United States v. Frenklyn Piggie

Munoz, Harris v. allegations duties.” 43 S.W.3d the sheriff threatened (Mo.Ct.App.2001). Generally speak them with a loaded We also con- discretionary are in ing, acts those acts only clude that Springer Ms. has suffi- volving the official’s exercise of reason in ciently alleged a constitutional violation end, developing a means to an and “the based on the invasion bodily of her integri- employment judgment to determine how ty. To the extent the district court found performed or whether act should be or otherwise, judgment its is reversed. We pursued.” a course Id. As affirm the judgment of the district court in however, recognized, official immuni all other respects. ty not apply does where the official’s dis cretionary act was undertaken in bad faith Educ.,

or with malice. Davis v. Bd. (Mo.Ct.App.1998). S.W.2d ample sup-

The record contains evidence porting the district court’s conclusion that America, UNITED STATES plaintiffs’ prem- state law claims are Appellee, ised on the sheriffs bad-faith conduct. negligent infliction claims are based same underlying par- conduct Frenklyn PIGGIE, Appellant. claims, ties’ substantive due process No. 01-3170. impossible we find it to characterize that Appeals, Court of conduct-groping employees, making lewd Eighth comments, Circuit. sexual threatening employ- ees with death or physical harm-as the Submitted: Sept. “exercise of reason” to which immunity Filed: Jan. respect attaches. With to Hawkins’ and arising Johnson’s claims out of their termi-

nation, they present evidence began

sheriff a campaign justify their

termination after employees com-

plained of his conduct and that the sheriff

asked another to prepare officer a false (in

affidavit exchange promotion) for a

support the legitimacy of the sheriffs ter-

mination decision. a jury

could reasonably infer that the sheriffs

actions were undertaken bad faith or thus, malice; state plaintiffs’ law

claims are not barred by immunity. official

III.

We conclude that plaintiffs Haw-

kins, Hennenflow, Fields, and Huffman alleged permit

have facts that would jury

reasonable find Sheriff Hollo-

way violated their established sub- process

stantive due rights. potential solely

violations arise plaintiffs’ from these Ernst, Kansas argued,

Frederick J. MO, appellant. for City, Hunt, City, Kansas argued, Michael J. MO, appellee. for BOWMAN, LAY, and Before MURPHY, Judges. Circuit BOWMAN, Judge. Circuit trial, Frenklyn Piggie Following jury being posses- a felon was convicted firearm, a violation of 18 U.S.C. sion of a 924(a)(2) (1994 Supp. §§ V 922(g)(1) and 1999).1 sentenced The District Court2 statute, years. 922(g)(1) ten felon-in-possession 924(a)(2). 922(g)(1), provides be unlaw- shall "[i]t any person-(l) ful who has been convicted for of, punishable by impris- a crime Laughrey, United Honorable Nanette K. exceeding year" one onment for a term Judge District for the Western States District statutory knowingly possess a firearm. Missouri. a violation of maximum sentence ninety-two imprison- months of Piggie II. years three supervised

ment followed A. challenges his sentence. release. challenges first his sentence on below, For the reasons discussed we af- the basis Apprendi under v. New firm. 466, 2348, Jersey, 530 U.S. 120 S.Ct. 147 (2000), I. the District Court erred in setting his base offense level at 8, 2000, City, March On Kansas Mis- 2K2.1(a)(3). under U.S.S.G. According souri, police officers executed a search Piggie, this determination violated his at Piggie’s police warrant residence. The rights constitutional because there was no Piggie after attempted officers arrested he indication the jury indictment or finding escape out the back door of the resi- that he in possession of an assault A premises dence. search of the produced weapon within meaning the of 26 U.S.C. rifle; a five firearms: Norinco Model SKS 5845(a) 921(a)(30). or 18 U.S.C. Co., rifle; a Federal Arms Model FA91 a Supreme Court in Apprendi held BFI, CAR-AR, rifle; Model .223 a Sig “fojther conviction, than prior the fact of a P229, Sauer, handgun; semi-automatic and any fact that penalty increases the for a Beretta, FS, a Model 92 9mm handgun beyond crime the prescribed statutory sight. with a laser The search also recov- maximum must be submitted to a jury, ammunition, vests, bulletproof ered four proved beyond a reasonable doubt.” holster, magazines, handgun firearm a U.S. papers numerous and documents ad- added). trial,

dressed to At Piggie. parties the Piggie had been convicted We Apprendi conclude that has no felony of at least one for which he had application Piggie’s case. As we ob imprisonment great- a term of received served United Aguayo-Delga States v. year. parties er than one stipu- also do, rule of Apprendi only applies “[t]he lated that the firearms were manufactured non-jury where the factual determination outside the state of Missouri and that the increases the beyond maximum sentence inoperable Norinco assault rifle was statutory range authorized laboratory, received in the but that it is (8th jury’s verdict.” 220 F.3d designed expel projectile by action of Cir.2000), explosion. The other four firearms S.Ct. Simi operable. were found Lewis, larly, in United specifi conviction,

Following his Piggie cally raised found that multiple objections probation several to the officer’s firearms would be used to enhance calculation of his base guidelines offense level and if range the enhance history category criminal reported ment does not affect statutory maxi (PSR). the presentence report At mum sen- sentence. 236 F.3d Cir.2001). tencing, adopted Court, the District Court Supreme in affirm Circuit, PSR’s calculations and sen- a decision of the Fourth re months, Piggie ninety-two tenced cently reading confirmed our Circuit’s States, applicable guidelines lowest end of the Apprendi. See Harris v. United range.3 Piggie appeals now his sentence. 153 L.Ed.2d (U.S.S.G.) The District Court sentenced States Guidelines man- the November 2000 edition of the United ual. level of a base offense did and that sentencing judge (holding guide- therefore recommended defendant’s constitutional not violate ¶¶ 8, trial counsel prepon lines. PSR making rights to this determina- that increased a general of the evidence filed derance tion, because offense level minimum sentence that his base statutory arguing statutory fell within the imposed above 20 sentence not be set should crime of for the prescribed findings as to the any maximum make jury did not properly had the defendant been which did weapons possessed. he kinds of case, convicted). the felon-in- recom- objection to the make stat ten-year imposes statute level. in his base offense mended increase maximum sentence. See utory officer’s probation the addendum In 924(a)(2). sentenced The District Court § PSR, District that the recommended he statutory this below to a sentence Piggie objection Piggie’s because Court overrule Thus, does not Piggie’s appeal maximum. justify facts to the “adequate there were issue, his Apprendi as meritorious raise a 2K2.1(a)(3).” to Addendum application of “beyond prescribed the sentence was sentencing hearing, During the the PSR.4 530 U.S. Apprendi, maximum.” statutory laek-of-jury-find- again stated his Piggie Harris, 2348; see also at 120 S.Ct. level objection to the base offense ings -, at 2416-19. at time, Piggie also At that computation. his District Court that agreed with the B. was, essence, “Apprendi objection in that the District next contends the Sen- objection” to base level. at setting his offense level erred tencing at 2-3. Tr. 2K2.1(a)(3), rely- by § under U.S.S.G. contends the appeal, Piggie Norinco as- possession of the ing on his by his base setting Court erred District Dis- argues the He also that sault rifle. there was not at because offense level his increased impermissibly trict Court . posses evidence that he was sufficient two by level an additional base offense assault “operable” of an Norinco sion 2K2.1(b)(l)(B), levels, for his pursuant to 18, a ren Title firearm weapon. Under Specifically, of five firearms. possession exempted inoperable is failed dered government that the Piggie argues pos- of firearms banned that he was from class to evidence the introduce 922(v)(3)(B)(ii) assault of a banned the statute. session 5845(a) (and 1999). (1994 or 18 U.S.C. the Supp. V 921(a)(30)(A)(i) government and that dissent) the parties the argue because pos- evidence of his presented insufficient inop Norinco rifle was the firearms. operable of five session erable, not have District Court should posses level for his base offense increased PSR, found probation officer In the however, weapon. Piggie, sion of this firearms seized at the one of the five objection specific made no weapon, a Norinco residence “was 921(a)(30) District concerning the factual basis of the [sic]” under 18 U.S.C. listed probation probation officer’s recommendation doubt the officer can be no There his base offense level at inoperability, in- to set his of the Norinco’s was aware 8,¶ notes, weapon. possession See of this Addendum that "four PSR asmuch justify appli- ("adequate opera- facts were PSR firearms confirmed five 2K2.1(a)(3)”). Consequently, as dis- Although Piggie knew the Norinco’s cation of ble.” infra, is for our review of this issue object in written cussed inoperability, he failed to his only. during plain objections his sentenc- error to the PSR and Cir.1996) (holding to set base F.3d determination Court’s may accept “[a] at 22 for his of the district court as true all offense level claim factual weapon, allegations nor did he contained in the Norinco assault PSR permanently inoperable, specifically objected by are not this firearm parties”) at all anything (citing did he do to raise United States v. Monta nor (8th Cir.1993) inoperability” disputed nye, as a “permanent (en banc), Piggie’s argument that he made a issue. (1996)).

sufficiently put specific concerning government proof its Piggie and the dissent argue also that a nonpermanent inoperability Norinco specific objection to the base offense level assault rifle is belied the record.5 lodged during sentencing that we have counsel for Piggie The dissent contends and the government’s informed somehow obviated the bur the District Court that it had to make a proof regarding den of the District Court’s factual determination about wheth- applies. determination to set base offense er “the enhancement” claims, Tr. at Contrary level at for his of the Norin- 4-5. to these sentencing transcript Post at 12. But inas co assault makes clear Piggie’s objection much failed to make a sufficient related solely to the objection put government number of ly specific weapons possessed by Piggie, issue, accept we not their proof Specifically, to its on this cannot characteristics. See, point. objection position question, the dissent’s on this raised the addressed Hammer, 266, below, v. 3 F.3d e.g., United States of whether an additional two-level (8th Cir.1993) (“The increase proof (bringing Piggie’s burden is offense level to 24) government respect appropriate on the to the under U.S.S.G. 2K2.1(b)(l)(B) § any enhancing level fac of Piggie’s pos- base offense and ... objection tors. Unless a defendant has admit session of five firearms. The did in alleged presentence setting ted the facts a re not concern the of the base offense at 22 port, report grounded Piggie’s possession is not evidence and is not level legally making sufficient find a rifle that basis of Norinco assault was not ings permanently inoperable. on contested issues of material fact.” added)), denied, having specific objection cert. failed to make a U.S. 1139, 1121, 114 S.Ct. 127 L.Ed.2d 430 to direct the District Court’s attention to (1994). previously, Piggie As stated did whether Norinco assault “permanent inoperable, Piggie not raise as a “must inoperability” plain prevail.” contested issue of fact. The District show error United Court (8th Jones, accept therefore was entitled to the States v. 195 F.3d true LaRoche, Cir.1999); allegations regarding in the see also 83 F.3d at PSR LaRoche, weapon. See United States v. 83 959.6 sentencing Though govern- asserts that the recommendation contained in dissent “hoodwinking” Piggie by stipulat- ment was objection of the the PSR. A clear articulation inoperable, that the Norinco firearm was gives the to the recommendation post absolutely there is no evidence in opportunity any district court an to resolve support We the record to this assertion. are guides disputed questions of fact or law and it not inclined to attribute base motives to the appellate by clarifying objec review which any party for that —or objec preserved and tions have been which speculation. matter —on the basis of sheer See, e.g., tions have been United waived. Maurice, (11th 69 F.3d requiring importance 6. We stress the coun- 1995). Cir. sel to for an state basis standard, cannot that the District Court error conclude plain

Under “(1) the district setting Piggie’s must show plain committed error (2) erred; plain or the error was offense level at 22. See United base law; current clear under then (8th Karam, v. 37 F.3d States rights.” [his] error affected substantial Cir.1994) Kenyon, v. (citing United States Davidson, Cir.1993)), cert. de F.3d (8th Cir.1999), States, nied, El Hani v. United 145 L.Ed.2d 1113, 130 L.Ed.2d 1077 (2000). Piggie cannot demonstrate guideline for a plain applicable error. The 922(g)(1) §§ of 18 U.S.C. violation addition, the District we find 924(a)(2) § 2K2.1. is found U.S.S.G. Un a further applying did not err level of guideline, der that base offense base offense two-level increase “if involved a required the offense in ground level on the the offense 5845(a) in 26 described U.S.C. firearm five firearms. See U.S.S.G. volved 921(a)(30), and the defen or 18 U.S.C. 2K2.1(b)(l)(B). At sentencing, felony conviction of prior dant had one objected application counsel or controlled either a crime of violence ground on the two-level enhancement offense.” U.S.S.G. substance pos there was no factual he 2K2.1(a)(3). The assault statute single during than a firearm sessed more firearms, question “any describes Based on the evidence the instant offense. duplicates of the firearms in copies or or as-(i) caliber, during known Norinco.” 18 at trial and statements sen 921(a)(30)(A)(i)(1994 Supp. V tencing hearing, we conclude the District 1999). Admitted into evidence at trial was in that Court did not err that police the Norinco assault rifle recov Piggie possession was in of five firearms.7 Piggie’s ered from residence. As men opinion, earlier in this a firearm

tioned C. permanently inoperable rendered is ex empted from the class of firearms banned final is that the Dis- contention statute. in criminal calculating trict Court erred his 922(v)(3)(B)(ii). trial, parties At history category by ruling that his two stipulated that the Norinco firearm was prior felony drug convictions were unrelat- no inoperable, but evidence was introduced sentencing purposes ed cases for permanent that this was rendered 4A1.2(a)(2) section of the U.S.S.G. This ly rejected inoperable. The District Court argument no merit. has Under sen- Piggie’s “Apprendi objection” to the base tencing guidelines, “[p]rior sentences are computation adopted level and they not considered related if were for PSR, including Piggie’s posses of the facts by an inter- separated offenses were of Norinco sion As (i.e., vening arrest the defendant is arrest- supra, Piggie any noted failed to make prior committing ed for the first offense objection to create a fact as to issue offense).” 4A1.2, the second U.S.S.G. whether the Norinco assault record, permanently inoperable. cmt. n. 3. On this possess weapons 7. As the District Court observed at sentenc- defendant did all of these fact, “Well, ing, rely this is a case where I can that were in the house. I think there upon testimony question Sentencing at which I heard trial. is no about that.” Tr. testimony upon And based I find that the STA, January apply the STA does not reflects that on The record any meaning event to the of the term convicted Missouri Piggie was sentencing purposes. “arrest” for separate possession two of- court on state filed for both Complaints were fenses. requires “Any The STA infor 8, 1997. The August on these offenses charging mation or indictment an individu of a con- possession was for first offense al with the commission of an offense shall intent to distribute. trolled substance with thirty days be filed within from the date on on stems from arrest That offense which such individual was arrested or 28, 1997, grams of 3.97 May possession for served with a summons in connection with cocaine base. grams and 1.9 of of PCP 3161(b). charges.” such of conviction for Piggie’s second does not define “arrest” nor does it STA was the result of his a controlled substance purport give anything “arrest” May arrest ordinary meaning. Piggie than its cites base. At grams 0.7 of cocaine Jones, United States v. counsel charges, Piggie’s on the federal Cir.1982), cert. separat- offenses were agreed that two (1982), for the intervening ed an arrest. an proposition under the STA arrest Tr. at 6. does not occur until the takes that this appeal, Piggie requests now On an custody pursuant individual into purposes hold that an arrest for complaint charge. or formal Jones and § 4A1.2 occurs when indi- U.S.S.G. construing other decisions of this Court 3161(b)8 custody pursuant taken into vidual is triggering deal with the charge. Piggie’s trial, stand, formal ar- complaint or right they to a all speedy gument premised provisions on the of quite predictably, proposition for the (STA) Speedy govern Trial Act triggering event is an arrest in connec determinations as to when the STA clock tion the crime for which the defen 3161(b) to run. See 18 U.S.C. starts dant They way lay is tried. no down (1994 V.1999). According Pig- Supp. new, generally applicable definition “ar (just a gie, intervening there was no arrest rest.” fails to cite case detention) posses- lawful between the two support position “triggering of his that the May sion offenses committed jurisprudence event” under the STA has 1997 because the state of Missouri did not proceedings. any application sentencing 3161(b) Au- charge § with either offense until language requires of plain 8, fact gust Leaving aside the an indict only file argument by pre- thirty days not Piggie waived this ment or information within of Court, reject we it an senting it to the District individual’s arrest. (1) provide of a definition of misreading it is based on a Guidelines do Wilson, 968, or information is

8. See United States v. 102 F.3d which the indictment 1067, denied, (8th 1996) ("The filed."), right speedy cert. 506 U.S. 972 Cir. 1016, (1993); triggered by charge trial arrest 122 L.Ed.2d 163 United States on Davis, 610, (8th Cir.1986) beginning where the arrest of continu v. 785 F.2d 3161(b) liberty imposed (noting "an arrest under restraints on defendant's arrest, charge as a com connection with the formal means a formal such when (in eventually plaint, indictment has been which the defendant is tried.” information or omitted)); (citations omitted)); v. quotation and Unit United States ternal citation filed” Stead, 1170, (8th 1984); Beede, 948, (8th Cir. ed v. 950-51 745 F.2d States F.2d Boles, (8th Cir.1992) ("Section 3161(b) requires v. that the United States Cir.1982). charges on arrest be 'in connection with’ the consolidation formal order of because no presume must and we therefore “arrest” proceeded its the word to have and the cases Congress intended was issued See, meaning. ordinary, well-understood num docket separate States, 444 U.S. Perrin v. United e.g., bers”) (internal quotation citation and S.Ct. omitted), denied, (“A statutory con canon of fundamental (1999). L.Ed.2d S.Ct. defined, otherwise unless struction is taking their interpreted will be words III. common mean ordinary, contemporary, reasons, affirm foregoing For the that, consistent We are satisfied ing.”). Piggie’s sentence. at position sen Piggie’s expressed separate of two tencing, he was convicted LAY, Judge, concurring9 and Circuit on dif offenses that occurred dissenting. intervening with an arrest. ferent dates the district court is The sentence of err the District Court did not justice. denial his two convictions by treating sentencing purposes. unrelated for See an unlawful majority approves now Peltier, 276 F.3d v. Offense Level. Base (8th Cir.2002) (holding has the burden of the Government Since defendant’s correctly determined Level, to start at the Base Offense proving history category by treating of criminal 22 under a Base Offense Level of intervening unrelated because fenses as 2K2.1(a)(3), would have the Government — them), cert. separated arrests an assault prove Piggie possessed U.S. -, permanently inop- which was not weapon erable. argument —that 921(a)(30)(A)(i) desig- Title 18 U.S.C. relat offenses should be considered these as a semiautomatic nates Norinco rifle they for sen ed because were consolidated However, similarly no We have tencing avail. —is 922(v)(3)(B)(ii) provides exception held, here, previously as is case has designation where the imposed or more sentences “two permanently inoperable. rendered been purposes same time ‘are not related for Here, the Nor- Government 4A1.2(a)(2) proceeded if the to sen cases failed to sub- inoperable inco was but then numbers, docket tencing separate to whether the rifle mit evidence as and there was no formal order of consoli ” By or not. inoperable Klein, dation.’ United States F.3d agreeing inoperable, that the Cir.1994) (quoting United further failing step but to take the McComber, 996 F.2d was weapon demonstrate that the issue denied, Cir.1993)), cert. U.S. the permanently inoperable, Govern- (1994); 2722, 129 L.Ed.2d 846 see S.Ct. proving of Bartolotta, ment failed to meet its burden also United States (8th Cir.1998) an weapon the Norinco was assault (holding that defen 2K2.1(a)(3). of prior “crimes were not consolidated for U.S.S.G. purposes dant’s majority IIA and C of the This is consistent with our earlier decision in I concur in Part Jersey, Aguayo-Delgado, 220 opinion. agree Apprendi v. New United States v. F.3d I (8th Cir.2000), (2000), application has no case. majority opinion, sentencing hearing. the Defen- the The trial counsel the Under justice by the has been denied sen- issue, dant objected to the Apprendi first but that he has received. Under the tence then added as follows: 2K2.1(a)(3), the commentary to U.S.S.G. I think the Court then has to make a weapon” does not of “assault definition determination because there has factual exempted a which is weapon include been none as to whether these enhance- of U.S.C. provisions the apply.... ments should So I would then 922(v)(3)(B)(ii). provides This section turn my argument factual to the Court of exempt that a firearm is reason the and ask gov- the Court to find that the permanent- it and is inoperable fact that ernment not met stipu- The has has its burden for the ly inoperable. Government at the time of the lated that Defendant’s enhancement. arrest, inoperable; Norinco was how- added). If the judge ever, it no evidence that the produced has objection, had heeded the appeal inoperable. Having gun permanently would not be here and the Defendant of the Government has proof,

the burden only would have been sentenced to Base exempt to show the firearm is not failed Offense Level of 20. provisions of 18 U.S.C. 922(v)(3)(B)(ii). Therefore, the Defen- I why fail to understand majority cannot assessed Base Offense dant be objec- does not find Defendant’s counsel’s of 22. Level adequate. tion speak words for them- possible reason could the Govern- What simply asking selves. Counsel is the court entering stipulation into a ment have for to make a factual determination as to inoperable? was gun Gov- apply. whether these enhancements obviously “hoodwinking” the ernment was part objection first an clearly was lawyer his as to the re- Defendant and however, objection; Apprendi the added exemption statute. The quirements of could relate to the absence knew or should have known Government as to the kind of firearms exemption require that the Guidelines for possessed by Piggie. Clearly, the Norinco inop- permanently that the rifle had to be should not have been counted as arrest, erable to be excluded. After the Although weapon. stipu- the Government trial, and at the time of the Govern- inoperable, lated that it was it failed to ment was sole permanently inopera- show that it was not Thus, only party it was the who could it not meet ble. could prove gun whether the was pur- definition of an assault inoperable or not. 5845(a). is, of 26 The fact poses ap- lend the The Government’s actions if the district court had made such a factu- pearance of bad faith. Once the Govern- determination, al it would have had to find gun inopera- ment was inop- that the Norinco assault ble, it was the Government’s burden to so, being erable at the time of trial. This it permanently inopera- show that was not upon it then incumbent ble to establish Base Offense Level why I fail to we should understand allow prove the assault Government play the Government to “hide and seek” permanently inoperable. weapon was not with the Defendant and this Court. proof, Based on the Government’s Level should have been set Base Offense majority also overlooks a portion made defense counsel at at 20.

79« court to ascertain the case to the district leading case of United

In the Ar- truth. Hammer, Judge Richard S. then-Chief wrote: nold reasons, I dissent. foregoing For the thus clear and law of this Circuit is subject: on the Confron- consistent apply not at sentenc-

tation Clause does by the District upon facts relied

ing, but proved by must be of the evidence.

preponderance is on the proof

burden base level and respect IKENOKWALU-WHITE, Edy Uzor enhancing factors. Petitioner—Appellant, v. Hammer, added). Cir.1993) AND NATURALIZA IMMIGRATION that the Defendant question There is no Aschroft, SERVICE; John D. TION alleged pre- the facts did not admit capacity Attorney his official Gen (to-wit, guns report sentence States, Respon eral of the United oper- all Piggie’s possession found in were Appellees. able). Furthermore, dents — question there is no object did as to the the Defendant No. 02-1264. identity guns absence of objection been were involved. Had this Appeals, United States Court sustained, would have the Government Eighth Circuit. the Norinco required

been to show Nov. Submitted: permanently inop- not assault erable. Filed: Jan. sides, I

In all fairness to both feel

matter should be remanded to evidentiary hearing as to

court to hold an

whether the Norinco The case permanently inoperable.

in fact

could decided on the basis of law then be

rather than fiction. question

We deal here with a of man’s unlawfully

liberty. person’s liberty If a month, day,

denied for one one or one

year, the court a crime of unlaw- commits punishment. game

ful This is not justice

play. It true that our criminal

system survives under an adversarial best so,

process, doing but in the court should the truth and system allow this to hide a sporting

allow our trials to turn into remand

event. On this basis we should

Case Details

Case Name: United States v. Frenklyn Piggie

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jan 17, 2003

Citation: 316 F.3d 789

Docket Number: 01-3170

Court Abbreviation: 8th Cir.