UNITED STATES of America, Plaintiff-Appellee, v. Keidronn SANDERS, Defendant-Appellant.
No. 97-6095
United States Court of Appeals, Sixth Circuit.
Argued July 22, 1998. Decided Dec. 7, 1998.
165 F.3d 396
Creel alleges that Conaway‘s failure to investigate evidence of Creel‘s innocence also rendered his assistance ineffective. He cites Conaway‘s failure to investigate the bankruptcy of a company owned by Smith. When Creel investigated the company later,7 he discovered evidence indicating that someone had signed Smith‘s name to a truck title while Creel was incarcerated. Creel argues that the evidence proves his innocence because it proves that Smith was killed while Creel was in jail. The evidence does not establish, however, that Smith personally signed the truck title on that date. Creel has not shown how investigating Smith‘s bankruptcy would have benefitted his defense, because the evidence does not exculpate him. See United States v. Green, 882 F.2d 999, 1003 (5th Cir.1989) (stating defendant must prove how investigation would have altered outcome of trial). Moreover, the facts at trial point overwhelmingly to Creel‘s guilt, so that even the most competent attorney would be unlikely to have obtained an acquittal. See Wilkerson v. Whitley, 16 F.3d 64, 68 (5th Cir.1994) (stating ineffectiveness claim fails if most competent attorney could not obtain acquittal due to abundance of evidence).
We cannot say the attorney rendered ineffective assistance. Creel has not proven the objective unreasonableness of Conaway‘s actions or that they prejudiced him. The district court correctly denied Creel‘s claim.
VII
We AFFIRM all rulings of the district court.
Sunny A.M. Koshy (argued and briefed), Office of U.S. Attorney, Nashville, Tennessee, for Plaintiff-Appellee.
Before: KENNEDY and RYAN, Circuit Judges; BORMAN, District Judge.*
BORMAN, D. J., delivered the opinion of the court, in which RYAN, J., joined. KENNEDY, J. (pp. 403-05), delivered a separate opinion concurring in part and dissenting in part.
OPINION
BORMAN, District Judge.
Defendant Kiedronn Sanders appeals from the district court sentence that imposed two upward adjustments under U.S. Sentencing Guidelines,
BACKGROUND
Defendant was charged in a superceding indictment on January 15, 1997 with three counts of firearms offenses:
Count 1. stealing firearms from a licensed firearms dealer in violation of
Count 2. knowingly transporting stolen firearms in violation of
Count 3. being a convicted felon in possession of firearms in violation of
On April 17, 1997, Defendant Sanders plead guilty to counts 2 and 3, pursuant to a
The United States agrees with the defendant‘s position that the burglary and other theft offenses the defendant committed at Household Pawn Shop would be included in the relevant conduct of the two counts to which the defendant pleaded guilty.
Gov‘t Brief on Appeal, P.12, n. 3.
Over Defendants objections, the district court at the sentencing hearing imposed two upward adjustments to the offense level calculations:
- a four level increase for possession of firearms in connection with another felony, pursuant to United States Sentencing Guideline
§ 2K2.1(b)(5) . (App. P.36) - a two level upward adjustment for obstruction of justice, pursuant to United States Sentencing Guideline
§ 3C1.1 . (App.P.10)
The district court sentenced Defendant Sanders to a 96 month term of incarceration on each count, sentences to run concurrently.4
Defendant Sanders contends that the district court improperly increased his offense level under each of the two aforementioned guideline provisions. For the reasons that follow, we REVERSE the four level upward increase under
FACTS:
First Issue: 4 Level Increase—Guideline § 2K2.1 (b)(5)
Defendant Sanders joined with co-conspirators to burglarize the Household Pawn Shop which sold firearms, electronics and other items in Nashville, Tennessee. Sanders, thereafter, placed some of the stolen firearms and electronics in his car and, accompanied by Jonathan Daviss, drove north toward Detroit, Michigan.
In Lima, Ohio, an Ohio State Trooper pulled him over for traffic violations. Special Agent Todd Henry described the subsequent happenings in Lima, Ohio, as follows:
After observing marijuana in plain view, the Ohio state troopers conducted a search of the vehicle and recovered 73 handguns and rifles, three black powder weapons, electronics equipment and burglary tools.
Appendix P. 107. (Transcript of Plea Proceeding, April 17, 1997).
At the sentencing hearing, FBI Special Agent Terry Haverson testified that all of the firearms and electronics items seized from Sanders were stolen at the same time. App. p. 131.
The Government acknowledges this issue to be whether the
At his plea hearing, Defendant Sanders denied that he had joined with other conspirators to enter the pawnshop to commit the burglary. The relevant testimony at the plea hearing is as follows:
Court: And do you further understand that if you do not speak the truth, if you lie or make a false statement here in court, you can be punished as provided by law?
Sanders: Yes.
App. P.66.
....
Sanders: So they approached me and asked me what am I going to do if I help them do something. Meaning the rest of those goods that they had already gotten because their car was already full and they wanted to unload their car and go back there [to the pawn shop].... I also helped load them things up.
Court: What things?
Sanders: Firearms and electronics.
App. P.99. (emphasis added).
I pulled up, threw the stuff in the car, loaded up and pulled out and left.
App. P.100.
....
Court: Then what happened?
Sanders: Well, we made all the way to Ohio and a trooper pulled behind us, for about a mile, and pulled me over.
....
Court: Alright. Is there anything else to this?
Sanders: No.
App. P.102.
DISCUSSION:
The two issues on appeal involve a legal interpretation of guideline terms—“another felony offense,” and “obstruction of justice“—and are therefore reviewed de novo.
In United States v. Hayes, 135 F.3d 435, 437 (6th Cir.1998) the Sixth Circuit stated: “We review de novo a district court‘s application of the Sentencing Guidelines when the application involves mixed questions of law and fact. See U.S. v. Mills, 1 F.3d 414, 421 (6th Cir.1993).”
The Sixth Circuit has stated that “the question as to whether defendants’ conduct constitutes obstruction of justice, ‘turns primarily on the legal interpretation of a guideline term’ and is thus reviewed de novo. U.S. v. Stroud, 893 F.2d 504, 507 (2d Cir. 1990).” U.S. v. Sanchez, 928 F.2d 1450, 1459 (6th Cir.1991). For the same reason, the district court‘s interpretation of the Guideline term “another felony offense” must be reviewed de novo.
Issue 1: § 2K2.1(b)(5) Adjustment
Defendant Sanders claims that because he “did not use or possess the firearms in connection with another felony offense, the district court improperly applied
If the defendant used or possessed any firearm or ammunition in connection with another felony offense ... increase by 4 levels.
Application Note 18 to Guideline 2K2.1 states:
As used in subsections (b)(5) and (c)(1), “another felony offense” ... refer to offenses other than firearms possession or trafficking offenses. However, where the defendant used or possessed a firearm or explosive to facilitate another firearms or explosives offense (e.g., the defendant used or possessed a firearm to protect the delivery of an unlawful shipment of explosives), an upward departure under
§ 5K2.6 (Weapons and Dangerous Instrumentalities) may be warranted.
Guideline 2K2.1 speaks of possessing the firearms in connection with “another felony offense.” The relevant portion of Application Note 18 states that “another felony offense” refers to offenses other than the firearms possession or trafficking offenses.
In this case there was one offense—the burglary of the pawnshop—which resulted in Defendant‘s possession of the instant firearms. There was no allegation that Defendant Sanders possessed any firearms when
Defendant‘s theft of the firearms was included as relevant offense conduct in his presentence report. App. pp. 30-34, 36, 45.5 Indeed, he received a two level enhancement pursuant to
This Court concludes that the language of Guideline 2K2.1 and Application Note 18 mandate our finding that the district court erred in increasing Defendant Sander‘s base offense level upward by four levels under Guideline
A logical reading of the
Most offenses can be prosecuted under multiple provisions of the federal and state laws. The mere fact that Defendant Sanders could also have been prosecuted for a state offense for his conduct at the time he committed the offense charged in the federal indictment does not support a finding that, under Guideline
Thus, we conclude that the Government has failed to meet its burden of proving that this enhancement applies to the instant fact situation.8 Neither the language of Guideline
This Court declines to follow U.S. v. Armstead, 114 F.3d 504 (5th Cir.1997), cert. denied 522 U.S. 922, 118 S.Ct. 315, 139 L.Ed.2d 243 (1997), in which the Fifth Circuit applied the 2K2.1 enhancement to a similar fact situation. The Fifth Circuit stated that it “could unearth no other circuit court decision which has directly addressed this issue.” 114 F.3d at 512. This is an issue of first impression in the Sixth Circuit. We conclude that the Fifth Circuit erred in applying this enhancement.
In Armstead, the district court enhanced sentences of the defendants, the brothers Armstead, under
The Fifth Circuit held “that the Armstead‘s possession of firearms was ‘in connection with’ their state law burglary crime,” and that crime constituted another felony offense under
The dilemma arises when we ascertain whether the burglary constituted “another” offense even though it arose contemporaneously with the primary offense, theft of firearms from a licensed firearms dealer.
The instant issue is similar to that raised before the Fifth Circuit, but this Court concludes that the language of Guideline
The Commentary to Guideline
We decide that commentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.
This Commentary contained in Application Note 18 should be treated as authoritative in that it does not violate the Constitution or a federal statute, nor is it inconsistent with, or a plainly erroneous reading of guideline
There is no justification to authorize a scanning of state statutes to ascertain if this particular offense violated any additional criminal statutes, and then to utilize that finding to enhance the sentence on the ground that defendant had, then and there, also committed another felony offense.
It also bears noting that the enhancement contained in
In addition, the rule of lenity should clearly be utilized to prevent the application of the enhancement where, as here, there is no clear language in the Guideline or the Commentary to support that increased sentence. The Supreme Court stated in McNally v. U.S., 483 U.S. 350, 359-60, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987):
The Court has often stated that when there are two rational readings of a criminal statute, one harsher than the other, we are to choose the harsher only when Congress has spoken in clear and definite language.
In the instant case, we conclude that there are not two rational readings of the Guideline and its accompanying commentary in Application Note 18. Even if one could conclude that there were two rational readings of this Guideline, this Court would be bound to choose the less harsh reading, and overrule the four level enhancement. We believe that the Sentencing Commission has spoken clearly that “another felony offense” means an offense occurring apart from the conduct that produced the federal offense of conviction. The conduct that produced the offense of conviction was the burglary of the pawnshop—the same conduct which the district court utilized to enhance the offense level.
Accordingly, we hold that the district court erred in applying Guideline
Issue 2: § 3C1.1 Adjustment
U.S. Sentencing Guideline
3. The following is a non-exhaustive list of examples of the types of conduct to which this enhancement applies:
....
(f) providing materially false information to a judge.
In the instant case, the Defendant, under oath, stated to the district court at his plea proceeding, that he did not come onto the scene until after the goods had been stolen from the pawn shop and loaded into the burglars’ automobile. App. P.66. In response to the judge‘s question: “Is there anything else to this?“, the Defendant responded “No.” App. P.102.
The district court found Defendant‘s statements to be materially misleading with regard to his full involvement in this case:
He left the court under the impression that he wasn‘t a participant in that burglary, that he just took possession of those weapons that we deposited in the church yard or the woods adjacent to the church yard next to this pawn shop.... [H]e mislead the court about the totality of his involvement in the case and it was material to the court‘s understanding and assessment of the totality of his involvement.
App. Pp.145, 146.
The Supreme Court has recognized that “an accused may give inaccurate testimony due to confusion, mistake, or faulty memory.” United States v. Dunnigan, 507 U.S. 87, 95, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993).
In addition, Application Note 1 to U.S. Sentencing Guideline
In applying this provision in respect to alleged false testimony or statements by the defendant, the court should be cognizant that inaccurate testimony or statements may sometimes result from confusion, mistake or faulty memory, and thus, not all inaccurate testimony or statements necessarily reflect a willful attempt to obstruct justice.
The district court‘s determination of the materiality of Defendant‘s false testimony was correct, insofar as it related directly to his role in the offense under U.S. Sentencing Guidelines
The district court made the proper sentencing record by reviewing the evidence set forth in the plea transcript, and made the “independent findings necessary to establish a willful ... obstruction of justice.” Dunnigan at 95, 113 S.Ct. 1111. As in Dunnigan, there was ample support for the district court‘s finding on this issue.
CONCLUSION
For the foregoing reasons, we REVERSE the district court‘s decision to apply a four level increase in Defendant‘s offense level pursuant to U.S. Sentencing Guideline
KENNEDY, Circuit Judge, concurring in part and dissenting in part.
I concur in that portion of the panel‘s opinion that affirms the District Court‘s two-level increase in the offense level for obstruction of justice. However, I respectfully dissent from the reversal of the four-level increase for possession of firearms in connection with another felony pursuant to United States Sentencing Guideline (“U.S.S.G.“)
The panel treats the issue of whether there is “another felony offense” as an issue of law. I believe that whether defendant used or possessed any firearms in connection with another felony offense is first a question of fact.
Defendant was charged with committing three firearms violations on November 17, 1996: 1) theft of firearms from a federally licensed firearms dealer, in violation of
During the plea colloquy, the District Court asked defendant to explain his role in the offense and why he was pleading guilty. Defendant stated that he had run into some acquaintances from Detroit at a nightclub in Nashville. The acquaintances told him that their car was full of stolen firearms and electronic equipment and asked whether he would load and transport the property in his car back to Detroit. Defendant recounted his involvement as follows:
Sanders: So they approached me and asked me what am I going to do if I help them do something. Meaning the rest of those goods that they had already gotten because their car was already full and they wanted to unload their car and go back [to the pawn shop].... I pulled up, threw the stuff in the car, loaded up and pulled out and left.
The Court: Where did you go?
Sanders: We went back to the hotel they were staying at, because they wanted to leave ... so back to their hotel room we talked for a minute, saying leave now, you get back [to Detroit], I call you back, separate everything, give you some money....
The Court: Then what happened?
Sanders: That‘s when we parted company.
....
The Court: Then what happened?
Sanders: Well, we made all the way to Ohio and a trooper pulled behind us, for about a mile, and pulled me over.
The Court: Alright. Is there anything else to this?
Sanders: No.
After the plea hearing, defendant submitted to a polygraph examination as required by the plea agreement. The results of the test indicated that he had been deceptive regarding his participation in the burglary and theft. Defendant then admitted that he had lied in previous statements. He confessed that he had accompanied his acquaintances to the Household Pawn Shop following their initial burglary of the premises. He entered the pawn shop through the roof, proceeded to the office area, and stood on a filing cabinet. There, defendant received items handed to him by others which he then passed up through the hole in the roof. He stated that he passed up four or five armloads of items, including a gym bag containing firearms. Defendant explained that he withheld this information during the plea colloquy because he feared that admitting the extent of his involvement “would be worse for him as far as the charge was concerned.”
Defendant argues that
A firearm is used or possessed “in connection with” an offense if the weapon facilitated or potentially facilitated the felonious conduct, or emboldened the defendant during the felonious conduct. United States v. Spurgeon, 117 F.3d 641, 643-44 (2nd Cir. 1997); United States v. Wyatt, 102 F.3d 241, 247 (7th Cir.1996); United States v. Nale, 101 F.3d 1000, 1003-04 (4th Cir.1996); United States v. Collins, 90 F.3d 1420, 1430 (9th Cir. 1996); United States v. Thompson, 32 F.3d 1, 7 (1st Cir.1994); United States v. Gomez-Arrellano, 5 F.3d 464, 466-67 (10th Cir.1993). Cf. Armstead, 114 F.3d 504, 511-13 (5th Cir.1997) (finding that firearms stolen during burglary were possessed “in connection with” that offense under the possession test, which is less stringent than the facilitation or emboldenment standard). In this case, the District Court specifically determined that defendant‘s possession of the stolen firearms emboldened him during the burglary. As this factual finding was not clearly erroneous, the enhancement under
The panel argues that the two-level enhancement for possession of a gun that has been stolen changes the crime with which defendant has been charged into a burglary case.
Application Note 14 to
Under subsection (c)(1), the offense level for the underlying offense (which may be a federal, state, or local offense) is to be determined under
§ 2X1.1 (Attempt, Solicitation, or Conspiracy) or, if death results, under the most analogous guideline from Chapter Two, Part A, Subpart 1 (Homicide).
I would, however, find that to increase defendant‘s offense level two points because the guns are stolen and then to increase it four more because he stole the guns does
CPT HOLDINGS, INC., Plaintiff-Appellee, v. INDUSTRIAL & ALLIED EMPLOYEES UNION PENSION PLAN, LOCAL 73, Defendant-Appellant.
No. 97-4115.
United States Court of Appeals, Sixth Circuit.
Argued Nov. 5, 1998.
Decided Dec. 8, 1998.
Rehearing and Suggestion for Rehearing En Banc Denied Jan. 21, 1999.*
Douglas A. Andrews (argued and briefed), John M. Masters (briefed), Basil W. Mangano (briefed), Masters & Associates, Cleveland, Ohio, for Defendant-Appellant.
John T. Meredith (argued and briefed), James D. Gray (briefed), Squire, Sanders & Dempsey, L.L.P., Cleveland, Ohio, for Plaintiff-Appellee.
Before: MERRITT, COLE and FARRIS,** Circuit Judges.