United States v. Dana Ray Morrison

IV. CONCLUSION аnalysis, foregoing Based petition Union’s

hereby GRANT directing the district mandamus,

writ its Order portions to vacate the Union against claims remand Gillette’s ‍‌‌​‌​​‌‌​‌‌‌‌‌‌​​‌‌​‌​​​​‌​‌‌‌‌​​​​‌​​‌​‌​‌​​‌​​‍court, to dismiss state preempted, the Union against claims time-barred.

thus America, STATES

UNITED

Plaintiff-Appellee, v. MORRISON, Defendant- Ray

Dana

Appellant. 92-5033.

No. Appeals, Court Circuit.

Sixth 28, 1992. Sept.

Argued 12, 1993. Jan.

Decided

cate the sentence and remand for resen- tencing finding since the that Morrison had accepted based, part, least inappropriate consider- ations.

I. The Case Morrison was August 30, convictеd on of two felonies. On November 1990, he possession was found in of a load- ed, six-inch, Magnum Rossi .357 revolver purchased he had September 1, 14, 1991, 1990. May On he was indicted receipt possession and by of a firearm a felon in contravention of 18 U.S.C. 922(g)(1) § 19, 1991, July On Defendant entered a plea agreement government. with the United States District Court for the East- ern District of Tennessee agreement 16, 1991, on December at which time imposed twenty-two sentence of months, by years followed super- three release, vised $1,800. and a fine of prison sentence was within the range es- tablished the United States Sentencing Commission in its Guidelines Manual (Nov. 1991) [hereinafter Guidelines]. sought sen- (1) tence on the basis that: the firearm was MacCoon, Atty. John Asst. (argued solely sporting purposes, lawful briefed), Jerry and Cunningham, G. Ú.S. 2K2.1(b)(2); (2) see Guidelines аnd he § Atty., Chattanooga, TN, for plaintiff-appel- responsibility for his lee. see ‍‌‌​‌​​‌‌​‌‌‌‌‌‌​​‌‌​‌​​​​‌​‌‌‌‌​​​​‌​​‌​‌​‌​​‌​​‍reject- 3E1.1. The court § Hobbs, R. Chattanooga, Dee (argued TN ed arguments. Defendant’s briefed), and for defendant-appellant. timely appealed, claiming that the court granted should have him the reductions. KEITH, KENNEDY, Before: JONES, Judges. Circuit II. Standard Review JONES, NATHANIEL R. Judge. Circuit Generally A. In this Defendant-Appellant Dana Appellate review of sentences under the Ray pled guilty Morrison receipt federal sentencing guidelines is generally of a firearm a felon. Sen- governed by (1988): 18 U.S.C. 3742 guidelines, tenced under the federal ap- (e) Upon review of the Consideration. — peals the disallowance mitigating of two record, appeals the court of shall deter- factors, possession of a firearm solely for mine whether the sentence— sport of responsibility, that (1) law; imposed in violation of would reduced imposed. the sentence Though finding (2) the district court's that the imposed as a result of an incor- firearm was not used sporting application rect erroneous, guidelines; we va- Brewer, guideline

(3) applicable is outside Cir.1990). ... is unreasonable range, and Purposes" “Solely Sporting give re- III. The аppeals shall due The court Reduction opportunity of the gard to the credibility the of wit- judge the fire In of claim that the findings nesses, accept the of shall solely sporting purposes, for arm used they court unless are fact of the district following facts. presents Defendant the give due shall def- clearly erroneous and First, handgun, De purchasing the before application to thе district court’s erence allegedly had a discussion with Joe fendant guidelines to the facts. of the Castle, hunting issued Defendant license, handgun concerning ‍‌‌​‌​​‌‌​‌‌‌‌‌‌​​‌‌​‌​​​​‌​‌‌‌‌​​​​‌​​‌​‌​‌​​‌​​‍what Purposes” “Solely Sporting B. The hunting. Defendant could be used for Issue suggestion claims that he followed Castle’s the .357 of whether Determination Second, he purchasing a revolver. in .357 solely for Magnum this case was gun shortly the possession was found question purposes of fact and sporting trip alleged hunting (during deer after an clearly is to reviewed under the as such season) Marcus Vanhooser. hunting v. standard. See United States erroneous forty to for Defendant asserts about (6th Cir.1991). Lorenzo, 951 F.2d 350 hunting expedi after their ty-five minutes tion, they stopped at a to clean car wash Responsibility Is- Acceptance The C. owned Vanhooser. Pоlice truck sue stopped the Vanhooser was truck because responsi Regarding acceptance of pat- suspended with a license. A driving bility, standard of review is discussed weapons indi search for of the two down Note Five to ques viduals revealed the .357 revolver 3El.l(a): person. the Defendant’s tion on judge unique posi- government counters with the fol- tion to evaluate a dеfendant’s First, no lowing handgun facts. reason, For this responsibility. Second, scope. gun was found loaded sentencing judge determination Third, ac- in a shoulder holster. concealed great deference on review. entitled report, stop cording police 921, Wilson, 878 F.2d United States v. See arrest took truck and the (6th Cir.1989) (accepting applying 923 four five hours place p.m., at 10:00 about standard). Gеnerally question Fourth, nightfall. at the time of the after fact, the trial court’s determination arrest, Defendant claimed to have been responsi a defendant hunting, working on the but bility normally enjoys protection Fifth, no just prior truck to the arrest. standard, clearly erroneous will not be hunting paraphernalia found was ever unless is without foundation. overturned Sixth, person. truck or on Defendant's acсepting por (citing and relevant id. Vanhooser, purported hunting compan- Thomas, v. 870 F.2d tion of States ion, not in firearm. 174, (5th Cir.1989)); v. 176 United States 267, (6th Cir.1991); Lassiter, 929 F.2d 270 court’s determination The trial 1036, Christoph, 904 F.2d v. possess .357 that Defendant did not denied, Cir.1990), 498 cert. 1041 sporting pur solely (hunting) revolver 713, 112 L.Ed.2d 702 111 S.Ct. clearly pre As a poses is not erroneous. matter, law, however, Questions liminary Defendant has the burden such as proving, by preponderаnce of the evi application guideline appropriate facts, dence, guidelines in the particular subject are that a reduction to a set of v. is warranted. United offense level de novo review. See United States Wil Cir.1990); Cir.1990); son, Rodriguez, Potter, upset the trial court’s ited Un 1164 Thus, In (6th Cir.1992). government weighing conclusion. Defendant’s credi- bility against ‍‌‌​‌​​‌‌​‌‌‌‌‌‌​​‌‌​‌​​​​‌​‌‌‌‌​​​​‌​​‌​‌​‌​​‌​​‍the revolver was used reasonable inferenсes prove from need Rather, presented, the facts the trial purposes. court reached the firearm used sole conclusion prove that erroneous. must sporting purposes. ly for Acceptance Responsibility IV. Re- factual determination making duction sport- gun was used whether the Regarding Defendant's claim that Application Note 10 under ing purposes, accepted responsibility for his 2K2.1(b)(2) the trial directs Guidelines § he asserts that he was candid about his surrounding circum- court to look to cooperative was with the authori stances, include: “the number and which ties, pleaded guilty. and firearms, type the amount ammunition, the location and circum- [and] government responds with the fact ” possession and actual use.... stances of that, subsequent to Defendant’s release on the trial it was reasonable for In this $10,000 ease, property bond Mag- .357 to conclude that Rossi court attempting arrested for pick- was to steal a num, scope, in concealed carried Furthermore, without up probation truck. officer holster, pos- in a shoulder fashion him in found constructive sporting purposes “solely sessed for lawful weapons other fireаrms. The were found 2K2.1(b)(2). or collection.” Guidelines plain view Defendant’s mother’s maintained he would Though house, which was Defendant’s residence. weapon in self- Lastly, positive have even used the not Defendant tested for the defense, properly court could benzodiazepine. the trial controlled credibility of Defendant’s conten- weigh the responsibility The trial court has the reаching against him in the factual tions a defendant has met determine whether his surrounding circum- from the conclusion showing acceptance or her burden possessed gun. stances responsibility by preponderance hunting. for the 270; 929 F.2d at evidence. See 3742(e) (1988). U.S.C. § Rodriguez, 896 F.2d at 1032. The Guide- “voluntary lines list termination or with- Furthermore, it is not erroneous drawal from criminal conduct or associa- hunting that Defendant was to assume tions” as a factor to be considered deter- immediately prior to his arrest. Defen- mining whether a defendant has issue called credibility on this dant’s conduct. responsibility for his criminal he stated that he was question into 3E1.1, 1(a). Application Note Guidelines § forty forty-five minutes about arrested probation A officer found hunting. finished after he and Yanhooser firearms possession of othеr constructive report puts the time of arrest at police fully operational shotgun) af- (including a p.m. to five hours after about 10:00 —four arraignment. appropriate It was ter puts an strain on This fact obvious sunset. weigh against Morri- trial court to story, possessed unless he Defendant’s determining accept- he had whether son he did not. It is not scope, infrared which responsibility. ed report police unreasonable believe testimony, par- over and above Defendant’s counted Mor The district court also hunting equipment was ticularly since no against attempted theft as a factor rison’s per- Defendant’s in the truck or on found him, posi also counted Vanhooser, hunting son, part- and since poses the drug against test him. This tive ner, gun have a at the time of did not activity commit question criminal arrest. ‍‌‌​‌​​‌‌​‌‌‌‌‌‌​​‌‌​‌​​​​‌​‌‌‌‌​​​​‌​​‌​‌​‌​​‌​​‍but be after indictment/information ted wholly distinct sentencing, which is presented fore fact that no evidence crime(s) a defendant is from the for which allegation that Defendant refute the sentenced, properly consid- hunting being can be Magnum for only the .357 Cir.1990) (acceptance 344, 345-48 a two-level determining whether ered when where denied reduction responsibility inis reduction fraud, in- became fendant, charged with a defendant argue that might Some order. activity); fraudulent additional per- volved affirm recognize can 156, 158- Wivell, ac- criminal certain sonal responsibili- Cir.1990) (acceptance of criminal ac- in other engaging tivity while defendant, where might denied hand, reduction other tivity. On the co- possession of attempted truly charged that one argued distribute, in co- dealt society intent against caine with crime for a dispo- awaiting crimes, on bond period. he was while caine further commit will case). analyzes sition view The former basis, while case-by-case on a upheld have also Courts apply it to understands view the latter of an denials disposi- criminal entire defendant’s criminal look to longer of no tion —either type, as to, nоt of but related is. he still or disposition, See, e.g., United offense. provide sub Barrett, 868-69 law case Federal view. de point either (acceptance Cir.1989) stantial govern to cases threatened two cites defendant Appellee where nied United witness); criminal activi “continuing that proposition ment informant 1299, makes 1300-01 Davis, any 878 F.2d v. States sort] [of inap reduction re responsibility responsibility of of acceptance Cir.) (11th (acceptance v. States and United defendant, charged propriate”: where denied duction Cir.1990), cert. (6th 300 F.2d intent 913 with Snyder, possess conspiracy with 709, 112 1039, S.Ct. 111 denied, drugs U.S. use cocaine, 498 continued distribute cases, of these denied, In both (1991). U.S. bond), 698 493 cert. L.Ed.2d out while activity” “continuing criminal however, (1989); 330 341, L.Ed.2d 107 941, 110 S.Ct. as 1204, same F.2d was of 880 Scroggins, v. States United Sixth is the effect the same resрon To Cir.1989) offense. (acceptance (11th 1215 Reed, 951 v. States of United defendant, case Circuit where denied sibility reduction — Cir.1991), denied, rt. (6th 97 theft, F.2d turned “had postal ce charged with 409 1700, 118 L.Ed.2d U.S. -, S.Ct. 112 motivated had lifestyle that from the away affirmed (1992), where viz., conviction,” cocaine offense his give refusal 1083, court’s 110 S.Ct. denied, 494 use), cert. case, the In responsibility 946 L.Ed.2d 108 pending defendant, jail while ac- of an uphold deniаls will courts And further fraud, engaged in credit card where reduction responsibility ceptance Unit See also telephone. jail from a fraud both conduct is pre-sentencing 1354, 1356 F.2d Jessup, 966 v. ed States related type and otherwise Cir.1992) (acceptance See, e.g., United underlying offense. defendant, who where denied 968, 973-74 Jordan, F.2d 890 v. States Mann and indicted arrested Cir.1989) (acceptance оf sexually behavior Act, “continued [his] posses- defendant, charged with nied where bond); out boys” while molesting young cocaine, par- to distribute intent sion 788, 793 Olvera, 954 F.2d v. States United drug instances separate in two ticipated reduc Cir.) (acceptance (2d awaiting cocaine, while and used dealing, defendant, who denied, where part, sentencing). to distribute conspiring was convicted In point. dirеctly on case one At least a con smuggled controlled Watkins, 983 911 v. prison where into substance trolled — reviewed Cir.1990), Circuit Fifth denied, sentencing), cert. awaiting pled defendant, having where case L.Ed.2d U.S. -, S.Ct. treasury checks forged passing guilty to Cooper, States (1992); possessing treasury and to checks stolen with defendant’s statement that I realize I mail, from the used cocaine while on re- have done Iwhat should not have done— pending sentencing. lease The district engage conduct.” would We end grant sentence, court refused to the defendant an “...— be a felon in posses- reduction sole- sion of a firearm.” We hold accep- ly drug because of the use. id. at 984. tance of responsibility, contemplated Circuit, noting The Fifth that “there is no the United Sentencing Commission, interpretation direct basis for this is “acceptance of responsibility [of of- ” fense, 3El.l(a) (Nov. 1992) criterion] law,” yet Guidelines themselves or in (emphasis added), case “illegal not for conduct” upheld the district ruling. court’s It generally.1 Id. Considering unrelated criminal concluded that the district view was unfairly court’s penalizes a defendant for erroneous because a criminal disposition, when true remorse 1(a) phrased in general “is specific terms and for criminal behavior is the issue. specify that the defendant need sum, since the district court did con- only refrain from criminal conduct associat- sider an inappropriate (and factor may ed with the offense conviction in order to another) have considered in deciding wheth- qualify 985; for the reduction.” Id. see er Morrison had accepted responsibility for O’Neil, also United violation, the firearms we VACATE the (1st Cir.1991) 600-01 (seeming accept sentence, and REMAND the case for resen- proposition criminal conduct tencing so that the district prop- shows lack of remorse and thus lack of erly weigh factors that remain. for crime charged). KENNEDY, Judge, Circuit concurring in (and O’Neil), contrast to part Watkins and dissenting part. in “voluntary considеr termination or with- I concur in the opinion court’s with the drawal from criminal conduct” to refer to exception of the reversal of the District that conduct which is related to the under- finding Court’s that defendant not lying offense. Such may conduct be the demonstrated acceptance personal re- underlying offense, same as the as in sponsibility for his criminal I conduct. dis- Reed, Snyder, Jessup, Olvera, agree panel’s interpretation with the of the Wivell, Cooper, Jordan; may or be purpose Acceptance of the Responsibili- the motivating behind the force Guideline, 3E1.1, U.S.S.G. and limita- § offense, in Scroggins; may as or be relat- places tions it may what behavior be ed to government actions toward witness- by considered a district applying court in concerning underlying offense, es the inas that panel Guideline. The prohibits the Barrett; may or involve an otherwise District Court post-arrest, from considering strong offense, link the underlying with post-guilty plea criminal behavior not simi- in Davis and persuaded Jordan. We are lar or related to the crime for which a by the rationale that an individual be defendant is convicted. presupposes This truly repentant for yet one сrime commit “legitimate that the societal interests” re- other unrelated crimes. ferred to in Background Application the opposing rationale adopted was in 3E1.1, Note to section are limited to en- the reads, dissent to the instant which couraging a defendant not to commit the part: appears “The issue be to whether view, same or In my similar crimes. that is questioned the conduct ‘is inconsistent’ cramped too a reading of the 3El.l(a) recently 1. We note that Section acceptance demonstrates amended, offense, effective November 1992. Section by decrease the offense level 2 lev- 3El.l(a) previously read: "If a defendant clear- interpret els.” While necessarily we do not this ly recognition demonstrates change affirmativе dispo- amendment as a from "criminal personal rationale, “case-by-case” for his sition" rationale to a conduct, by criminal reduce the level helps clarify offense we find that it in a man- issue levels.” It now reads: "If the supports point defendant ner that our of view. “How- acceptance. significant evidence encouraging outweighed may be ever, evidence open to be It should defendants. criminal is inconsis- defendant conduct conclude sentencing court responsibili- law such with tent within to live fail fendants to be appears whether they plead ty.” The issue after especially arrest, and after with “is inconsistent” have guilty, conduct plead questioned agreed or guilty I have I realize their crimi- statement defendant’s engage not have should I donе what done— actions. nal engage continue To illegal conduct. de of a in favor consideration first lie to puts conduct in other responsi accepting qualifying fendant limita- possible only other statement. or with “voluntary termination bility is may be considered what tion or associa criminal from drawal Applica- Background is found 3E1.1 1(a) to U.S.S.G. Note Application tions.” might which parenthetical Note broadly written. is This 3E1.1. may be which the behavior limit read (5th Cir. Watkins, F.2d 983 listed to that considered general “phrased 1990) (section 3E1.1 This action.” “equivalent “re word include terms”). It does certainly not one limitation, and hardly con “criminal phrase before lated” con- criminal unrelated have been eliminates easily which quite duct,” could consideration, especially Sentencing Commis from duct had that done from is “withdrawal import Instead, listed factor clear first intent. sion’s con criminal all conduct.” to include criminal language “associ Inclusion associations. duct and caught a murderer say This corroborates as conduct as well ations” cannot receive stealing gum including consid By interpretation. broad simply It is continues defendant of whether eration might might or that a statе confederates, relationships with partic- gum chewing theft find going be Sentencing Commission of whether illuminative circumstances ular consideration limited yond the murderer or simi continuing such determi- I believe actions. her conduct. lar criminal district court. rest should nation Note Application Background When sentencing 5 the Note Application Under conduct,” does so “related refer to does deference, and great is entitled judge a defen- conduct defining the unrelat- makes 3E1.1 nothing U.S.S.G. § responsibility, to have is dant con- impermissible ed criminal behavior limiting what sideration. to determine may consider deny- Thus, present in the accepted. On has been reduc- ing limi- little indicates whole, the Commission consid- Court the District legiti- tion are considerations on what tation con- of a and use attempted theft respon- ered granting the inmate its within discre- it acted took trolled The Commission sibility AF- I would amendment the Guidelines. especially pains, great 1,1991, to indicate FIRM. November effective guilty plead decision a defendant’s the reduc- prohibit in all cases should 3E1.1 that, section than Other tion. of consider- list inclusively. written explicitly ations the factors to” limited “not that it states Applica- last sentence enumerated. my additional 3 lends tion Note guilt admission Truthful conclusion.

Case Details

Case Name: United States v. Dana Ray Morrison

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jan 12, 1993

Citation: 983 F.2d 730

Docket Number: 92-5033

Court Abbreviation: 6th Cir.