Hung Jury ≠ “Acquittal” Under U.S.S.G. §1B1.3(c): Sixth Circuit Affirms Firearm Enhancement, Pinkerton Liability, and No-Duty Plea Inquiries in United States v. Drew

Introduction

This unpublished Sixth Circuit decision arises from a multi-defendant, large-scale fentanyl distribution scheme centered on two drug houses in East Cleveland (East 89th Street and East 109th Street). The defendant, Ramel Drew, was convicted by a jury of conspiracy to distribute and possess with intent to distribute controlled substances, distribution, use of a communication facility, and possession with intent to distribute fentanyl; the jury hung on a felon-in-possession count. The district court imposed a 327-month sentence (with ten years of supervised release), after finding a Guidelines range of 235–293 months, varying upward to a de facto criminal history category VI, resulting in a range of 262–327 months.

On appeal, Drew challenged nearly every stage: the plea process (including the court’s role and counsel’s performance), denial of a trial continuance, jury instructions (particularly a Pinkerton co-conspirator instruction), evidentiary rulings (dual-role law enforcement expert testimony and foundation for voice IDs/terminology), the sufficiency of the evidence, several Guidelines determinations (drug quantity, drug-premises enhancement, firearm enhancement in light of the 2023 relevant-conduct amendment, and criminal history “intervening arrest” scoring), and the procedural and substantive reasonableness of the upward variance. The Sixth Circuit affirmed across the board.

Summary of the Opinion

Plea process: No plain error in the district court’s refusal to extract an on-record acceptance or rejection of a plea. Frye imposes obligations on defense counsel, not the court, and Rule 11 prohibits judicial participation in plea negotiations.
Ineffective assistance (plea stage): Declined on direct appeal; record undeveloped—better suited for collateral review (Massaro).
Continuance: No abuse of discretion in denying a continuance; evidence was not unduly complex, the surveillance was motion-activated (not 45 full days of footage), and trial logistics favored proceeding.
Pinkerton instruction: Proper. The case was tried on consolidated indictments including a conspiracy charge; in any event, a Pinkerton instruction is permissible if evidence shows a conspiracy existed.
Evidentiary rulings (Agent Platt): Allowing dual-role expert/lay testimony with a proper cautionary instruction was not an abuse of discretion; foundation for voice identification and coded drug terminology was adequate; generalized complaints about methodology were forfeited by underdevelopment.
Sufficiency of the evidence: Sufficient for both possession-with-intent (via Pinkerton) and conspiracy, given video, controlled buy, recorded calls, customer testimony, and the operation of the East 89th Street drug house.
Guidelines – drug quantity: Base offense level 30 supported by the jury’s special verdict of ≥400 grams of fentanyl mixture.
Guidelines – drug premises (§2D1.1(b)(12)): Enhancement upheld based on de facto control (key access, repeated entry, sales at the premises) and, alternatively, as reasonably foreseeable co-conspirator conduct.
Guidelines – firearm (§2D1.1(b)(1)): Enhancement upheld under co-conspirator foreseeability given the volume and concentration of drugs; the 2023 “acquitted conduct” limitation in §1B1.3(c) did not apply because a hung jury is not an acquittal.
Guidelines – criminal history (intervening arrest): Separate scoring was proper where an arrest report showed custody for the first offense before commission of the second; a “straight release” disposition still reflects police custody.
Upward variance: No special notice was required beyond the PSR’s contents; the variance was substantively reasonable given extensive, violent criminal history inadequately captured by the calculated range.

Analysis

Precedents Cited and Their Influence

Missouri v. Frye, 566 U.S. 134 (2012): Establishes defense counsel’s duty to communicate plea offers; does not impose a judicial duty to confirm acceptance/rejection or to engage in plea bargaining (which Rule 11 forbids). The court used Frye’s best-practices suggestion (putting offers on the record) to show why there was no error in not extracting a plea decision; but underscored Frye is not a constitutional command to courts.
Fed. R. Crim. P. 11(c)(1): Bars judicial participation in plea discussions; supports the court’s refusal to police acceptance or rejection.
Massaro v. United States, 538 U.S. 500 (2003): Ineffective-assistance claims are best developed on collateral review; the panel followed this path given a sparse record.
United States v. Walden, 625 F.3d 961 (6th Cir. 2010) and United States v. Lewis, 605 F.3d 395 (6th Cir. 2010): Confirm broad discretion in ruling on continuances; the district court’s denial was reasoned, not arbitrary.
United States v. Warshak, 631 F.3d 266 (6th Cir. 2010): No fixed minimum preparation time; supports the conclusion that forty days could suffice in a straightforward drug case with motion-activated surveillance and pared-down exhibits.
Pinkerton v. United States, 328 U.S. 640 (1946): Co-conspirator liability permitted if acts are within scope, in furtherance, and reasonably foreseeable; anchors both the instruction and the sufficiency analysis.
United States v. Budd, 496 F.3d 517 (6th Cir. 2007): A Pinkerton instruction is permissible even absent a separate conspiracy charge if evidence sufficiently proves a conspiracy; applied here alongside Rule 13 consolidation.
United States v. Barron, 940 F.3d 903 (6th Cir. 2019) and United States v. Gardner, 32 F.4th 504 (6th Cir. 2022): Approve dual-role testimony with cautionary instructions and set the foundation for voice IDs and drug slang expert testimony.
United States v. Freeman, 730 F.3d 590 (6th Cir. 2013): Warns against experts “spoon-feeding” plain English interpretations; the court rejected Drew’s challenge as inadequately developed under Hendrickson.
Musacchio v. United States, 577 U.S. 237 (2016) and United States v. Potter, 927 F.3d 446 (6th Cir. 2019): Set the high bar for sufficiency challenges; the panel found the government’s case easily cleared it.
U.S.S.G. §2D1.1 and §1B1.3: Drug quantity and relevant conduct rules governed the base offense level and specific offense characteristics; the panel tied the quantity to a special jury verdict and sustained weapons and premises enhancements through co-conspirator foreseeability.
United States v. Taylor, 85 F.4th 386 (6th Cir. 2023): De facto control over premises suffices for §2D1.1(b)(12) even without a possessory interest; applied to Drew’s key access, repeated entry, and sales at East 89th.
United States v. Rich, 14 F.4th 489 (6th Cir. 2021): Permits premises enhancement via co-conspirator relevant conduct if within scope, in furtherance, and reasonably foreseeable.
United States v. Woods, 604 F.3d 286 (6th Cir. 2010): Firearm possession is not always foreseeable in drug conspiracies; foreseeability can be shown by the quantity/value of drugs or other evidence. Here, the house was a hub for enough drugs/cash to make firearms foreseeable.
U.S.S.G. §1B1.3(c) (2023 amendment): Bars use of acquitted conduct as relevant conduct unless it establishes, in whole or part, the instant offense. The panel clarified a hung jury is not an acquittal—thus the amendment did not bar the firearm enhancement.
Richardson v. United States, 468 U.S. 317 (1984) and Sattazahn v. Pennsylvania, 537 U.S. 101 (2003): Distinguish hung juries from acquittals; the panel imported that logic to interpret §1B1.3(c).
United States v. Rogers, 86 F.4th 259 (6th Cir. 2023): Defines “arrest” under §4A1.2(a)(2) as police custody in a criminal investigation; supports counting Drew’s prior sentences separately where an arrest report reflected custody and “straight release.”
United States v. Powell, 798 F.3d 431 (6th Cir. 2015): A summons is not an “intervening arrest”; distinguished here because Drew had an arrest, not a summons.
Fed. R. Crim. P. 32 and United States v. Coppenger, 775 F.3d 799 (6th Cir. 2015): A sentencing court must disclose material outside the PSR that it intends to rely upon; no notice problem here because the PSR contained the bases for the variance and even recommended one.
Irizarry v. United States, 553 U.S. 708 (2008): Sentences outside the Guidelines are not presumptively unreasonable and do not require departure-style notice for variances; the panel’s analysis aligns with Irizarry’s framework.
United States v. Rayyan, 885 F.3d 436 (6th Cir. 2018) and United States v. Johnson, 934 F.3d 498 (6th Cir. 2019): Emphasize deference to district courts on the §3553(a) balancing; the panel found the variance sufficiently reasoned.

Legal Reasoning

No judicial duty to memorialize plea acceptance/rejection: The panel applied Frye narrowly (counsel’s duty, not the court’s) and Rule 11(c)(1)’s ban on judicial plea negotiations. While the district judge prudently ensured defendants knew of the offer, there was no constitutional or procedural obligation to secure an on-record rejection or acceptance, and certainly no plain error for not doing so.
Continuance denial within discretion: The trial court reasonably assessed that the motion-activated video reduced the review burden, the government would pare down what it planned to use, prior counsel’s preparatory work was not zero simply because few motions were filed, and trial logistics (summoned jurors, co-defendant readiness, witness burden) favored maintaining the date. The standard from Walden/Lewis and Warshak supported the decision.
Pinkerton instruction proper in consolidated case and even absent separate charge: The consolidated indictments (Rule 13) included a conspiracy count. Independently, Budd allows a Pinkerton instruction if the evidence shows a conspiracy. The record tied Drew to East 89th (key access, repeated sales, answering the customer phone, linked “batch” of drugs), satisfying co-conspirator liability predicates.
Dual-role expert/lay testimony adequately cabined: The court gave the pattern “dual role” instruction approved by Barron, and Agent Platt’s foundational explanations (voice ID from calls, license plates, and personal interactions; drug slang expertise) met Rule 701/702 demands. Challenges to plain-English “spoon-feeding” were not particularized and were deemed forfeited under Hendrickson.
Sufficiency: Under Musacchio, the evidence—controlled buy, calls with Bryant, video of sales and access to East 89th, customer testimony about a shared “batch,” and the customer phone—allowed a rational jury to find both conspiracy and possession-with-intent via Pinkerton.
Guidelines determinations:
- Drug quantity: The jury’s special verdict (≥400g fentanyl mixture) anchored a base offense level of 30 (§2D1.1(c)(5)); disputing East 109th was immaterial because East 89th evidence sufficed.
- Drug premises (§2D1.1(b)(12)): Applying Taylor, de facto control (key, repeated entry, driveway sales) supported “maintenance,” and alternatively, co-conspirator maintenance was within scope, in furtherance, and foreseeable (Rich).
- Firearm (§2D1.1(b)(1)): Loaded firearms near the stash in a hub house for hundreds of thousands in drug proceeds rendered possession by a conspirator foreseeable under Woods. The 2023 relevant-conduct amendment (§1B1.3(c)) did not bar the enhancement because a hung jury on §922(g)(1) is not an acquittal (Richardson, Sattazahn).
- Criminal history (intervening arrest): The arrest report and “straight release” disposition established police custody on the first offense before the second (Rogers), warranting separate scoring; Powell (summons ≠ arrest) was inapposite.
Variance: The PSR contained the information (extensive violent criminal history) and even recommended an upward variance; thus, Rule 32’s notice concerns were satisfied, and no special notice for variances was required. Substantively, the court explained why the calculated range understated the seriousness and recidivism, and tied the sentence to §3553(a) factors—well within its discretion (Rayyan, Johnson).

Impact

Acquitted-conduct amendment and hung counts: This case is among the first to address the 2023 U.S.S.G. §1B1.3(c) in the Sixth Circuit. It confirms that a hung jury is not an “acquittal” for purposes of the amendment’s limitation on relevant conduct. Practically, defendants cannot avoid relevant-conduct enhancements (e.g., firearms) merely because the jury hung on a related substantive count.
Co-conspirator foreseeability remains robust: The court’s analysis underscores that premises and firearm enhancements can be sustained through co-conspirator conduct when the drug operation is concentrated, valuable, and house-centered. Defense strategies should focus on narrowing “scope,” disputing “in furtherance,” or negating foreseeability with concrete facts.
Pinkerton instructions in consolidated or even non-conspiracy-count settings: When evidence shows a conspiracy, Pinkerton liability can expand exposure even on substantive counts. Consolidation under Rule 13 makes it seamless to import conspiracy proof across counts.
Dual-role law enforcement testimony is here to stay: So long as courts give a cautionary instruction and the agent separates factual observations from expert interpretations (with Rule 702 foundations), appellate challenges face steep odds. Defense counsel must force specificity (e.g., which terms are ordinary English vs coded slang) and object with precision.
Continuances for voluminous surveillance: Motion-activated recordings and government-limiting of exhibits can blunt complexity arguments. Defense teams should build concrete time estimates and show why prior counsel’s work is unusable to improve odds of delay.
Intervening arrest after Rogers: Custody plus an arrest report—even with “straight release”—can separate sentences under §4A1.2(a)(2). Defense arguments that focus solely on jail booking or handcuffs are unlikely to succeed.
Variance notice and reasonableness: When the PSR contains the grounds for a variance, there is rarely a notice problem, and Irizarry reinforces that variances require no departure-style notice. Substantive challenges must grapple with the district court’s articulated §3553(a) analysis; mere disagreement with weight assigned to criminal history will rarely carry the day.
Plea-stage practices: The opinion reiterates that courts have no constitutional duty to extract a plea decision on the record. Defense counsel carry the Sixth Amendment duty to communicate offers; ineffective-assistance claims will be channeled to §2255 absent a developed record.

Complex Concepts Simplified

Pinkerton liability: You can be liable for a co-conspirator’s acts if (a) a conspiracy existed, (b) the act was within the conspiracy’s scope, (c) done to further it, and (d) reasonably foreseeable. It lets prosecutors prove substantive crimes without showing the defendant personally committed each element.
Relevant conduct (U.S.S.G. §1B1.3): The Guidelines consider not just the offense of conviction but certain related acts—by the defendant and, in conspiracies, by co-conspirators—when calculating enhancements and ranges.
2023 “acquitted conduct” amendment (§1B1.3(c)): Generally forbids using conduct of which the defendant was acquitted as relevant conduct, unless it also proves the offense of conviction. A hung jury is not an acquittal, so the bar does not apply.
Dual-role witness: A witness (often an agent) can testify both as a fact witness (what they saw/did) and as an expert (interpreting coded language, explaining trafficking patterns). Courts must instruct juries on how to weigh each type.
De facto “maintenance” of a drug premises (§2D1.1(b)(12)): A defendant needn’t own or lease a location. Regular control or access (keys, repeated entry, directing use for sales/storage) suffices, and co-conspirators’ maintenance can also be attributed if foreseeable and in scope.
Intervening arrest (criminal history): If you are taken into police custody for offense A before you commit offense B, the sentences count separately. A summons or mere notice is not an arrest; custody reflected in an arrest report typically is.
Variance vs. departure: A “departure” is an authorized Guideline-based adjustment; a “variance” is a court’s decision to go outside the advisory range based on §3553(a) factors. After Irizarry, variances do not require departure-style advance notice.
Plain error review: For issues not raised below, an appellant must show a clear or obvious error affecting substantial rights and the fairness of proceedings—a demanding standard.

Conclusion

United States v. Drew offers several practical and doctrinal takeaways despite its nonprecedential status. Most notably, it clarifies that the 2023 U.S.S.G. §1B1.3(c) limitation on “acquitted conduct” does not reach hung counts: a mistried firearm count did not preclude a co-conspirator-based firearm enhancement under §2D1.1(b)(1). The court also reaffirmed durable features of federal criminal practice in the Sixth Circuit: no judicial duty to secure on-record plea acceptances; broad discretion to deny continuances in straightforward drug cases; permissibility of Pinkerton instructions in consolidated proceedings (and even absent a separate conspiracy charge if the evidence shows one); the continued acceptance of dual-role agent testimony with proper instructions; and deference to reasoned upward variances grounded in recidivism and violent criminal histories.

For practitioners, the opinion underscores the importance of building a precise, fact-specific record on issues like coded-language testimony, foreseeability under Pinkerton and relevant conduct, and the nature of any “arrest” for criminal history scoring. For sentencing, it signals that post-amendment arguments about acquitted conduct must grapple first with whether there was an acquittal at all—and that hung counts will not, by themselves, insulate defendants from enhancements tied to reasonably foreseeable co-conspirator conduct.