Vagueness, “Serious Violent Felonies,” and Drug Sentencing: A Commentary on United States v. Courtland Reed & Cedric Swanagan

Introduction

In this published decision, the Sixth Circuit addresses a cluster of recurring issues in federal drug prosecutions: the standard for a Franks hearing attacking a wiretap affidavit, the permissible scope of law-enforcement “lay opinion” testimony interpreting recorded calls, the constitutional limits on shackling defendants, sufficiency of the evidence for drug conspiracy and possession, the use of prior state drug and burglary convictions as federal sentencing predicates, leadership-role enhancements, and policy-based variances in methamphetamine sentencing.

The court ultimately:

• Affirms the convictions of both defendants (Reed and Swanagan) for (1) conspiracy to possess with intent to distribute 50 grams or more of methamphetamine and (2) possession with intent to distribute the same quantity, under 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii), 846, and 18 U.S.C. § 2.
• Affirms all aspects of Cedric Swanagan’s sentence, including:
  • Use of a prior Kentucky cocaine-trafficking conviction as a “serious drug felony” under § 841(b)(1)(A).
  • His career-offender status under U.S.S.G. § 4B1.1, in light of United States v. Jones.
  • A four-level leadership enhancement under U.S.S.G. § 3B1.1(a).
  • Refusal to vary downward from the “actual” (pure) methamphetamine guideline to the “mixture” guideline.
• Vacates Courtland Reed’s 300‑month sentence and remands for resentencing, holding that his prior Kentucky First Degree Burglary conviction is not a “serious violent felony” for purposes of the 25‑year mandatory minimum under § 841(b)(1)(A).

The most significant doctrinal development is the court’s conclusion that the residual clause in 18 U.S.C. § 3559(c)(2)(F)’s definition of “serious violent felony” is unconstitutionally vague under Johnson, Dimaya, and Davis. Because § 841(b)(1)(A)’s “serious violent felony” definition cross‑references § 3559(c)(2)(F), this ruling has direct consequences for enhanced mandatory minimums in serious federal drug cases.

Summary of the Opinion

The case arises from a DEA/municipal investigation into a methamphetamine distribution network centered on defendant Cedric Swanagan in Owensboro, Kentucky. Investigators secured a wiretap on Swanagan’s phone based on a DEA task force officer’s affidavit interpreting coded communications with various associates. One “runner,” Nicole Toliver, was stopped en route to deliver methamphetamine; police recovered over 600 grams (98% purity) from her car and an additional 222 grams (100% purity) from an apartment she used and that was linked to Swanagan. Toliver had just picked up co-defendant Reed, who had handed her cash and was to receive the meth at a motel.

At a joint trial, the government presented:

• Wiretap recordings and agent testimony explaining code words (“zips,” “action”).
• Testimony from co‑conspirators Lawless and Toliver about their distribution activities for Swanagan.
• Forensic chemist evidence on drug quantity and purity.
• A drug‑investigator opinion witness (Simpson) on drug-trafficking structure and quantities.

The jury convicted both defendants on conspiracy and possession counts, and found certain stipulated prior convictions. Post‑trial, defendants challenged sufficiency of the evidence, shackling‑related issues, and law‑enforcement interpretive testimony; they also sought new trials and renewed Rule 29 motions. All were denied.

At sentencing:

• Reed:
  • Guidelines: offense level 34, criminal history V → 235–293 months.
  • Statutory minimum: 25 years (300 months) under § 841(b)(1)(A) via § 851, premised on two prior convictions including Kentucky First Degree Burglary (treated as a “serious violent felony”).
  • The district court imposed 300 months.
• Swanagan:
  • Base level 34, +2 for maintaining a drug premises, +4 for leadership = level 40; criminal history VI; career offender (though not range‑determinative).
  • Guidelines: 360 months to life; statutory range: 15 years to life due to a prior “serious drug felony” (state cocaine trafficking).
  • Sentence: 360 months.

On appeal, the Sixth Circuit:

• Holds that the district court did not abuse its discretion in denying a Franks hearing on the wiretap; Swanagan failed to make the “substantial preliminary showing” of deliberate or reckless falsity.
• Upholds the admission of law‑enforcement lay testimony interpreting wiretap calls under Rule 701, distinguishing past reversals such as Freeman and Glenn.
• Rejects Reed’s shackling challenges (both in‑court and in the courthouse lobby), applying plain‑error review and requiring actual prejudice for the lobby encounter.
• Finds the evidence sufficient as to both defendants for conspiracy and possession with intent to distribute, including Reed’s constructive possession and intent to distribute based on the February 22 transaction and broader wiretap context.
• Affirms the use of Swanagan’s 2009 Kentucky cocaine trafficking conviction as:
  • a “serious drug felony” under § 841(b)(1)(A), and
  • a “controlled substance offense” for career-offender purposes, reaffirming United States v. Jones.
• Affirms a four‑level leadership enhancement for Swanagan under U.S.S.G. § 3B1.1(a), finding at least five participants in the conspiracy.
• Holds that the district court did not abuse its discretion by declining to vary from the “actual meth” guideline; the 360‑month sentence is within both the actual-meth and hypothetical mixture ranges and is presumptively reasonable.
• Holds that Kentucky First Degree Burglary is not a “serious violent felony” under § 3559(c)(2)(F), because:
  • it is broader than the elements clause, and
  • the residual clause (“substantial risk that physical force may be used”) is unconstitutionally vague under Johnson, Dimaya, and Davis.

Accordingly, the court vacates Reed’s sentence and remands for resentencing without treating his burglary conviction as a “serious violent felony,” while otherwise affirming across the board.

Analysis

1. The Franks Challenge to the Wiretap Affidavit

a. Precedents Cited

The court applies the familiar framework from Franks v. Delaware, 438 U.S. 154 (1978), and its Sixth Circuit progeny:

• Franks: requires a “substantial preliminary showing” that the affiant included a deliberate falsehood or statements made with reckless disregard for the truth, and that the false statement was “necessary” to probable cause.
• United States v. Bennett, 905 F.2d 931 (6th Cir. 1990), Abboud, Fountain, and others emphasize:
  • The presumption of validity of an affidavit.
  • Need for specific allegations, reasons, and (where possible) supporting affidavits or statements.
  • Mere ambiguity or an alternative reading is not enough.
• United States v. Young, 847 F.3d 328 (6th Cir. 2017), and Bateman, 945 F.3d 997 (6th Cir. 2019), set the standard of review: factual findings for clear error; legal conclusions de novo.
• Deitz and Lopez-Medina establish that new suppression arguments on appeal are reviewed only for plain error.

b. The “Water Emoji” and the $6,000 Conversation

Swanagan argued that DEA Task Force Officer Budde’s affidavit for a February 7, 2022 wiretap on his phone was recklessly or intentionally misleading because:

1. Budde interpreted a “water emoji” in Facebook messages with cooperator Huff as code for methamphetamine, whereas Swanagan claimed it meant sexual activity (citing online “dictionary” references).
2. Budde described a call where associate Lawless said she would drop off “SIX” as Lawless delivering $6,000 in drug proceeds, while Lawless later testified this referenced repayment of a car loan.

The panel holds that neither contention justifies a Franks hearing.

• Water emoji: At most, Swanagan showed that the emoji could be ambiguous, not that Budde knowingly or recklessly misrepresented its meaning.
  • Critically, the affidavit contained other evidence that “water” was drug code: a recorded call between Lawless and another supplier where “more water” clearly made sense as methamphetamine, not sex.
  • Without evidence that Budde knew or should have known of a contrary meaning, this is at best a possible mistake, not reckless falsehood.
• $6,000 payment:
  • That issue involved a statement appearing only in the February 7 affidavit, not in the January 25 affidavit targeted in the motion; thus the argument was unpreserved and reviewed for plain error.
  • Moreover, Swanagan failed to renew his suppression motion after Lawless’s testimony surfaced; under Rogers, the appellate court then cannot use the trial record to assess the motion.
  • Even assuming the testimony had been available, the district court could reasonably find Budde’s interpretation truthful; nothing showed deliberate or reckless falsity.

c. Legal Reasoning and Significance

The opinion underscores two core points about Franks:

• Ambiguity is not falsity. That an utterance or symbol (like a water emoji) admits multiple meanings does not itself suggest the affiant acted with reckless disregard. Defendants must demonstrate that the officer knew, or was deliberately indifferent to, information undermining his interpretation.
• Procedural rigor matters. Raising new attacks on different affidavit statements for the first time on appeal triggers plain error review; failing to renew suppression motions after new trial testimony limits the record the court can consider.

In practice, Reed & Swanagan signals that:

• Challenging wiretap affidavits based on alleged misinterpretation of coded language (text slang, emojis, etc.) will rarely clear the Franks threshold without concrete proof of intentional or reckless mischaracterization.
• Defense counsel must preserve all affidavit challenges and renew them when new evidence appears at trial, or risk forfeiture and plain‑error review.

2. Law‑Enforcement Lay Opinion on Recorded Calls (Rule 701)

a. Framework and Precedents

The defendants argued that Detectives Dirickson and Fleury impermissibly “interpreted” the content of wiretap calls—invading the jury’s role and effectively narrating the government’s theory. The court evaluates this under Federal Rule of Evidence 701 and several key Sixth Circuit precedents:

• Rule 701 permits lay opinion testimony only if:
  1. It is “rationally based on the witness’s perception,”
  2. Helpful to understanding the testimony or a fact in issue, and
  3. Not based on specialized knowledge within Rule 702.
• United States v. Young, 847 F.3d 328 (6th Cir. 2017), and Kilpatrick, 798 F.3d 365 (6th Cir. 2015), stress that a case agent may testify as a lay witness about intercepted conversations only if:
  • They participated in or directly observed the conversations, and
  • Do not simply overlay the government’s theory onto ordinary English.
  The court is wary of agents “smuggling in inadmissible evidence” or “usurping the jury’s function.”
• United States v. Freeman, 730 F.3d 590 (6th Cir. 2013), reversed convictions where an FBI agent, without a proper Rule 701 foundation, interpreted ordinary English in recorded calls to tell the jury what “situation” and similar terms “really meant” (e.g., “the victim’s having stolen jewelry,” “a hit” being ordered, etc.).
• United States v. Glenn, 146 F.4th 485 (6th Cir. 2025), reversed a conviction where an officer testified as an expert (Rule 702) about the meaning of ordinary words in text messages—effectively narrating the prosecution’s theory without adequate qualifications or appropriate subject matter for expert testimony.

b. What the Detectives Did

The government established that both Dirickson and Fleury:

• Were directly involved in monitoring the Swanagan wiretap.
• Listened to and, in some cases, contemporaneously acted on recorded calls.

Their testimony covered:

• Identifying speakers and dates of calls.
• Explaining code words or slang: “action” (methamphetamine), “zips” (ounces), “whip” (vehicle), “deuce” (two ounces).
• Describing what the calls meant to them as investigators and how the calls informed decisions during the investigation.
• Occasionally “summarizing” conversations, sometimes using language like “we believed this was distribution money.”

Defense counsel did object at key moments—especially when questions asked the detective to “summarize what they were talking about” in plain English. The district court then:

• Directed the government to frame questions in terms of:
  • What the detective did in response, or
  • What a call “meant” to them in the investigation,
  rather than “translating” the plain content.
• The defense agreed to this procedure on the record.

c. Preserved vs. Unpreserved Challenges

The court carefully separates:

• Portions to which defendants objected at trial (reviewed for abuse of discretion), and
• Other interpretive portions with no contemporaneous objection (reviewed for plain error under Rule 103 and Puckett).

For the objected‑to portions, the court finds no abuse of discretion:

• A sufficient Rule 701 foundation existed—detectives had direct, first‑hand exposure to the calls.
• Most testimony focused on:
  • Identifying speakers,
  • Clarifying inaudible or confusing recorded segments, or
  • Explaining how investigators perceived and acted on calls.
• Unlike Freeman, the detectives did not repeatedly overlay legal conclusions or the entire theory of the case onto ordinary phrases.

For the unobjected portions, the court concedes that a few statements “bordered” on problematic—for instance:

• Dirickson saying a call was about “money, which we believe was from distributions of controlled substances.”
• Fleury describing several calls as revealing “quantities, pricing, and customer base” for meth, even when meth was not explicitly mentioned.

But any error was not “clear or obvious,” and did not affect substantial rights, for several reasons:

• The government framed questions as “what did it mean to you as an investigator,” mitigating the impression that the detectives were announcing indisputable factual conclusions.
• Independent evidence—co‑conspirator testimony and the recovered methamphetamine—corroborated the inference that the calls related to meth trafficking.
• Defense cross‑examination highlighted:
  • That many calls did not lead to seizures,
  • That code terms could be ambiguous, and
  • That law enforcement never found either defendant in physical possession of methamphetamine at the time of arrest.
• The court’s final jury instructions emphasized:
  • Jurors need not accept any witness’s opinion,
  • They should weigh qualifications and bases for opinions, and
  • They are the sole judges of credibility and fact.

d. Distinguishing Freeman and Glenn

The panel distinguishes this case from the reversals in:

• Freeman:
  • The FBI agent in Freeman relied on tens of thousands of calls and generalized experience, not specific, first-hand knowledge of the calls played to the jury.
  • He narrated the government’s factual theory, translating “ordinary English” like “situation” into highly charged interpretations (a theft, a hit, a murder) that the jury could have drawn on its own.
  • The government there effectively conceded a lack of proper Rule 701 foundation.
• Glenn:
  • That case involved purported expert testimony under Rule 702, where an officer “interpreted” ordinary English in text messages with no genuine need for specialized input.
  • Here, by contrast, Dirickson and Fleury were offered as lay witnesses, and much of their testimony concerned jargon (“zips,” “action”) and contextual understanding derived from their direct monitoring of the wiretap.

e. Impact

This portion of the opinion gives practical guidance to trial courts and counsel:

• Law‑enforcement case agents may offer lay opinions on wiretap calls if:
  • They have direct exposure to those calls,
  • They primarily:
    • Identify speakers,
    • Explain slang, or
    • Describe investigative significance,
  • They avoid narrating case theories or legal conclusions about guilt.
• Defense counsel must object contemporaneously, or risk plain‑error review—which is extremely difficult to satisfy.
• Courts can manage the risk of overreach by:
  • Requiring foundation,
  • Framing questions around “what did you do / understand,” and
  • Giving limiting instructions about opinion testimony.

3. Shackling and Juror Exposure

a. Shackling in the Courtroom

Reed challenged the use of shackles during trial. He did not object below, so the court applies plain-error review under Miller and Perry. The key legal benchmarks:

• Deck v. Missouri, 544 U.S. 622 (2005): routine use of visible shackles at trial is unconstitutional absent a case‑specific, essential justification; visible restraints can undermine the presumption of innocence.
• Estelle v. Williams, 425 U.S. 501 (1976): no constitutional violation where the defendant fails to object to being tried in prison clothes; lack of objection undermines the “compulsion” element of a due‑process claim.

Here, there was no record evidence that jurors saw Reed’s shackles in the courtroom:

• The district court ensured that the defense table’s tablecloth covered the restraints and noted that Reed’s counsel affirmed satisfaction with that setup.
• Reed’s later speculation that a juror “could have” looked down and seen the shackles was not enough to show visibility, let alone prejudice.

Further, the shackling was not ordered as a contested judicial measure on the record; Reed never objected. Given the absence of both:

• Evidence of in‑court visibility, and
• An objection or hearing request,

the panel holds there was no plain error in failing to conduct a shackling hearing or to remove the restraints sua sponte.

b. Brief Lobby Exposure

On one trial morning, marshals escorted the shackled defendants through the courthouse lobby while some jurors were entering. The district court:

• Promptly separated potentially affected jurors.
• Reviewed security footage.
• Conducted individual voir dire of the three jurors who arrived during the relevant two-minute window.
• Allowed defense counsel to propose additional questions.

The jurors indicated that they either did not notice the defendants or that any observation would not affect their fairness or impartiality. The court credited these assurances.

The governing standard for non‑courtroom shackling exposure is less stringent than Deck:

• Moreno, 933 F.2d 362 (6th Cir. 1991), and Payne, 667 F.2d 541 (6th Cir. 1981), hold that brief, incidental sightings of a defendant in restraints elsewhere in the courthouse, as part of routine security measures, require a showing of actual prejudice.

Here:

• The video was ambiguous (defendants only briefly and partially visible) and the district court was best situated to interpret it in the context of the courthouse layout.
• There was no evidence that jurors lied about impartiality; the defendants’ claim that “they must have been prejudiced because they lied” was circular and unsupported.

The panel therefore finds no abuse of discretion in declining to dismiss those jurors.

c. Impact

Taken together, the shackling rulings reinforce:

• The distinction between:
  • Visible in‑court shackling (presumptively prejudicial; requires special justification), and
  • Brief out‑of‑court sightings (require a showing of actual prejudice).
• The importance of contemporaneous objections to triggers robust appellate review and to build a factual record (including a formal shackling hearing if necessary).

4. Sufficiency of the Evidence

a. Legal Standards

The court applies the familiar Jackson v. Virginia standard:

• The question is whether any rational juror could have found each element of the offense proven beyond a reasonable doubt when viewing the evidence in the light most favorable to the government.
• Appellate courts do not reweigh evidence or reassess witness credibility.

For a § 846 drug conspiracy, the government must show:

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

For possession with intent to distribute under § 841(a)(1), the elements are:

1. Knowing
2. Possession (actual or constructive) of a controlled substance
3. With intent to distribute.

b. Evidence Against Swanagan

The case against Swanagan was strong:

• Co‑conspirator testimony:
  • Lawless testified that for about five weeks she obtained meth from Swanagan and redistributed it.
  • Toliver testified she served as a “middleman” for him and that he supplied her the apartment at 513‑½ St. Ann Street where meth was found.
• Wiretap evidence:
  • Numerous intercepted calls with Stallings (source), Reed, Toliver, and customers discussed “zips,” “action,” quantities, and prices.
• Physical evidence:
  • 667.7 grams (98% purity) in Toliver’s car and 222 grams (100% purity) in the St. Ann apartment.
  • Simpson’s opinion testimony that such quantities are consistent with high‑level dealing, not personal use.

From this, a rational juror could readily find:

• That Swanagan supplied meth to others for redistribution (agreement + knowledge + participation),
• Constructive possession of the meth at the apartment and through Toliver as his agent, and
• Intent to distribute, given the quantities and transactional context.

c. Evidence Against Reed: Conspiracy and Constructive Possession

Reed’s principal argument was that he was merely present during a single transaction (the February 22 stop) and that even that transaction, at most, was a buyer‑seller deal in pills, not meth. The court rejects this.

Evidence tying Reed to the meth conspiracy includes:

• Multiple phone calls between Reed and Swanagan discussing:
  • Money, “zips,” “action,” and drug quantities.
  • Reed acting on Swanagan’s directions to retrieve or deliver items.
• The February 22 transaction:
  • Swanagan told Toliver to pick someone up, collect $2,900 (Toliver could keep $100), and give that person meth.
  • Swanagan told Reed to give money to the person who would pick him up.
  • Reed got into Toliver’s car, handed her a stack of money, and they drove toward a motel, with Toliver telling him she would give him the meth at the motel.
  • Police recovered ≈$2,800 and two large bags of meth from Toliver’s car; Simpson opined the quantity was consistent with upper-level dealing.
• Toliver’s testimony that:
  • She was “middlemanning” meth between Swanagan and Reed that day, and
  • Swanagan called Reed his “partner” in this context.

The court addresses two doctrinal points:

1. Buyer–seller exception:
   • While an isolated buyer–seller deal does not, by itself, prove conspiracy, the exception is “narrow.”
   • Evidence of implicit agreement to further distribution—especially involving large quantities, standardized transactions, and mutual trust—can suffice to show participation in a broader conspiracy.
   • The coded calls, large quantity, and coordinated three‑way arrangement among Swanagan, Toliver, and Reed supported that inference.
2. Constructive possession:
   • Although Reed never physically handled the meth before the stop, constructive possession requires only that he knowingly had the power and intent to exercise dominion and control over it.
   • Reed had already paid and was in the car being transported with the meth toward the agreed location; the entire arrangement was “engineered” to deliver that meth to him.
   • The jury could reasonably find that, upon that payment and transfer into the car, Reed at least jointly possessed the meth with Toliver.

The panel distinguishes United States v. Quintanar (8th Cir. 1998), where:

• Drugs were mailed to a third party’s residence.
• The defendant was not the addressee, did not pay for the package, and was never in physical proximity to it.
• The Third party quickly turned the package over to police.

Those facts are far remote from the tightly coordinated, nearly consummated delivery to Reed via Toliver.

d. Impact

This section of the opinion reinforces:

• The narrowness of the buyer–seller defense in drug conspiracies; large quantities, recurring communications, and reciprocal trust readily support an inference of conspiratorial agreement.
• The broad reach of constructive possession in drug cases, particularly where:
  • The defendant has already paid for drugs,
  • The drugs are in a vehicle he is riding in, and
  • Delivery is imminent as part of a planned transaction.

5. Predicate Convictions and Sentencing Enhancements

a. Swanagan’s Prior Kentucky Drug Trafficking as a “Serious Drug Felony” and Career-Offender Predicate

Two distinct but related issues arise from Swanagan’s 2009 Kentucky conviction for trafficking cocaine:

1. Whether it is a “serious drug felony” for a heightened statutory minimum under § 841(b)(1)(A).
2. Whether it is a “controlled substance offense” for career-offender purposes under U.S.S.G. § 4B1.1.

The court answers yes to both, but on different legal bases.

For the statutory enhancement:

• A “serious drug felony” is defined via 21 U.S.C. § 802(57) by reference to 18 U.S.C. § 924(e)(2)(A)(ii), which covers state offenses “involving a controlled substance as defined in section 102 of the CSA.”
• Thus, for statutory purposes, the question is: did the state offense necessarily involve a substance that is on the federal schedules?
• In March 2009:
  • Kentucky’s First Degree Controlled Substance Trafficking statute, as applied to cocaine, drew from state Schedules and “narcotic drug” definitions that matched the CSA’s listing of cocaine and its related derivatives, salts, and isomers.
• Therefore, the state conviction categorically involved a CSA “controlled substance” and qualifies as a “serious drug felony.”

For the Guidelines career‑offender designation:

• U.S.S.G. § 4B1.2(b) defines “controlled substance offense” more broadly 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:

  state-law controlled substance offenses need not define controlled substances according to the CSA to count under § 4B1.2(b).

• Thus, so long as the state statute criminalizes distribution of what that state labels a “controlled substance,” it may serve as a career-offender predicate—even if the state schedule is broader than the federal one.

The panel explicitly reaffirms Jones and notes it is binding absent en banc or Supreme Court modification.

b. Leadership Role Enhancement under U.S.S.G. § 3B1.1(a)

Swanagan received a four-level enhancement for being an organizer/leader of a criminal activity involving five or more participants or otherwise extensive. The court:

• Reviews factual findings for clear error and the ultimate “leader/organizer” determination deferentially.
• Notes that although Stubbs suggests sentencing courts should identify participants, the requirement is relaxed where:
  • The same judge presided over trial and sentencing, and
  • The defendant was convicted of conspiracy.
  (See Elder.)

Here, the district court:

• Adopted the presentence report.
• Expressly identified at least five participants:
  • Swanagan himself,
  • Lawless,
  • Toliver,
  • Reed,
  • Stallings (supplier), plus at least one additional unindicted participant.
• Found that Swanagan was the “source of supply” for multiple individuals.

The record (trial testimony, wiretap evidence) supported that conclusion. There was no clear error in finding at least five participants or in classifying Swanagan as a leader.

c. Refusal to Vary from “Actual Methamphetamine” Guidelines Range

Swanagan argued that the Guidelines’ 10:1 or greater ratio between “actual methamphetamine” and “methamphetamine mixture” lacks empirical grounding and unfairly increases sentences for high‑purity drugs, warranting a variance. The court recognizes:

• Kimbrough v. United States, 552 U.S. 85 (2007), authorizes district courts to vary from guidelines based on policy disagreements, including with “drug ratios” (there crack‑to‑powder).
• Subsequent Sixth Circuit cases have applied this principle to the meth-purity disparity.

However:

• District courts may vary for policy reasons; they are not required to do so.
• Sentences within a correctly calculated guidelines range are presumptively reasonable.

Here, even if the district court had substituted the mixture guideline:

• Base offense level would drop from 34 to 30,
• Total offense level from 40 to 36,
• Resulting in a range of 324–405 months (instead of 360–life),
• But the actual sentence of 360 months would still fall within that lower range.

Thus, the 360‑month sentence remains within any plausible guideline range, retains its presumption of substantive reasonableness, and is not “greater than necessary” under § 3553(a) on this record.

6. The Key Doctrinal Development: “Serious Violent Felony” and § 3559(c)(2)(F)’s Residual Clause

a. Statutory Structure

Reed’s enhanced mandatory minimum sentence rested on § 841(b)(1)(A)(viii), which, for methamphetamine offenses involving 50 grams or more, provides:

• A baseline minimum of 10 years.
• Heightened minimums where the defendant has prior “serious drug felony” and/or “serious violent felony” convictions, as defined in 21 U.S.C. § 802(57), (59), which in turn cross‑reference 18 U.S.C. § 924(e)(2) and § 3559(c)(2)(F).

Under § 3559(c)(2)(F), a “serious violent felony” includes:

1. An exhaustive list of enumerated offenses (murder, manslaughter, kidnapping, robbery, carjacking, extortion, arson, certain sex offenses, firearms use/possession, etc.), and
2. “any other offense”:
   • punishable by at least 10 years, and
   • that either:
     1. Elements clause: “has as an element the use, attempted use, or threatened use of physical force against the person of another,” or
     2. Residual clause: “by its nature, involves a substantial risk that physical force against the person of another may be used in the course of committing the offense.”

The district court treated Reed’s Kentucky First Degree Burglary conviction as such a “serious violent felony,” thereby imposing a 25‑year mandatory minimum.

b. Categorical and Modified Categorical Approaches

Applying Burris and Mathis, the court uses the categorical approach to determine whether the offense matches the elements clause:

• The court compares the elements of the state offense—not the particular facts of Reed’s case—to the federal definition.
• If the state statute is broader (criminalizes conduct beyond the federal definition), the offense does not categorically qualify.
• If the statute is divisible (multiple alternative elements defining several crimes), the court may apply the modified categorical approach:
  • Look at limited documents (indictment, plea colloquy, jury instructions) to determine which alternative formed the basis of conviction, then apply the categorical analysis to that alternative.

c. Kentucky First Degree Burglary (KRS § 511.020)

At the time of Reed’s 2011 conviction, Kentucky First Degree Burglary required:

(1) With intent to commit a crime, knowingly entering or remaining unlawfully in a building, and (2) In effecting entry, while in the building, or in immediate flight therefrom, the defendant or another participant: (a) is armed with explosives or a deadly weapon; or (b) causes physical injury to a non‑participant; or (c) uses or threatens the use of a dangerous instrument against a non‑participant.

This statute is broader than the elements clause in § 3559(c)(2)(F)(ii):

• Subsection (a) requires only being “armed with” a deadly weapon; it does not require the use, attempted use, or threatened use of physical force against another.
• The Kentucky Supreme Court has held that:
  • Someone who enters unarmed, steals guns in an unoccupied dwelling, and leaves now “becomes ‘armed’ with a deadly weapon” for purposes of first‑degree burglary—even if there is no evidence the weapon was operable or used.
  • Cases like Hayes and McGorman confirm the statute applies to such non‑confrontational gun thefts.

Because the statute covers conduct (unarmed burglary of an unoccupied building followed by theft of a firearm) that does not involve any use, attempt, or threat of force against a person, it is overbroad relative to the elements clause.

The statute is also divisible:

• It has three alternative subsections (a)–(c), any one of which suffices.
• Reed’s indictment specified subsection (a) (“armed with a deadly weapon”), indicating that the alternatives are distinct elements.

Under the modified categorical approach, limiting focus to subsection (a), the offense still lacks an element of use/attempted/threatened force and thus falls outside the elements clause.

d. The Residual Clause and Vagueness: Extending Johnson, Dimaya, and Davis

The government might have argued that First Degree Burglary qualifies under the residual clause (offenses that “by [their] nature, involve[] a substantial risk that physical force against the person of another may be used”). But the court concludes that this clause is unconstitutional.

The Supreme Court has repeatedly invalidated materially identical residual clauses:

• Johnson v. United States, 576 U.S. 591 (2015):
  • Struck down the residual clause of the Armed Career Criminal Act (“serious potential risk of physical injury”) as void for vagueness.
  • Identified two problems:
    1. Indeterminate method for defining the “ordinary case” of an offense, and
    2. Indeterminate degree of risk necessary to qualify as a “violent felony.”
• Sessions v. Dimaya, 584 U.S. 148 (2018):
  • Applied Johnson to invalidate 18 U.S.C. § 16(b)’s “crime of violence” residual clause (“substantial risk that physical force … may be used in the course of committing the offense”).
• United States v. Davis, 588 U.S. 445 (2019):
  • Invalidated § 924(c)(3)(B)’s residual clause, which uses nearly the same language (“substantial risk that physical force … may be used in the course of committing the offense”).

The residual clause in § 3559(c)(2)(F)(ii) is virtually identical to those struck down in Dimaya and Davis. Applying the same categorical approach, it suffers from the same defects:

• No clear way to define the “ordinary case” of a given offense.

The panel thus concludes that § 3559(c)(2)(F)’s residual clause is unconstitutionally vague—meaning that “serious violent felony” enhancements cannot rest on that clause.

e. Result for Reed and Broader Impact

Because:

• Burglary is not an enumerated offense in § 3559(c)(2)(F)(i);
• Kentucky First Degree Burglary under subsection (a) does not satisfy the elements clause; and
• The residual clause is void for vagueness,

Reed’s 2011 burglary conviction is not a “serious violent felony” for § 841(b)(1)(A) purposes. The government conceded the point; the court agrees. Because the district court believed that a 25‑year mandatory minimum applied and sentenced Reed at that minimum, the error was not harmless. Reed’s sentence is vacated and the case remanded for resentencing under the correct statutory framework.

The broader consequences are substantial within the Sixth Circuit:

• For any statute that borrows § 3559(c)(2)(F)’s “serious violent felony” definition (including § 841(b)(1)(A) and related drug penalty provisions), enhancements can now rest only on:
  • Enumerated offenses in § 3559(c)(2)(F)(i), or
  • Offenses that satisfy the elements clause (use/attempted/threatened use of physical force against a person).
• Prior convictions that only arguably fit under the residual clause (such as many burglaries, some aggressive property offenses, or crimes involving risk but not force as an element) can no longer serve as “serious violent felonies” in this circuit.
• Defendants who received enhanced mandatory minimums based solely on such residual‑clause predicates may have grounds to seek resentencing, subject to separate rules on retroactivity and post‑conviction procedure.

Complex Concepts Simplified

1. Franks Hearings in Plain Terms

A Franks hearing allows a defendant to challenge the truthfulness of a search warrant affidavit. To get one, the defendant must:

• Point to specific statements or omissions in the affidavit.
• Show, with some supporting evidence, that the officer intentionally or recklessly lied or omitted information.
• Show that if you remove the bad information (or add the omitted facts), the affidavit would no longer establish probable cause.

Simply arguing the officer could have interpreted slang or emojis differently is not enough unless you can show the officer knew his interpretation was wrong or deliberately ignored obvious contrary information.

2. Lay vs. Expert Opinion (Rules 701 and 702)

A lay opinion (Rule 701) is what an ordinary witness can say based on what they personally saw or heard. It is meant to help jurors understand things they cannot easily grasp on their own (e.g., “he seemed drunk,” “the voice on the recording sounded like X”).

An expert opinion (Rule 702) is based on specialized training or experience (e.g., forensic science, medicine). Experts can rely on facts beyond their personal observation.

In this case:

• The detectives were treated as lay witnesses, testifying about what the calls meant to them and about slang they learned during the investigation in which they were actively involved.
• The problem arises when such witnesses start telling the jury what ordinary English phrases “really mean” in a way that just parrots the prosecution’s theory. That is where past cases have required reversal.

3. Categorical and Modified Categorical Approaches

When deciding if a prior conviction fits a federal definition (like “serious violent felony”):

• The court does not re‑try the old case.
• Instead, it looks only at the elements of the offense—what the prosecution had to prove to get a conviction.
• If those elements always include, for example, actual or threatened force against a person, then the offense matches the elements clause.
• If the state statute covers some conduct that does not involve force, then it is too broad and doesn’t categorically match.

If the statute lists multiple alternative ways to commit the crime (e.g., (a), (b), or (c)), and those alternatives are elements (the jury must agree on one), then the court may:

• Check a few limited documents (indictment, plea colloquy) to see which alternative applied—to use the modified categorical approach—then apply the categorical test to that specific alternative.

4. Serious Drug Felony vs. Serious Violent Felony

• Serious drug felony: a prior drug offense (state or federal) involving a CSA‑defined controlled substance, punishable by a certain minimum term, and for which the defendant actually served more than 12 months in prison and was released within 15 years of the instant offense (those timing details come from § 802(57) but were not contested here).
• Serious violent felony: as relevant here, a prior offense that either:
  • Is specifically listed in § 3559(c)(2)(F)(i) (murder, robbery, etc.), or
  • Meets the elements clause (use, attempted use, or threatened use of physical force against a person).
  The residual clause (“substantial risk” of force) is now unconstitutional in the Sixth Circuit under this decision.

5. Constructive Possession

You “possess” something in the law not only when you physically hold it, but also when:

• You know what it is and where it is, and
• You have the power and intention to control it, either personally or through others.

Here, the jury could find that Reed constructively possessed the meth in Toliver’s car because:

• He had handed over the agreed payment,
• He was riding in the car with the drugs on their way to the designated drop, and
• The entire trip was coordinated to get the drugs into his hands.

6. Leadership Role Enhancement

Under U.S.S.G. § 3B1.1(a), a defendant gets a four-level increase if:

• He was an organizer or leader,
• Of criminal activity involving at least five participants (or otherwise extensive).

“Participants” are people who are criminally responsible—not necessarily formally charged. The court looks at:

• Who is giving orders vs. following them,
• Who supplies drugs,
• Who recruits or pays others,
• Who coordinates logistics.

Because multiple witnesses and recordings showed that:

• Swanagan supplied meth to multiple redistributors (Lawless, Toliver, others),
• Coordinated prices, quantities, and deliveries, and
• Used others as runners and middlemen,

the court had ample basis to deem him a leader of a 5‑plus‑person operation.

Conclusion

United States v. Reed & Swanagan is a dense decision that simultaneously:

• Clarifies standards and preserves substantial room for law‑enforcement lay opinion testimony on recorded communications, while cabining the most dangerous forms of interpretive overreach seen in Freeman and Glenn.
• Reaffirms the high threshold for Franks hearings, especially where affidavit statements involve interpretive judgments about coded language rather than verifiable falsehoods.
• Reiterates that unobjected shackling is reviewed only for plain error and that brief, incidental juror sightings of shackled defendants outside the courtroom demand proof of actual prejudice.
• Emphasizes the narrowness of the buyer–seller exception and the breadth of constructive possession in large‑scale drug conspiracies.
• Confirms, on the Guidelines side, that state drug convictions count as “controlled substance offenses” for career-offender purposes regardless of CSA alignment, pursuant to Jones.
• Upholds robust leadership-role enhancements where the record shows a supply hierarchy and multiple distributors.

Most significantly, the court holds that the residual clause in § 3559(c)(2)(F) is unconstitutionally vague. This ruling narrows the pool of prior convictions that can serve as “serious violent felonies” for enhanced mandatory minimums in drug cases under § 841(b)(1)(A) and elsewhere. Kentucky First Degree Burglary—at least as defined by subsection (a), “armed with a deadly weapon”—falls on the non‑qualifying side of the line, leading to the vacatur of Reed’s 25‑year mandatory minimum sentence.

In the broader federal sentencing landscape, Reed & Swanagan thus stands as a significant marker limiting the reach of severe recidivist enhancements based on vaguely defined violent‑felony concepts, while at the same time reinforcing the considerable latitude district courts retain in evaluating evidence, applying the Guidelines, and interpreting communications in drug‑trafficking prosecutions.