UNITED STATES of America, Plaintiff-Appellee, v. Jordon FORD (11-1917); Jasper Perdue (11-1926); Tyrone Nathan (11-2015); Wilnell Henry (11-2200), Defendants-Appellants.
Nos. 11-1917, 11-1926, 11-2015, 11-2200
United States Court of Appeals, Sixth Circuit
Decided and Filed: Aug. 5, 2014.
761 F.3d 641
KAREN NELSON MOORE, Circuit Judge.
B. “Refers To”
The Iron Workers Fund and the Trowel Trades Fund ask us to hold that the Act makes an inappropriate reference to ERISA-regulated employee benefit plans, triggering the operation of
In its opening brief, SIIA forthrightly states that “[it] does not appeal the District Court‘s conclusion that the Act does not have a ‘reference to’ ERISA plans.” Appellant Br. at 28. By conceding this issue, SIIA has waived it, and this waiver generally precludes us from considering the issue. See, e.g., Demyanovich v. Cadon Plating & Coatings, LLC, 747 F.3d 419, 434 n. 6 (6th Cir.2014); Bickel v. Korean Air Lines Co., 96 F.3d 151, 153 (6th Cir.1996). Furthermore, we have stated that “[w]hile an amicus may offer assistance in resolving issues properly before a court, it may not raise additional issues or arguments not raised by the parties. To the extent that the amicus raises issues or makes arguments that exceed those properly raised by the parties, we may not consider such issues.” Cellnet Commc‘ns, Inc. v. FCC, 149 F.3d 429, 443 (6th Cir.1998); see also New Jersey v. New York, 523 U.S. 767, 781 n. 3, 118 S.Ct. 1726, 140 L.Ed.2d 993 (1998) (stating that courts “must pass over” arguments of amici that the named party to the case “has in effect renounced“); 16AA Charles Alan Wright et al., Federal Practice & Procedure § 3975.1 (4th ed.2008) (“In ordinary circumstances, an amicus will not be permitted to raise issues not argued by the parties.“). Otherwise, outside parties could hijack litigation quite easily. Therefore, to avoid this result, we hold that SIIA has waived this issue and, therefore, decline to consider its validity.
IV. CONCLUSION
For the above-stated reasons, we AFFIRM the district court‘s dismissal of SIIA‘s claims.
Argued: Nov. 20, 2013.
Before: MOORE, GIBBONS, and SUTTON, Circuit Judges.
OPINION
KAREN NELSON MOORE, Circuit Judge.
This consolidated appeal arises from the convictions and sentencing of Jordon Ford (“Ford“), Jasper Perdue (“Perdue“), Tyrone Nathan (“Nathan“), and Wilnell Henry (“Henry“) for crimes arising from their involvement in a conspiracy to commit a series of armed robberies in the Lansing, Michigan area, between February 2009 and October 2009. We address each of their arguments in turn. For the reasons set forth below, we AFFIRM.
I. BACKGROUND
The grand jury returned an indictment against Ford, Perdue, Nathan, and Henry on March 31, 2010. R. 1 (Indictment at 1) (Page ID # 1). A superseding indictment was returned on June 30, 2010. Each defendant was charged with one count of conspiracy to commit robbery affecting commerce in violation of
The district court had jurisdiction pursuant to
II. EVIDENTIARY CLAIMS
Ford and Perdue both challenge the admission of evidence regarding their gang affiliation and the impact of the robbery on a witness to the crime.
Federal Rule of Evidence 401 provides that “[e]vidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed. R. Evid. 401. Federal Rule of Evidence 403 provides that “[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of ... unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. “Unfair prejudice ‘does not mean the damage to a defendant‘s case that results from the legitimate probative force of the evidence; rather it refers to evidence which tends to suggest decision on an improper basis.‘” United States v. Gibbs, 182 F.3d 408, 430 (6th Cir.1999) (quoting United States v. Bonds, 12 F.3d 540, 567 (6th Cir.1993)).
We review a district court‘s evidentiary rulings for an abuse of discretion. United States v. Fisher, 648 F.3d 442, 449 (6th Cir.2011). “[W]e will reverse a district court‘s evidentiary decisions only where the ‘abuse of discretion has caused more than harmless error.‘” Id. (quoting United States v. Johnson, 440 F.3d 832, 847 (6th Cir.2006)). “Under harmless error analysis, reversal is warranted only if the instruction affected a substantial right of the defendants.” Gibbs, 182 F.3d at 428 (citing Fed. R. Crim. P. 52(a)).
A. Gang Affiliation
Ford and Perdue both argue that the district court abused its discretion by permitting the government to introduce evidence of their affiliation with the Vice Lords gang.5 Both filed pre-trial motions
Ford and Perdue argue that the evidence of gang affiliation was irrelevant because the co-defendants’ relationship was not at issue. Ford Appellant Br. at 44; Perdue Appellant Br. at 13. During the pre-trial hearing on the admissibility of the gang evidence, Perdue‘s counsel conceded the relationship amongst the defendants as “members of a rap group, and they all congregated often at the studio of Mr. Henry.” R. 200 (Trial Tr. at 6) (Page ID # 668). Ford and Perdue argue that the gang evidence was highly prejudicial and not probative because the co-conspirators were involved in different gangs, gang affiliation is not an element of robbery, and the leaders of the conspiracy indicated that the Vice Lords gang was not connected to the robberies.7
Evidence of gang affiliation is relevant where it demonstrates the relationship between people and that relationship is an issue in the case, such as in a conspiracy case. See United States v. Williams, 158 Fed.Appx. 651, 653-54 (6th Cir.2005); Gibbs, 182 F.3d at 429-30. However, gang affiliation evidence “is in-
B. Witness‘s Reaction to Robbery as Interference with Interstate Commerce
Ford and Perdue argue that the district court abused its discretion by allowing a robbery witness to testify about how she was impacted by witnessing the Mario‘s Market robbery. At trial, when the Assistant United States Attorney asked the witness if the robbery had any effect on her, counsel for Ford objected on
Ford and Perdue were both charged with multiple counts of conspiracy to commit robbery affecting commerce in violation of
Nonetheless, even assuming that introduction of this evidence was in error, we conclude that any error was harmless. “[A]n error which is not of constitutional dimension is harmless unless it is more probable than not that the error materially affected the verdict.” United States v. Davis, 577 F.3d 660, 670 (6th Cir.2009) (quoting United States v. Childs, 539 F.3d 552, 559 (6th Cir.2008)). Because Ford and Perdue stipulated that the interference with interstate commerce element was satisfied and because the testimony was not substantially prejudicial or inflammatory, any error in admitting this evidence did not materially affect the verdict. Therefore, the district court did not abuse its discretion by allowing testimony of the effect of the robbery on a witness to that crime.
III. CONFRONTATION CLAUSE CLAIMS
Perdue challenges the district court‘s limitation on his cross-examination of a government witness regarding his exculpatory out-of-court statements as a violation of the Confrontation Clause. Ford challenges the introduction of non-testifying codefendant Perdue‘s out-of-court statement.
A. Limitation on Cross-Examination
Perdue argues that the district court abused its discretion by limiting his cross-examination of FBI Special Agent Plantz (“Plantz“), who testified to Perdue‘s inculpatory out-of-court statements. Plantz testified that Perdue admitted that he was involved in the Mount Hope robbery, but only as a lookout. R. 206 (Trial Tr. at 160 (Page ID # 2231)). We review for abuse of discretion a challenge to the district court‘s evidentiary rulings, even on Confrontation Clause grounds. United States v. Holden, 557 F.3d 698, 703 (6th Cir.2009). “It is an abuse of discretion for a district court to commit legal error or find clearly erroneous facts.” Id.
On cross-examination, Perdue attempted to elicit testimony regarding his exculpatory out-of-court statements, but the district court sustained the government‘s objections to these questions on the basis of hearsay. Defense counsel asked Plantz if Perdue had identified an individual in a photo and admitted that it was him; the Assistant U.S. Attorney objected, and the court sustained the objection. R. 206 (Trial Tr. at 167-68 (Page ID # 2238-39)). Defense counsel later asked Plantz, “[Perdue] never admitted to you that he shot that clerk, did he?” The government objected, and the court again sustained the objection on hearsay grounds. Id. at 170-71 (Page ID # 2241-42). Perdue argues that he should have been allowed to introduce his statements under the Confrontation Clause and the rule of completeness. Because the statements that Perdue attempted to introduce were hearsay not within any exception, the district court did not abuse its discretion by limiting the scope of Perdue‘s cross-examination.
Out-of-court statements made by a party-opponent are an exception to the general hearsay rule. Fed. R. Evid. 801(d)(2). This exception reflects that
Nor was the district court‘s limitation on cross-examination an abuse of discretion under the rule of completeness. Perdue argues that once excerpts of his statement came into court, the entirety of the statement needed to be introduced to understand the statements in the proper context. He argues that “[t]he jury was left with the impression that Perdue had partially confessed, when in fact the tenor of the interview was the opposite.” Perdue Appellant Br. at 21. “The ‘rule of completeness’ allows a party to correct a misleading impression created by the introduction of part of a writing or conversation by introducing additional parts of it necessary to put the admitted portions in proper context.” Holden, 557 F.3d at 705. This common-law principle “was codified for written statements in [Federal Rule of Evidence] 106, and extended to oral statements through interpretation of [Federal Rule of Evidence] 611(a).” Id. (footnotes omitted). However, the rule of completeness “is not designed to make something admissible that should be excluded.” United States v. Costner, 684 F.2d 370, 373 (6th Cir.1982). “Right or wrong, this court has acknowledged that under Costner, ‘[e]xculpatory hearsay may not come in solely on the basis of completeness.‘” United States v. Adams, 722 F.3d 788, 826 (6th Cir.2013) (quoting United States v. Shaver, 89 Fed. Appx. 529, 533 (6th Cir.2004)). Because the exculpatory statements were inadmissible hearsay, the district court did not abuse its discretion under the rule of completeness by limiting Perdue‘s cross-examination of Plantz.
B. Bruton Claim
Ford argues that introduction into evidence of the statements of his non-testifying co-defendant, Perdue, violated his Confrontation Clause rights under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). In Bruton, the Supreme Court held that the Confrontation Clause is violated by the introduction of an incriminating out-of-court statement by a non-testifying co-defendant, even if the court gives a limiting instruction that the jury may consider the statement only against the co-defendant. Id. at 136-37, 88 S.Ct. 1620.
Generally, we review de novo Confrontation Clause challenges. United States v. Vasilakos, 508 F.3d 401, 406 (6th Cir.2007). However, when a defendant fails to object on Confrontation Clause grounds at trial, we review the claim for plain error. United States v. Martinez, 588 F.3d 301, 313 (6th Cir.2009). “Plain
The general requirement that a defendant must contemporaneously object to the introduction of evidence or forfeit his or her claim “serves to induce the timely raising of claims and objections, which gives the district court the opportunity to consider and resolve them.” Puckett v. United States, 556 U.S. 129, 134, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). A defendant who does not contemporaneously object may not raise the claim of trial error on appellate review unless it is “[a] plain error that affects substantial rights ...” Fed.R.Crim.P. 52(b). In this circuit, we have recognized some exceptions to the requirement of a contemporaneous objection. A defendant need not make a contemporaneous objection if he or she raised an evidentiary challenge in a motion in limine and the trial court ruled against the defendant in an “an explicit and definitive ruling” that is not “conditioned upon any other circumstances or evidence.” United States v. Brawner, 173 F.3d 966, 970 (6th Cir.1999). “However, if the court‘s ruling is in any way qualified or conditional, the burden is on counsel to raise objection to preserve error.” Id. This rule recognizes that the efficiency goals of requiring contemporaneous objections are not furthered if the court has already definitively ruled on the evidence at issue.
Our circuit has not decided whether a motion to sever preserves a Bruton objection. The circuits to consider this question have split on the answer. See United States v. Nash, 482 F.3d 1209, 1218 n. 7 (10th Cir.2007) (holding that a pretrial motion to sever preserved the Bruton claim even though defendant did not object to the introduction of the evidence at trial); United States v. Vega Molina, 407 F.3d 511, 519-20 (1st Cir.2005) (holding that a motion to sever preserved the Bruton objection when the district court categorically denied the motion to sever because it concluded that the statement was not incriminating); but see United States v. Turner, 474 F.3d 1265, 1276 (11th Cir.2007) (reviewing Bruton claim for plain error when defense counsel did not contemporaneously object to testimony but did move for severance the next day); United States v. Jobe, 101 F.3d 1046, 1068 (5th Cir.1996) (reviewing Bruton claim for plain error where district court denied motion to sever but defendant did not contemporaneously
We hold that the introduction of the statement that Ford challenges on appeal does not violate the Bruton rule and so does not violate Ford‘s Confrontation Clause rights. Ford concedes that Perdue‘s statement, as it was introduced at trial, did not name Ford. Ford Appellant Br. at 37. Ford argues that the Bruton problem arose from the fact that Perdue‘s statement corroborated evidence previously introduced that did implicate Ford. Id. at 40. However, ”Bruton does not bar the use of a redacted codefendant‘s confession ‘even if the codefendant‘s confession becomes incriminating when linked with other evidence adduced at trial.‘” United States v. Cobleigh, 75 F.3d 242, 248 (6th Cir.1996) (quoting United States v. DiCarlantonio, 870 F.2d 1058, 1062 (6th Cir.1989)). Any conclusion by the jury that Perdue‘s statement implicated Ford might be made only by linking the statement to other evidence. Introduction of the statement did not, therefore, violate the Bruton rule. The district court did not commit error by allowing the introduction of the statement.
IV. REMMER CLAIM
Ford argues that the district court abused its discretion by failing to conduct individual Remmer hearings after one juror expressed concern about her safety. We review jury-misconduct claims for an abuse of discretion. United States v. Wheaton, 517 F.3d 350, 361 (6th Cir.2008).
After the jury left the courtroom on January 25, the district court informed counsel that it had received a note from a juror indicating safety concerns.9 R. 205 (Trial Tr. at 227) (Page ID # 2066). Counsel for Ford stated that if safety issues had been a topic of discussion amongst the jurors and that “if there‘s been taint that‘s gone through the jury, my gut reaction is that we should talk to her privately.” Id. at 228 (Page ID # 2067). The next day, the district court judge spoke to the juror in the courtroom in the defendant‘s presence; the juror stated that the safety concerns were shared by other jurors but that her concerns would not affect her ability to make a decision. Id. at 13-14 (Page ID # 2085-86). The district judge brought the entire jury in but did not speak individually to any other jurors; instead, he gave a general instruction to send him a note if anybody did not feel they could decide the case based on the law and the evidence. Id. at 20-21. No jurors indicated safety or other concerns.
“The sixth amendment right to trial by jury is designed to ensure criminal defendants a fair trial by a ‘panel of impartial, indifferent’ jurors.” United States v. Shackelford, 777 F.2d 1141, 1145 (6th Cir.1985) (quoting Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961)). In Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), the Supreme Court held that when a trial court learns of possible juror bias, the court must “determine the circumstances, the impact thereof upon the juror, and whether or not it was
V. STIPULATION OF INTERSTATE COMMERCE ELEMENT
Before trial, a stipulation was entered by Ford‘s and Perdue‘s attorneys that the robberies alleged in the superseding indictment satisfied the
For you to find either defendant guilty of any of these crimes, you must be convinced that the government has proved each and every one of the following elements beyond a reasonable doubt with respect to each count in which a defendant is charged:
...
And second, that the defendant‘s act of robbery obstructed, delayed, or affected commerce ... The parties have stipulated that the robberies charged in the Indictment affected commerce, and so you must accept that fact as established. It is not necessary for the government to prove that the defendant actually intended to obstruct, delay, or affect commerce.
If you are convinced that the government has proved all of these elements, say so by returning a guilty verdict on this charge. And if you have a reasonable doubt about any one of these elements, then you must find the defendants not guilty of this charge.
R. 208 (Trial Tr. at 20-21) (Page ID # 2509-10) (emphasis added). Ford argues that the district court erred by denying his right to a jury trial without properly inquiring whether he waived that right knowingly, intelligently, and voluntarily.
Because Ford did not raise this argument in the district court, we review for plain error. United States v. Monghan, 409 Fed.Appx. 872, 875 (6th Cir.2011). “[T]he burden of establishing entitlement to relief for plain error is on the defendant claiming it.” United States v. Dominguez Benitez, 542 U.S. 74, 82, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004). Plain error requires (1) an “error or defect,” (2) that is “clear or obvious,” and (3) that
VI. SENTENCING CLAIMS
A. 18 U.S.C. § 924(c) Claim by Ford and Perdue
Ford and Perdue argue that the district court violated the Double Jeopardy Clause by improperly predicating multiple
Ford and Perdue were each convicted of a single act of conspiracy in violation of
On or about February 11, 2009, in Ingham County, in the Southern Division of the Western District of Michigan, WILNELL HENRY, a/k/a “Prince Nev,” a/k/a “P-Nev,” and JORDON FORD, a/k/a “JD,” did possess, and brandish a firearm, and aid and abet in the possession and brandishing of a firearm, in furtherance of the crimes of violence alleged in Counts 1 and 2 of this Superseding Indictment, incorporated here by reference.
R. 77 (Superseding Indictment at 4) (Page ID # 132). Count 1 charged Ford with conspiracy; Count 2 charged Ford with the February 11, 2009, robbery of Check Into Cash. Id. at 3 (Page ID # 131). The indictment thus predicated the
“The Double Jeopardy Clause of the Fifth Amendment prohibits multiple punishments for the same criminal act or transaction.” United States v. Graham, 275 F.3d 490, 519 (6th Cir.2001). Because of this prohibition, “a court may not impose more than one sentence upon a defendant for violations of
B. Perdue‘s Sentence
Perdue argues that the district court did not recognize its authority to disagree with the Sentencing Guidelines as a basis for a downward variance. He concedes that his claim is reviewed for plain error because he did not object to this procedural error during sentencing and the district court conducted an adequate Bostic inquiry.11 Perdue Appellant Br. at 26.
The Presentence Investigation (“PSR“) calculated Perdue‘s period of incarceration at a range of 1,494 to 1,546 months, largely due to lengthy mandatory minimum sentences for the multiple
On appeal to this court, Perdue argues that the district court committed procedural error by failing to recognize its authority to vary from the Sentencing Guidelines based on the effect of the
As evidence that the court did not recognize its discretion to vary from the Guidelines, Perdue points to a statement of the district court during the sentencing hearing: “And even though the same authority I‘ve just talked about I think precludes me from any kind of a departure or variance on the robbery offenses because I think he‘s already getting enough time on the weapons offenses, I don‘t think I can do that.” Perdue Appellant Br. at 28-29 (quoting R. 206 (Perdue Sentencing Tr. at 21-22) (Page ID # 2940-41)). This comment came after the district court discussed Sixth Circuit cases analyzing whether a district court may vary or depart below the statutory mandatory minimums in order to honor the mandate under
The district court‘s recognition of its lack of authority to sentence below the mandatory minimum for the
C. Nathan‘s Sentence
Nathan argues that his sentence is procedurally unreasonable because the district court misapplied § 1B1.2(d) of the 2011 U.S. Sentencing Guidelines Manual (“U.S.S.G.“) by considering robberies for which he was indicted but did not plead guilty as object offenses of the conspiracy, leading to a five-level sentencing enhancement. He argues that his sentence was substantively unreasonable because the enhancement based on the robberies violated his Sixth Amendment right to a jury trial. We review his claim for an abuse of discretion. United States v. Christman, 607 F.3d 1110, 1117 (6th Cir.2010). “An error of law in the application or interpretation of the Guidelines constitutes an abuse of discretion.” United States v. Levy, 250 F.3d 1015, 1017 (6th Cir.2001).
1. Procedural Unreasonableness
Nathan argues that his sentence is procedurally unreasonable because the district court erroneously counted robberies as object offenses of the conspiracy to which he pleaded, even though neither the indictment nor his plea agreement specified which robberies were objects of the conspiracy.
Nathan pleaded guilty to Count 1 of the superseding indictment, conspiracy to commit robbery affecting interstate commerce. R. 129 (Nathan Plea at 1) (Page ID # 251). The indictment did not provide any specific information about the robberies that were the objects of the conspiracy; it merely stated that the conspiracy occurred “[f]rom in or about February 2009, to on or about October 9, 2009, in Ingham County, in the Southern Division of the Western District of Michigan ...” and that “[t]he object of the conspiracy was to obtain money by committing robberies of commercial businesses in the greater Lansing, Michigan, area.” R. 77 (Superseding Indictment at 1-2) (Page ID # 129-30).
In determining the adjustments to Nathan‘s sentence under § 3D1.4, the PSR assigned units for thirteen robberies that it concluded were objects of the conspiracy and came to a combined adjusted offense level of thirty-six. PSR at 31-32. Because robbery offenses are not subject to the grouping rules, see U.S.S.G. §§ 3D1.2(d), 2B3.1, the PSR determined Nathan‘s offense level as if he had been convicted of conspiracy
Section 1B1.2(d) provides that “[a] conviction on a count charging a conspiracy to commit more than one offense shall be treated as if the defendant had been convicted on a separate count of conspiracy for each offense that the defendant conspired to commit.” Application Note 313 to this Guideline explains that “where a conviction on a single count of conspiracy establishes that the defendant conspired to commit three robberies, the guidelines are to be applied as if the defendant had been convicted on one count of conspiracy to commit the first robbery, one count of conspiracy to commit the second robbery,
Application Note 4 to § 1B1.2(d) urges:
Particular care must be taken in applying subsection (d) because there are cases in which the verdict or plea does not establish which offense(s) was the object of the conspiracy. In such cases, subsection (d) should only be applied with respect to an object offense alleged in the conspiracy count if the court, were it sitting as a trier of fact, would convict the defendant of conspiring to commit that object offense. Note, however, if the object offenses specified in the conspiracy count would be grouped together under § 3D1.2(d) (e.g., a conspiracy to steal three government checks) it is not necessary to engage in the foregoing analysis, because § 1B1.3(a)(2) governs consideration of the defendant‘s conduct.
U.S.S.G. § 1B1.2(d), cmt. n. 4 (emphasis added). Nathan argues that the thirteen robberies were not “alleged in the conspiracy count” by the indictment or the plea under Application Note 4, and therefore should not have been counted as object offenses.
We have not decided whether robberies may be counted as object offenses of a conspiracy when the conspiracy count under which defendant was convicted does not enumerate or list the robberies.14 The Government urges this court to follow the Second Circuit‘s decision in United States v. Robles, which held that multiple robbery offenses may be treated as objects of a conspiracy under § 1B1.2(d) even where the offenses were not specifically named in the conspiracy count. 562 F.3d 451, 455 (2d Cir.2009). We agree with our sister circuit‘s interpretation of Application Note 4. The Second Circuit concluded that the emphasis of Application Note 4 was not “on the specificity of the conspiracy charge but on the standard of proof that must be satisfied” for the court to count an object offense towards the defendant‘s offense level. Id. Further, because Application Note 4 specifically addresses situations where “the verdict ... does not establish which offense(s) was the object of the conspiracy,” if the Note “required that the objects of a conspiracy be specifically named in the conspiracy count of an indictment, it would be difficult to imagine the reason for this comment‘s existence.” Id. (internal citation omitted). Accordingly, the district court did not err in counting the thirteen robbery offenses as object offenses of the conspiracy.
2. Substantive Unreasonableness
Nathan argues that his sentence was substantively unreasonable because the district court made factual findings that Nathan committed the robberies; Nathan argues that the sentencing enhancement based on the findings of the district court violated his Sixth Amendment right to a jury trial, and therefore rendered his sentence substantively unreasonable. This claim is without merit. Application Note 4 to
D. Henry‘s Sentence
Henry argues that his sentence was procedurally unreasonable because the district court failed to articulate the applicable Sentencing Guidelines range after granting a § 5K1.1 departure and
The district court began Henry‘s sentencing hearing by stating the applicable Guidelines range; with an offense level of 29 and criminal history Category VI, the Guidelines range was 151 to 188 months of imprisonment. R. 291 (Henry Sent. Tr. at 10) (Page ID # 3181). The district court then discussed whether there were reasons for a variance based on the
Henry argues that the district court was required to state the new Guidelines range that applied after granting the § 5K1.1 downward departure, and then to state specifically the amount of the upward variance from that new Guidelines range. However, we have held that “[t]here is no requirement that, after concluding that a departure is warranted, the court must specify a new, adjusted sentencing range.” United States v. Herrera-Zuniga, 571 F.3d 568, 588 (6th Cir.2009). A sentence may be procedurally unreasonable when the district court fails to identify “any specific, numeric Guidelines range at any point during the hearing.” United States v. Novales, 589 F.3d 310, 314 (6th Cir.2009) (emphasis added); see also Gall, 552 U.S. at 49 (stating that “a district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range.... [T]he Guidelines should be the starting point and the initial benchmark.“). Here, however, the district court stated the Guidelines range that applied prior to making any departures or variances. Accordingly, Henry has not demonstrated plain error, and we affirm his sentence.
VII. MOTION TO DISMISS
Ford and Perdue filed pro se motions “to dismiss due to lack of jurisdiction.” Ford Memo. at 1; Perdue Memo. at 1. They argue that “[t]he United States lacked subject-matter jurisdiction” “due to the government‘s failure to prove interference with interstate commerce.” Id. Prior to trial, a stipulation was entered that stated that the robberies satisfied the element of interstate commerce. R. 188 (Stipulation at 1) (Page ID # 639). Ford‘s and Perdue‘s attorneys signed the stipulation. Id. However, in their motions to dismiss, Ford and Perdue assert for the first time that they were unaware of and did not agree to the stipulation and that
VIII. CONCLUSION
For the foregoing reasons, we AFFIRM the convictions and sentences of Ford, Perdue, Nathan, and Henry.
Notes
Graham: Now, I just want to make sure I‘m clear about a point about Vice Lords and about Vice Lords as they relate to Fallen Angel and Vice Lords as they relate to the armed robberies that you know to be part of this case. Being a Vice Lord had nothing to do with those robberies did it?
Henry: No, it did not.
Graham: They aren‘t related at all are they?
Henry: No.
R. 206 (Trial Tr. at 121-22) (Page ID # 2192-93). A similar exchange occurred between Donald W. Garthe, counsel for Perdue, and Kirby: Garthe: Now, whatever was happening, whatever was happening that you‘ve testified to about armed robberies, that stuff had nothing to do with Vice Lord activity, did it?Kirby: No, it didn‘t.
Garthe: They were completely separate, weren‘t they?
A: Yes, they were.
R. 207 (Trial Tr. at 139) (Page ID # 2410).I have some concerns (fears) about my safety as a juror. If for some reason there is an unfavorable outcome in the eyes of the defendants, what type of access would they have to our personal information, where we live etc. We did all introduce ourself [sic] and tell the court what we did. I stated I was a teacher and the mother of 4. I didn‘t think about it at the time but when defendants are staring you down as if they are trying to memorize your face it gets a little scary. Thank you for your kind advice on this manner [sic].
R. 190-1 (Juror Notes at 2) (Page ID # 652).