United States of America v. Ethan Driskill

United States Court of Appeals
For the Eighth Circuit
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No. 23-3162
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Ethan Driskill
lllllllllllllllllllllDefendant - Appellant
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No. 23-3513
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Marchello Oliver
lllllllllllllllllllllDefendant - Appellant
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Appeals from United States District Court
for the Western District of Arkansas - Fayetteville
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Submitted: June 10, 2024
Filed: November 12, 2024
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Before LOKEN, ERICKSON, and GRASZ, Circuit Judges.
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LOKEN, Circuit Judge.
A superseding indictment charged Ethan Driskill with distribution of a mixture
containing fentanyl which resulted in a person’s death (Count One); two counts of
distributing a mixture containing fentanyl (Counts Three and Four); possession with
intent to distribute over 40 grams of a mixture containing fentanyl (Count Five);
possession of a firearm in furtherance of a drug trafficking crime (Count Six); and
unlawful possession of a firearm as a felon (Count Seven). The indictment also
charged Marchello Oliver with two counts of distributing a mixture containing
fentanyl (Counts Eight and Nine); possession with intent to distribute over 40 grams
of a mixture containing fentanyl (Count Ten); possession with intent to distribute a
mixture containing cocaine (Count Eleven); possession of a firearm in furtherance of
a drug trafficking crime (Count Twelve); and unlawful possession of a firearm as a
felon (Count Thirteen). Both Driskill and Oliver were charged with conspiracy to
distribute a mixture containing fentanyl (Count Two).
Pursuant to plea agreements, Oliver pleaded guilty to Count Ten and Driskill
pleaded guilty to Count One. The district court1 sentenced Oliver to 168 months
imprisonment, an above guidelines-range sentence. The court sentenced Driskill to
456 months imprisonment for distributing a fentanyl mixture that resulted in the death
1The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.
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of a person, a within-range sentence. Defendants appeal; each argues his sentence is
substantively unreasonable.
We first review a district court’s sentence for significant procedural errors,
which include “selecting a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence -- including an explanation for any deviation
from the Guidelines range.” United States v. Ross, 29 F.4th 1003, 1007 (8th Cir.
2022), cert. denied, 143 S. Ct. 2690 (2023). If there is no significant procedural error,
we review the substantive reasonableness of a sentence under a deferential abuse-of-
discretion standard. “A district court abuses its discretion when it (1) fails to consider
a relevant factor that should have received significant weight; (2) gives significant
weight to an improper or irrelevant factor; or (3) considers only the appropriate
factors but in weighing those factors commits a clear error of judgment.” United
States v. Neri, 73 F.4th 984, 988 (8th Cir. 2023) (quotation omitted). Applying these
standards, we affirm the sentences imposed on Oliver and Driskill.
I. Oliver
Oliver pleaded guilty to possession with intent to distribute over 40 grams of
a mixture containing fentanyl. This offense triggers a statutory mandatory minimum
sentence of five years and a maximum sentence of forty years imprisonment. See
21 U.S.C. § 841(a)(1), (b)(1)(B)(vi). Based on a total offense level of 25 and a
Category III criminal history, Oliver’s Presentence Investigation Report (“PSR”)
calculated a guideline imprisonment range of 70 to 87 months. The PSR
recommended an above-guidelines sentence of 180 months imprisonment based upon
an upward departure under USSG § 5K2.1 because Oliver’s “conduct resulted in
death.” See United States v. Bollinger, 893 F.3d 1123, 1125 (8th Cir. 2018). The
PSR reported that Oliver sold fentanyl to Ashley Talley. Talley’s friend, Brandi
Wooten, ingested fentanyl later that day and was brought to the hospital by Talley
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that night where she was pronounced dead. Wooten’s death was consistent with a
fentanyl overdose.
Prior to the sentencing hearing, the government moved for a § 5K2.1 upward
departure. Oliver objected. He admitted supplying Talley with fentanyl. However,
Talley told investigators she had more than one supplier and someone else supplied
the fentanyl that resulted in Wooten’s death, only later changing her story to claim
that Oliver was the supplier. Oliver stated he did not know the victim, Wooten. At
the lengthy sentencing hearing, the government introduced testimony by Talley, DEA
Special Agent Robert Robinson, Deputy Coroner Nick Gregory, and Deputy Sheriff
Ralph Bartley, who investigated the Wooten overdose. After argument, the district
court found “by a preponderance of the evidence that the government has established
that Mr. Oliver . . . was the source of the fentanyl that Ms. Wooten consumed and that
fentanyl overdose was ultimately the ‘but for’ proximate cause of her death.” The
court granted the government’s motion for a seven-level upward departure, resulting
in an offense level of 32 and an advisory guidelines sentencing range of 151 to 188
months. The court imposed a mid-range sentence of 168 months imprisonment.
A. Alleged Procedural Errors. Oliver first argues the district court erred in
applying the § 5K2.1 departure because he “did not sell any fentanyl directly to”
Wooten. This argument is without merit; we have upheld § 5K2.1 departures in cases
where the defendant’s distribution of fentanyl resulted in the death of a person when
the defendant did not directly sell the death-causing drugs to the victim. See United
States v. Harris, 44 F.4th 819, 823 (8th Cir. 2022); United States v. Nossan, 647 F.3d
822, 827 (8th Cir. 2011) (“We see no basis for foreclosing departure under § 5K2.1
when a defendant puts into motion a chain of events that risks serious injury or death,
even when an intent to harm is entirely absent and the defendant was not directly
responsible for the death.”) (quotation omitted).
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Oliver further argues the evidence does not support the court’s finding that
Oliver sold fentanyl to Talley on the day of Wooten’s death. Talley testified Oliver
sold her fentanyl powder that day. Oliver argues this testimony is “vastly different
from the multitude of stories that [Talley] previously told law enforcement.” The
district court acknowledged “some credibility problems” but determined that “Talley
was telling the truth” during the hearing based on her consistent chronology of
events, corroborated by multiple sources including texts, calls, and Cash App
payments between Talley and Oliver on the day of Wooten’s death. Oliver notes a
comment in the coroner’s report -- Wooten was “possibly seen buying pills” with
Talley at a residence under police surveillance that day. In crediting Talley’s
corroborated testimony that she only bought drugs from Oliver that day, the court
found that any contrary inference raised by this “stray comment” was overcome by
the government’s supporting evidence. As in United States v. Sherrod, Oliver “asks
us to overturn the court’s credibility determinations, which are ‘virtually
unreviewable on appeal.’” 966 F.3d 748, 752 (8th Cir. 2020), quoting United States
v. Coleman, 909 F.3d 925, 929 (8th Cir. 2018).
Oliver further argues the district court committed procedural error by failing
to consider “matters that would normally distinguish among levels of homicide.”
USSG § 5K2.1; see 18 U.S.C. § 3553(a)(5). We disagree. At sentencing, the district
court read the resulting-death policy statement and instructed the government to
address the “[m]atters that would normally distinguish among levels of homicide.”
The court then heard argument from both parties and expressly considered this issue:
“[N]o one believes that Mr. Oliver had a specific intent or a specific state of mind that
anyone was going to overdose and die as a result of this. . . . But the Court
nevertheless believes that the defendant was knowingly engaging in very reckless
conduct.” This is more than adequate to demonstrate the required consideration. See
Ross, 29 F.4th at 1007-08. We conclude the district court did not procedurally err in
applying the § 5K2.1 departure.
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B. Substantive Reasonableness. Oliver argues his sentence is substantively
unreasonable because § 5K2.1 departures resulted in sentences less than Oliver’s,
despite “more egregious facts,” in two District of South Dakota cases, United States
v. Mousseau, 517 F.3d 1044 (8th Cir. 2008), and United States v. Merrival, 176 F.3d
1079 (8th Cir. 1999). “We review the extent of a departure for abuse of discretion.”
Bollinger, 893 F.3d at 1125.
Among the factors Congress has directed sentencing courts to consider is “the
need to avoid unwarranted sentence disparities among defendants with similar records
who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). However,
“[s]entencing disparity is not a listed factor when deciding the extent of an upward
departure” under § 5K2.1. United States v. Roberts, 670 F. App’x 901, 902 (8th Cir.
2016). “The sentencing practices of one district court . . . are not a reference point
for other courts.” Bollinger, 893 F.3d at 1126 (citation and quotations omitted).
Oliver’s argument “is at base a disagreement with the weighing of the § 3553(a)
factors and does not demonstrate an abuse of discretion.” Id.
Here, the district court considered its prior cases and other Eighth Circuit cases
“to ground [it]self in what other courts were doing” before determining that a seven-
level upward departure was appropriate because Oliver “knew that this was dangerous
conduct that he was engaging in and that he continued to engage in that conduct for
profit.” See United States v. Watley, 46 F.4th 707, 716-17 (8th Cir. 2022) (upholding
seven-level departure). The court did not abuse its discretion in determining the
extent of the § 5K2.1 departure and did not impose a substantively unreasonable in-
range sentence.
II. Driskill
Driskill pleaded guilty to Count One, distribution of a mixture containing
fentanyl resulting in a person’s death. This offense triggered a twenty-year
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mandatory minimum term of imprisonment with a maximum term of life. See
21 U.S.C. § 841(a)(1), (b)(1)(C). At sentencing, the district court determined a total
offense level of 37 and a Category VI criminal history, resulting in an advisory
guidelines range of 360 months to life and a mandatory minimum 240 months
imprisonment. The court imposed a within-range sentence of 456 months. Driskill
does not challenge the court’s guidelines range determination or allege other
procedural error. Thus, “we move directly to the second step” and review for
substantive reasonableness. United States v. Arnold, 835 F.3d 833, 842 (8th Cir.
2016). We apply a presumption of reasonableness to Driskill’s within-range
sentence. See, e.g., United States v. Jones, 990 F.3d 1141, 1144-45 (8th Cir. 2021).
Driskill first argues the district court failed to give reasonable weight to
relevant mitigating factors, resulting in a sentence greater than necessary to effectuate
the purposes of sentencing. At sentencing, the court discussed the mitigating factors
on which Driskill relies, concluding “they provide profound context that suggest that
your upbringing was built on such a shaky foundation that you probably had no
chance in life. . . . It doesn’t excuse what you did, but it does provide significant
mitigating context that the Court has taken into consideration here.” Driskill’s
argument on appeal expresses disagreement with the court’s weighing of the relevant
sentencing factors, but this does not warrant reversal. See United States v. Starr,
111 F.4th 877, 880 (8th Cir. 2024). Because we afford the district court “substantial
latitude . . . in weighing the relevant factors under 18 U.S.C. § 3553(a),” Driskill fails
to rebut the presumption that his within-guidelines sentence is not substantively
unreasonable. Jones, 990 F.3d at 1145.
Driskill further argues the disparity between his 456-month sentence and co-
defendant Oliver’s 168-month sentence for the same conspiracy establishes the
substantive unreasonableness of Driskill’s sentence. “[I]t is not an abuse of discretion
for a district court to impose a sentence that results in a disparity between
co-defendants when there are legitimate distinctions between the co-defendants.”
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Arnold, 835 F.3d at 842-43 (quotation omitted). Here, the same district judge
sentenced co-defendant conspirators, and there are legitimate distinctions between co-
defendants Driskill and Oliver.
First, while both were involved in the same conspiracy, they pleaded guilty to
different offenses to which different statutory penalty ranges applied under 21 U.S.C.
§ 841(b)(1)(B)(vi) and (b)(1)(C). See United States v. Farah, 899 F.3d 608, 616-17
(8th Cir. 2018), cert. denied, 139 S. Ct. 1275 (2019). The district court expressly took
into consideration that Driskill and Oliver, while pleading guilty to different crimes,
engaged in similar conduct. The court departed upward in sentencing Oliver but
stayed within the guidelines range in sentencing Driskill.
Second, Driskill’s criminal history category was significantly higher than
Oliver’s. See United States v. Davis-Bey, 605 F.3d 479, 482-83 (8th Cir. 2010). In
sentencing Driskill, the court reviewed the PSR’s “51 paragraphs of adult criminal
convictions” acquired in only thirteen years, noting that “this repetitive pattern, this
revolving door through the criminal justice system . . . suggests that you are someone
who is highly likely to recidivate unless you can figure this out.” By contrast, Oliver
had only 6 points and was in criminal history Category III.
We conclude that the district court did not abuse its discretion by imposing a
substantively unreasonable sentence on Driskill.
The judgments of the district court are affirmed.
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