroin (Count 6). On September 17, 2015, a police officer

obtained a search warrant to inspect a 20-pound package sent from Los Angeles to Memphis. The

package contained two bricks of heroin sealed inside a metal box. Officials removed the heroin,

resealed the package, and “prepare[d] for what’s called a controlled delivery . . . to get the suspects

who would be receiving the box into custody.”

       Meanwhile, text messages showed that Shields had provided Jeremy Davis, one of Shields’

coconspirators, with a tracking number for this particular heroin-filled package. Davis testified

that on the morning of September 17, Shields also called to tell him “that it was green light that

the package had arrived,” and Davis admitted that they were “expecting” heroin to be in the

package. When Davis arrived to pick up the package, he was quickly apprehended by police.

Davis then cooperated with the arresting officers, and he turned over his phone “[t]o show the

address and tracking number that [he] received from [Shields].” He also placed a recorded phone

call to Shields while in custody, in an attempt to get “Shields to pick the package up.” But that

effort was unsuccessful, as Shields had already heard that Davis had been arrested.

                                                  C.

       Toward the end of Shields’ trial, the government asked the district court to issue the

following joint-possession instruction for Count 6:



                                                 -5-
Nos. 19-6428/6429, United States v. Shields


       The government does not have to prove that the defendant was the only one who
       had possession of the alleged controlled substances. Two or more people can
       together share actual or constructive possession over property. If they do, both are
       considered to have possession as far as the law is concerned.

       But remember that just being present with others who had possession is not enough
       to convict. The government must prove the defendant had either actual or
       constructive possession of the alleged controlled substances and knew that he did
       for you to find him guilty of this crime.

This was nearly identical to our pattern instruction. See Pattern Crim. Jury Instr. 6th Cir. 2.11.

But Shields objected, claiming there was no “evidence to suggest that there was any joint

possession of that particular package between Mr. Shields and anyone else.” The district court

overruled Shields’ objection, reasoning that Davis had testified that he and Shields were

“partners,” and “when [Davis] grabbed the package, he was doing it jointly with Mr. Shields.”

       After less than two hours of deliberation, the jury convicted Shields on all four counts. The

parties then agreed to consolidate Shields’ sentencing for his convictions under the Avendano and

Wright indictments. Although the advisory Sentencing Guidelines called for life imprisonment,

the government asked for 30 years at the sentencing hearing. The district court decided to go even

lower. It sentenced Shields to concurrent aggregate prison terms of 95 months for the three

convictions under the Wright indictment, and 240 months for the four convictions under the

Avendano indictment.

       Shields timely appealed. He raises several issues, including: (1) the district court’s refusal

to hold an evidentiary hearing on his double jeopardy claim; (2) insufficiency-of-the-evidence

claims for three of his four convictions; (3) a pair of evidentiary challenges; (4) a challenge to the

joint-possession instruction; and (5) a handful of claims related to the procedural reasonableness

of his sentence.




                                                 -6-
Nos. 19-6428/6429, United States v. Shields


                                                II.

       We turn first to Shields’ contention that the district court “deprived him of a fair and

reliable adjudication of his double jeopardy claim” by forgoing an evidentiary hearing. On this

front, Shields does not ask us to review the merits of his double jeopardy claim. He asks that the

case “be remanded for an evidentiary hearing” so that claim can “be further explored.”

       We review the district court’s refusal to hold an evidentiary hearing for an abuse of

discretion. United States v. Brika, 

416 F.3d 514

, 529 (6th Cir. 2005). “A finding of an abuse of

discretion requires ‘a definite and firm conviction that the trial court committed a clear error of

judgment.’” Blue Diamond Coal Co. v. Trs. of the UMWA Combined Benefit Fund, 

249 F.3d 519

,

524 (6th Cir. 2001) (quoting Davis v. Jellico Cmty. Hosp., Inc., 

912 F.2d 129

, 133 (6th Cir. 1990)).

       We are left with no such conviction here. The district court explained that it was not

holding an evidentiary hearing “because the parties did not disagree about the facts. They only

disagreed about the legal implications of those facts.” The court, accordingly, held a hearing at

which the parties could argue those legal implications. That was not an abuse of discretion.

       To be sure, the “general rule” in this circuit is that “once a defendant has put forth a non-

frivolous claim of double jeopardy, the court should hold an evidentiary hearing to resolve any

factual disputes that arise.” In re Grand Jury Proceedings, 

797 F.2d 1377

, 1385 (6th Cir. 1986).

But we are not aware of any context in which we have held that a defendant is entitled to an

evidentiary hearing without making “at least some initial showing of contested facts.” United

States v. Giacalone, 

853 F.2d 470

, 483 (6th Cir. 1988). Further, this showing must be “sufficiently

definite, specific, detailed, and non-conjectural to enable the district court to conclude that

contested issues of fact” actually exist. United States v. Abboud, 

438 F.3d 554

, 577 (6th Cir. 2006)

(emphasis and citation omitted); see also Gonzales v. Galvin, 

151 F.3d 526

, 535 (6th Cir. 1998)



                                                -7-
Nos. 19-6428/6429, United States v. Shields


(“Evidentiary hearings are not necessary where the parties’ briefs clearly set forth the relevant

facts and arguments of a case such that a hearing would not add anything to the briefs . . . .”).

       Even in his brief to us, Shields does not dispute any of the facts upon which the district

court based its decision. Thus, Shields was not entitled to an evidentiary hearing on his double

jeopardy claim, and the district court did not err in rejecting his request for one. See United States

v. Ickes, 

922 F.3d 708

, 713 (6th Cir. 2019); United States v. Gross, 

1 F.3d 1242

, 

1993 WL 300393

,

at *1, *3 (6th Cir. 1993) (table) (per curiam) (upholding the district court’s denial, “without holding

an evidentiary hearing,” of a motion to dismiss an indictment on double jeopardy grounds based

“upon the proffers submitted by the parties”).

                                                 III.

       Shields’ next raises an evidentiary challenge; we again review for an abuse of discretion.

See United States v. Collins, 

799 F.3d 554

, 577 (6th Cir. 2015). Shields believes that the district

court erred in admitting evidence of his gang affiliation, because it “was not relevant to the key

contested issue in the case.” To Shields, the only contested issue was whether the Avendanos

supplied him with heroin and methamphetamine, as opposed to marijuana. This argument is a

nonstarter.

       “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than

it would be without the evidence; and (b) the fact is of consequence in determining the action.”

Fed. R. Evid. 401. That’s a low bar to admission. We have explained that “[e]vidence of gang

affiliation is relevant where,” for instance, “it demonstrates the relationship between people and

that relationship is an issue in the case, such as in a conspiracy case.” United States v. Ford, 

761

F.3d 641

, 649 (6th Cir. 2014). On the other hand, such evidence is inadmissible when “there is no




                                                 -8-
Nos. 19-6428/6429, United States v. Shields


connection between the gang evidence and the charged offense.”

Id. at 650

(emphasis added)

(quoting United States v. Anderson, 333 F. App’x 17, 24 (6th Cir. 2009)).

       Here, the evidence falls on the relevant side of the line. The government bore the burden

of establishing Shields’ participation in the Avendano conspiracy to sell methamphetamine and

heroin. See United States v. Potter, 

927 F.3d 446

, 453 (6th Cir. 2019). And the gang-related

evidence was highly probative of that participation. McCaster knew Shields well enough to

“bless[] him” into the PRM, a clique within the Grape Street Crips. McCaster’s membership in

the PRM “enhanced” his ability to obtain drugs from the Avendanos. And due to that relationship,

the Avendanos “always called [McCaster] on the phone” “whenever they wanted to work with

somebody else” in Memphis, including Shields. Evidence of Shields’ gang affiliation was

therefore probative of his ability to develop a business relationship with the Avendanos. As the

district court explained, Shields’ “membership in the Peda Roll Mafia and the Grape Street Crips

[was] the springboard that allowed Mr. Shields to then work with Mr. McCaster and with the

Avendano family in terms of obtaining the drugs.” The gang relationship was “the glue that

connect[ed] these parties” and showed “how they kn[e]w one another and worked together.” We

have little trouble concluding that this evidence was relevant to establish “the interrelationship of

the individuals participating in the conspiracy.” United States v. Miller, 48 F. App’x 933, 948 (6th

Cir. 2002) (citing United States v. Gibbs, 

182 F.3d 408

, 430 (6th Cir. 1999)).

       Shields responds that what made the evidence irrelevant is that he “did not contest the fact

that he had an illegal business relationship with the Avendano Organization” selling marijuana.

But this argument is triply flawed. First, McCaster testified that the Avendanos provided Shields

with “[c]rystal meth and heroin,” and so the gang-related evidence was equally probative of

Shields’ ability to deal in these harder drugs. Second, Shields did not stipulate—or even offer to



                                                -9-
Nos. 19-6428/6429, United States v. Shields


stipulate—to the existence of the drug conspiracies or his participation in them. The government

still had the burden of proving these elements beyond a reasonable doubt. See United States v.

Ray, 

803 F.3d 244

, 259 (6th Cir. 2015). Third, even if Shields had made such an offer, the

government is entitled in cases like this one to prove its case free from a defendant’s preference to

stipulate otherwise relevant evidence away. Old Chief v. United States, 

519 U.S. 172

, 189 (1997);

see United States v. Rios, 

830 F.3d 403

, 422 n.5 (6th Cir. 2016) (deeming it “irrelevant” in a

conspiracy case that “the defendants did not contest their membership in the [gang]”). Shields

would have had no basis to “stipulate or admit his way out of the full evidentiary force of the case

as the Government cho[se] to present it.” United States v. Luck, 

852 F.3d 615

, 626 (6th Cir. 2017)

(quoting Old 

Chief, 519 U.S. at 186

–87).

       Additionally, to the extent Shields raises a challenge under Federal Rule of Evidence 403,

he has not shown that the “probative value” of the gang-related evidence was “substantially

outweighed” by any danger of “unfair prejudice.” Fed. R. Evid. 403. Of course, “[t]rial courts

must treat evidence of gang affiliation with care since most jurors are likely to look unfavorably

upon a defendant’s membership in a street gang.” United States v. Tolbert, 8 F. App’x 372, 378

(6th Cir. 2001). But here, the evidence served a valid purpose. It helped illustrate Shields’

interrelationship, coordination, and ability to deal with his coconspirators. And it was highly

probative as to both the existence of the charged conspiracies and Shields’ association with them.

“The district court’s limiting instruction about the narrow uses for this evidence also diminished

any unfair prejudice by reducing the risk that the jury would put the evidence to an improper

purpose.” 

Potter, 927 F.3d at 452

. During trial, the district court advised the jury that “being a

member of a gang is not itself unlawful.” It further explained that the “evidence of gang

membership [was] offered here to show a relationship among some of the individuals in this case



                                                -10-
Nos. 19-6428/6429, United States v. Shields


and should not be considered by you for any other purpose.” The district court repeated this

limiting instruction before submitting the case to the jury. Shields offers nothing to overcome the

presumption that the jury followed these clear limiting instructions. See United States v. Burns,

298 F.3d 523

, 543 (6th Cir. 2002).

       Accordingly, the district court did not abuse its discretion by admitting evidence of Shields’

affiliation with the Peda Roll Mafia and the Grape Street Crips.

                                                 IV.

       We now move to Shields’ sufficiency-of-the-evidence challenges. Shields contends that,

based on the evidence introduced at trial, no rational jury could have convicted him on three of the

four counts: Count 1 (conspiracy to possess and distribute methamphetamine), Count 6 (aiding

and abetting possession with intent to distribute heroin), and Count 9 (conspiracy to commit money

laundering). Evidence is sufficient to support a conviction if, “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.” Jackson v. Virginia, 

443 U.S. 307

, 319 (1979).

In making this assessment, “‘[w]e do not weigh the evidence, assess the credibility of the

witnesses, or substitute our judgment for that of the jury,’ and ‘[c]ircumstantial evidence alone is

sufficient to sustain a conviction.’” United States v. Hendricks, 

950 F.3d 348

, 352 (6th Cir. 2020)

(second alteration in original) (citations omitted).

                                                  A.

       The evidence introduced at trial was more than sufficient to support Shields’ conviction

for conspiracy to commit money laundering. To prove this charge, the government had to show

that Shields “knowingly and voluntarily joined an agreement between two or more people to

(1) conduct a financial transaction from the proceeds of illegal activity, (2) knowing the money



                                                 -11-
Nos. 19-6428/6429, United States v. Shields


came from illegal activity, and (3) intending to promote that activity.” United States v. Tolliver,

949 F.3d 244

, 248 (6th Cir. 2020) (per curiam); see 18 U.S.C. § 1956(a)(1), (h).

       Shields says that the evidence falls short on the “proceeds” element. He notes that there

was no testimony that Shields used any profits from drug sales to prepay the Avendanos for future

shipments of drugs. Instead, the evidence showed that Shields deposited income from sales

produced by the previous drug shipment to reimburse the Avendanos and prompt the next

shipment. That is a distinction without a difference. The money laundering statute explicitly

defines “proceeds” to “includ[e] the gross receipts” that a defendant obtains “through some form

of unlawful activity.” 18 U.S.C. § 1956(c)(9). It thus does not matter “[t]hat the money [Shields]

allegedly moved around was income and not profits” from illicit drug sales. 

Tolliver, 949 F.3d at

248

; see also United States v. Skinner, 

690 F.3d 772

, 782 (6th Cir. 2012).

       Applying this standard, a rational juror could easily have found that Shields made financial

transactions using money obtained from the sales of illegal narcotics. Consider, first, the nature

of the scheme itself: “If you sell and pay, you get more drugs[.]” Eric Avendano testified that his

organization would often “front” drugs to distributors in Memphis by sending the drugs through

the mail. In turn, the organization used two national banks—Bank of America and Wells Fargo—

to receive payment. To make it all work, the Avendanos would send text messages containing the

bank account information of one of several individuals to the Memphis distributors, who would

typically deposit $9,000 at a time into the accounts. McCaster and Davis both confirmed that they

would make $9,000 deposits into Bank of America and Wells Fargo accounts, “[b]ecause

anything . . . over ten would probably be a red flag at the bank.” After the deposits were made in

Memphis, somebody from Los Angeles would withdraw the money, often the next day. This

scheme plainly violated the money laundering statute. See United States v. King, 

169 F.3d 1035

,



                                               -12-
Nos. 19-6428/6429, United States v. Shields


1039 (6th Cir. 1999) (explaining that paying for drugs delivered on consignment “constitute[s]

‘promotion’ for the purposes of the money laundering statute when,” as here, “such payment

encourages further drug transactions”); 

Tolliver, 949 F.3d at 248

(similar).

       Then there was plenty of evidence linking Shields to the scheme. Davis testified that he

had accompanied Shields to the bank when Shields had made deposits in the past. Surveillance

footage from Bank of America and Wells Fargo showed Shields depositing large amounts of cash

at times corresponding to several of the $9,000 transactions identified by the government. Sums

corresponding to those deposits were all withdrawn shortly thereafter in Los Angeles. Beyond

that, the government introduced text messages between Shields’ phone and a Los Angeles number

from January 2015. After Shields sent an address for delivery, he said, “[s]end the numbers.” The

response was “Aurora Gran,” followed by a bank account number, the letters “B-O-A,” and the

number “9000.” A few days later—and the same day a 20-pound package was delivered from

California to the address Shields had provided—surveillance footage showed Shields depositing a

stack of cash at a Memphis-area Bank of America. The name on the account? Aurora Gran. The

amount deposited? $9,000. The location of withdrawal just a few days later? Los Angeles County.

The amount withdrawn?        $9,000.    Everything about this transaction conformed with the

Avendanos’ money-laundering scheme and with the text messages on Shields’ phone. There was

sufficient evidence to support the jury’s conviction on Count 9.

                                                B.

       The next sufficiency challenge concerns the type of drugs that Shields purveyed.

Notwithstanding Shields’ insistence that he “dealt solely in marijuana and had nothing to do with




                                               -13-
Nos. 19-6428/6429, United States v. Shields


other drugs marketed by the Avendanos,” the evidence tells another story. A rational jury could

have found that Shields conspired to possess and distribute methamphetamine.

       To support this conviction, the government needed to prove three elements: (1) an

agreement between two or more persons to possess with the intent to distribute methamphetamine,

(2) the defendant’s knowledge of the agreement, and (3) the defendant’s voluntary participation in

the enterprise. 

Potter, 927 F.3d at 453

; see 21 U.S.C. §§ 841(a)(1), 846. The existence of a

conspiracy may be inferred through circumstantial evidence. United States v. Faulkenberry, 

614

F.3d 573

, 584 (6th Cir. 2010). And the agreement need not be explicit; rather, a “tacit or mutual

understanding among the parties” will suffice. 

Potter, 927 F.3d at 453

(citation omitted).

       The prosecution offered ample evidence to prove Shields’ participation in the

methamphetamine conspiracy. We begin with the testimony of his alleged coconspirators. First,

Eric Avendano testified that he and his brothers shipped pounds of meth to the Memphis area.

This was corroborated by federal investigators, who seized two packages destined for Memphis

that contained large quantities of the drug and were linked to the Avendanos. Second, Fred

McCaster—a known close associate of both the Avendanos and Shields—testified that he knew

the Avendanos were providing Shields with crystal meth. Third, Timothy Wright testified that

Shields told him he had received “ice water” or “meth” from the Avendanos.

       Tack on to that the evidence from Shields’ cell phone. Shields requested “four bottles” of

“[g]lass” from a Los Angeles-area number. Eric Avendano testified that “[g]lass is meth” and that

a “bottle” was a code word used in his organization to refer to a pound of meth. He rejected

defense counsel’s suggestion that a “bottle” might refer to other drugs, such as marijuana. On top

of this specific conversation, Shields sent several other text messages to various numbers




                                              -14-
Nos. 19-6428/6429, United States v. Shields


concerning “bottles.” The proof against Shields regarding the methamphetamine conspiracy was

therefore strong, and a rational jury could have found him guilty beyond a reasonable doubt.

          Shields offers two responses; neither persuade us. First, he says that the text-message

evidence was not properly authenticated, insisting that the government didn’t offer anything

connecting the messages to Shields. Because he did not object on this point, we review for plain

error. See 

Collins, 799 F.3d at 576

. Even under de novo review, however, we would find that the

government “produce[d] evidence sufficient to support a finding” that the text messages were sent

by Shields. Fed. R. Evid. 901(a).

          For one, the texts were extracted from the iPhone found in Shields’ pocket during the

execution of a valid search warrant. Moreover, there was circumstantial evidence linking Shields

to the messages on the phone. For example, an incoming message instructed the recipient to

deposit $9,000 into the “Aurora Gran” account at “B-O-A.” The recipient responded on January

16, 2015 that he had done so. Bank records and surveillance footage from a Memphis-area Bank

of America showed Shields depositing $9,000 into an account for Aurora Gran on that same date,

exactly as instructed. Similarly, outgoing messages from the phone reported $9,000 going into an

account for “Vanessa Sanchez.” Bank records and surveillance footage likewise showed Shields

depositing $9,000 into that account. In light of this evidence, a reasonable factfinder could

conclude that Shields was the one sending the text messages from the phone seized from his

pocket.

          Second, Shields argues that there was no evidence that the Los Angeles number on the

other side of the “four bottles” of “glass” conversation was held by a member of the Avendano

organization. We disagree. Based on other evidence introduced at trial, a reasonable jury could

believe just that. Eric Avendano testified that “bottles” was a code word that he and his brothers



                                               -15-
Nos. 19-6428/6429, United States v. Shields


used to refer to a pound of meth, thereby providing circumstantial evidence of identity. Eric also

explained that to receive payment for their drug shipments, the Avendanos would text the names

and numbers associated with Bank of America and Wells Fargo accounts to their associates in

Memphis. That is consistent with what occurred in the exchange here. What’s more, Eric even

recognized the account names referenced in Shields’ conversation, as those were some of the ones

that he and his brothers used to funnel money back to California.

       Despite this evidence, Shields makes much of the fact that Eric Avendano could not

identify the Los Angeles number in the text exchange as belonging to one of his brothers. But this

comes as little surprise. Eric explained that the Avendanos would each use three cell phones at a

time with Los Angeles area codes to conduct their business, and they would throw all those phones

away each month to avoid being tracked. The fact that Eric could not identify one of those ten-

digit numbers more than two years later while on the stand does not change our conclusion. A

reasonable factfinder could still believe that the counterparty to Shields’ meth deal was a member

of the Avendano conspiracy. Accordingly, there was sufficient evidence to find Shields guilty

beyond a reasonable doubt on the methamphetamine conspiracy charge. We affirm the jury’s

conviction on Count 1.

                                                C.

       We now confront Shields’ challenge to his conviction on Count 6. The prosecution could

prove this charge by showing that Shields: (1) knowingly or intentionally, (2) possessed, (3) with

the intent to distribute, (4) heroin. 21 U.S.C. §§ 812(c) & sched. I(b)(10), 841(a)(1). But “[p]roof

of actual possession with intent to distribute is not necessary to sustain a conviction under 21

U.S.C. § 841(a)(1) as long as there is proof, beyond a reasonable doubt, that a defendant aided and

abetted the criminal venture.” United States v. Clark, 

928 F.2d 733

, 736 (6th Cir. 1991); see 18



                                               -16-
Nos. 19-6428/6429, United States v. Shields


U.S.C. § 2. “In proscribing aiding and abetting, Congress used language that ‘comprehends all

assistance rendered by words, acts, encouragement, support, or presence.’” Rosemond v. United

States, 

572 U.S. 65

, 73 (2014) (quoting Reves v. Ernst & Young, 

507 U.S. 170

, 178 (1993)).

       On appeal, Shields argues that his aiding-and-abetting conviction cannot stand because

there was no evidence that Jeremy Davis—the person Shields allegedly assisted—ever possessed

any heroin on or about September 17, 2015 (the date listed in the indictment). That is not, however,

what Shields argued below. To the contrary, in his Rule 29 motion, Shields’ counsel took the

opposite position and explicitly stated that he thought “the government ha[d] proven that Mr. Davis

possessed heroin with intent to distribute” on September 17, 2015. He then asserted a different

theory of insufficiency altogether—“that the evidence [didn’t] show that Mr. Shields was involved

with [the possession] or that he aided and abetted Mr. Davis in possessing that heroin with intent

to distribute.” And his post-trial motion for a judgment of acquittal also failed to press the

argument he now makes on appeal.

       “Although specificity of grounds is not required in a Rule 29 motion, where a Rule 29

motion is made on specific grounds, all grounds not specified are waived[.]” United States v.

Dandy, 

998 F.2d 1344

, 1356–57 (6th Cir. 1993) (internal citation omitted). This is because “[t]he

specification of grounds in the motion is an indication that counsel has evaluated the record and

has these particular reasons for his motion.”

Id. at 1357

(citation omitted). In that case, we “do[]

not review the omitted grounds at all; i.e., we deem them completely waived.” United States v.

Martinez-Lopez, 747 F. App’x 326, 331 (6th Cir. 2018); see also, e.g., United States v. Osborne,

886 F.3d 604

, 618 (6th Cir. 2018); United States v. Winkle, 

477 F.3d 407

, 415 (6th Cir. 2007);

United States v. Wesley, 

417 F.3d 612

, 617 (6th Cir. 2005). Shields has therefore waived his new

argument.



                                               -17-
Nos. 19-6428/6429, United States v. Shields


       Osborne is particularly instructive on this point. There, as in this case, the defendant moved

for a judgment of acquittal in the district court. 

Osborne, 886 F.3d at 618

. In that motion, the

defendant raised particular grounds for acquittal. See

id. But he did

not advance his appellate

theory—that the evidence failed to show that another individual committed an element of the

crime, and “thus Osborne could not have aided and abetted him in that crime.”

Id. “Because

Osborne made

a motion for judgment of acquittal on specified grounds, and those grounds did not

include the claim that [was raised] on appeal,” we held that he had waived his appellate argument.

Id. So too here.

As in Osborne, Shields is arguing that there was no evidence that Davis completed

the crime of possession with intent to distribute heroin and thus Shields could not have aided and

abetted Davis in its commission. Since this is distinct from the theory of insufficiency asserted

below, Shields “cannot now raise this argument.”

Id. We affirm as

to Count 6.

                                                 V.

       Shields also claims that the district court erred in issuing a joint-possession instruction

because there was no evidence that Davis possessed the heroin. See generally United States v.

James, 

819 F.2d 674

, 675 (6th Cir. 1987) (“[A]n instruction should not be given if it lacks

evidentiary support . . . .” (citation omitted)). Shields did not object on this ground, so we review

only for plain error. See United States v. Pearce, 

912 F.2d 159

, 163 (6th Cir. 1990); Fed. R. Crim.

P. 30(d).

       Shields has not shown plain error. The instruction was neither “prejudicial” nor did it

“result[] in a miscarriage of justice.” United States v. Treadway, 

328 F.3d 878

, 883–84 (6th Cir.

2003) (citing United States v. Olano, 

507 U.S. 725

, 735–36 (1993)). Shields contends that the

instruction prejudiced him because it invited the jury to believe it could convict him based on joint

possession with the law-enforcement officer who intercepted the package containing heroin. We



                                                -18-
Nos. 19-6428/6429, United States v. Shields


find that theory implausible. The government argued to the jury that it was Shields and Davis who

shared a mutual interest in the package. Unsurprisingly, it never suggested that Shields might have

“share[d] actual or constructive possession” of heroin “together” with a government official who

was investigating him and whom he had never met. R. 493, PageID 2346 (jury instruction). We

think it highly unlikely that the jury even contemplated such a possibility. We are therefore

confident that the joint-possession instruction had no effect on the jury’s verdict and did not affect

Shields’ “substantial rights.” Fed. R. Crim. P. 52(b); see 

Olano, 507 U.S. at 734

–35. There was

no plain error.

                                                 VI.

       We turn our attention finally to Shields’ claims that the district court imposed a

procedurally unreasonable sentence. Procedural reasonableness requires the sentencing court to

“properly calculate the guidelines range, treat that range as advisory, consider the sentencing

factors in 18 U.S.C. § 3553(a), refrain from considering impermissible factors, select the sentence

based on facts that are not clearly erroneous, and adequately explain why it chose the sentence.”

United States v. Rayyan, 

885 F.3d 436

, 440 (6th Cir. 2018) (citing Gall v. United States, 

552 U.S.

38

, 51 (2007)).

                                                  A.

       Shields first contends that the district court erred in its factual determination of the quantity

of drugs attributable to him. We review that determination for clear error. See United States v.

Walton, 

908 F.2d 1289

, 1300–1301 (6th Cir. 1990). We will find clear error only if, after

reviewing the full record, we are “left with the definite and firm conviction that a mistake has been

committed.” United States v. U.S. Gypsum Co., 

333 U.S. 364

, 395 (1948).




                                                 -19-
Nos. 19-6428/6429, United States v. Shields


       The Sentencing Guidelines advise that a defendant is accountable for “all acts and

omissions” that were: “(i) within the scope of the jointly undertaken criminal activity, (ii) in

furtherance of that criminal activity, and (iii) reasonably foreseeable in connection with that

criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B). In a drug-conspiracy case, this includes “all

quantities of contraband that were involved in transactions carried out” by participants in the

conspiracy, including by the defendant himself.

Id. § 1B1.3(a)(1)(B) cmt.

n.3(D). “A drug

quantity need only be established by a preponderance of the evidence, and an estimate will suffice

so long as it errs on the side of caution and likely underestimates the quantity of drugs actually

attributable to the defendant.” United States v. Anderson, 

526 F.3d 319

, 326 (6th Cir. 2008).

Accordingly, a district court may extrapolate from seized drugs information about other drugs

involved in the case. See United States v. Jackson, 

470 F.3d 299

, 310–11 (6th Cir. 2006); United

States v. Price, 761 F. App’x 568, 571 (6th Cir. 2019). But it must “provide an explanation for its

decision (not merely a rote extrapolation from the few to the many or an unsupported estimation).”

United States v. Rodriguez-Iznaga, 575 F. App’x 583, 588 (6th Cir. 2014); see also United States

v. Henley, 

360 F.3d 509

, 515 (6th Cir. 2004) (“In determining whether a district court’s calculation

of drug quantity is clearly erroneous, a key issue is the extent to which the court identified the

evidence on which it relied in making that calculation.”).

       The district court found that Shields was responsible for 12.5 kilograms of heroin, 1,814

grams (four pounds) of methamphetamine, and 108.7 kilograms of marijuana, for a total of just

under 49,000 kilograms of converted drug weight. Because this was between 30,000 and 90,000

kilograms, the court found that Shields’ base offense level was 36, in accordance with the

Guidelines’ Drug Quantity Table. See U.S.S.G. § 2D1.1(c)(2).




                                               -20-
Nos. 19-6428/6429, United States v. Shields


       The methamphetamine determination alone was sufficient to sustain that conclusion.2 The

Drug Quantity Table provides for a base offense level of 36 when the defendant is responsible for

1.5 kilograms or more of at least 80% pure methamphetamine. See

id. § 2D1.1(c) &

n.(B)–(C).

Text messages introduced at trial showed that in January 2015, Shields asked for “four bottles” of

“glass.” Avendano testified that “bottles of glass” referred to “pounds of meth.” And he confirmed

that “when bottles are mentioned, that’s methamphetamine[.]” Faced with this evidence, Shields’

trial counsel conceded at the sentencing hearing that his client was responsible for “4 pounds” or

“1,814 grams of methamphetamine.” Nevertheless, counsel protested that the government had no

evidence as to the purity of the methamphetamine that Shields ordered in the text exchange, as that

particular package was never seized. The government, however, pointed to other packages seized

in 2015 that were also sent to Memphis by the Avendano organization. Lab testing revealed that

those packages contained methamphetamine ranging from 94 to 100 percent purity. The district

court found that this was “pretty strong proof” that “the methamphetamine sent from California in

connection with Mr. Shields was actual methamphetamine” too, as opposed to some diluted

mixture.

       We see no clear error in that conclusion. It was Shields’ obligation to “produce some

evidence that call[ed] the reliability or correctness of the alleged [purity] into question.” United

States v. Lang, 

333 F.3d 678

, 681 (6th Cir. 2003) (citation omitted). And “[a]side from bald

assertions, [he] failed to produce any evidence” to refute that assessment. United States v. Adkins,

729 F.3d 559

, 570 (6th Cir. 2013). Not to mention, the district court’s estimate of the total weight

attributable to Shields was conservative. The government also pointed to another package that




2
  For this reason, we need not address Shields’ argument related to the amount of heroin
attributable to him. Either way, his base offense level would be 36.
                                               -21-
Nos. 19-6428/6429, United States v. Shields


was mailed to an address Shields had provided to a Los Angeles number in relation to the sending

of “bottles.” Though the Postal Service discovered nine packages sent to that same location, the

district court ignored all of them in arriving at its final figure of just four pounds of

methamphetamine. And it further ignored any evidence regarding the pounds of meth sent to

Shields’ coconspirators. The district court’s determination of the quantity of drugs attributable to

Shields was not clearly erroneous.

                                                B.

          We next consider Shields’ claim that his counsel rendered ineffective assistance in

withdrawing an objection to a two-level increase for possession of a firearm. In general, “a

defendant may not raise ineffective assistance of counsel claims on direct appeal, since there has

not been an opportunity to develop and include in the record evidence bearing on the merits of the

allegations.” United States v. Ledbetter, 

929 F.3d 338

, 364 (6th Cir. 2019) (citation omitted).

Such claims are generally best raised in a motion filed under 28 U.S.C. § 2255, which gives the

claimant access to “the forum best suited to developing the facts necessary to determining the

adequacy of representation.” Massaro v. United States, 

538 U.S. 500

, 505 (2003). This case is no

exception. The trial record is “incomplete or inadequate” to assess either the reasonableness of

counsel’s actions at the time or any prejudice that may have resulted therefrom.

Id. All the record

shows is that counsel raised but then withdrew an objection to the firearm enhancement with no

explanation. Without “additional factual development,” we have “no way of knowing” why

counsel did so.

Id. We therefore decline

to address the merits of Shields’ claim on this direct

appeal.




                                               -22-
Nos. 19-6428/6429, United States v. Shields


                                                 C.

       Lastly, Shields contends that the district court failed to credit him for the 42-month prison

sentence he had already completed for a related felon-in-possession charge. At the sentencing

hearing, the court made clear that it intended the sentence for the present case to run

“concurrent[ly]” with the felon-in-possession sentence and that Shields would “have credit back

to April of 2016.” The court also stated that due to this credit, Shields would have “about 16 years

to go” on his sentence, even though the “total sentence [was] 240 months.” The government

concedes that the district court’s “clear” intention was to give Shields credit “for his time served”

on the related charge. Shields nonetheless protests that the written judgment makes no mention of

this “credit back” and only states that the sentences would run “concurrent to each other.” To

correct what he sees as an ambiguity in his sentence, he asks this court to vacate his sentence and

remand for resentencing.

       We need not do so. Like both of the parties, we agree that the sentencing transcript here

plainly evinces the district court’s intent to provide Shields with a reduction in his sentence for

time served. This conclusion is reinforced by the docket entry for the written sentence, which says

that “[t]he Court Ordered the defendant received credit from 4/8/2016 through 12/3/2019.” Thus,

even if the written sentence conflicted with the district court’s oral sentence, “[t]he clarity of the

oral sentence . . . means that we must consider the oral sentence as controlling on appeal.” United

States v. Penson, 

526 F.3d 331

, 334 (6th Cir. 2008). And because the district court’s intent was

clear, we need not remand for clarification. We take this opportunity to confirm that Shields’ total

sentence is 240 months minus the time he served for the related felon-in-possession case.

                                                ***

       For the foregoing reasons, we AFFIRM.



                                                -23-

Add comment

By Tucker

Recent Posts

Recent Comments