USA v. Adam Owens

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11799
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ADAM JOSEPH OWENS,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:20-cr-00122-TFM-28
____________________
Before G RANT, ABUDU, and E D C ARNES, Circuit Judges.
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2 Opinion of the Court 22-11799
G RANT, Circuit Judge:
Adam Joseph Owens was arrested as part of a federal-state
task force’s investigation into a massive drug ring. He was charged
with several crimes but ultimately pleaded guilty to one count,
possessing a firearm in furtherance of a drug trafficking crime. The
district court imposed 120-months’ imprisonment, which doubled
the 60-month total recommended by the Sentencing Guidelines.
The district court concluded that this upward variance was
appropriate for Owens because he had been planning to sell drugs
while in jail awaiting sentencing and had also caused the overdose
death of one of his buyers. Owens challenges both findings.
Because we conclude that they were not clearly erroneous, we
affirm his sentence.
I.
Owens was one of forty-two defendants charged in a
sprawling indictment targeting the Crossley Hills Drug Trafficking
Organization. Beginning in 2016, the drug ring dealt heroin,
fentanyl, methamphetamine, Xanax, and oxycodone in and around
Mobile County, Alabama. Where the drug ring went, overdoses,
hospitalizations, and deaths followed—Crossley Hills dealers killed
so many unwary customers with fentanyl-laced heroin that their
product earned the nickname “Grey Death.” Many transactions
took place in hotels and motels around Mobile, but dollars were
not the only currency. Sexual favors were also in play, and the
dealers sometimes even incapacitated female customers with
fentanyl-laced drugs so they could take advantage of them. See
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United States v. William Owens, No. 22-12420, 2023 WL 7182353, at
*1–2 (11th Cir. Nov. 1, 2023).
Owens was arrested on an outstanding warrant by officers
involved in the Crossley Hills investigation. Their search of his
vehicle paid off, uncovering several unlabeled pill bottles, over 150
pills (including oxycodone), and a small bag of ecstasy. On top of
all that, the officers found two loaded handguns, one of which was
stolen from the local sheriff’s office. Originally charged in four
counts, Owens ultimately pleaded guilty to one—possession of a
firearm in furtherance of a drug trafficking crime. As part of his
plea, Owens admitted that he had trafficked in opioid-based
prescription pills, that the pills were in his vehicle so he could sell
them, and that he had possessed the two firearms in his vehicle to
further his drug trafficking. In exchange, he got the government’s
recommendation that he be sentenced to the mandatory minimum
for the offense, 60 months in prison.
The arrest, however, had not deterred Owens. The
presentence investigation report (PSI), entered during the
sentencing process, stated that while Owens was in jail he managed
to acquire items including a cell phone and several 8-milligram
strips of a narcotic called Suboxone.1 This combination meant he
could keep dealing drugs—even from jail. The PSI also indicated
that Owens was linked to the death of at least one of Crossley
1 Suboxone is a controlled substance that may be prescribed by doctors to treat
opioid addiction, but it carries serious risk of abuse. United States v. Abovyan,
988 F.3d 1288, 1296 (11th Cir. 2021).
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4 Opinion of the Court 22-11799
Hills’s victims. That man, a buyer the report refers to as B.B.,
bought oxycodone from Owens on November 30, 2017, and died
later that same night. B.B.’s autopsy showed that he had overdosed
on fentanyl and several fentanyl analogues.
At Owens’s initial sentencing hearing, the district court
specifically highlighted B.B.’s death, along with Owens’s apparent
efforts to deal drugs from jail, as uniquely troubling. Explaining
that it might depart from the government’s recommended
sentence of 60 months, the court set a hearing to take evidence on
both allegations.
At that second hearing, the court began by adopting the PSI
and its 60-month Sentencing Guidelines calculation. Neither
Owens nor the government objected to the PSI; nor did either
party challenge the Guidelines calculation. The district court then
heard testimony.
The government first called James Ward to testify about the
contraband found in Owens’s possession at the jail. Ward was
warden of the Conecuh County Detention Center where Owens
had been held, and testified that while watching a cell phone search
from a live video feed in his office, he saw Owens remove several
items from his hair. An officer supervising the cell phone search
seized the items, turning up a cell phone, a phone charger,
cigarettes, earplugs, and Suboxone strips. All of these were
brought to Ward, who emphasized on the stand the difficulties he
faced in slowing the drug trade in his jail.
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22-11799 Opinion of the Court 5
The government next called Mobile Police Sergeant
Nicholas Vegliacich to testify about B.B.’s death. He explained that
police had found extensive text message history between Owens
and B.B., with the last messages between the two dated November
30, 2017—the day of B.B.’s death. They had set up a drug sale, and
geolocation data from their phones put them together at the
proposed time and place. Six or seven hours later, B.B. was found
dead.
Vegliacich also reviewed B.B.’s autopsy report, which listed
the cause of death as a fentanyl overdose. Owens had been charged
with distributing oxycodone (not fentanyl), and B.B. had arranged
to buy oxycodone (not fentanyl). Even so, Vegliacich’s testimony
connected the drugs Owens sold to B.B.’s death. He explained that
the illicit drug market had “a huge problem with counterfeit
pills”—specifically, pills that were often laced with fentanyl even
though they looked like legitimate oxycodone.
At the close of the hearing, the district court found that
Owens had possessed Suboxone for sale while he was in jail and
that he had sold B.B. the drugs that caused his death. The court
emphasized with frustration that, even while incarcerated, Owens
had “continued to flout the drug laws of this country.” The court
also decried the destructive social harm caused by the illegal trade
in prescription opioids and highlighted the public-safety imperative
for an increased sentence. B.B.’s death, the court added, was “a
powerful factor” that was “not adequately taken into account by
the guidelines.” Rejecting the government’s Guidelines
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6 Opinion of the Court 22-11799
recommendation of 60 months, the court instead imposed a
sentence of 120 months. Even so, it credited Owens for pleading
guilty, and explained that the sentence was a show of mercy
because it was lighter than the 30 years the court would ordinarily
impose for a drug trafficking case involving the death of a
customer.
Owens objected to the court’s reliance on its factual findings
about the Suboxone and B.B.’s death. For the former, he argued
that the government had not shown that the seized strips were
really Suboxone because it did not offer a toxicology report. For
the latter, he said that he could not have caused B.B.’s fentanyl-
overdose death because he had only been charged with dealing
oxycodone. The district court overruled both objections and
finalized the sentence. Owens now appeals.
II.
Defendants can claim procedural error in sentencing even if
the overall sentence is substantively reasonable. See United States v.
Shaw, 560 F.3d 1230, 1237 (11th Cir. 2009). Such errors include
miscalculating the Sentencing Guidelines range, treating the
Guidelines as mandatory, failing to consider the 18 U.S.C. § 3553(a)
sentencing factors, relying on clearly erroneous facts, and failing to
adequately explain the sentence issued. Id.
We ordinarily review the procedural reasonableness of a
sentence for abuse of discretion. United States v. Waters, 937 F.3d
1344, 1358 (11th Cir. 2019). One way a district court abuses its
discretion is if the factual findings it uses in a sentencing
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22-11799 Opinion of the Court 7
enhancement are clearly erroneous. Id. But if a defendant fails to
object at the time of sentencing, our review is only for plain error,
a much tougher standard. Id. To reverse an error raised for the
first time on appeal, a defendant must show not only “that the error
was ‘plain’” but also that it “affected his substantial rights.” United
States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014) (alteration
adopted) (quotation omitted). Even then, we exercise our
discretion to correct an error only if it seriously affects “the fairness,
integrity or public reputation of judicial proceedings.” United States
v. Turner, 474 F.3d 1265, 1276 (11th Cir. 2007) (quotation omitted).
This high standard reflects the “careful balance” that must
be set “between judicial efficiency and the redress of injustice.”
Puckett v. United States, 556 U.S. 129, 135 (2009). The plain-error
rule disincentivizes “sandbagging,” where a defendant remains
“silent about his objection and belatedly rais[es] the error only if
the case does not conclude in his favor.” Id. at 134. But more
fundamentally, requiring a contemporaneous objection gives the
district court the first opportunity to consider—and resolve—a
defendant’s objections, which can often help parties and courts
alike “avoid the costs of reversal and a retrial.” Turner, 474 F.3d at
1275. After all, the district court “is ordinarily in the best position
to determine the relevant facts and adjudicate the dispute.” Puckett,
556 U.S. at 134. But it is often impossible to do so without a party
raising an issue or developing a factual record about it. That
failure, in turn, can impede this Court’s ability to fairly decide the
issue on appeal.
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III.
Here, Owens raises two challenges to the district court’s
decision to vary upward from the Sentencing Guidelines’
recommendation based on uncharged conduct. That choice is
allowed as a general matter because uncharged conduct can be
“directly germane to several § 3553(a) factors,” which the court is
required to consider when determining a sentence. United States v.
Overstreet, 713 F.3d 627, 637–38, 638 n.14 (11th Cir. 2013). Those
factors include “the ‘history and characteristics of the defendant,’
and the need for the sentence to ‘promote respect for the law,’
‘afford adequate deterrence to criminal conduct,’ and ‘protect the
public from further crimes of the defendant.’” Id. at 637–38
(quoting 18 U.S.C. § 3553(a)(1)–(2)). The district court’s relevant
factual findings can be based on “facts admitted by the defendant’s
guilty plea, undisputed statements in the PSI, or evidence
presented at the sentencing hearing.” United States v. Matthews, 3
F.4th 1286, 1289 (11th Cir. 2021). Reasonable inferences from this
evidence are allowed. Id.
If a defendant challenges one of the factual bases of the
sentence, the government bears the burden of proving that fact by
a preponderance of the evidence. United States v. Philidor, 717 F.3d
883, 885 (11th Cir. 2013). “A preponderance of the evidence is
evidence which is more convincing than the evidence offered in
opposition to it.” United States v. Watkins, 10 F.4th 1179, 1184 (11th
Cir. 2021) (en banc) (quotation omitted). “It simply requires the
trier of fact to believe that the existence of a fact is more probable
than its nonexistence.” Id. at 1184–85 (quotation omitted).
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A.
Owens first challenges the district court’s finding that he
possessed Suboxone for distribution while in the county jail
awaiting sentencing. His argument on appeal, however, reaches
further than his objection at the sentencing hearing. There, he
objected that the government never produced a toxicology report
showing that the confiscated strips were Suboxone—essentially, an
argument that while he may have been in possession of something,
the government had not shown that it was a controlled substance.
On appeal, however, he also contests the predicate finding that he
possessed any contraband at all.
We begin with Owens’s preserved objection. Warden
James Ward’s testimony was the only evidence taken at the hearing
on the Suboxone strips. Ward admitted that he was not sure
whether the strips had been tested, but seemed certain that they
were Suboxone based on his experience at the jail. He also
explained that the drug trade was a huge problem in his prison,
emphasizing that the jail “struggle[d] every day to keep [drugs]
out,” and that inmates were “making money on cash apps left and
right.” For his part, Owens never suggested what else the strips
could be besides Suboxone. In fact, his counsel referred to the
“Suboxone strips” when asking Ward if they had been tested.
The district court was entitled to make the reasonable
inference from this testimony that Ward could recognize, based on
his experience and on the circumstances surrounding the search,
that the strips seized from Owens were Suboxone. The court saw
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10 Opinion of the Court 22-11799
Ward’s conclusion as credible, and that finding is entitled to
substantial deference—especially considering that Owens offered
no contrary explanation for what the confiscated strips might be.
See United States v. Pham, 463 F.3d 1239, 1244–45 (11th Cir. 2006).
Where the government presents unrebutted, credible firsthand
testimony and the defendant presents no evidence at all, we do not
hesitate to find that, “in light of all the evidence,” the government
has proved its version of events “is more likely true than not.”
Watkins, 10 F.4th at 1185 (quotation omitted). We find no error.
Owens did not preserve his new challenge—that the district
court erred in finding that he possessed any contraband at all
(including the strips) in jail—so we review it only for plain error.
This challenge likewise fails, again because of Ward’s testimony.
He explained that in an effort to eliminate illicit cell phones, he had
purchased a special cell phone detector for the jail. Ward testified
that he observed real-time surveillance video while the inmates
waited to walk through the scanner, and that he saw Owens
remove several items from his hair—a cell phone, a phone charger,
cigarettes, earplugs, and Subxone strips. Ward testified that the
items had been dropped off in his office shortly after they were
confiscated, but had since been handed over to the state of
Alabama. Ward also explained that the jail’s surveillance system
was live-feed only, meaning no recordings could be maintained.
Owens says Ward’s testimony alone is not enough. He
objects that the district court needed to view the security camera
footage, examine the contraband, or at least hear testimony from
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22-11799 Opinion of the Court 11
the officer who originally found it. We disagree. Ward’s account
of the search is clear and logical, and the district court deemed it
credible. Again, Owens did not offer any evidence that casts doubt
on Ward’s testimony. Nor did he offer any evidence at all to rebut
that testimony. We find no error, much less plain error.
B.
Owens next challenges the district court’s finding that he
sold the drugs to B.B. that caused his death. As with his attack on
the district court’s Suboxone finding, Owens preserved only one
argument on this front. Below, he objected that he could not have
been responsible for B.B.’s fentanyl-overdose death because he was
only charged with selling oxycodone. He now adds that the
government failed to show that he sold any drugs to B.B. on the
day in question.
The district court did not clearly err by finding that Owens’s
drugs caused B.B.’s death. To start, the timing of B.B.’s death
points to Owens, who sold B.B. drugs when the two met on
November 30, 2017. Six to seven hours later, B.B. was dead of an
overdose, with no evidence suggesting that he got drugs from any
other source before his death.
The autopsy report’s conclusion that B.B. died from a
fentanyl overdose does not mean that Owens’s oxycodone pills
were not the cause of death. To the contrary, it fits the available
evidence—Sergeant Vegliacich testified to a “huge problem” with
counterfeit oxycodone pills that were contaminated with fentanyl.
What’s more, the factual background of Owens’s PSI, which he did
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not challenge, reflected that Crossley Hills dealers regularly cut
various drugs with fentanyl—increasing both the drugs’ potency
and the dealers’ profits. And other unwitting Crossley Hills
customers had died from fentanyl overdoses after taking laced
drugs from the gang. These factual allegations offer additional
support for the district court’s conclusion that Owens was
responsible for B.B.’s death, and by failing to object to them in his
PSI, Owens admitted them for sentencing purposes. United States
v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006). We see no error.
As for the unpreserved challenge to the court’s finding that
Owens sold B.B. any drugs in the first place, once again, we review
only for plain error. And, once again, we find it wanting. Sergeant
Nicholas Vegliacich testified that he personally reviewed “at least
50 pages of text messages” showing constant drug sales from
Owens to B.B. Those communications included messages
arranging a sale on the day of B.B.’s death, and geolocation data
confirmed that Owens and B.B.’s cell phones were at the
prearranged place at the scheduled time.
Owens argues that the district court erred by relying on this
hearsay evidence to conclude that he sold drugs to B.B. But it “is
well established in this circuit that the sentencing court may rely
on reliable hearsay.” United States v. Polar, 369 F.3d 1248, 1255 (11th
Cir. 2004).2 This cell phone evidence fits the bill. The district court
2 After oral argument, Owens directed this Court’s attention to United States v.
Lee, 68 F.3d 1267 (11th Cir. 1995), which he argues required the district court
to make express findings stating why it found the hearsay evidence reliable.
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22-11799 Opinion of the Court 13
did not err, plainly or otherwise, by concluding the government
had shown by a preponderance of the evidence that Owens sold
B.B. drugs on the day he died.
* * *
Because the district court’s factual findings at sentencing
were not clearly erroneous, we AFFIRM Owens’s sentence.
As we have explained before, Lee does not always require explicit credibility
findings. In cases “where the record and the circumstances of the case
demonstrate adequate indicia of reliability, [credibility] findings are not strictly
necessary.” United States v. Baptiste, 935 F.3d 1304, 1316 (11th Cir. 2019)
(quotation omitted). The testimony of Sergeant Vegliacich, a law-
enforcement officer, about his investigation of Owens exhibits none of the
suspicious characteristics we have previously identified as warranting separate
credibility findings. See id. at 1316–17.
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