UNITED STATES of America, Plaintiff-Appellee, v. Calvin R. MORGAN, Defendant-Appellant.
No. 12-6499.
United States Court of Appeals, Sixth Circuit.
July 8, 2014.
573 F. App‘x 292
SILER, Circuit Judge.
Calvin Morgan pleaded guilty to four charges arising out of his possession of marijuana and the discharge of a firearm during the execution of a search warrant at his apartment. He received a total sentence of 174 months’ imprisonment. Morgan‘s appeal focuses on his sentencing under
FACTUAL BACKGROUND
In 2012, this court issued an opinion in Morgan‘s first appeal summarizing the relevant facts, and remanding for resentencing. United States v. Morgan, 687 F.3d 688, 690-91 (6th Cir.2012).
PROCEDURAL BACKGROUND
In 2009, Morgan pleaded guilty to possessing marijuana with the intent to distribute, in violation of
Prior to the first sentencing hearing, the court “calculate[d] Morgan‘s recommended Guidelines range on the prohibited-possession count” by cross-referencing the attempted-murder guideline provided in
On remand, the district court, accepting the parties’ recommendation, decided not to apply the attempted-murder cross-reference to the prohibited-possession count and stated that it would consider Morgan‘s intent to kill only with respect to the
Before imposing sentence, the court also noted that Morgan was statutorily subject to imprisonment for “not less than ten [years] nor more than life” for the
DISCUSSION
1. Reasonableness of the Sentence
We review the sentence imposed by the district court for reasonableness under a deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Battaglia, 624 F.3d 348, 350 (6th Cir.2010). “This inquiry has both a procedural and substantive component.” United States v. Lapsins, 570 F.3d 758, 772 (6th Cir.2009). We must first ensure that the district court made no significant procedural errors and then consider the sentence‘s substantive reasonableness. Gall, 552 U.S. at 51, 128 S.Ct. 586.
A. Procedural Reasonableness
In conducting procedural-reasonableness review, we review the district court‘s factual findings for clear error. Battaglia, 624 F.3d at 351.
i. Specific Intent to Kill
Morgan first argues that the three-year upward variance on the
This finding is supported by the factual record, to which the district court consistently referred throughout the sentencing and resentencing proceedings. At resentencing, after making clear that the cross-reference to the attempted-murder guideline would be excluded for purposes of calculating the offense level for the prohibited-possession count, the district court apprised the parties that the “information previously considered ... regarding [Morgan‘s] intent to kill” and his “placing other individuals at great risk” would be considered only with respect to the
At the original sentencing hearing, Officer Bridgman testified, in relevant part, as follows: Morgan did not call the police despite indicating he was concerned about being robbed the night the search warrant was executed; upon entering the front door to Morgan‘s apartment, the officers loudly announced “Police, search warrant“; these announcements persisted as the officers passed through the living room and as they continued down the hallway toward the bedroom in the back of the apartment; it was not reasonable for an occupant in the apartment to have not heard the words “Police, search warrant“; and, based on his location near “the door frame of the bedroom when the shots were fired,” it was not reasonable for occupants directly inside the door frame not to know it was the police. Morgan‘s wife, Beverly, testified that she received a telephone call earlier in the evening on the night of the incident, alleging “two gentlemen were going to bust into the house and mess my husband up.” In terms of the timing of the shots fired by her husband, as well as the timing of when she heard the officers say “Police,” Beverly indicated that Morgan discharged the firearm “[i]mmediate-ly” after the front door to the apartment
Morgan testified, in relevant part, as follows: he was aware before the police arrived that allegedly there were people who wanted to harm him and potentially his wife but that he did not call the police or leave the residence for the night; he fired warning shots to scare off the intruders, but those warning shots were not directed up toward the ceiling, but rather to the hallway where the intruders were perhaps a foot away; firing toward the ceiling would have made a very loud sound and let others in the vicinity know he had a gun; and he was aware enough to make a conscious decision to conceal the gun under the mattress after firing at the wall to avoid being shot by the police officers as they entered the bedroom. He further admitted being aware that simply shooting in the general direction of someone could result in that person‘s death. Morgan also testified that he and his wife were in the bedroom smoking crack during the night in question, contradicting her sworn testimony in which she denied use of the drug.
Subsequently, the district court found Beverly‘s testimony not credible, as she had a motive in the case not to testify truthfully. Beverly did, however, indicate that any individuals present in the hallway would have been visible to her when the shots were fired, which led the district court to believe that she would have seen the officers prior to the time shots were fired. The district court determined that the shots hit the wall or hit the area near the officer‘s head, and that a person attempting to scare or fire warning shots would not have taken such an action. It also found Morgan was aware of the consequences of shooting in the general direction of another person, given the similar situation confronted by Morgan‘s friend in the preceding weeks. Based on Morgan‘s conduct and the surrounding circumstances, as established at the sentencing hearing, the district court clarified at resentencing that Morgan possessed the specific intent to kill the police officers who entered his apartment. Separately, the district court found Morgan subjected every individual in the bedroom to potential harm from return fire by the police officers. In short, the district court did not clearly err in finding that Morgan specifically intended to kill.
ii. Statement of Reasons
Morgan next argues that the three-year upward variance on the
As a preliminary matter, Morgan‘s sentence on the
At resentencing, after recognizing that a defendant‘s sentence begins with the Guidelines range (though “not binding ... and the [c]ourt should and does consider all relevant factors of [§] 3553“), the district court provided specific reasons for imposing the 156-month sentence for Morgan‘s
the need for the sentence to reflect the seriousness of the offense, the need to promote respect for the law and provide a just punishment for the offense. And ... [there exists] the need to provide deterrence, ... specifically for the individual defendant, as well as general deterrence of others that might be inclined to engage in similar conduct. [There is also] the need to protect the public from future crimes of this defendant.
When the [c]ourt looks at this particular defendant‘s egregious conduct, the need to deter him from future criminal conduct, as well as others that might be inclined to engage in similar conduct, the [c]ourt believes that the [government‘s] recommendation falls short of what‘s necessary, and the [c]ourt instead believes it‘s necessary to impose a period of 36 months above the mandatory minimum to provide deterrence, as well as protection for the public.
The “egregious conduct” to which the district court referred was described in great detail during the sentencing hearing and was summarized at resentencing. See supra. The reasons provided by the district court were stated in open court and were specific. Also, it was not necessary for the district court to cite every single
With respect to the district court‘s alternative finding that the discharge of the firearm amounted to warning shots that reflected Morgan‘s recklessness rather than a specific intent to kill, the court decided
a sentence at the bottom of the range, [i.e.,] the mandatory minimum, would not be appropriate in a case such as this for that type of conduct [Morgan] engaged in. And it‘s certainly not appropriate and it would be less than would be necessary to provide deterrence not only for this individual, but for others that might be inclined to commit a similar offense. And it essentially would not separate this case from the other cases that the [c]ourt typically sees that would not involve this type of egregious conduct.
We again view the reasoning provided by the district court on this alternative grounds for the sentence imposed to be sufficiently specific.
We next address the “statement of reasons” form. The district court failed to check the correct box on the statement of reasons form indicating that the sentence was outside the advisory Guidelines, but it explained in writing—in the portion of the form dedicated to “Additional Facts Justifying the Sentence in This Case“—that a sentence “36 months above the statutory minimum” is “necessary to provide proper punishment for the defendant‘s conduct and to deter future criminal conduct by the defendant as well as others that might be
Morgan relies on Blackie for the proposition that failing to provide a written statement as required by
B. Substantive Reasonableness
We review substantive reasonableness for abuse of discretion. United States v. Richards, 659 F.3d 527, 549 (6th Cir.2011). Sentences within the Guidelines are afforded a presumption of reasonableness, though there is no “presumption of unreasonableness” for outside-Guidelines sentences. United States v. Vonner, 516 F.3d 382, 389-90 (6th Cir.2008) (en banc). Further, when reviewing whether an above-Guidelines sentence is reasonable, appellate courts may “take the degree of variance into account and consider the extent of a deviation from the Guidelines.” Gall, 552 U.S. at 47, 128 S.Ct. 586. In reviewing a sentence, we give “‘due deference’ to the district court‘s conclusion that the sentence imposed is warranted by the
Morgan argues that the sentence imposed was substantively unreasonable because the district court imposed a three-year upward variance in a typical mine-run case, and in doing so, ran afoul of
When reviewing whether an above-Guidelines sentence is reasonable, appellate courts may “take the degree of variance into account and consider the extent of a deviation from the Guidelines.” Gall, 552 U.S. at 47, 128 S.Ct. 586. Morgan received an upward variance of only 30 percent over the 120-month mandatory minimum set forth in
Moreover, the district court expressly considered “the need to avoid unwarranted disparities among defendants with similar records who have been found guilty of similar conduct....”
The court considered the need to avoid disparities among similarly situated defendants and factored that need into its sentencing decision. A review of the record does not show that the incarceration imposed was an unreasonable sentence, regardless of whether it is the sentence this court might have imposed. United States v. Liou, 491 F.3d 334, 340 (6th Cir.2007). We are unable to find that the district court abused its discretion.
2. Interpretation of § 924(c)(1)(A)
As a matter of first impression, we consider whether
- be sentenced to a term of imprisonment of not less than 5 years;
- if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and
- if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.
Morgan argues, in essence, that the district court erred because the statutory maximum sentence under
The Supreme Court has noted on numerous occasions that “in all cases involving statutory construction, ‘our starting point must be the language employed by Congress,’ ... and we assume ‘that the legislative purpose is expressed by the ordinary meaning of the words used.‘” American Tobacco Co. v. Patterson, 456 U.S. 63, 68, 102 S.Ct. 1534, 71 L.Ed.2d 748 (1982) (quoting Reiter v. Sonotone Corp., 442 U.S. 330, 337, 99 S.Ct. 2326, 60 L.Ed.2d 931 (1979), and Richards v. United States, 369 U.S. 1, 9, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962)). “The words ‘not less than’ signify in the smallest or lowest degree, at the lowest estimate; at least.” Black‘s Law Dictionary 1063 (6th ed.1990). In the context of
The statutory maximum permitted under
In Alleyne, the Court considered whether judicial factfinding that increases the mandatory minimum sentence for a crime is permissible under the Sixth Amendment. 133 S.Ct. at 2155. The Supreme Court held that “any fact that increases the mandatory minimum is an ‘element’ that must be submitted to the jury,” thus overruling Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002). Id.
Nonetheless, despite not resolving the statutory question at issue here, Alleyne is controlling. Lower courts are “obligated to follow Supreme Court dicta, particularly where there is not substantial reason for disregarding it, such as age or subsequent statements undermining its rationale.” Am. Civil Liberties Union of Ky. v. McCreary Cnty., Ky., 607 F.3d 439, 447-48 (6th Cir.2010) (quoting United States v. Marlow, 278 F.3d 581, 588 n. 7 (6th Cir.2002)). See also Gaylor v. United States, 74 F.3d 214, 217 (10th Cir.1996) (“this court considers itself bound by Supreme Court dicta almost as firmly as by the Court‘s outright holdings, particularly when the dicta is recent and not enfeebled by later statements“); McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 19 (1st Cir.1991) (“federal appellate courts are bound by the Supreme Court‘s considered dicta almost as firmly as by the Court‘s outright holdings“).
Moreover, each of our sister circuits to address this issue has similarly concluded that the statutory maximum is life imprisonment. See United States v. Johnson, 507 F.3d 793, 798 (2d Cir.2007); United States v. Shabazz, 564 F.3d 280, 289 (3d Cir.2009); United States v. Cristobal, 293 F.3d 134, 147 (4th Cir.2002); Sias, 227 F.3d at 246; United States v. Lucas, 670 F.3d 784, 795-96 (7th Cir.2012); United States v. Gamboa, 439 F.3d 796, 811 (8th Cir.2006); Dorsey, 677 F.3d at 958; United States v. Avery, 295 F.3d 1158, 1170 (10th Cir.2002); United States v. Pounds, 230 F.3d 1317, 1319 (11th Cir.2000) (per curiam).
Last, Morgan argues that any doubts about the proper interpretation of the statute should be resolved in his favor under the rule of lenity. As discussed above, the language of the statute is clear and definite. “The simple existence of some statutory ambiguity, however, is not sufficient to warrant application of that rule, for most statutes are ambiguous to some degree.” Muscarello v. United States, 524 U.S. 125, 138, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998). The rule of lenity only applies if, “after considering text, structure, history, and purpose, there remains a grievous ambiguity or uncertainty in the statute, such that [we] must simply guess as to what Congress intended.” Barber v. Thomas, 560 U.S. 474, 488, 130 S.Ct. 2499, 177 L.Ed.2d 1 (2010) (internal quotation marks and citations omitted). In this case, the statutory text and its evolution from prior constructions convince us that the mandatory minimum sentences set forth in
3. Sufficiency of the Indictment
Morgan claims that because the indictment did not specifically charge a violation of
Generally, a valid guilty plea “bars any subsequent non-jurisdictional attack on the conviction.” United States v. Martin, 526 F.3d 926, 932 (6th Cir.2008) (quoting United States v. Pickett, 941 F.2d 411, 416 (6th Cir.1991)). “[I]n the absence of a court-approved reservation of issues for appeal, [a defendant pleading guilty] waives all challenges to the prosecution except those going to the court‘s jurisdiction.” Pickett, 941 F.2d at 416 (citing Hayle v. United States, 815 F.2d 879, 881 (2d Cir.1987)). Because Morgan failed to enter a conditional guilty plea, his challenge is waived.
Even setting aside this failure to pursue what is his affirmative duty, Morgan‘s claim that the sentence was improper because of the charge listed in the indictment fails as a matter of law. First, his attempt to recast his challenge as being distinct from one based on the sufficiency of the indictment is disingenuous at best. There is no doubt Morgan‘s argument goes directly to the sufficiency of the indictment. See United States v. Kuehne, 547 F.3d 667, 695-96 (6th Cir.2008) (analyzing the sufficiency of the indictment where a defendant challenged three counts contained therein for not specifying “which drug trafficking crimes were the predicate offenses for the imposition of § 924(c)(1). In short, the indictment failed to allege a requisite element of § 924(c)(1) itself, i.e., the commission of a drug trafficking crime.“). Ordinarily, we review challenges to the sufficiency of an indictment de novo. United States v. Gatewood, 173 F.3d 983, 986 (6th Cir.1999). However, where the sufficiency of an indictment is not challenged until appeal, “the indictment must be construed liberally in favor of its sufficiency.” Id. “Under such circumstances, a conviction must not be reversed unless the indictment cannot be reasonably construed to charge a crime.” United States v. Lloyd, 462 F.3d 510, 513 (6th Cir.2006).
Here, despite not specifying the exact portion of
Furthermore, the plea agreement itself, which Morgan acknowledged to have been “underst[ood],” “fully explained,” and “ent[ered] into ... voluntar[ily],” detailed “the following facts that establish the essential elements of the offense[] beyond a reasonable doubt,” namely, that “Morgan admitted he had the firearm and fired it....” It also stated that “[w]ith regard to Count 2 [ (the § 924(c) conviction)], the statutory punishment is not less than 10 years....” At rearraignment, counsel for the government was asked by the district court to review the essential parts of the plea agreement; the government stated that Morgan “admits that he possessed a quantity of marijuana with intent to distribute it, and admits that the use and discharge of his firearm was related to his drug trafficking activity,” to which Morgan agreed was accurately summarized. Later, after additional discussion by the district court of the counts covered in the plea agreement, the court asked Morgan
4. Reassignment on Remand
In light of our affirming the district court‘s sentencing of Morgan, we need not reach the issue of whether to reassign the case to a different judge on remand.
AFFIRMED.
SILER
Circuit Judge