United States v. Buchanan, No. 18-3667 (6th Cir. 2019)
Annotate this CaseBuchanan was convicted of one count each of possession with intent to distribute marijuana and conspiracy to distribute marijuana. The district court sentenced him to 50 months’ imprisonment. The Sixth Circuit vacated Bush’s sentence, based on a challenge to a two-level increase in his offense level for committing a crime “as part of a pattern of criminal conduct engaged in as a livelihood” under USSG 2D1.1(b)(16)(E) and 4B1.3. The district court sentenced Buchanan based on the understanding that 4B1.3 required only one finding, that Buchanan’s criminal earnings exceeded 2,000 times the minimum wage in a 12-month period; it never made a factual finding on the record of exactly how much Buchanan’s criminal activity profited him. On remand, that court must analyze whether, under the “totality of circumstances,” Buchanan’s crimes were his “primary occupation.” Relevant factors may include an estimate of hours worked in each capacity and the amount of income earned in each capacity. The court rejected claims that the district court erred in failing to instruct the jury properly on how to weigh the mixed fact and opinion testimony of two witnesses and erred in sentencing him without considering the statutory maximum sentence of 60 months on each of the counts, and that his attorney was ineffective in failing to raise the matter of the statutory maximum.
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