United States v. Deangelus HayesUnited States v. Deangelus Hayes
Moreover, Larch has not shown that the omission of this instruction affected his substantial rights. In most cases, this requires the defendant to show that the error affected the outcome of the district court‘s proceedings. Jones, 108 F.3d at 672; Olano, 507 U.S. at 734, 113 S.Ct. 1770. This burden is insurmountable for him because, as already discussed, the jury could reasonably find that he either actually, constructively, or jointly possessed the stolen firearms.
Finally, even if plain error was present, this is not the case in which we would use our discretion to reverse the district court. Jones, 108 F.3d at 672. The discretion conferred by
In this case, Larch had every opportunity to request whatever jury instruction he desired but failed to request anything comparable to the instruction of which he now seeks the benefit. See, e.g., McCall, 85 F.3d at 1195-96 (finding no plain error when the defendant presented evidence of an alibi defense but failed to request such instruction at trial because the district court was deprived of the knowledge that the defendant desired the instruction or the opportunity to correct his failure to object to its omission). Moreover, a jury concluded that he—not a co-conspirator—exercised either actual, constructive, or joint possession over the firearms. Under these circumstances, we see no miscarriage of justice.
III.
For the foregoing reasons, the conviction of the appellant, Lewis E. Larch, Jr., is AFFIRMED.
On September 27, 2007, Amber Howe was standing outside her boyfriend‘s 2001 Buick Century, looking for her cellphone. A man approached her, threatened her with a revolver, and then stole the car. A jury later determined that Deangelus Hayes was that man, and found him guilty of carjacking, see
Hayes argues that the evidence was insufficient to convict. Although he does not dispute that Amber Howe was the victim of the carjacking, he says that he was not the carjacker. But Howe twice identified Hayes as her carjacker—once in a photographic line-up, and later in open court. See Trial Tr. at 81, 76. These identifications, by themselves, are enough to support Hayes‘s convictions. See United States v. Caraway, 411 F.3d 679, 682-83 (6th Cir.2005); United States v. Tipton, 11 F.3d 602, 609 (6th Cir.1993). Moreover, the testimony of Hayes‘s ex-girlfriend, Brandy Nolan, also connected Hayes to the carjacking. When Nolan noticed a Buick parked in her garage, Hayes told her that he got the car from “Ridgecrest“—the apartment complex where the carjacking occurred—and showed her a revolver that was similar to the one Howe described. See Trial Tr. at 191, 196-98. Hayes responds that Nolan and Howe were not credible witnesses at trial; but that determination was for the jury, not us. See United States v. Bailey, 553 F.3d 940, 946 (6th Cir.2009).
Hayes‘s remaining challenge to his convictions is that the district court improperly denied his motion for a mistrial. As Brandy Nolan was leaving the witness stand at trial, she said: “Your Honor, I am kind of concerned about going out there.” Trial Tr. at 252. The district court responded, “[w]e can‘t talk about that here,” and then told Nolan and the attorneys to come to the sidebar. Once there, Nolan explained that she was afraid of Hayes‘s family members, who were waiting outside the courtroom. After the district court arranged for Nolan to be escorted to her car, Hayes‘s lawyer moved for a mistrial. The district court denied the motion, deciding instead to give a curative instruction. In Hayes‘s view, that instruction was insufficient because Nolan‘s comments “irreparably prejudiced” the jury against him. Hayes‘s Br. at 21.
We review the denial of a mistrial motion for an abuse of discretion. United States v. Wimbley, 553 F.3d 455, 460 (6th Cir.2009). Here, Nolan‘s initial comment was unsolicited and unrelated to any of the
Ladies and gentlemen, that very last remark by the witness was an inappropriate remark, I told her that, and we have taken care of that. But you must disregard that, it is as though you never heard the remark, it has to come from a witness stand, it can‘t come as somebody walks away, they can‘t make a comment to you or me, it is not appropriate. I will not allow that. If somebody brings that up, you just say that is inappropriate, we couldn‘t receive it, it is as though we never heard it.
Trial Tr. at 254. Nolan‘s initial comment therefore did not require a mistrial. See United States v. Forrest, 17 F.3d 916, 920 (6th Cir.1994).
Hayes also argues that he was prejudiced by Nolan‘s comment during the sidebar conference—that she was afraid of his family members waiting outside the courtroom. Hayes cites United States v. Poindexter, 942 F.2d 354, 360 (6th Cir.1991), where we said that “this court will assume that the [sidebar] conference is within the jury‘s hearing unless the record shows otherwise.” Id. at 360. The record here, Hayes says, does not show otherwise.
As an initial matter, it is unclear whether Poindexter is good law on this point. An earlier decision from this court seems to reject the presumption that Poindexter adopts. See United States v. Smith, 928 F.2d 740, 743 (6th Cir.1991). If so, the earlier case controls. See Sowards v. Loudon County, 203 F.3d 426, 431 n. 1 (6th Cir.2000) (“When a later decision from this court conflicts with its prior decisions, the earlier cases control“). Moreover, the Poindexter panel itself later showed a willingness to rely on reporters’ notes when it modified its holding on rehearing in a companion case. See United States v. Day, 956 F.2d 124, 125 (6th Cir.1992).
In any event, the record here shows that the jury could not hear the sidebar conference. During the conference, the district court stated: “I‘m going to tell [the jury] that it was an inappropriate remark ... and so they won‘t know whether we were over here chewing her out or what we were doing.” Trial Tr. at 254. The court‘s statement—that the jury would not know “what we were doing” at sidebar—makes clear that the jury could not hear the sidebar. Nolan‘s statements, therefore, did not prejudice Hayes. The district court properly denied the mistrial motion.
That leaves Hayes‘s challenge to his sentence. Hayes‘s carjacking sentence—which comprised 86 months of his 170-month sentence—was based in part on a two-level enhancement for “physically restrain[ing]” a person “to facilitate commission of the offense[.]”
The parties dispute the standard of review. The government contends that we should review this issue only for plain error, since the enhancement was disclosed in Hayes‘s Presentence Report and Hayes never objected to it. The rules required him to do so. See
Here, after the district court announced its intent to impose a 170-month sentence, the following exchange occurred:
THE COURT: Okay. Anything from the defense? I know that you wanted a little lower sentence, but I think—
[Defense Counsel]: No objection to the technical calculation of the guidelines.
Snt‘g Tr. at 20.
The reality here is that Hayes‘s counsel did interpret the district court‘s question—“Anything from the defense?“—as a request for a least a certain type of objection, namely, “objection[s] to the technical calculation of the guidelines.” And that is precisely the kind of objection that Hayes makes now. There is no point in allowing a party, who expressly stated that he had no objections, to complain later that he did not have an opportunity to object. The district court‘s question served its purpose with respect to the issue presented here; and thus, even without considering Hayes‘s failure to comply with
The Sentencing Guidelines provide for a two-level enhancement “if any person was physically restrained to facilitate the commission of the offense[.]”
The circuits are split on this issue. Some have adopted Hayes‘s position: threatening a person at gunpoint is not itself a physical restraint. See, e.g., United States v. Drew, 200 F.3d 871, 880 (D.C.Cir.2000) (“[P]hysical restraint requires the defendant either to restrain the victim through bodily contact or to confine the victim in some way“); United States v. Anglin, 169 F.3d 154, 164 (2d Cir.1999). Others have adopted the government‘s position: holding a person at gunpoint and telling her not to move does amount to a physical restraint. See, e.g., United States v. Wallace, 461 F.3d 15, 33 (1st Cir.2006) (applying the enhancement when defendants “rendered the victims physically immobile by keeping their guns pointed directly at each victim in close range“); United States v. Fisher, 132 F.3d 1327, 1330 (10th Cir.1997) (“[P]hysical restraint occurs whenever a victim is specifically prevented at gunpoint from moving, thereby facilitating the crime“); United States v. Wilson, 198 F.3d 467, 472 (4th Cir.1999). The only authority from our circuit is an unpublished opinion that adopts the government‘s position. See United States v. Morgan, 16 F.3d 1222 (table), 1994 WL 12651, at *3 (6th Cir.1994) (“Courts have determined ‘physical restraint’ to include holding victims at gunpoint, or even at knifepoint” (internal citations omitted)).
Whatever the merits of Hayes‘s argument, “the circuit split precludes a finding of plain error.” United States v. Williams, 53 F.3d 769, 772 (6th Cir.1995). That is all we need decide here.
Finally, the enhancement did not plainly constitute “impermissible double counting” in light of Hayes‘s conviction for brandishing a firearm. Although the enhancement and the conviction arose from the same conduct, they punished “different aspects of the defendant‘s conduct.” United States v. Perkins, 89 F.3d 303, 310 (6th Cir.1996) (emphasis in original). The first was his brandishing of the gun; the second was the physical restraint. So there was
Hayes‘s conviction and sentence are affirmed.