United States v. Joey Wiseman, Jr., 932 F.3d 411

Background

In the early morning of August 4, 2017, Jaymone Whitaker entered Joey Wiseman’s home through a window; a struggle and multiple gunshots followed and Whitaker was found bleeding in the living room. Wiseman later told police he knocked the intruder’s gun away, shot Whitaker with a Lorcin pistol he already had, and then placed that pistol in a safe in his parked Yukon.
Police recovered a loaded Taurus from the driveway, shell casings and suspected cocaine in the home, and, pursuant to a warrant for the vehicle, a Lorcin pistol with an obliterated serial number plus multiple small baggies of cocaine, scale, cutting agent, and documents bearing Wiseman’s name in the safe.
Wiseman was indicted on three counts: possession with intent to distribute ~.28 g cocaine (Count 1), possession with intent to distribute ~11.28 g cocaine (Count 2), and being a felon in possession of a firearm and ammunition (Count 3). He was acquitted on Count 1 and convicted on Counts 2 and 3.
The PSR applied a career-offender enhancement under U.S.S.G. § 4B1.1 based on multiple prior state drug convictions, producing a Guidelines range of 262–327 months; the district court sentenced Wiseman to 262 months (Count 2) concurrent with 120 months (Count 3).
On appeal Wiseman challenged: (1) application of enhanced statutory penalty under 21 U.S.C. § 841(b)(1)(C) in light of the First Step Act, (2) the district court’s refusal to give a justification (self-defense/necessity) jury instruction, (3) admission of testimony implying he was on parole, and (4) the career-offender enhancement.

Issues

Issue	Wiseman’s Argument	Government’s Argument	Held
Applicability of the First Step Act to § 841(b)(1)(C) enhancement	First Step Act narrows qualifying prior offenses and thus his prior convictions do not qualify to enhance his statutory maximum	First Step Act is not retroactive to his case and did not change § 841(b)(1)(C)’s qualification standard	First Step Act does not apply; enhancement under § 841(b)(1)(C) remains valid
Justification jury instruction	Entitled to instruction because he acted to defend against an intruder	Evidence did not satisfy the Singleton five-part test to warrant the instruction	Refusal to instruct was proper; defense unsupported (failed at least elements 1 and 5)
Testimony implying parole status	Officer French’s testimony that he was contacted by Adult Parole Authority prejudiced the jury	Any mention was ambiguous and, if error, harmless because felony status was stipulated and evidence overwhelming	Admission (if error) was harmless; no reversal
Career-offender enhancement under U.S.S.G. § 4B1.1	First Step Act’s “serious drug felony” definition should replace Guidelines’ qualifying-offense definition	First Step Act did not amend the Sentencing Guidelines; prior convictions were punishable by >1 year so they qualify under § 4B1.1	Career-offender enhancement stands; prior convictions qualify under existing Guideline definition

Key Cases Cited

United States v. Pritchett, 496 F.3d 537 (6th Cir.) (standard of review for § 851(a) sufficiency)
United States v. Potter, 927 F.3d 446 (6th Cir.) (First Step Act limited retroactivity discussion)
United States v. Ridner, 512 F.3d 846 (6th Cir.) (justification/necessity defense in felon-in-possession context)
United States v. Williams, 612 F.3d 500 (6th Cir.) (standard for reviewing jury instructions)
United States v. Kemp, 546 F.3d 759 (6th Cir.) (justification defense evidentiary threshold)
United States v. Perez, 86 F.3d 735 (7th Cir.) (noting necessity rarely applies to felon-in-possession cases)
United States v. Frederick, 406 F.3d 754 (6th Cir.) (assessment of jury instructions in totality)
United States v. Montanez, 442 F.3d 485 (6th Cir.) (de novo review of qualifying-offense questions for career-offender enhancement)
United States v. Riffe, 28 F.3d 565 (6th Cir.) (elements of justification and instruction principles)
United States v. Daniel, 134 F.3d 1259 (6th Cir.) (harmless error standard for non-constitutional evidentiary errors)