UNITED STATES of America, Plaintiff-Appellee, v. John Andrew MEKEDIAK, Defendant-Appellant.
No. 11-2572
United States Court of Appeals, Sixth Circuit.
Jan. 3, 2013.
510 Fed. Appx. 348
DAMON J. KEITH, Circuit Judge.
John Mekediak appeals his sentence following a guilty plea to being a felon in possession of a firearm. He argues that the district court erred by: 1) sentencing him as an armed career criminal, 2) setting his base offense level at 24, and 3) applying a four-level enhancement to his sentence for using a firearm in connection with another felony. For the reasons detailed below, we REVERSE and VACATE the sentence in part and AFFIRM in part.
BACKGROUND
On February 24, 2011, a federal grand jury in Grand Rapids, Michigan indicted John Andrew Mekediak on three counts of being a felon in possession of a firearm. Mekediak allegedly stole and transported ninety-six firearms across state lines and then sold them on the black market.
Mekediak agreed to a proffer interview with the United States Attorney‘s Office for the Western District of Michigan on the condition that if he was cooperative, then “nothing either said or revealed by him” would be used against him.1 Appellant Br. at 18, R. 49 at 4. During the interview, Mekediak informed the Government of an instance in which he traded two stolen firearms for approximately 3.5 grams of cocaine base, referred to by the parties and the district court as “the Minnesota transaction.” He also named the individuals who participated in the Minnesota transaction, one of them being an Edwin Wolf. Wolf was one of Mekediak‘s accomplices and was being investigated himself. Wolf had already completed two proffer interviews with the Government by the time Mekediak was interviewed, but it was Mekediak who first disclosed the Minnesota transaction to the Government.
On August 19, 2011, Mekediak pleaded guilty to one count of being a felon in possession of a firearm pursuant to a plea agreement. Prior to the sentencing hearing, a Presentence Investigation Report (“PSIR“) was prepared and submitted to the district court, recommending a sentencing range of 262-327 months.
The PSIR categorized Mekediak as an armed career criminal (“ACC“) based upon the following prior convictions: a 2003 adult conviction in which Mekediak pleaded guilty to a drug offense, specifically possession of a chemical or laboratory equipment that he knew or had reason to know would be used to manufacture a controlled substance; a 1999 adult conviction in which Mekediak pleaded guilty to unarmed robbery; and two 1995 juvenile delinquencies: one for possession of a short-barreled rifle and one for felonious assault. The PSIR also set Mekediak‘s base offense level at 24, naming the aforementioned 1999 adult conviction for unarmed robbery and 2003 adult drug offense as qualifying predicate felonies. Finally, the PSIR recommended a four-level sentence enhancement for using or possessing a firearm in connection with another felony offense. The PSIR cited “the Minnesota transaction” as a basis for applying the enhancement. The PSIR noted that the information regarding the Minnesota transaction was offered by Edwin Wolf. Mekediak‘s total adjusted offense level was 37.
Mekediak objected to the PSIR. Three of those objections have been preserved for this appeal: 1) his status as an armed career criminal, 2) his base offense level of 24, and 3) the application of the four-level possession enhancement to his sentence. At sentencing, Mark Semear, the special agent who interviewed both Mekediak and Wolf, testified that the interviews took place months apart. He attested that when Wolf divulged the Minnesota transaction, he was asked open-ended questions and that no one indicated that they had already heard about the Minnesota transaction from Mekediak. He further testified that he did not have his notes from Mekediak‘s interview with him at Wolf‘s interview, so he would not have been able to refer to the details from Mekediak‘s interview. The district court overruled Mekediak‘s objections and imposed a sentence below his guideline range, reasoning that his criminal history category of VI was inappropriately high. Mekediak was sentenced to 240 months in prison. We address each of Mekediak‘s objections below.
ANALYSIS
I. Armed Career Criminal Status
Mekediak challenges his status as an ACC. The district court considered the following in order to sentence Mekediak under the Armed Career Criminal Act (“ACCA“): a 2003 conviction for possession of drug manufacturing materials, a 1999 conviction for unarmed robbery, and two juvenile delinquencies from 1995—one for possession of a firearm and one for felonious assault. Mekediak argues that the district court improperly combined his individual juvenile delinquencies in order to make them into one “violent felony” as defined by the ACCA. Mekediak was not an ACC because his juvenile delinquencies were not predicate felonies for ACCA purposes.
A. The Armed Career Criminal Act
Federal law prohibits a previously convicted felon from possessing a firearm, imposing a maximum sentence of ten years’ imprisonment.
1. Violent Felony
The district court combined Mekediak‘s 1995 juvenile delinquencies into one act of juvenile delinquency that met the ACCA‘s definition of “violent felony.” A crime can meet the definition of “violent felony” in one of three ways: 1) the crime has the requisite element of actual, attempted, or threatened use of physical force against the person of another; 2) the crime is one of the statute‘s specifically identified offenses—burglary, arson, extortion, or a crime involving the use of explosives; or 3) the crime “otherwise involves” conduct that creates a high risk of physical harm to others.
B. The Categorical and Modified Categorical Approaches
To determine whether a prior conviction constitutes a qualifying crime—in this case, a “violent felony,” we use a two-step analysis. First, we employ a “categorical approach.” Taylor v. United States, 495 U.S. 575, 600, 602, 110 S. Ct. 2143, 109 L. Ed. 2d 607 (1990); United States v. Gibbs, 626 F.3d 344, 352 (6th Cir. 2010). To do this, we look only to the “statutory definition of the prior offense and not to the particular facts underlying the defendant‘s conviction.” United States v. Kearney, 675 F.3d 571, 574 (6th Cir. 2012). In other words, “we consider the offense generically... in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.” Begay, 553 U.S. at 141, 128 S. Ct. 1581. If the offense requires proof of facts that meet the ACCA‘s definition of a qualifying offense, then the conviction automatically counts as a predicate felony. See Taylor, 495 U.S. at 600, 110 S. Ct. 2143.
However, if it is possible to violate a statute in a way that would constitute a qualifying crime and in a way that would not, a second inquiry is necessary. See Shepard v. United States, 544 U.S. 13, 17, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005). In such a case, we use a “modified categorical approach” to determine whether there was a finding that the ultimate crime of conviction “necessarily” involved (and a prior plea necessarily admitted) facts equating to a qualifying crime. Id. at 24, 125 S. Ct. 1254. Such a finding must be contained within the ”Shepard documents.” Id. at 26, 125 S. Ct. 1254; United States v. Armstead, 467 F.3d 943, 948 (6th Cir. 2006). Shepard documents only include “the terms of the charging document, ... [the] plea agreement, ... or ... some comparable judicial record.” Shepard, 544 U.S. at 26, 125 S. Ct. 1254.
C. Analysis
In 1995, Mekediak was adjudicated as a juvenile on two counts—possession of a short-barreled rifle and felonious assault. R. 42-1. Mekediak argues that the district court improperly applied the modified categorical approach when it combined his individual juvenile offenses together in order to make them into one “violent felony” for the purposes of the ACCA. We agree.2
a. Possession of a Short-Barreled Rifle
One of Mekediak‘s juvenile delinquencies was for “possession of a short-barreled rifle” in violation of
b. Felonious Assault
Mekediak‘s other delinquency was for “felonious assault” in violation of
Here, the Shepard documents consist of the petition and the order of disposition. The petition, dated January 30, 1995, recites the count as follows “[O]n or about January 22, 1995, in the County of Calhoun, said juvenile did make an assault upon Louise W. Mekediak with intent to commit the crime of murder; Contrary to
Neither document narrows the felonious assault to the point that Mekediak‘s admitted criminal activity “necessarily or allegedly involved use of a firearm, knife, or destructive device[.]” United States v. Wells, 473 F.3d 640, 649 (6th Cir. 2007) (quoting
The district court applied the modified categorical approach to the firearm possession count and the felonious assault count collectively so that, together, the separate offenses blended to satisfy the ACCA‘s requirements. The district court reasoned that because “the two [counts] came in together as guilty findings on ... [the] same date, same location,” they could be combined. R. 49 at 56. In support of this position, the Government advances a case from the Third Circuit which concluded that “a sentencing court may consider all the statutory elements underlying the juvenile adjudication collectively.” United States v. Jones, 332 F.3d 688, 694 (3d Cir. 2003). This ignores the fact that Mekediak‘s firearm possession count should not be analyzed under the modified categorical approach at all. According to its statutory definition, it categorically is not a violent felony, as demonstrated above.
Supreme Court precedent decided after Jones warns us to reserve the modified categorical approach only when the categorical approach fails. See Taylor, 495 U.S. at 602, 110 S. Ct. 2143 (limiting modified categorical approach to a “narrow range of cases“); Shepard, 544 U.S. at 17, 125 S. Ct. 1254 (explaining the modified categorical approach as “an exception to [the] categorical approach“) (internal citation and quotation marks omitted). Precedent from this circuit compels us to do the same. See Armstead, 467 F.3d at 948; Jones, 673 F.3d at 504 n. 2. What is more, we have already rejected the argument that juvenile adjudications merit being treated any differently. See Wells, 473 F.3d at 649 (“[W]e opt to [apply the categorical approach] to consideration of prior juvenile adjudications in the context of sentencing pursuant to the Armed Career Criminal Act.“).
Juvenile offenses may not be combined to meet the ACCA‘s definition of a predicate felony and Mekediak‘s juvenile delinquencies were not a “violent felony.” After striking these offenses Mekediak does not have the three qualifying felonies required to be sentenced under the ACCA. See
II. Base Offense Level of 24
Of the two convictions used to set his base offense level at 24, Mekediak only disputes the use of his 1999 conviction for unarmed robbery as a “crime of violence” under the United States Sentencing Guidelines (“USSG“). However, under the categorical approach, unarmed robbery fits comfortably within the residual clause of “crime of violence.”
A. The United States Sentencing Guidelines
We review legal conclusions regarding the application of the USSG de novo. United States v. Jackson, 635 F.3d 205, 207 (6th Cir. 2011). Pursuant to Section 2K2.1(a)(2) of the USSG, a defendant‘s initial base offense level is set at 24 if the defendant has at least two prior felony convictions that constitute either a “crime of violence” or a “controlled substance offense.” U.S. Sentencing Guidelines Manual § 2K2.1(a)(2). “Crime of violence” under the USSG is defined in the exact same terms as “violent felony” under the ACCA. See U.S. Sentencing Guidelines Manual § 2K2.1(a)(2) cmt. n. 1 & 4B1.2(a);
B. Analysis
The PSIR cited Mekediak‘s 1999 adult conviction for unarmed robbery and his 2003 adult conviction for possession of drug manufacturing materials in order to set his base offense level at 24. However, as conceded at oral argument, Mekediak only challenges the use of the 1999 conviction. In 1999, unarmed robbery in violation of
Michigan‘s unarmed robbery offense is a specific intent crime. See Michigan v. Harverson, 291 Mich. App. 171, 804 N.W.2d 757, 761 (2010). Thus, we may analyze whether the risk of harm posed by unarmed robbery is categorically comparable to that posed by the ACCA‘s enumerated offenses. See Sykes, 131 S. Ct. at 2275. The Supreme Court has explained that the enumerated offense of burglary “is dangerous because it can end in confrontation leading to violence.” Id. at 2273 (citing James v. United States, 550 U.S. 192, 200, 127 S. Ct. 1586, 167 L. Ed. 2d 532 (2007)). Likewise, the Court of Appeals for the Seventh Circuit held that unarmed robbery in violation of
III. Four-Level Enhancement
Mekediak argues that the district court improperly applied a four-level enhancement to his sentence for using or possessing a firearm in connection with another felony offense. Specifically, Mekediak objects to the use of the “Minnesota transaction“—the incident in which he traded stolen firearms for cocaine base—as a basis for applying the enhancement. He claims that the use of the Minnesota transaction violated his proffer agreement. Not so. The district court had sufficient independent evidence to use the Minnesota transaction as a basis to support the enhancement.
A. Sentence Enhancements Under the USSG
Once a defendant‘s base offense level is calculated, that level may be enhanced if certain aggravating factors are present. A four-level increase applies if the defendant “used or possessed any firearm or ammunition in connection with another felony offense.” U.S. Sentencing Guidelines Manual § 2K2.1(b)(6)(B) (2011). The Government must establish a nexus between the firearm and the independent felony by a preponderance of the evidence. United States v. Angel, 576 F.3d 318, 321 (6th Cir. 2009). There are restrictions, however, on how the government may argue for an enhancement. Information gained from cooperation agreements “shall not be used in determining the applicable guideline range, except to the extent provided in the agreement.” U.S. Sentencing Guidelines Manual § 1B1.8(a) (2011). This USSG provision “unquestionably forbids the government to influence the sentencing range by disclosing revelations made by a defendant in the course of cooperation as required by a plea agreement.” United States v. Miller, 910 F.2d 1321, 1325 (6th Cir. 1990). We review legal conclusions regarding the application of the USSG de novo, while factual findings are reviewed for clear error. Jackson, 635 F.3d at 207.
B. Analysis
Mekediak does not dispute that the Minnesota transaction—the incident in which he traded stolen firearms for cocaine base—qualifies him for a four-level enhancement. Instead, he argues that the PSIR‘s details regarding the Minnesota transaction were obtained in violation of his proffer agreement because it was he who first disclosed the Minnesota transaction to the Government and he who identified Wolf as a participant. He contends that the interviewing officers led Wolf to detail the Minnesota transaction by indicating that they already knew about it, and thereby violated the proffer agreement clause forbidding the Government to use anything “said or revealed” by Mekediak.
While the circumstances could be suspicious, in this case the Government met their evidentiary burden—a preponderance of the evidence—with proof independent of Mekediak‘s interview. Mark Semear, the special agent who interviewed both Mekediak and Wolf, testified at the sentencing hearing that the interviews took place months apart, that he did not refer to his notes from Mekediak‘s interview during his interview with Wolf, and that when Wolf divulged the Minnesota transaction, he was asked open-ended questions and no one indicated that they had already heard about the Minnesota transaction from Mekediak. The district court found that while Mekediak‘s testimony may have been in the officers’ minds, they did not confront Wolf with the information to elicit more details. Furthermore, the district court ultimately concluded that Semear‘s testimony was sufficient in itself to support the enhancement by a preponderance of the evidence.
Being mindful that we review a district court‘s findings of fact for clear error, we are not firmly convinced that the Government used privileged information against Mekediak. See United States v. Davis, 912 F.2d 1210, 1213 (10th Cir. 1990) (holding that there was no violation of an immunity agreement where there was “no indication that the co-defendants’ statements were elicited as a result of [the defendant‘s plea agreement] and [the defendant] provided no evidence that, had he refused to cooperate, his co-defendants likewise would not have offered the information.“); accord United States v. Gibson, 48 F.3d 876, 879 (5th Cir. 1995) (per curiam). For these reasons, we cannot conclude that it was improper to apply the four-level enhancement.
CONCLUSION
For the foregoing reasons, we VACATE the sentence and REMAND for the limited purpose of considering the application of the ACCA to Mekediak‘s sentence. We AFFIRM the remainder of the district court‘s judgment.