United States v. Swanagan & Reed: Sixth Circuit Strikes § 3559(c)(2)(F) Residual Clause and Narrows “Serious Violent Felony” Enhancements Under 21 U.S.C. § 841

I. Introduction

This published Sixth Circuit decision arises from a federal methamphetamine trafficking prosecution in the Western District of Kentucky. Defendants Cedric Swanagan and Courtland Reed were convicted by a jury of:

• Possession with intent to distribute 50 grams or more of methamphetamine, and
• Conspiracy to possess with intent to distribute 50 grams or more of methamphetamine,

in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii), 846 and 18 U.S.C. § 2.

On appeal, both defendants challenged:

• The sufficiency of the evidence,
• The handling of an incident in which some jurors may have seen them shackled in the courthouse lobby, and
• The admission of law enforcement testimony interpreting intercepted calls.

In addition, each raised individualized issues:

• Swanagan challenged:
  • Denial of a Franks hearing and his motion to suppress the fruits of a wiretap,
  • Use of a prior Kentucky cocaine trafficking conviction as a predicate “serious drug felony” under 21 U.S.C. §§ 841, 851,
  • His career-offender status under the Sentencing Guidelines,
  • His four-level leadership enhancement under U.S.S.G. § 3B1.1(a), and
  • The district court’s refusal to vary from the “actual” (pure) methamphetamine guideline range to the lower “mixture” range.
• Reed challenged:
  • His shackling during trial without a pretrial evidentiary hearing, and
  • The use of his prior Kentucky first-degree burglary conviction as a predicate “serious violent felony” to enhance his statutory minimum sentence under 21 U.S.C. §§ 841, 851.

The Sixth Circuit:

• Affirmed all convictions,
• Affirmed Swanagan’s 360-month sentence, but
• Vacated Reed’s 300-month sentence and remanded for resentencing.

The decision is significant for at least three reasons:

1. It holds that 18 U.S.C. § 3559(c)(2)(F)’s residual clause is unconstitutionally vague under Johnson, Dimaya, and Davis, and therefore cannot be used to define “serious violent felony” for § 841 enhancements.
2. It concludes that Kentucky first-degree burglary does not qualify as a “serious violent felony” under the remaining (enumerated and elements) clauses of § 3559(c)(2)(F).
3. It illustrates and refines several recurring issues in federal criminal practice:
   • How Franks challenges apply to digital slang and code in affidavits,
   • The limits of law-enforcement “interpretive” testimony under Rule 701,
   • The standards governing visible shackling and incidental juror exposure to restraints, and
   • The narrow scope of the buyer–seller exception and constructive possession doctrines in drug cases.

II. Summary of the Opinion

A. Outcomes

• Convictions:
  • Evidence was sufficient to support both defendants’ conspiracy and possession-with-intent convictions.
  • No reversible error in the admission of law enforcement testimony interpreting recorded calls.
  • No reversible error in handling shackling or the juror lobby encounter.
• Swanagan’s pretrial motion to suppress:
  • District court properly denied a Franks hearing; defendant failed to make the required “substantial preliminary showing” that the affiant included intentional or reckless falsehoods essential to probable cause.
• Swanagan’s sentencing:
  • Career offender: Upheld, applying United States v. Jones, 81 F.4th 591 (6th Cir. 2023), holding that state “controlled substance offense” definitions need not match the federal CSA for Guidelines purposes.
  • Serious drug felony enhancement: Upheld. His 2009 Kentucky cocaine trafficking conviction categorically involved a CSA “controlled substance,” qualifying as a “serious drug felony” under §§ 841, 851.
  • Leadership role: Upheld under U.S.S.G. § 3B1.1(a); record showed at least five participants and that he acted as organizer/leader.
  • Variance to mixture guideline: District court’s refusal to vary from the “actual meth” guideline range was not substantively unreasonable; within-Guidelines sentence presumed reasonable.
• Reed’s shackling and lobby incident:
  • Plain error review applied; record did not show visible shackling in the courtroom or prejudice from lobby exposure. No reversible error.
• Reed’s sentencing enhancement:
  • Court holds that his Kentucky first-degree burglary conviction is not a “serious violent felony” for § 841(b)(1)(A) purposes.
  • The court further holds that § 3559(c)(2)(F)’s residual clause is void for vagueness, leaving only the enumerated and elements clauses, which Kentucky first-degree burglary does not satisfy.
  • The resulting 25-year mandatory minimum was therefore unlawful; sentence vacated and case remanded for resentencing.

III. Detailed Analysis

A. The Franks Challenge to the Wiretap: Emojis, Drug Code, and Probable Cause

1. Legal framework: Franks v. Delaware

Under Franks v. Delaware, 438 U.S. 154 (1978), a defendant is entitled to an evidentiary hearing only if he makes a “substantial preliminary showing” that:

1. the affiant deliberately or recklessly included false statements or omitted material facts in the warrant affidavit, and
2. those falsehoods or omissions were necessary to the finding of probable cause (i.e., if removed, probable cause would fail).

The burden is on the defendant and is “high.” He must:

• identify specific allegedly false statements,
• provide reasons they are false, and
• offer proof (e.g., affidavits or explanations for their absence).

Mere mistake, ambiguity, or alternative interpretation is not enough; the defendant must show intentional or reckless falsity.

2. The challenged statements

DEA Task Force Officer Budde’s affidavit supported a wiretap on Swanagan’s phone. Swanagan attacked two interpretive statements:

1. “Water” emoji as code for methamphetamine
   Budde interpreted a Facebook “water” emoji used between Swanagan and cooperator Huff as referring to methamphetamine. Swanagan argued that, in social media usage, the water emoji more commonly denotes sexual relations and provided dictionary support for that meaning.
2. “SIX” / $6,000 call with Lawless
   Budde interpreted a call where Lawless said she would drop “SIX” in a mailbox as referring to $6,000 in drug proceeds. At trial, Lawless testified the $6,000 related to repayment of a car loan, not drug proceeds. Swanagan argued this showed Budde’s interpretation was wrong.

3. The court’s reasoning

The court emphasized that an affidavit is “truthful” under Franks if the affiant reasonably believes the information is true, even if it later turns out to be mistaken. Several points supported Budde’s interpretations:

• The affidavit included another intercepted conversation in which a former supplier asked Lawless if she wanted “more water,” in a context clearly involving methamphetamine supply. This reinforced “water” as drug slang, not sexual code.
• There was no evidence Budde knew or suspected an alternative sexual meaning in these particular conversations.
• At most, the defense showed possible ambiguity, not deliberate or reckless falsity.
• For the $6,000 call, the defense never renewed its suppression motion after Lawless testified, and even if that testimony were considered, it would not compel a finding that Budde’s earlier interpretation was dishonest or reckless rather than mistaken.

Because Swanagan failed to make the threshold “substantial preliminary showing”, the district court had no obligation to conduct a Franks hearing. The Sixth Circuit thus affirmed the denial of the hearing and the motion to suppress without reaching whether probable cause existed without the challenged statements.

4. Practical significance

The decision underscores that:

• Courts allow agents to interpret slang and emoji in light of their experience and contextual usage in the investigation.
• The existence of a plausible innocent interpretation of slang (e.g., sexual meaning of a water emoji) does not itself create Franks-level recklessness.
• Defendants challenging digital communications in affidavits need evidence that the officer knew or should have known the proposed innocent meaning in the specific context and disregarded it.

B. Law Enforcement “Interpretive” Testimony Under Rule 701

1. Governing standards and precedent

The opinion consolidates and applies several important Sixth Circuit precedents interpreting Federal Rule of Evidence 701 in the context of law enforcement testimony about recorded conversations:

• Rule 701 permits lay opinion testimony if it:
  1. is rationally based on the witness’s perception,
  2. helps the jury understand the testimony or determine a fact in issue, and
  3. is not based on specialized knowledge (that would instead fall under Rule 702 expert testimony).
• United States v. Young, 847 F.3d 328 (6th Cir. 2017); United States v. Kilpatrick, 798 F.3d 365 (6th Cir. 2015); United States v. Freeman, 730 F.3d 590 (6th Cir. 2013):
  • Concern that case agents not “smuggle in” inadmissible information or simply narrate the government’s theory under the guise of “interpretation.”
  • Lay testimony is acceptable when based on direct perception (listening to wiretaps, participating in conversations, etc.) and confined to explaining slang or clarifying garbled audio.
  • It is improper when the agent explains “what the parties really meant” in ordinary English or tells the jury what inferences to draw (i.e., becomes closing argument with a badge).
• United States v. Glenn, 146 F.4th 485 (6th Cir. 2025):
  • Vacated a conviction where an officer, testifying as an expert, interpreted ordinary text messages to tell the jury the government’s theory of the case.

2. Application to Detective Dirickson

Dirickson monitored the wiretap and testified about recorded calls between the defendants and their associates. The defense argued she improperly “translated or narrated” the meaning of recordings the jury could understand on its own.

The Sixth Circuit found:

• The government laid an adequate foundation: Dirickson was directly involved in the investigation and personally monitored the calls.
• Much of her testimony stayed within permissible bounds:
  • Identifying speakers,
  • Explaining drug code (e.g., “whip” = car, “deuce” = two ounces), and
  • Describing how particular calls affected investigative steps.
• When the defense objected that she was “summarizing” or interpreting, the district court instructed the prosecution to:
  • Ask what the call “meant to her” or “how it influenced the investigation,”
  • Not to “translate” ordinary language or simply state what the call “said.”
• Defense counsel accepted this structure and did not seek a continuing objection.

The court distinguished Freeman:

• In Freeman, the agent:
  • Drew on 23,000 calls and 15 years of experience without a clear foundation,
  • Concededly lacked first-hand knowledge of the specific conversations, and
  • Essentially narrated the government’s story (e.g., “situation” = victim stole jewelry and was later killed).
• By contrast, Dirickson:
  • Testified from first-hand monitoring of the specific wiretap at issue,
  • Did not inject unknown investigative information, and
  • Did not purport to tell the jury how to decide ultimate issues (e.g., guilt, conspiracy membership).

3. Application to Detective Fleury (plain-error review)

Fleury, another case agent, also interpreted calls and drug slang. Because defense counsel did not timely object to his testimony, the court applied plain error review.

The court acknowledged that parts of Fleury’s testimony were “potentially problematic,” especially where he:

• Connected calls that did not explicitly mention drugs to “quantities, pricing, and customer base for crystal methamphetamine,”
• Thereby advanced the government’s inferential narrative in ordinary language.

However, several mitigating factors led the court to find no clear or obvious error affecting substantial rights:

• The government consistently framed questions as asking what the calls “meant to [Fleury],” signaling opinion rather than definitive fact.
• Some calls clearly referenced “action,” which he defined as “crystal methamphetamine”; that gave a textual anchor to his broader references.
• Other evidence (Toliver’s and Lawless’s testimony, seized drugs, cash) independently supported the inference that the calls concerned meth trafficking.
• Defense cross-examination attacked:
  • The lack of controlled buys,
  • The absence of drugs on either defendant’s person when arrested, and
  • The ambiguity of coded language.
• The jury was instructed that it could accept or reject opinion testimony and should consider the witnesses’ qualifications and reasoning.

Combined, these factors defeated the stringent plain-error test.

4. Broader implications

This opinion, read with Freeman, Young, Kilpatrick, and Glenn, yields a practical template:

• Agents may:
  • Identify speakers,
  • Explain slang or coded terms,
  • Clarify unintelligible audio, and
  • Describe how calls influenced investigative steps.
• Agents may not:
  • Act as quasi-advocates interpreting ordinary English to embody the prosecution’s theory,
  • Suggest they possess off-record knowledge when they are only interpreting the same evidence the jury hears, or
  • Deliver narrative summations of what “really happened” in lieu of argument from counsel.

The case also underscores the importance of contemporaneous objections: most of Fleury’s testimony was reviewed only for plain error because counsel did not preserve specific objections under Evidence Rule 103.

C. Shackling and Juror Exposure

1. Shackling in the courtroom (Reed)

Reed was shackled at counsel table during trial, though the district court ensured (off the record) that a tablecloth obscured the restraints. Reed did not object at trial; on appeal he argued the court plainly erred by:

• Allowing shackling without a pretrial evidentiary hearing, and
• Failing to remove the restraints sua sponte.

Key legal principles:

• Deck v. Missouri, 544 U.S. 622 (2005), and related cases prohibit routine use of visible shackles in the courtroom absent a specific, essential security justification.
• Estelle v. Williams, 425 U.S. 501 (1976), highlights that lack of objection undermines a claim of “compulsion” for constitutional purposes.

The Sixth Circuit’s analysis:

• No record evidence that the jury actually saw Reed’s restraints in the courtroom; the judge recalled confirming that shackles were hidden and noted that defense counsel appeared satisfied.
• Because Reed never objected, the plain-error standard applied. Under that demanding standard:
  • There was no “obvious or clear” error in allowing non-visible restraints, especially when the court did not itself order shackling and security typically controls such decisions.
• The court did not need to decide whether a formal hearing would have been required had the shackles been visible; the lack of visibility was dispositive.

2. Jurors seeing defendants shackled in the courthouse lobby

Separately, on the second trial day, marshals escorted defendants through the courthouse lobby in shackles as some jurors entered. The district court:

• Reviewed security footage and identified three jurors who might have seen the defendants,
• Conducted individual voir dire of those jurors, at defense request, and
• Received assurances that none had noticed the defendants specifically, and each could remain fair and impartial.

The Sixth Circuit applied the rule that:

• Unlike visible shackling in the courtroom, which is inherently prejudicial under Deck, brief exposure to a shackled defendant elsewhere in the courthouse is not presumptively prejudicial. See United States v. Moreno, 933 F.2d 362 (6th Cir. 1991).
• Instead, the defendant must show actual prejudice, which the defendants could not do here:
  • Video was ambiguous; defendants were only partially visible briefly.
  • Trial judge, familiar with the courthouse layout and video, reasonably credited the jurors’ assurances of impartiality.

The court therefore found no abuse of discretion in keeping those jurors.

D. Sufficiency of the Evidence: Conspiracy and Possession

1. Standard of review

The court applied the familiar Jackson v. Virginia standard:

• Ask whether any rational trier of fact, viewing the evidence in the light most favorable to the prosecution and drawing all reasonable inferences in its favor, could have found each element of the offense beyond a reasonable doubt.
• The defendant’s burden is “very heavy”; the court does not re-weigh evidence or reassess witness credibility.

2. Conspiracy under 21 U.S.C. § 846

To prove a drug conspiracy, the government must show:

1. An agreement to violate the drug laws,
2. Knowledge and intent to join the agreement, and
3. Actual participation in the conspiracy.

The court stressed the narrow nature of the “buyer–seller” exception: a single isolated transaction, standing alone, may not prove conspiracy, but the exception can be overcome by evidence of an implicit agreement to redistribute to others — indicated by factors such as:

• Length and consistency of the relationship,
• Standardized transaction methods,
• Established pricing, and
• Mutual trust.

a. Evidence against Swanagan (conspiracy)

Key evidence:

• Lawless testified that for about five weeks she received meth from Swanagan to redistribute to others.
• Toliver testified that:
  • She “middlemanned” for him, delivering meth to others and collecting money at his direction, and
  • He provided the St. Ann Street apartment, where over 200 grams of meth were later found.
• Wiretap calls discussed:
  • Customers,
  • Quantities,
  • Pricing, and
  • Coordinated delivery logistics.

From this, a rational juror could find:

• An ongoing, multi-person scheme to distribute methamphetamine,
• Swanagan as the source of supply,
• His knowledge of, and active direction of, the distribution chain.

b. Evidence against Reed (conspiracy)

The evidence against Reed was thinner but sufficient:

• Wiretapped calls between Reed and Swanagan featured:
  • Drug code (“zips,” “action”),
  • Pricing discussion,
  • Instructions from Swanagan on where to go for pick-ups and drop-offs,
  • Assurances from Reed that he would take care of the tasks.
• On February 22, 2022, Toliver:
  • Picked up Reed at Swanagan’s direction,
  • Received a stack of cash from him (~$2,900),
  • Was transporting over 600 grams of 98% pure meth when stopped,
  • Testified that she was “middlemanning” between the two men and that Swanagan referred to Reed as his “partner.”

The court acknowledged that some of the evidence — including Reed’s role in a February 18 transaction potentially involving Percocet — was ambiguous. But when considered as a whole, a rational juror could infer:

• More than a one-off purchase, and
• A shared understanding that Reed was obtaining large quantities of meth for redistribution, not personal use.

3. Possession with intent to distribute under 21 U.S.C. § 841(a)(1)

The elements are:

1. Knowing,
2. Possession of a controlled substance,
3. With intent to distribute.

“Possession” can be:

• Actual – physical control over the drugs, or
• Constructive – the power and intent to exercise dominion and control over the drugs or the place where they are located, even if not in one’s hands.

a. Constructive possession – Swanagan

The same evidence supporting the conspiracy charge also showed constructive possession:

• He was identified as the source of the meth found in Toliver’s car and apartment.
• He directed where and to whom drugs were delivered (Lawless, Toliver, Reed).
• The 222 grams of pure meth found in the St. Ann Street apartment (which he provided) is an amount consistent with distribution, not personal use.

A rational jury could conclude that he exerted dominion and control over the meth, even though it was seized from the hands or premises of intermediaries.

b. Constructive possession – Reed

Reed never physically handled the meth in Toliver’s car; it was in a pink duffel bag that also contained Toliver’s driver’s license. Yet:

• Text and call evidence showed:
  • Reed was the intended recipient of the meth,
  • He paid Toliver for it, and
  • He and Toliver were en route to a hotel where she would hand the drugs over.
• He had already delivered the purchase money, and the drugs were in the vehicle he had entered for that purpose, en route to his chosen destination.

The court acknowledged that this was a close question, but held that a rational juror could find constructive possession, either:

• Individually (possession transferred once Reed paid and they began the journey), or
• Jointly with Toliver (shared control over the transaction and the drugs in transit).

The court distinguished the Eighth Circuit’s United States v. Quintanar, where the defendant never came near the drug package, never paid anyone, and the package was addressed to someone else. In contrast, Reed had entered the car, paid the money, and was being transported with the drugs toward their agreed destination.

c. Intent to distribute

Intent to distribute can be inferred from:

• Quantity and purity of drugs (hundreds of grams of nearly pure meth),
• Presence of significant cash (~$2,800),
• Absence of personal-use paraphernalia, and
• Recorded discussions of customers, pricing, and repeated transactions.

All of these factors were present here for both defendants.

E. Sentencing: Swanagan – Career Offender, Serious Drug Felony, Leadership, and Meth Purity

1. Career offender under U.S.S.G. § 4B1.1 and United States v. Jones

The 2023 Guidelines defined a “controlled substance offense” for career-offender purposes as:

an offense under federal or state law . . . that prohibits . . . distribution [or possession with intent to distribute] . . . of a controlled substance.

In United States v. Jones, 81 F.4th 591 (6th Cir. 2023), the Sixth Circuit held that for Guidelines purposes:

• State “controlled substance offense” predicates do not need to match the Controlled Substances Act’s (CSA’s) drug schedules.

Thus, even if a state statute covers a broader set of substances than the CSA, it can still qualify under § 4B1.2(b).

The panel here reaffirmed that it is bound by Jones, rejecting Swanagan’s argument that his prior Kentucky drug trafficking conviction could not count because Kentucky’s schedules were broader than the CSA’s. For Guidelines career-offender status, that is irrelevant after Jones.

2. “Serious drug felony” enhancement under 21 U.S.C. § 841(b)(1)(A)

The statutory enhancement is a different question. The term “serious drug felony” is defined in 21 U.S.C. § 802(57) by incorporating 18 U.S.C. § 924(e)(2)(A)(ii), which in turn requires:

• an offense under State law,
• involving a “controlled substance (as defined in section 102 of the Controlled Substances Act)”, and
• with certain punishment thresholds and other conditions.

Here, unlike under § 4B1.2(b), the CSA’s schedules are expressly incorporated by referencecategorical match between the state offense and CSA “controlled substance” definition is required.

a. Categorical analysis of Kentucky cocaine trafficking

In 2009, Kentucky’s first-degree trafficking statute criminalized trafficking in “narcotic drugs” listed in state schedules. For cocaine-related substances, Kentucky’s Schedule II and definition of “narcotic drug” matched the CSA’s Schedule II listing of cocaine and its various forms and isomers.

Thus, a person convicted of first-degree trafficking in cocaine under Kentucky law necessarily trafficked in a CSA “controlled substance.” The conviction therefore qualified as a “serious drug felony” for § 841(b)(1)(A) purposes.

3. Leadership enhancement under U.S.S.G. § 3B1.1(a)

Section 3B1.1(a) adds four levels if:

the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive.

The government bears the burden of proving the enhancement by a preponderance of the evidence. Generally, the district court should identify the participants; however, where the same judge presides over both trial and sentencing in a conspiracy case, the requirement for detailed findings is somewhat relaxed (United States v. Elder, 90 F.3d 1110 (6th Cir. 1996)).

The district court:

• Incorporated the presentence report,
• Identified at least five participants: Swanagan, Lawless, Reed, a woman in Indiana, and an unindicted male moving drugs from Kentucky, and
• Found that Swanagan served as the source of supply for multiple individuals.

The record supported these findings:

• Lawless and Toliver testified they distributed meth at his direction.
• Reed’s conviction reflected his role in the same network.
• Phone calls implicated another supplier (Stallings) and an Indiana contact.

Given this evidence, the appellate court found no clear error and upheld the leadership enhancement.

4. Refusal to vary from “actual” to “mixture” meth guidelines

Federal sentencing law treats “actual” (pure) methamphetamine far more harshly than mixtures; the Guidelines impose stiffer base offense levels for equivalent weights of pure meth. Some district courts have criticized this disparity and chosen to vary downward as a matter of policy, similar to variances from the old crack/powder ratio. The Supreme Court in Kimbrough v. United States, 552 U.S. 85 (2007), held that district courts may reject Guidelines ratios based on policy disagreements but are not obliged to do so.

Here:

• Probation attributed 823 grams of actual meth to Swanagan, yielding a base offense level of 34.
• Even if the court had used the mixture guideline (base level 30 for that quantity), adding enhancements would have produced:
  • Total offense level 36,
  • Guideline range 324–405 months (CHC VI).
• The court imposed 360 months — within both the actual-meth and hypothetical mixture ranges.

Because the sentence was within the correctly calculated Guidelines range, it enjoyed a presumption of substantive reasonableness. The court:

• Recognized its discretion to vary based on a policy disagreement,
• Chose not to exercise that discretion, and
• Considered the § 3553(a) factors.

The panel therefore held the sentence was not “greater than necessary” and was substantively reasonable.

F. Sentencing: Reed – Defining “Serious Violent Felony” and Invalidating § 3559(c)(2)(F)’s Residual Clause

1. Statutory framework

Reed was sentenced under 21 U.S.C. § 841(b)(1)(A)(viii), which:

• Sets a 10-year mandatory minimum for offenses involving 50 grams or more of methamphetamine, and
• Raises the minimum to 25 years if the defendant has “two or more prior convictions for a serious violent felony or serious drug felony”.

The statute’s definitions incorporate 21 U.S.C. § 802(59), which in turn incorporates 18 U.S.C. § 3559(c)(2)(F) for “serious violent felony.” Section 3559(c)(2)(F) defines a “serious violent felony” in three ways:

1. Enumerated offenses (murder, robbery, etc.),
2. Offenses having as an element the use, attempted use, or threatened use of physical force against another person (the elements clause), and
3. Any other offense with a maximum term of at least 10 years that, “by its nature, involves a substantial risk that physical force against the person of another may be used” (the residual clause).

The district court treated Reed’s 2011 Kentucky first-degree burglary conviction as a “serious violent felony,” which, combined with another conviction, triggered the 25-year minimum. The government now concedes that was error; the Sixth Circuit independently analyzed and agreed.

2. Step one: Not an enumerated offense

“Burglary” is absent from § 3559(c)(2)(F)(i)’s list of enumerated serious violent felonies. So Reed’s burglary conviction could qualify only under the elements or residual clauses.

3. Step two: Elements clause and the categorical approach

Section 3559(c)(2)(F)(ii)’s elements clause matches the language of the Armed Career Criminal Act (ACCA) and other federal “violent felony” or “crime of violence” provisions. Under United States v. Burris, 912 F.3d 386 (6th Cir. 2019) (en banc), courts must use the categorical approach:

• Look to the statutory elements of the prior offense, not the actual facts of the case.
• Ask whether every violation of the statute requires the “use, attempted use, or threatened use of physical force against the person of another.”
• If the statute is broader than the elements clause, it does not qualify (unless it is divisible and the modified categorical approach applies).

a. Overbreadth of Kentucky first-degree burglary statute

The Kentucky statute (Ky. Rev. Stat. § 511.020) provides that a person commits first-degree burglary by:

• Knowingly entering or remaining unlawfully in a building with intent to commit a crime, and
• In effecting entry, being inside, or in immediate flight therefrom, either:
  1. Being “armed with explosives or a deadly weapon;” or
  2. Causing physical injury to a nonparticipant; or
  3. Using or threatening use of a dangerous instrument against a nonparticipant.

Subsections (b) and (c) involve the use or threat of force or causing injury and might fit the elements clause. But subsection (a) — being “armed with explosives or a deadly weapon” — does not necessarily require the use (or attempted/threatened use) of force against anyone.

The court notes:

• Kentucky case law (e.g., Hayes v. Commonwealth, 698 S.W.2d 827 (Ky. 1985)) holds that a burglar who steals guns from an unoccupied dwelling becomes “armed” with a deadly weapon even if:
  • No one is present,
  • No force is used or threatened, and
  • The weapon is not “ready for use.”

Thus, the Kentucky statute criminalizes conduct that does not necessarily involve force against a person. It is categorically broader than the elements clause.

b. Divisibility and the modified categorical approach

The statute is divisible: it sets out three alternative ways (a), (b), or (c) to commit first-degree burglary. Clues:

• The text uses the disjunctive “or,”
• Each subsection describes different conduct, each sufficient for conviction, and
• Reed’s indictment charged only that he:

  was armed with a deadly weapon in effecting entry or while in the building or in the immediate flight therefrom

  mirroring subsection (a).

Applying the modified categorical approach, the court identifies Reed’s specific variant as subsection (a) (“armed with a deadly weapon”). Because that variant does not require any use, attempted use, or threatened use of force against a person, it fails the elements clause.

4. Step three: Residual clause and constitutional vagueness

That leaves only the residual clause of § 3559(c)(2)(F), which covers offenses involving a substantial risk that physical force may be used in the course of committing the offense. But the Supreme Court has already invalidated nearly identical residual clauses:

• Johnson v. United States, 576 U.S. 591 (2015):
  • Struck down ACCA’s residual clause (offenses that “involve conduct that presents a serious potential risk of physical injury to another”).
• Sessions v. Dimaya, 584 U.S. 148 (2018):
  • Invalidated the Immigration and Nationality Act’s residual definition of “crime of violence” (offenses involving “a substantial risk” that force “may be used”).
• United States v. Davis, 588 U.S. 445 (2019):
  • Struck the residual clause of 18 U.S.C. § 924(c)(3)(B), which used language virtually identical to § 3559(c)(2)(F).

The Supreme Court in those cases emphasized the “indeterminacy” of asking courts to:

• Imagine the “ordinary case” of a crime, and
• Assess whether that abstraction presents a sufficient risk of force or injury.

The Sixth Circuit recognized that § 3559(c)(2)(F)’s residual clause is materially indistinguishable from the clauses invalidated in Johnson, Dimaya, and Davis. Accordingly, it held that:

• Section 3559(c)(2)(F)’s residual clause is unconstitutionally vague and cannot be used to classify prior offenses as “serious violent felonies.”

This is a significant new precedent within the Sixth Circuit, directly extending the Supreme Court’s vagueness rulings to this particular residual clause.

5. Consequence for Reed and for future cases

Because:

• Kentucky first-degree burglary is not an enumerated offense,
• Its subsection (a) variant does not satisfy the elements clause, and
• The residual clause cannot constitutionally be used,

Reed’s prior burglary conviction cannot be used as a “serious violent felony” under § 841(b)(1)(A).

The district court, believing Reed was subject to a 25-year minimum, imposed 300 months (25 years). The government did not argue harmless error on appeal, and the panel saw no basis for finding harmlessness, as the sentence rested directly on the erroneous mandatory minimum. The court therefore:

• Vacated Reed’s sentence, and
• Remanded for resentencing without the improper enhancement.

On remand, the district court will resentence Reed under the correct statutory framework (likely a 10-year minimum under § 841(b)(1)(A), absent other qualifying priors), using the Guidelines range as advisory and considering § 3553(a) factors without the 25-year floor.

IV. Complex Concepts Simplified

1. Franks hearing

A Franks hearing is a special evidentiary hearing to challenge the truthfulness of a warrant affidavit. To get such a hearing, a defendant must do more than suggest the officer might be wrong; he must show:

• a strong preliminary case that the officer lied or recklessly disregarded the truth, and
• that without the false statements, the affidavit would not support probable cause.

Courts presume affidavits are truthful; simply pointing out alternative interpretations of slang or showing that later testimony conflicts with the affiant’s interpretation usually will not suffice.

2. Constructive possession

You do not need drugs in your pocket to be guilty of possession. You constructively possess drugs if:

• You know where they are, and
• You have the power and intent to control them, either directly (fetch them yourself) or indirectly (through others or by controlling the place where they are stored).

Examples:

• Drugs locked in your home safe,
• A stash in your car trunk that you control,
• Drugs in a courier’s bag when you have ordered the delivery, paid, and directed where they should go.

3. Buyer–seller exception to drug conspiracy

Not every drug buyer is a conspirator. If a person makes a single, isolated purchase from a seller, that may not prove he is joining a broader criminal agreement. However, the exception is narrow. Indicators that the buyer is part of a larger conspiracy include:

• Repeated transactions with the same supplier,
• Large quantities consistent with resale,
• Use of coded language showing ongoing coordination,
• Evidence that buyer redistributes to others.

In such circumstances, the buyer is no longer just a customer; he is a cooperating participant in the distribution network.

4. Career offender vs. statutory enhancements

Two separate sentencing layers are often in play:

• Guidelines (Career Offender) – purely advisory:
  • After Jones, state drug offenses can qualify as “controlled substance offenses” even if state drug schedules are broader than the federal CSA.
• Statutory enhancements (e.g., “serious drug felony,” “serious violent felony” under § 841) – mandatory minimums:
  • Here, Congress explicitly cross-references the CSA or defines specific elements, so courts use a categorical approach, matching the state statute’s elements against the federal definition.

Thus, a prior conviction might qualify under the Guidelines but not as a statutory “serious drug felony” or “serious violent felony,” or vice versa.

5. Categorical and modified categorical approaches

To decide whether a prior conviction qualifies as a predicate under a federal definition, courts:

1. Categorical approach:
   • Ignore the specific facts of what the defendant did,
   • Look only at the statutory elements of the offense, and
   • Ask whether all conduct criminalized by the statute would satisfy the federal definition.
2. Divisibility and modified categorical approach:
   • If a statute lists alternative elements (i.e., creates multiple distinct crimes),
   • The court can consult a narrow set of documents (indictment, plea colloquy, jury instructions) to identify which variant the defendant was convicted of,
   • Then apply the categorical approach to that variant.

6. Residual clauses and void-for-vagueness

A criminal law is unconstitutionally vague if it does not give ordinary people fair notice of what conduct is prohibited or invites arbitrary enforcement. The Supreme Court has invalidated “residual clauses” that:

• Ask courts to imagine the “ordinary case” of a crime, and
• Then to guess whether that abstract crime involves enough risk of injury or use of force.

Because such clauses require speculation and have produced inconsistent results, they violate due process. The Sixth Circuit extends that reasoning here to § 3559(c)(2)(F)’s residual clause.

7. Lay vs. expert testimony (Rules 701 and 702)

A lay witness (Rule 701) can offer opinions based on personal observation that help the jury understand the evidence, but:

• Cannot rely on specialized technical or scientific expertise (reserved for experts under Rule 702), and
• Should not act as a quasi-lawyer explaining what conclusions the jury should draw.

A law enforcement agent may testify as a lay witness when:

• He personally heard the conversations,
• Is interpreting slang based on the context of the same investigation, and
• Is not leaning on outside expert knowledge or undisclosed facts to make his interpretations authoritative.

V. Impact and Broader Significance

1. Doctrinal impact: Residual clause invalidation

The most consequential doctrinal development is the explicit holding that 18 U.S.C. § 3559(c)(2)(F)’s residual clause is void for vagueness. This has several implications:

• In the Sixth Circuit, prosecutors can no longer rely on the residual clause to categorize prior convictions as “serious violent felonies” for purposes of:
  • § 841(b)(1)(A) enhancements, or
  • Other statutes incorporating § 3559(c)’s definition.
• Defendants previously sentenced under § 841(b)(1)(A) using § 3559(c)(2)(F)’s residual clause may have grounds for collateral review, depending on retroactivity and procedural posture.

2. Narrowing “serious violent felony” and state burglary predicates

By holding that Kentucky first-degree burglary (subsection (a)) is not a “serious violent felony” under the surviving clauses, the court:

• Crystallizes that the mere status of being “armed with a deadly weapon” during a burglary does not equate to use, attempted use, or threatened use of force against another person.
• Signals that many burglary statutes (especially those that, like Kentucky’s, criminalize non-confrontational theft of weapons) will not qualify under the elements clause for § 841(b)(1)(A) enhancements.

3. Sentencing practice in methamphetamine cases

The opinion reinforces two complementary points:

• District judges are free to vary from the meth purity guideline ratios if, in their view, those ratios lack empirical grounding or overstate culpability.
• But there is no requirement to do so; sentences within the Guidelines range, even at the bottom, remain presumptively reasonable absent a miscalculation or abuse of discretion.

Thus, defense counsel can and should raise policy challenges to the meth guideline, but must recognize that appellate review is highly deferential.

4. Law enforcement testimony and trial management

The decision provides practical guidance in managing law-enforcement testimony:

• Trial courts should:
  • Require a clear foundation for agents’ interpretive opinions,
  • Steer questioning toward “what did you do in response?” and “what did this mean to you as an investigator?” instead of “what were the defendants talking about?,” and
  • Be alert to any blurring of lines between permissible lay opinion and impermissible narrative advocacy.
• Defense counsel should:
  • Make timely, specific objections to testimony that crosses into interpreting ordinary language or stating ultimate inferences,
  • Consider requesting a continuing objection where a recurring pattern emerges, and
  • Use cross-examination to expose uncertainty and alternative interpretations of coded terms.

5. Handling shackling and incidental juror exposure

The opinion underscores several best practices:

• Courts should ensure restraints are not visible to the jury absent compelling security reasons.
• If jurors might have seen defendants in shackles outside the courtroom, the court:
  • Should promptly investigate (e.g., review video),
  • Individually voir dire potentially exposed jurors, and
  • Make findings on impartiality.
• Defendants must object at trial to preserve shackling challenges; otherwise, they face the demanding plain-error standard on appeal.

6. Evidence sufficiency and the practical limits of buyer–seller and possession defenses

The decision illustrates that:

• Arguments that a defendant was “just a buyer” often fail when:
  • Quantities are large,
  • There is repeated coded communication with a supplier, or
  • Intermediaries testify to an ongoing distribution chain.
• Constructive possession can be found in nuanced situations, especially where:
  • Money has changed hands,
  • Drugs are in transit to the buyer’s chosen location, and
  • The buyer is physically present in the vehicle with the drugs.

Defendants in similar situations should be aware that such facts, even without drugs on their person, can support convictions for possession with intent to distribute.

VI. Conclusion

United States v. Swanagan & Reed is a wide-ranging opinion that consolidates and clarifies multiple strands of federal criminal doctrine. While it leaves the defendants’ convictions intact and affirms a substantial sentence for Swanagan, it makes two important contributions:

1. It invalidates 18 U.S.C. § 3559(c)(2)(F)’s residual clause as unconstitutionally vague, bringing that provision into line with Johnson, Dimaya, and Davis.
2. It holds that Kentucky first-degree burglary (under the “armed with a deadly weapon” variant) is not a “serious violent felony” under the remaining clauses, thereby vacating an erroneously enhanced 25-year mandatory minimum sentence for Reed.

Alongside these core holdings, the opinion provides valuable guidance on:

• The stringent threshold for Franks hearings in the context of coded digital communications,
• The permissible scope of law enforcement lay opinion under Rule 701,
• The management of shackling and incidental juror exposure,
• The narrowness of the buyer–seller exception, and
• The distinction between Guidelines-based and statute-based predicate analyses in sentencing.

Taken together, the decision will shape how trial courts within the Sixth Circuit handle enhancements based on prior violent felonies, structure law enforcement testimony about intercepted communications, and assess sufficiency of evidence in complex drug conspiracies.