UNITED STATES OF AMERICA, Plaintiff-Appellant/Cross-Appellee, v. ANTONIO L. FORREST, Defendant-Appellee/Cross-Appellant.
Nos. 03-5672/5685
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
March 30, 2005
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 05a0151p.06. Argued: August 3, 2004. Appeal from the United States District Court for the Western District of Kentucky at Louisville. No. 02-00078—Edward H. Johnstone, District Judge.
Before: NELSON and COOK, Circuit Judges; ROSEN, District Judge.*
ARGUED: Terry M. Cushing, ASSISTANT UNITED STATES ATTORNEY, Louisville, Kentucky, for Appellant. James A. Earhart, Louisville, Kentucky, for Appellee. ON BRIEF: Terry M. Cushing, Michael A. Bennett, ASSISTANT UNITED STATES ATTORNEYS, Louisville, Kentucky, for Appellant. James A. Earhart, Louisville, Kentucky, for Appellee.
OPINION
DAVID A. NELSON, Circuit Judge. This is a federal criminal case that stems from the armed robbery of a convenience store by the defendant and two others. Found guilty by a jury, the defendant was sentenced to imprisonment for one year on a Hobbs Act charge and seven years — the statutorily mandated minimum — on a charge of brandishing a firearm in the commission of the robbery.
*Had there been no sentence adjustments under the guidelines, and given that the defendant was sentenced at a time when the guidelines were being applied as mandatory, the district court would have been required to sentence the defendant to at least 33 months for the Hobbs Act violation — a sentence nearly three times as long as the 12-month sentence he actually received. The government has appealed the defendant‘s sentence, and the defendant has appealed his conviction.
The conviction will be affirmed. As to the sentence, we agree with the government that the district court erred in its understanding of the sentencing guidelines. The case will be sent back for resentencing, with the guidelines — construed in accordance with this opinion — to be taken into account by the district court, but no longer to be treated as mandatory. See United States v. Booker, 125 S.Ct. 738 (2005).
I
The defendant, 19-year-old Antonio Forrest, joined two other young men — Blake Jones and Randy Banks — in robbing a Louisville convenience store in January of 2002. Jones and Banks carried loaded handguns, and Mr. Forrest carried what he says was a toy cap gun. (The cap gun was never recovered, but the weapons carried by Jones and Banks — a revolver and a semi-automatic pistol — were recovered and were placed in evidence at Forrest‘s trial.)
A store employee named Mohamad Tariq was manning a cash register at the time of the robbery. A second register was being worked by an employee named Mohamad Arif. Cursing and brandishing their guns, the robbers forced a third employee and several customers to lie down on the floor, while Tariq and Arif were importuned, in the foulest of language and at gunpoint, to hand over the store‘s money. One of the robbers threatened to kill the obviously terrified Tariq if he didn‘t hurry up in opening his cash register. Approximately $400 was taken, some of it in the form of rolled coins, and the robbers ran out of the store carrying the money in a plastic bag.
Mr. Arif called 911, and officers of the Louisville police department responded to the call. One of the officers saw three men running. After giving chase, he succeeded in apprehending Blake Jones. Jones was taken back to the store and identified as one of the robbers.
A short time later an officer with a tracking dog discovered the defendant, Antonio Forrest, lying on his back in an apartment building alcove not far from the convenience store. A plastic bag containing rolled coins was found near Forrest, and a total of $391 was recovered from his person. In his pocket was the stub of a $190.64 paycheck. Forrest too was taken back to the store, and Tariq identified him as one of the robbers. Randy Banks, the third robber, evaded capture by the Louisville police, but he was eventually picked up on unrelated charges in another state.
After being identified at the convenience store, Jones and Forrest were taken to police headquarters. There Jones gave a confession. Both men were charged with first degree robbery under Kentucky law, and they were subsequently indicted for that crime by a Kentucky grand jury. They pleaded not guilty.
In June of 2002 a federal grand jury handed up a two-count indictment charging Forrest and Jones with obstructing interstate commerce by robbery, a violation of the Hobbs Act,
Prior to his indictment by the federal grand jury, Forrest had been kept in a Kentucky jail cell because of his inability to make bond on the state robbery charge. At the time of the federal indictment he was transferred to the custody of the United States under a writ of habeas corpus ad prosequendum. Following a detention hearing, a federal magistrate ordered that Forrest be released on an unsecured bond subject to the condition that he be confined at home with electronic monitoring. Forrest was then returned to the Kentucky jail, apparently because he had been transferred from state custody under a writ. Forrest remained in jail for several days, at which point the state robbery charge was dismissed.
Forrest moved for dismissal of the federal charges on the ground that his return to state custody violated the Interstate Agreement on Detainers Act,
Blake Jones pleaded guilty to the federal charges prior to trial and agreed to cooperate with the prosecution. Antonio Forrest stuck with his plea of not guilty.
The case against Forrest proceeded to trial in January of 2003. During jury selection, at a time when there was only one African-American (a woman) on the panel of prospective jurors, the government exercised a peremptory challenge against her. Forrest — also an African-American — moved for a mistrial, but the motion was denied.
The testimony of Blake Jones formed a major part of the government‘s case against Forrest. Jones named Forrest as a participant in the robbery, along with himself and Banks.
Forrest did not take the stand at trial, but his attorney argued to the jury that Jones was lying and that Forrest had simply had the misfortune of being at the wrong place at the wrong time. The jury did not see it that way, and Forrest was found guilty of both of the charges against him.
Forrest moved for a new trial on the ground that in final argument the prosecutor had commented improperly on his decision not to testify. The motion was denied.
Prior to sentencing Forrest was interviewed by a United States Probation Officer. Forrest acknowledged to the probation officer that he had been a participant in the robbery. He said that the idea for robbing the convenience store had originated with Banks, the man who had the semi-automatic pistol. Jones carried the revolver during the robbery, according to Forrest, while he himself carried a toy cap gun that he subsequently threw away while running from the police.
The probation officer prepared a presentence investigation report in which, among other things, he recommended that Forrest‘s sentencing guidelines offense level be reduced under
Mr. Forrest had no criminal history points, which meant that the sentencing guidelines placed him in Criminal History Category I. As calculated by the district court, and with the acceptance-of-responsibility adjustment included, the guideline range for Mr. Forrest‘s Hobbs Act offense was
The government filed a timely notice of appeal, and Mr. Forrest took a timely cross-appeal. The government‘s appellate brief contends that the district court erred both in reducing the defendant‘s offense level for acceptance of responsibility and in departing downward from the sentencing range prescribed by the guidelines.
Mr. Forrest denies that the sentence reductions were erroneous, but he claims error in four other respects. Forrest contends (1) that the government violated his rights under the Interstate Agreement on Detainers, (2) that the government violated his Fifth Amendment right against self-incrimination by commenting on his failure to offer proof on various subjects, (3) that the government failed to present sufficient evidence that the two weapons admitted as trial exhibits qualified as “firearms,” and (4) that the government violated his rights under Batson v. Kentucky, 476 U.S. 71 (1981), when it excused the African-American woman from the jury panel.
We heard oral argument in this case last August. By that time the United States Supreme Court had granted certiorari in United States v. Booker, No. 04-104, and United States v. Fanfan, No. 04-105, both of which involved Sixth Amendment challenges to the sentencing guidelines in light of Blakely v. Washington, 542 U.S. 296 (2004). Counsel for the parties recommended at oral argument that we defer the issuance of our opinion until after resolution of the issues presented in Booker and Fanfan. The Supreme Court‘s decision in those cases came down in January of this year.
For reasons to be explained shortly, we conclude that none of Mr. Forrest‘s assignments of error is meritorious. The government‘s challenges to the district court‘s application of the sentencing guidelines are well taken, we conclude, notwithstanding that Booker has now invalidated the provisions of the Sentencing Reform Act that made the guidelines mandatory. Sentencing courts must still take the guidelines into account and must construe the guidelines properly in doing so. On remand it will be up to the district court to determine (subject to the possibility of review by this court for reasonableness) what sentence Mr. Forrest should receive under the post-Booker dispensation, taking into account what the guidelines say in their precatory voice and giving appropriate consideration to the statutory factors that have always been relevant under the Sentencing Reform Act of 1984. See
II
Before analyzing the sentencing issues, we turn to Mr. Forrest‘s assignments of error. As noted above, there are four of them.
A
Forrest argues first that the government violated the Interstate Agreement on Detainers,
Whether or not Forrest had notice and an opportunity to be heard, we conclude that there was no violation of the Interstate Agreement on Detainers. It is clear, under our caselaw, that the Agreement applies only to “prisoners who have begun serving their [state] sentence and not to [state] pre-trial detainees.” United States v. Wilson, 27 F.3d 1126, 1130 (6th Cir.), cert. denied, 513 U.S. 976 (1994); see also United States v. Roberts, 548 F.2d 665, 670-71 (6th Cir.), cert. denied, 431 U.S. 931 (1977). Forrest was never convicted in the state court; as far as Kentucky was concerned, he was a pretrial detainee at the time he was “shuttled” between state and federal custody.
Mr. Forrest suggests that the Supreme Court‘s decision in Alabama v. Bozeman, 533 U.S. 146 (2001), undermines Wilson and Roberts. But Bozeman does not address the question of whether the Interstate Agreement on Detainers applies to state pretrial detainees. At most, Bozeman casts doubt on one basis for this court‘s holdings, i.e., a determination that the Agreement is designed to minimize interruption of “programs of treatment and rehabilitation.” Roberts, 548 F.2d at 670-71; see also Bozeman, 533 U.S. at 154-56. There is another basis for the Wilson and Roberts holdings, however: the plain language of the Agreement. By its terms, the Agreement applies only to persons who have “entered upon a term of imprisonment in a penal or correctional institution of a party State.”
B
The second argument advanced in the cross-appeal is that the prosecutor improperly commented on Forrest‘s decision not to testify at trial. The comments in question came in the government‘s rebuttal argument to the jury. Responding to the defense lawyer‘s suggestion that Forrest had fallen to the ground when “attacked” by the tracking dog (i.e., that Forrest had not lain down in an effort to hide from the police), the prosecutor said this:
“Mr. Earhart talked about Mr. Forrest lying down in this alcove. He‘s telling you that he fell down when the dog approached him. What evidence, ladies and gentlemen, is there of that? Mr. Earhart wanted to talk to you about evidence and what evidence you had and what evidence you don‘t. Did you hear any evidence at all about Antonio Forrest falling down? Where did he fall down from? . . . Where did he come from? Is there any evidence about where he came from? There‘s only one piece of evidence about that, and that evidence is the robbers ran through here and up to there. That‘s the only evidence about where Antonio Forrest went or came from. There‘s no other evidence about that.”
In addition, responding to the defense lawyer‘s argument that the $391 found on Forrest was Forrest‘s own money, the prosecutor had this to say:
“Mr. Earhart told you about Antonio Forrest cashing a check. We do have a check stub, but as Mr. Earhart told you, Mr. Forrest had more money in his pocket than what that check stub represents. Where did the other money come from?”
Our first task in assessing this assignment of error is to determine whether the prosecutor‘s comments were improper. See United States v. Carroll, 26 F.3d 1380, 1387 (6th Cir. 1994). If they
It does not appear to us that the prosecutor‘s comments were improper. They were made in response to factual theories presented in the closing argument for the defense, and the prosecutor was entitled to point out the lack of evidence supporting those theories. See United States v. Tarwater, 308 F.3d 494, 511 (6th Cir. 2002) (holding that the prohibition against commenting on a criminal defendant‘s silence “does not extend to a defendant‘s failure to call a witness or to otherwise present exculpatory evidence“). The defense theories, if valid, might well have been supported by evidence from third-party witnesses, and the prosecutor‘s comments on the absence of supporting evidence did not improperly highlight Forrest‘s failure to take the stand himself.
Even if the comments were improper, moreover, they were not so flagrant as to require reversal. Flagrancy is a function of four factors: (1) whether the prosecutor‘s comments tended to mislead the jury or to prejudice the defendant, (2) whether they were isolated or extensive, (3) whether they were deliberate or accidental, and (4) whether the evidence against the defendant was otherwise strong. Carroll, 26 F.3d at 1385, 1387. We do not believe that the comments at issue here were likely to mislead the jury or to prejudice Mr. Forrest unfairly. They were not accidental, but neither were they extensive. Moreover, the evidence against Forrest — which included the inculpatory testimony of another of the robbers — was very strong indeed. If there was an error here, it did not rise to the level of reversible error.
C
In his next assignment of error, Mr. Forrest submits that the government failed to present sufficient evidence that the revolver and semi-automatic pistol used in the robbery were “firearms” within the meaning of federal law. Although the weapons themselves were introduced as exhibits, Forrest contends that the government was obligated to present evidence of their “operation or functionality.” He relies on
Forrest‘s argument has no merit. The jury had the actual weapons before it, and there was testimony that the weapons were loaded when recovered by the police. The jury could reasonably conclude that the weapons were capable of firing a projectile, or at least that they had been designed for that purpose.
D
Mr. Forrest‘s final argument, based on Batson v. Kentucky, 476 U.S. 79 (1986), is that the government violated his due process and equal protection rights by striking the lone African-American from the jury pool. To establish an equal protection violation under Batson,
“the claimant must first establish a prima facie case of racial discrimination. If the claimant establishes a prima facie case, the party exercising the peremptory must proffer a race-neutral explanation. This non-racial explanation ‘need not be particularly persuasive, or even plausible, so long as it is neutral.’ After the defending party offers its race-neutral justification, the challenging party must demonstrate that the purported explanation is merely a pretext for a racial motivation. As with discrimination claims generally, the ultimate burden of persuasion always rests with the party challenging the peremptory.” McCurdy v. Montgomery County, Ohio, 240 F.3d 512, 521 (6th Cir. 2001) (citations omitted).
III
Having concluded that Forrest‘s conviction must be affirmed, we turn to the government‘s appeal of the 12-month sentence imposed with respect to the Hobbs Act count.1 As we have said, the government challenges both the granting of an offense-level reduction for Forrest‘s eleventh-hour acceptance of responsibility and the granting of a downward departure on the basis of the atypicality of the prosecution of a garden-variety convenience store robbery in federal court under the Hobbs Act.
A
The Sentencing Commission has explained that
“In rare situations a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial. This may occur, for example, where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt . . . . In each such instance, however, a determination that a defendant has accepted responsibility will be based primarily upon pre-trial statements and conduct.” Id. (Emphasis supplied.)
Mr. Forrest asserts that he went to trial to preserve issues unrelated to factual guilt, namely (1) an issue as to the admissibility of the identification made by Mr. Tariq (an issue that was mooted
It seems clear that Mr. Forrest did not admit guilt until after his conviction. He put the government to its proof by denying the essential factual elements of guilt, and
It is true that Mr. Forrest freely acknowledged his role in the robbery after the jury had found him guilty, and it may seem harsh to penalize him for exercising his constitutional right to a trial. But while our society places a high value on the ancient right of an accused to insist that the question of his guilt be determined by a jury of his peers, we also place a high value on governmental protection of the lives and property of people like Mohamad Tariq and Mohamad Arif and their customers. We want armed robbers taken off the street, and — rightly or wrongly — we are less than enthusiastic about shouldering the costs that would be incurred if every person accused of a crime insisted on exercising his right to a trial. The Sentencing Commission has thus decided to offer a carrot, in the form of a
B
The final issue presented in this appeal involves a carrot-and-stick tactic adopted by the state prosecutor in cooperation with the office of the U.S. Attorney and without the participation of the Sentencing Commission. Mr. Forrest contends — and for purposes of this opinion we accept the contention as true — that he would not have been prosecuted in federal court but for his refusal to plead guilty to the robbery charge brought against him in state court. Were he to be prosecuted federally, as the Kentucky authorities presumably told him while he was residing in their jail, he would face a mandatory sentence of at least seven years for the federal firearm offense — and that sentence would have to be served consecutively to whatever sentence might be imposed for obstruction of interstate commerce by robbery in violation of the Hobbs Act. We assume that the Kentucky authorities let Mr. Forrest know that a plea of guilty to the state robbery charge would spare him the perils of a federal prosecution and that his state sentence would probably be shorter than the sentence he could expect to receive if convicted in a federal court.
Against this background, Mr. Forrest moved for a downward departure in accordance with
In Booker, the Supreme Court elected to “excise”
In the case at bar the district court concluded that Mr. Forrest‘s robbery offense fell outside the “heartland” of guideline cases because the robbery was being prosecuted in federal court rather than in state court. Most robberies that do not involve organized crime or gang activity are prosecuted locally. Indeed, as the district court noted, internal Department of Justice guidance contained in the 1997 United States Attorney Manual tells federal prosecutors that “[t]he robbery offense in 18 U.S.C. Sec. 1951 [the Hobbs Act] is to be utilized only in instances involving organized crime, gang activity, or wide-ranging schemes.” The district court was thus sympathetic to Mr. Forrest‘s argument that “this is not the typical federal robbery case.” Given what the court called “the historical use of the Hobbs Act, the types of robberies customarily prosecuted in federal court, the suggestion of punitive federal prosecution, and the nature of the offense involved in this case,” and given the court‘s belief that Mr. Forrest‘s participation in the hold up was “outside the heartland of robbery cases addressed by the Sentencing Guidelines,” the court decided that a substantial downward departure was warranted.
Under either a “de novo” standard or an “abuse of discretion” standard the district court‘s decision to depart would seem to be erroneous.3 “What the district court must determine is whether the misconduct that occurred in the particular instance suffices to make the case atypical.” Koon v. United States, 518 U.S. 81, 100 (1996). (Emphasis supplied.) The sentencing court‘s focus, in other words, must be on “the conduct that each guideline describes.”
The guideline under which Mr. Forrest was sentenced for his Hobbs Act violation is
The district court was concerned in this case about “the suggestion of punitive federal prosecution.” We fully understand the basis for the court‘s concern. Again, however, the motivation of the prosecutor has no bearing, as far as we can see, on the typicality of the defendant‘s misconduct. For what it may be worth, moreover, we note that just as a “decision to prosecute [the defendant] under a statute with a ‘severe’ penalty is not cause for a downward departure,” see United States v. Reed, 264 F.3d 640, 650 (6th Cir. 2001), a federal indictment obtained against one who has been threatened with federal prosecution for refusing to plead guilty to state charges is not subject to dismissal on grounds of “vindictive prosecution.” See United States v. Williams, 47 F.3d 658, 661 (4th Cir. 1993) (citing Bordenkircher v. Hayes, 434 U.S. 357, 358-59, 365 (1978) (no prosecutorial vindictiveness in charging the defendant under a recidivist statute carrying a mandatory life term after the defendant has refused to plead guilty to original charges that carried a sentence of two to 10 years)).4
IV
For the reasons stated in the preceding part of this opinion, we believe that the district court misread the guidelines in concluding that they authorized imposition of a prison term outside a range of 33 to 41 months for Mr. Forrest‘s Hobbs Act violation. Had the district court read the guidelines correctly, and had the court realized at the same time that Booker would render the guidelines advisory rather than mandatory, we do not know whether the court would have imposed a sentence of 12 months, 33 months, or some intermediate term. Accordingly, Mr. Forrest must be resentenced.
On remand, the district court should take the guidelines into account, reading them as we have read them here. The court need not follow the guidelines, however, if it concludes that a Hobbs Act sentence outside the guidelines range would be reasonable in light of the statutory factors set forth in
Mr. Forrest‘s Hobbs Act sentence is VACATED, the judgment of conviction and sentence is in all other respects AFFIRMED, and the case is REMANDED for further proceedings not inconsistent with this opinion.