Express Concession at Sentencing Waives Appellate Review of Relevant-Conduct Challenges in Guideline Drug Cases

Case: United States v. Davaughn Ellis West (6th Cir. Jan. 13, 2026) (unpublished)
Court Below: U.S. District Court for the Eastern District of Kentucky
Disposition: Sentence affirmed (132 months’ imprisonment; 4 years’ supervised release)

1. Introduction

Davaughn Ellis West pleaded guilty to one count of distributing 40 grams or more of fentanyl under 21 U.S.C. § 841(a)(1). The sentencing dispute centered on whether an additional, unindicted May 10, 2022 methamphetamine transaction (445.8 grams) could be attributed to West for Guidelines purposes and whether West should receive larger criminal-history and age-based downward departures.

On appeal, West argued his sentence was unreasonable (both procedurally and substantively). The Sixth Circuit rejected those challenges, emphasizing (i) deference to district-court credibility and drug-quantity findings, (ii) the nonreviewability of discretionary refusal to depart when the court recognizes its authority, and (iii) waiver where counsel affirmatively abandons an argument.

2. Summary of the Opinion

• Procedural reasonableness: The district court did not clearly err in finding West responsible for the May 10 methamphetamine sale; its quantity determination was supported by testimony, partial video corroboration, and lab testing.
• Relevant conduct challenge: The Sixth Circuit did not reach the merits because West’s counsel expressly conceded he had no effective argument against relevant conduct, constituting waiver.
• Criminal-history departure (§ 4A1.3): The refusal to depart further was not reviewable because the district court understood its discretion and exercised it.
• Age-based departure (§ 5H1.1): The district court considered and explained its rejection of an age-based departure.
• Substantive reasonableness: West’s within-Guidelines sentence was presumptively reasonable; his arguments about over-weighting factors and co-defendant disparity failed.

3. Analysis

3.1. Precedents Cited

A. Appellate review framework: procedural and substantive reasonableness

• Gall v. United States: Supplies the overarching abuse-of-discretion standard and enumerates classic procedural errors (miscalculated Guidelines, mandatory treatment, inadequate explanation, clearly erroneous facts). The panel used Gall both to define review and to reinforce that appellate courts do not substitute their own sentencing judgment.
• United States v. Bolds and United States v. Kontrol: Sixth Circuit articulation of reasonableness review under Gall, framing the inquiry as “procedural or substantive unreasonableness.”
• United States v. Taylor: Identifies misapplication of enhancements as procedural reasonableness issues.
• United States v. Shafer: Establishes de novo review where “relevant conduct” determinations involve applying law to fact—important here even though the panel ultimately declined review due to waiver.
• United States v. Zobel and United States v. Brogdon: Reinforce the requirement that district courts explain sentencing decisions sufficiently to permit meaningful appellate review (the “why” of the sentence).

B. Drug-quantity proof, estimation, and deference to credibility findings

• United States v. Mosley (quoting United States v. Johnson): In uncertainty, courts should “err on the side of caution” and hold defendants accountable only for quantities they are “more likely than not” responsible for; a preponderance suffices.
• United States v. Jeross (quoting United States v. Esteppe): District courts may rely on physical or testimonial evidence; appellate courts give “great deference” to credibility determinations and uphold quantity findings supported by competent evidence, with clear-error review.

These authorities underwrote the panel’s conclusion that the cooperating source’s testimony—partly corroborated by video and the agent’s supervision plus lab-tested drugs—was enough to attribute the methamphetamine to West despite the recording gap.

C. Waiver doctrine (and its boundary with forfeiture)

• Walker v. United States (quoting United States v. Olano): Defines waiver as intentional relinquishment; describes waiver as a continuum, pushing conduct toward waiver with increasing indications of deliberate abandonment.
• Bannister v. Knox Cnty. Bd. of Educ.: Describes the common pattern—raise then explicitly abandon—constituting waiver.
• United States v. Montgomery: Emphasizes that waived claims are unreviewable on appeal.
• United States v. Smith (No. 24-1797, 2025 WL 3089937): Reiterates that “deliberate decision to actively abandon” slides conduct toward waiver.
• United States v. Aparco-Centeno (quoting United States v. Sloman) and United States v. Hall: Apply waiver where counsel affirmatively concedes a point at sentencing; a party cannot agree with the court and later claim error.

The panel treated counsel’s statement—“I thought about it… too many similarities… The answer is no”—as the paradigm of explicit abandonment: not mere silence (forfeiture), but a recorded concession eliminating appellate review.

D. Downward departures and limited appellate review

• United States v. Santillana: Refusal to depart downward is generally unreviewable unless the district court misunderstood its discretion. The panel relied on the sentencing transcript where the judge acknowledged the departure request was “permissive” and within the court’s power.

E. Duty to address nonfrivolous mitigation arguments

• United States v. Jones (quoting United States v. Richardson): A district court commits procedural error if it fails to consider a defendant’s specific argument for a lower sentence and fails to explain rejection. The panel applied this to uphold the district court’s explanation for rejecting a § 5H1.1 age departure.

F. Substantive reasonableness, presumption, and disparity arguments

• United States v. Vowell: Frames substantive reasonableness as proportionality and “sufficient but not greater than necessary.”
• United States v. Mahbub (quoting United States v. Camiscione): Lists hallmarks of substantive unreasonableness (arbitrary selection, impermissible factors, failure to consider relevant factors, unreasonable weight).
• United States v. Perez- Rodriguez (quoting Kimbrough v. United States): Explains the Guidelines as the “starting point,” generally approximating § 3553(a)’s aims.
• United States v. Zabel (and Zobel): Used to emphasize the heavy burden when claiming the court over- or under-weighted a § 3553(a) factor.
• United States v. Thomas (quoting United States v. Simmons): Clarifies § 3553(a)(6) targets national disparities, not codefendant disparities—undercutting West’s co-conspirator comparison argument.

3.2. Legal Reasoning

A. Drug quantity attribution: credibility plus corroboration meets the preponderance standard

The panel treated the May 10 transaction as a factual sentencing issue reviewed for clear error. It accepted the district court’s credibility finding that the cooperating source reliably identified West as the seller, even though (i) the cooperating source admitted being on Xanax and (ii) the recording device failed before the handoff. Critical to the court’s reasoning were:

• Consistency between testimony and the video segments that did record;
• Agent testimony explaining the recording’s failure as a battery/space issue due to the deal’s length;
• Laboratory confirmation that the cooperating source turned over 445.8 grams of methamphetamine immediately after the controlled buy.

This is a practical application of the Sixth Circuit’s sentencing proof doctrine: sentencing can rest on credible testimony plus circumstantial corroboration, and appellate courts rarely second-guess credibility calls.

B. Waiver as a merits “off-ramp” for Guidelines litigation

The opinion’s most consequential doctrinal move is procedural: it avoids the contested question about the scope of U.S.S.G. § 1B1.3(a)(2) by holding the issue waived. The panel’s reasoning follows a clear chain:

1. Counsel was invited to articulate an argument against “same course of conduct or common scheme or plan.”
2. Counsel affirmatively stated he could not make an effective argument due to similarities and answered “no.”
3. Under United States v. Aparco-Centeno / United States v. Sloman and the waiver continuum described in Walker v. United States, that is intentional abandonment.
4. Under United States v. Montgomery, waived issues are not reviewed on appeal.

Practically, the case underscores that sentencing colloquies can lock in appellate outcomes: an explicit concession may eliminate review even where the underlying legal question could have supported a lower range.

C. Departures: discretion recognized equals no appellate remedy

For § 4A1.3, the district court partially agreed—reducing West’s criminal history category from V to IV based on one marijuana conviction—while declining further reductions given the quantities involved in other prior offenses. The Sixth Circuit treated this as a classic nonreviewable discretionary call under United States v. Santillana because the district judge expressly acknowledged having the power to depart.

D. Addressing mitigation: a short explanation can suffice when it is responsive

For the § 5H1.1 age departure, the panel rejected West’s claim that the court ignored his argument. The sentencing judge expressly stated that age could be considered under the policy statement but found it unpersuasive because West’s criminal conduct was not isolated to youth; continuing similar conduct “thins the age argument.” That satisfied United States v. Jones / United States v. Richardson.

E. Substantive reasonableness: within-range presumption and limited role for codefendant comparisons

The court applied the within-Guidelines presumption of reasonableness under Gall v. United States and found West’s two arguments insufficient:

• History and characteristics: The district court considered West’s upbringing; disagreement with the weight assigned does not show abuse of discretion.
• Disparity with Norman: Under United States v. Thomas / United States v. Simmons, § 3553(a)(6) focuses on national disparities, and in any event the defendants’ criminal histories differed (III vs. IV).

3.3. Impact

A. Sentencing advocacy: preserve issues or lose them

The decision is a cautionary precedent for defense counsel in the Sixth Circuit: when a judge directly asks whether counsel maintains a Guidelines objection, an on-the-record concession can be treated as waiver and foreclose appellate review. This is especially significant in drug cases where “relevant conduct” can dominate the base offense level and drive decade-plus ranges.

B. Relevant conduct disputes will often be decided by record posture, not legal merits

Even though the district court offered a textual interpretation of § 1B1.3(a)(2) (that it is not limited to multiple offenses of conviction), the Sixth Circuit did not endorse or reject that reading because waiver resolved the appeal. Future litigants should expect that the ability to obtain merits review will depend heavily on preservation and how objections are litigated at sentencing.

C. Credibility-based drug quantity findings remain difficult to overturn

The opinion reinforces the prevailing Sixth Circuit approach: where there is some corroboration and the district court makes a reasoned credibility finding, clear-error review will almost always result in affirmance—even with imperfect recordings and cooperating witnesses with substance-use histories.

4. Complex Concepts Simplified

• “Relevant conduct” (U.S.S.G. § 1B1.3): Conduct not charged in the conviction count can still affect the Guidelines if it is sufficiently connected (e.g., same course of conduct/common scheme). In drug cases, this can include additional sales and quantities beyond the plea count.
• “Converted drug weight”: The Guidelines convert different drugs into a standardized weight to aggregate quantities across substances when computing the base offense level.
• “Procedural” vs. “substantive” reasonableness: Procedural focuses on the process (correct range, correct facts, consideration of arguments, explanation). Substantive focuses on the end result (whether the length is reasonable under § 3553(a)).
• “Clear error” review: A highly deferential standard; if the district court’s view of the evidence is plausible, the appellate court will not reverse.
• “Waiver” vs. “forfeiture”: Forfeiture is a failure to timely raise an issue (often still reviewed for plain error). Waiver is an intentional abandonment (generally not reviewed at all).
• “Departure” vs. “variance”: A departure is an adjustment authorized by the Guidelines (e.g., § 4A1.3, § 5H1.1). A variance is a non-Guidelines sentence based directly on § 3553(a).

5. Conclusion

United States v. Davaughn Ellis West affirms a within-Guidelines drug sentence while delivering an important practice rule: an explicit concession at sentencing that an argument lacks merit constitutes waiver and bars appellate review. Alongside that waiver holding, the opinion reiterates Sixth Circuit themes—strong deference to credibility-based drug-quantity findings, limited review of discretionary departure denials where discretion is recognized, and the constrained role of codefendant disparity arguments under § 3553(a)(6).