UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ UNITED STATES OF AMERICA, │ Plaintiff-Appellee, │ > No. 22-3889 │ v. │ │ PHILLIP CABBAGE, │ Defendant-Appellant. │ ┘

Appeal from the United States District Court for the Northern District of Ohio at Toledo. No. 3:21-cr-00335-1—Jeffrey James Helmick, District Judge.

Decided and Filed: February 2, 2024

Before: GIBBONS, WHITE, and THAPAR, Circuit Judges.

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COUNSEL ON BRIEF: Manuel Valle, Cody L. Reaves, Rebecca C. Brooks, SIDLEY AUSTIN LLP, Washington, D.C., for Appellant. Alissa M. Sterling, UNITED STATES ATTORNEY'S OFFICE, Toledo, Ohio, for Appellee.

THAPAR, J., delivered the opinion of the court in which GIBBONS and WHITE, JJ., joined. WHITE, J. (pg. 6), delivered a separate concurring opinion. _________________

OPINION _________________

THAPAR, Circuit Judge. Phillip Cabbage pled guilty to conspiring to distribute drugs. At sentencing, he and the government agreed a supervisor enhancement applied. Reversing course, Cabbage now objects to the enhancement. But because he invited the error, we affirm. No. 22-3889 United States v. Cabbage Page 2

I.

While on supervised release for a previous drug conviction, Cabbage started dealing again. He orchestrated fentanyl, cocaine, and methamphetamine shipments from cartel suppliers to various street-level dealers. According to the PSR, as part of this operation, Cabbage “directed” a subordinate who stored drugs, R. 54, Pg. ID 671–72, and also “managed” a liaison for the Mexican cartel, Id., Pg. ID 672.

After extensive surveillance of Cabbage’s operations, police arrested Cabbage and four co- conspirators. At the time of his arrest, Cabbage possessed nearly five kilograms of fentanyl.

Cabbage pled guilty to conspiracy and possession with intent to distribute a controlled substance. See 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A). The probation officer recommended a three-level enhancement because Cabbage acted as a supervisor in the conspiracy. See U.S.S.G. § 3B1.1(b). Cabbage initially objected to the enhancement on the grounds that he didn’t control another person. But Cabbage and the government “resolved” the objection before the sentencing hearing, agreeing to a lower-level enhancement for his role. R. 95-1, Pg. ID 1191.

The district court confirmed this agreement at sentencing. After calculating the Guidelines range with the two-level enhancement, the district court imposed a within-Guidelines sentence of 210 months.

Cabbage now appeals, arguing the two-level enhancement—which increased the top end of his Guidelines range from 180 to 210 months—should not have been applied.

II.

Cabbage challenges only the procedural reasonableness of his sentence. A sentence can be procedurally unreasonable if the district court fails to properly calculate the Guidelines range. United States v. Snelling, 768 F.3d 509, 512 (6th Cir. 2014). Here, Cabbage a