United States v. Maye

judg- court’s I would affirm opin- written Phillips’s well Judge

ment on

ion. America,

UNITED STATES

Plaintiff-Appellee, MAYE, Defendant-

Ricco Lamonte

Appellant. 07-4311.

No. Appeals, Court of

United States Circuit.

Sixth 11, 2009.

Argued: March and Filed:

Decided Oct. Losavio,

ARGUED: Michael M. Louis- ville, Kentucky, for Appellant. Salvador A. Dominguez, Assistant United At- States Columbus, Ohio, torney, for Appellee. ON Losavio, Louisville, BRIEF: Michael M. Kentucky, for Appellant. A. Salvador Dominguez, Assistant United States Attor- Columbus, ney, Ohio, Appellee. for BATCHELDER, Judge; Before: Chief MOORE, DAUGHTREY and Circuit Judges.

DAUGHTREY, J., delivered the opinion court, MOORE, J., joined. which BATCHELDER, 635-41), C.J. (pp. separate opinion concurring delivered a part dissenting in part.

OPINION DAUGHTREY, MARTHA CRAIG Judge. Circuit defendant, Maye, Ricco Lamonte pleaded guilty charges distributing more than five of crack cocaine a firearm in of a possessing furtherance drug-trafficking crime. The district court prison sentenced to consecutive months, respec- terms of months and tively. The defendant now that: contends (1) judge improperly denied guideline him a his three-level reduction range acceptance respon- sentencing (2) sibility; prosecution failed to estab- later, 19, 2006, offense; May firearm Two months lish factual basis for (3) unreasonably failed to another sale of crack agreed sentence unwarranted dis- informant, take account the into to the same confidential cocaine ranges parity between buyer cooperating unaware that the (4) cocaine; powder and and crack cocaine agents. federal The infor- with state and retroactively district court should the sentencing during later the mant testified sentencing amendments guideline applied when he arrived at the proceedings Maye’s so to reduce the defen- to case as sale, Maye for the was designated location category. For the history criminal dant’s process converting powder of the “in the below, merit in we find reasons discussed this crack cocaine.” After cocaine into allegations of er- Maye’s and third second completed, the defendant sold process was ror, under his conviction 18 U.S.C. vacate grams another 18.03 of the informant the 924(c), § and remand this matter to by a This transaction was recorded crack. plea acceptance for district court a new person. the informant’s device hidden on sentencing hearing. hearing a new arrest, Maye Ricco Following his AND PROCEDURAL FACTUAL charged with the distribution of more than BACKGROUND grams cocaine on March five of base (Count 1), possession of a firearm 2006 the Maye’s from his convictions stemmed drug-trafficking in furtherance of a crime a of March to sale crack cocaine on (Count 2), the of more cooperat- who distribution confidential informant offi- ing with law enforcement grams May Columbus than five of cocaine base the Short North investigation (Count 3). addition, cials’ of a fourth 2006 date, the gang. Posse On that informant of called for the for- count the indictment grams crack arranged purchase to 5.68 of government proceeds to of all feiture the defendant, of cocaine from the at a cost sale, 2 including drug from March $180, apart- to the defendant’s and went $1,360 in by cash seized law enforcement There, buy ment he and cocaine. defendant, counsel, The his officials. the apartment others were told to leave Attorney negotiated a the United States a that a when the defendant received call agreement under which would spotted law had enforcement officer been 2 guilty to 1 and plead Counts of result, in the neighborhood. As of agree indictment and forfeiture actually porch on the transaction occurred $1,360 in of exchange for dismissal The nearby apartment. cooperating of government’s 3 and the on-the-ree- Count testified, however, later that he informant recognition ord “that as of the time of the had seen a inside “chrome-plated revolver” filing Agreement, of Plea the Defen- this apartment leaving. the defendant’s before has accepted responsibility dant for a re- gathered on information as Based offenses set forth Counts and of the transaction, sult of the officers ob- Indictment, as that term defined i[s] tained for and executed search warrant 3El.l(b) Sentencing § the Federal an seizing apartment, Guidelines.” cocaine, grams 2.1 crack as additional plead guilty Defendant did in fact scales, “baggies, digital well as cellular admitting agreement, as envisioned counter,” telephones, money a loaded .38 “that, sentencing, purposes revolver, $1,360 in caliber cash. for the controlled sub- relevant conduct money cur- included marked the $180 by the at to be considered stances issue rency purchase that had been used § 1B1.3 and grams pursuant Court U.S.S.G. 5.68 of crack. 2Dl.l(c)(6) between 20 and sentence the defendant at the low end of upon of cocaine base.” Based sentenc- the applicable range, time, ing guidelines effect at the resentenced in prison 78 months pegged Maye’s district court base offense offense, for the along distribution with the history and his criminal as level consecutive 60-month sentence III, category subjecting him falling into to possession of a firearm in furtherance of a range sentencing 97-121 months on drug-trafficking crime. From that later the conviction Count 1. See U.S.S.G. determination, the defendant 2Dl.l(c)(6) (2006). specifical- The court now appeals, raising allegations numerous grant a ly refused to three-level reduction legal and factual error. acceptance responsibility, of see 3E1.1, § “falsely U.S.S.G. because DISCUSSION frivolously rele- denie[d] contested] and/or Denial of Three-Point Reduction for Ac- vant concerning “cooking” conduct” of ceptance Responsibility of May crack on to imposing Prior Defendant ultimately sen- however, sentence, judge did tenced to prison 78 months in for the history consider the defendant’s childhood abandonment, March 2 of abuse the fact distribution of that crack cocaine of- school, high finished had and the fense in described Count 1 of the indict- presence in court of friends numerous and ment. appeal, On the defendant contends family willing their sup- members to offer that the court district erred in calculating hand, port. other On the the district court level, the appropriate part offense be- gang also noted that defendant was a cause the erroneously district con- member, that he to possess continued sidered denial of certain facts re- guns, and that he had failed remain lating subsequent to the 19May sale in current on support court-ordered child concluding that the failed to defendant ac- payments. The court then sentenced cept responsibility for his offenses. Maye to the low end of applicable circumstances, Under different the de- guideline range months—-for dis- —97 fendant might convincing argu- well tribution of crack cocaine and added a ment that the district court should not mandatory, consecutive 60-month sentence have used Maye’s “cooking” denial of crack for the of a firearm further- justify refusal to reduce the defen- offense, drug-trafficking ance of a yielding dant’s sentencing range by three levels. an prison effective sentence of 157 months. 1(a) Pursuant to application note of the A few weeks after the initial sentencing, commentary of to section 3E1.1 the sen- the court toMaye resentenced take into tencing guidelines, Maye’s entitlement account pending amendments to the sen- at least a two-level reduction in sentencing tencing guidelines go into level dependent upon “truthfully his 1, 2007, effect on November three weeks admitting the conduct comprising of- re-sentencing Pursuant date. after fense(s) conviction, truthfully admit- the 2007 version of the guidelines, the ting falsely or denying any additional offense level commensurate with distribu- relevant for which conduct the defendant tion of 20-35 crack cocaine would (Relevant § is IB accountable 1.3 dropped be from level 28 level re- Conduct).” 3E1.1, U.S.S.G. comment. sulting in a reduction applicable (n.l(a)) (2006). provision, Under the same range to 78-97 months. See (c)(7) (2007). denies, “a falsely U.S.S.G. 2D1.1 who frivo- Conse- quently, keeping prior lously contests, with his decision relevant conduct over, necessary in a to consider both true acted to be has determines acceptance of re- inconsistent with from the March distri-

manner offense conduct Id. sponsibility.” May from the 19 sale of and that bution crack, including the rele- grams of 18.03 “cooking” the crack Maye argues that activities associated with preparatory vant May only to the sale was relevant latter Because the de- transaction. March 2 sale that constituted not to the voluntarily agreed to the court’s fendant also He the actual “offense of conviction.” May of evidence from the con- consideration insists, conviction,” Maye even deni- a false Firearms Offense activity that al or contest of frivolous guilty pleaded Defendant also in for of purposes irrelevant of a firearm “in the offense of this case. a crime. drug-trafficking furtherance of’ the that Additionally, defendant submits 924(c). § Pursuant to the See 18 U.S.C. that truthfully he admitted the conduct 924(c) under which the provision of section comprised charge the the actual basis for convicted, government defendant was the lodged May him for his 19 activi- against simple more than the fact that prove must five ties—the of more than distribution “during in a firearm was and Thus, grams according crack cocaine. of to” drug-trafficking relation offense. See argument, any of of his to that line denial 457, Mackey, v. 265 F.3d 462 United States May role in of the crack on “cooking” the (6th Cir.2001). that ruling pos- mere 2 only 19 to March was not irrelevant the premises of session a firearm on the same offense, absolutely bearing also no but had transaction insufficient to drug as is im- sentence that could have been 924(c) conviction, support for even the latter posed upon conviction previously held that “the firearm drug-trafficking charged in Count offense be it is strategically must located so that 3 of indictment. Id.; easily for quickly and available use.” however, Maye, Unfortunately for Couch, F.3d see also United States v. his to an of the parsing resort intellectual Cir.2004). (6th 557, 561 pro language applicable sentencing of appeal, Maye argues gov- that On in this unavailing is case. visions provide necessary ernment failed 12(a) agreement be paragraph plea guilty plea factual basis for defendant’s government, par tween and charge. this weapons-possession See “that, accepted purposes ties as true for 11(b)(3) (“Before Proc. Fed. R.Crim. enter- sentencing, the relevant conduct for ing judgment guilty plea, on a the court at issue be con controlled substances is a factual must determine there pursuant sidered Court to U.S.S.G. Underlying this chal- 2D1.1(c)(6) plea.”). basis and is 1B1.3 between moreover, Maye’s is assertion that lenge, and of cocaine base.” In order amount, truly more- never the nature of 20-35-gram reach he understood pleaded guilty to which he and you possess THE COURT: Did district court thus also failed to chrome-plated you revolver which dis- by the strict dictates Rule abide played close proximity drug 11(b)(1)(G) of the Crimi Federal Rules of transaction? nal Procedure.1 you repeat THE DEFENDANT: Can part, please? argu failed to raise these court, ments before the district however. transaction, During THE COURT: result, allegations As a we now review the Maye possessed chrome-plated revolv- plain only. error See United States er, which was displayed proximi- close Lalonde, (6th Cir.2007). 509 F.3d ty to the transaction. Is that accu- error,” “plain To establish rate? “(1) (2) error, must that there is show Yes, THE DEFENDANT: sir. (3) plain, that affect[s] substantial answers, conjunction Those with other met, If all rights. three conditions are an during information hearing, elicited led appellate may then exercise its dis accept Maye’s guilty the district court to error, only cretion to notice a forfeited but “that plea finding after the defendant is (4) seriously if the error the fair affect[s] competent fully capable entering an ness, judi integrity, public reputation plea, informed that his of guilty is a proceedings.” cial Johnson v. United knowing voluntary plea supported by States, 520 U.S. 117 S.Ct. (citations (1997) independent an containing 137 L.Ed.2d 718 inter basis fact omitted). quotation nal marks each of the essential elements the of- to plead fenses which offering he’s to can dispute There be no that a defen- guilty.” dant must understand the ele- various to ments of offense which he or she By the time of the defendant’s sen pleads plea guilty before that can be con- tencing, however, it was obvious that constitutionally Bousley sidered valid. See Maye’s Maye, attorney, and the even dis States, 618-19, v. United 523 118 U.S. judge trict were confused as to what exact (1998). S.Ct. In L.Ed.2d ly required was to establish guilt cases, many may such an understanding be 924(c) possession-in-furtherance garnered merely a reading from Indeed, charge. the following discussion indictment and from an the opportunity for out points that the various in principals the questions defendant ask about the plea proceedings not did believe that “a Valdez, charge. See United States specific nexus the between and crime (6th Cir.2004). F.3d In more but, rather, charged” need be shown that instances, complicated “further explanation government show only need that the

may required.” be Id. defendant a firearm and that case, transcript this of the defen- the firearm was located somewhere near dant’s plea hearing submission reflects illegal drug transaction: that district judge attempted to ensure Maye, THE you COURT: Mr. do understanding each of the ele- something say mitigation, sir? ments of the section charge. THE DEFENDANT: Yes. pertinent part, engaged colloquy following with defendant: THE COURT: Have at it. 11(b)(1)(G) provides 1. Rule that ac- before dant understands "the nature of each defendant, guilty cepting plea from pleading.” to which the is that must determine the defen- drug trafficking Like, of a I was kind furtherance THE DEFENDANT: it charges. your possession You had in on one of the crime. of confused crime. You’re drug trafficking use in a that? THE What’s COURT: charged brandishing it or being with I was kind THE DEFENDANT: it, using it. You had and that otherwise I charges one confused on 924(c). Specifically, elements with, which charged suficient. you, heard were that you previously that you confused THE What were COURT: firearm in fur- Maye, possessed a Ricco about? trafficking crime. therance of exactly Like- how THE DEFENDANT: assume that was based And I would 924(c). got charged I you charged fact were upon that THE What’s that? COURT: it, you knowingly and did so Exactly I how THE DEFENDANT: intentionally, you and that did this on or 924(c). got charged with alleged in the the date that was about you Don’t think the time THE COURT: in the District of indictment Southern day we that would have been to visit Ohio. you all when I asked if your plea took the govern- Those are elements you of facts statement you if prove have to had ment would accurate? pleading guilty were gone you trial on count. Do Yes. THE DEFENDANT: that? understand you Okay. THE Are now COURT: THE DEFENDANT: Yes. away your plea to back wanting agreement? just All And so right. THE COURT: record, far THE DEFENDANT: As as that reiterate for the can case, somewhat, yes. talk Mr. you’ll want perhaps this, about Settina but Really. [defense counsel] THE COURT: your accepted plea, at time that I THE Because at the DEFENDANT: you you indicated that understood these changed my time when I had pretrial elements; fact, had the you opportu- guilty it was like guilty, from not thing, nity along them and consult a less than minute and then to read with [a] time, we— with Settina at the and wheth- Mr. agreed er those elements and you with Ricco, just— THE that is COURT: you voluntarily and knowingly whether mean, I’m THE DEFENDANT: I your to giving up right have the gun, fact denying the that I had but government prove these elements be- being I as far as what learned yond All those a reasonable doubt. jail, committing crime like the is today’s to you prior have things done gun. having government date. That’s what you recognize THE Do COURT: prove have to at trial. would say held everything you against will be Well, you point? Okay. at this I THE DEFENDANT: just impression I think was THE DEFENDANT: Yes. being charged having I that was you recognize THE And do COURT: gun point period, blank. just again you admitted what you previously sorry. again admitted? I’m THE COURT: Come with that. THE DEFENDANT: Yes. 924(e) I I un- THE DEFENDANT: said was

THE The COURT: just being I impression of a der that was charged you possession firearm having my want read charged, you Do me to the second jail what I learned apartment. From paragraph? or—I mean— you MR. SETTINA: Do need him place is

THE COURT: Which the best that, or you read are clear? advice, jail, right? get legal is the Yeah, THE DEFENDANT: I’m clear. Okay. you why don’t don’t why So — MR. SETTINA: He indicates that he’s your who you lawyer learn from is clear, Your Honor. you, one that’s standing right next Maye, THE you COURT: Mr. are guilty bar, passed your unlike friends charged and as have you previously as county jail. respect indicated with to Count which Why right. you gentlemen All don’t is with intent to distrib- have a seat chat about this for a and ute, manufacture distribute approxi- and Okay? moment. mately base, 25.81 of cocaine ;¡« í|; :|5 sj{ respect the possession Count Honor, I MR. Your SETTINA: firearm in of a furtherance of a I Maye to can explained to Mr. the best crime, trafficking a violation of 18 Unit- why the elements of the offense and he’s Code, 924(c)(l)(A)(a)? ed States Section guilty why I he’s them believe MR. like SETTINA: He’d to ask coun- them, I guilty of don’t that I know question, sel a Your Honor. can can any anybody do more—or that I’m, more, do still at this time THE COURT: Yes. Mr. Maye

not certain that understands MR. SETTINA: I think Mr. why given situation — facts now. clear explained apply- situation as were THE COURT: he And so could answer why the law those facts my question? guilty makes him He has offense. THE DEFENDANT: Yes. requested explain that the Court THE COURT: guilty You are of Counts him, and that’s where we are. 2 as charged, 1 and correct? THE COURT: incident—the THE That’s DEFENDANT: correct. going Court’s to reread the statement of facts was read the time that the you THE COURT: And understand accepted your guilty plea. Court And at guilty? why you’re accepted your guilty the time that I Yes, THE I DEFENDANT: under- plea, you I if the asked statement now. stand true, you facts they was said were. Why you THE COURT: don’t tell me 2, 1, So on or paragraph about March you one more time. are Why guilty? 28, up including to and November THE DEFENDANT: Because on possess Ricco did with intent 1 where I make Count did the sale to distribute, manufacture and distribute Cl; and on I guilty Count was approximately 25.81 of cocaine I just gun peri- because had —I had the base, crack, a commonly referred to as od, just point blank. I under the was II Schedule controlled substance and did that— impression possess in a firearm furtherance of a THE gun COURT: You had the crime of drug trafficking. you you, selling were crack cocaine? place These took at various activities you saying THE DEFENDANT: Are locations in and around the North Short Columbus, me, like, area of Ohio. on me? es offense could be drug-trafficking a your possession, No.

THE COURT: gun a your in evidence that possession, simply tablished your constructive premises where a present on the apartment. was however, a Clearly, such Oh, occurred.2 it was sale yes, THE DEFENDANT: in the presence of firearm coincidental my apartment. support insufficient to vicinity of crime is your was Okay. And it THE COURT: 924(c) conviction. United a section See gun? (6th Combs, F.3d States Yes. THE DEFENDANT: Cir.2004). Instead, government must “the your And it THE was COURT: that the ‘firearm was show apartment? promote advance commission DEFENDANT: Yes.

THE ” Id. underlying trafficking] offense.’ [drug nobody it else And THE COURT: was— 461-62). 265 F.3d at Mackey, (quoting there? lived No. case, THE DEFENDANT: make this the court failed to Okay. Very good. aware of the nuances of the section THE COURT: 924(c) entry guilty prior statute of his Oh. THE DEFENDANT: and the identified plea, prosecution never ahead. THE COURT: Go that meet that more strin- evidence would But right. All THE DEFENDANT: Further- “in furtherance” standard. gent I was con- thing thing main —the more, the dur- statements on place fused about is that sale took beyond any doubt hearing establish my apart- front and not in porch ment, thinking not have so I that that would entered was have to means the crime would if he had that to the firearms guilty place happen at the same that something than mere thought more at. weapon premises get THE done necessary COURT: When his Ironi- guilt. to establish this, you your tell going all I’m about jailhouse cally, Maye’s acquaintances were right? all appellate rights, who alerted him to the individuals Okay. 924(c) THE DEFENDANT: preconditions for a proper conviction, you litigate THE If want to and the COURT: while that, have it. attorney parties defendant’s own unintentionally leading Maye astray. THE Oh. DEFENDANT: right? All THE COURT: circumstances, such we are con- Under THE DEFENDANT: Yes. to conclude that strained added.) duties, (Emphases carrying erred out his Rule clearly plain, the error was excerpt set out this extended We rights possessed by affected substantial hearing transcript to dem- Maye, and an error allows a that such consistency onstrate the with which liberty upon quantum based loss under- expressed district court mistaken statutory to meet re- evidence fails standing conviction that a section fairness, seriously affects the quirements for of a firearm in furtherance admits, 924(c) must, salvage by as it that the to the section conviction 2. The dissent Maye plainly meaning that imputing explanatory district stated to some hidden it, "lylou had Rath- and that was sufficient.” beyond judicial them. creationism is to Such taking unambiguous words at er than those charge. appellate-review our however, value, attempts their face the dissent reputation guilty of integrity, judicial plea the for this alternate reason Maye proceedings. thus hold that is We as well. opportunity plead entitled to another to to Light Reasonableness of Sentence in of 924(c) charge- fully

the section time —-this Disparity Powder/Crack cognizant charge of the nature of the to which is pleading. he 17, 2007, September On the district court sentenced to 97 months in Valdez, In noted we that “Rule prison distributing than more five ll(b)(l)(G)’s requirement that a defendant of crack cocaine. Three weeks la- understand the essential elements of the ter, anticipation of the November ef- integrally crime is related to Rule changes fective date for to the manner in ll(b)(3)’s requirement that which crack cocaine sentences would be plea court determine that the has a factual calculated, the court resentenced the de- Consequently, basis.” 362 F.3d at 909. using fendant the two-level reductions for the same reasons discussed in relation 2Dl.l(c) built into the amended section of Maye’s challenge to the to district court’s sentencing guidelines. the Use of the new apprise failure him the of nature the guidelines led the imposition of a 78- 924(e) him, against section made we month sentence for the March crack government hold that the has also failed appeal, distribution. On now con- advance a sufficient factual basis for the drug that the tends sentence should be guilty plea. defendant’s evi Without reduced even in light further of recent dence that the firearm found in pronouncements by United States “possessed residence was or Su- advance preme Court promote the this court that underlying commission under- offense,”3 [drug-trafficking] presumed cut the starting point district sen- plain court thus committed enter error in tence calculations is contained in the ing judgment the defendant’s guidelines. highlighted by prosecution conclusion,

3. The evidence an effort to contradict this court, accepted by anything, the dissent that "[t]he if states facts were suffi- cient to show that the revolver ... was anoth- leads to the conclusion that the firearm was Maye's Merely stating er tool of trade." such possessed promote drug not or advance conclusion, however, necessarily does not trafficking only offense. gun Not was the make statement true. The burden of crime, during brandished the confidential proof in upon prose- case criminal rests gave gun informant no indication that the was prosecution cution and it respon- is the even loaded at that or time that Ricco establishing gun sible for in this case that the weapon. threatened him with the No testi- promote "was to advance or mony pointed indicated that the defendant [drug-traffick- underlying commission of the gun gun out the to the informant that the Combs, ing] offense.” 369 F.3d at 933. Al- Indeed, easily visible to the visitor. though might presence surmise confidential informant even went so far as to gun in the defendant’s home indeed away confirm that the defendant took him trade, Maye's drug gov- connected with porch and out onto a of an beyond ernment failed to establish that link apartment way’’ “across the to consummate reasonable doubt and the defendant’s state- short, transaction. the evidence open only ments reinforce the con- presented as a plea factual basis for the estab- misunderstandings clusion and confusion nothing lishes more than "that the firearm’s plea taking tainted the of the in this matter. presence vicinity in the of the crime was ... than Rather sacrifice treasured constitutional coincidence,” showing mere chance or protections, we relatively should take the clearly we have indicated is insufficient painless step ensuring Maye's understand- requirements 11(b)(3). meet the Rule See charges against by pro- levied him Combs, viding 369 F.3d at him hearing. with a new 632 1, 2007, States, to the November amend- v. 552 suant Kimbrough United U.S. 558, 575, for a

85, provided 169 L.Ed.2d 481 to guidelines 128 S.Ct. ments (2007),4 reemphasized the Supreme Court adjustment of crack cocaine downward guidelines crack cocaine “[bjecause even the sentencing ranges, only, v. advisory see United States were authority appear court did not aware its 738, Booker, 220, 125 S.Ct. 160 543 U.S. Guidelines, vary to from the crack-cocaine (2005), held that “it would 621 L.Ed.2d give we ‘to the district court an remanded for a district an of discretion not be abuse impose a sentence with full opportunity sentencing a par court to conclude when reject authority its recognition of crack/powder ticular defendant vary from the crack-cocaine Guidelines than yields ‘greater sentence disparity solely policy disagreement on a with based 3553(a)’s purpose, ” necessary’ to achieve Guest, United States v. those Guidelines.’ little in a mine-run case.” A more even (6th Cir.2009) (quoting 564 F.3d later, year. v. Spears than a in United 992). Johnson, F.3d at — States, U.S. -, 129 S.Ct. 843- Guest, recently, in distin- More (2009), the Court then 172 L.Ed.2d guished Johnson and declined remand logical step along took the next Book re-sentencing. in The defendant Guest held er-Kimbrough continuum and “that crossing state lines with was convicted reject are district courts entitled to engage sexually illicit con- the intent to vary categorically from the crack-cocaine underage duct with two children. two policy disagreement on a Guidelines based children, out, fictitious, it turned were hav- those Guidelines.” been created an undercover FBI already pre The Sixth has been Circuit agent posed in group who an internet chat opportunity Spears with an to apply sented as young a divorced mother two distinguishable scenarios. In United upward adjust- daughters. Guest received (6th Johnson, 553 F.3d 990 States Cir. guidelines under the for each ficti- ments 2009), gave opinion our no clue that defen child, resulting in an level of tious offense Kimbrough/Spears dant Johnson raised a guidelines range 34 and 151 months to challenge crack at to his cocaine sentence 778. 188 months. See id. at Had there time, appropriate either in the district child, only one been Guest’s offense level fact, opinion court or appeal. guidelines would have been 32 and his simply: Johnson stated range would have been months sentencing At the conclusion of the hear- n. sentencing, months. See id. 778 3. At (1) objected ing, to: Johnson’s counsel argued Guest he should not re- the district court’s determination that adjustments upward ceived for each child Johnson was entitled a downward just adjustment the FBI could have created mitigating based on a role because (2) 3B1.2, pursuant to U.S.S.G. child. The district court re- one fictitious impose the district court’s decision to sponded guide- that it had “looked at the the federal sentence consecutive they they lines and what would be if pursuant state sentence to U.S.S.G. less, I do points although two whatever § 5G1.3. upon way is not based However, just all. I record to Id. that at want though at 994-95. even district court that I have that.” Id. at pur- sentenced reflect considered comply pending guide- Kimbrough as was decided on December tence so 2007, approximately two after the dis- months line amendments. Maye's trict court in this case altered sen- added). (emphasis Consistent with level requisite offense two levels and it recognition imposed this that was not constrained again the lowest sentence within calculation, guidelines district by range 'the without explanation. further below-guide- to a Hence, court sentenced Guest there is reason believe that the lines sentence of 120 id. at months. See did not judge recognize his authority to 779. “reject vary from the crack-cocaine Guidelines on solely policy based dis- claim rejected On appeal, we Guest’s agreement with those Guidelines.” John- might imposed that the district court have son, 553 F.3d at 992. Because this case if a lower sentence it had of known its must be remanded for correction of the authority guidelines to deviate from the on 924(c) error under Count grounds In policy Kimbrough. so elect, Johnson, as we did in to vacate doing, we emphasized the district court’s Maye’s sentence under Count 1 and re- affirmative indication it its understood mand the matter with directions to the authority to deviate the relevant examine district sentencing Thus, guidelines calculation. though even anew, independent criteria of guide- court in Guest did not have the gloss, lines’ and determine whether it Supreme subsequent benefit of the Court’s reject wishes to guidelines’ Kimbrough decisions in it rationale Spears,- policy grounds. on clearly recognition had full power its “vary ranges solely from Guidelines based Retroactivity Regarding of Amendments considerations, policy including on dis- Computation History of Criminal agreements with the Guidelines.” Kim- brough, 552 U.S. S.Ct. at 578. issue,5 a final appellate Maye submits that he should have been designat Maye’s We find case to be more category offender, ed a criminal history II akin to it Johnson than is to the situation than a history rather criminal category III presented Although Guest. is true it event, offender. he claims, the that the district in this matter never applicable range sentencing for this explicitly by stated that he felt bound offense conviction would have been 70-87 policies exemplified crack-cocaine in the months instead of 78-97 months. In sup guidelines, transcript port argument, Maye of this directs our hearing suggests may that he acted attention to an amendment to section principles. Initially, adherence to those 4A1.2(c) of guidelines that became ef the court sentenced at the bottom fective November Even applying 2007. applicable guideline range. When amendment, however, that 2007 the dis guidelines were amended to reflect rec necessarily trict court would have arrived ognition that crack-powder disparity at the same criminal-history-category-III drastic, was too the district judge did not designation for the defendant. engage in ap his own examination of the propriate punishment for the defendant Pursuant to the version of U.S.S.G. but, rather, 4A1.2(c) simply reduced the relevant in effect at the time of - ler, -, appeal also for the raises first time on U.S. 128 S.Ct. (2008). choose, however, a claim that his conviction under 18 U.S.C. L.Ed.2d We Supreme is invalid because the decide' not to this issue at this time because recognized Court process has now a constitutional was raised so late in the and was not right course, eligible possess fully individuals to hand party. Of briefed either remand, guns in the home for self-defense defense argu is entitled to raise this property. See District Columbia v. Hel ment anew. history points challenged two criminal misdemeanors for sentencing, sentences discounted, Maye toward a would still have were counted petty offenses only if: history criminal for misdemeanor points defendant’s accumulated three (A) proba- points additional plus term of convictions the two was a the sentence or a term of present of one offenses year having tion at least for committed thirty days, or of least imprisonment “probation, parole, supervised while under (B) release, release, es- imprisonment, offense similar to work or prior [one was 4A1.2(c)(l)]. §in Thus, the offenses listed of under the best- cape status.” even defendant, proposed by case-scenario 4A1.2(c) (2006) (emphasis § adde U.S.S.G. still be history points five criminal would d).6 Maye, subjecting him to assigned again calculus, pro- Under that history category sentencing as a criminal determined that accu- bation office challenge III This the defen- offender. history points criminal for mulated five is thus without merit. dant’s sentence negli- for prior misdemeanor convictions license, assault, operator’s no domes- gent assault, arrest, resisting violenee/simple tic CONCLUSION carrying of concealed attempted Maye pleaded After defendant Ricco Because, however,

weapon. section charges distributing of more than guilty to 4Al.l(c) to four number crimi- limits possessing five of crack cocaine accumulated history points nal can be of a drug-traffick- a firearm furtherance days, than 60 prior for sentences less offense, sentenced report assigned only four presentence prison terms defendant consecutive points Maye, supplemented by an such months, respectively. points two for commission of an of months additional justice court, however, plain criminal That committed er- offense “while sentence, parole, including probation, plea su- accepting Maye’s guilty ror in to the release, imprisonment, 924(c) pervised work re- charge no factual when basis lease, escape status.” U.S.S.G. allegation for that offered and when was 4Al.l(d) (2006). § six The defendant’s properly was not instructed history placed him in points criminal thus as to the nature of the which he III, history which category criminal is re- therefore, We, pleading. was VACATE four, five, served for offenders with or six conviction under 18 defendant’s U.S.C. history points. criminal (Count of a firearm for 2) matter to the dis- and REMAND this assign On contests the appeal, hearing. trict For the court for new point ment of each for his one convictions above, we also reasons set out VACATE violenee/simple for assault and domestic However, sentence for distribution of defendant’s resisting arrest.7 we need (Count 1) crack cocaine and REMAND not ourselves in a discussion of the involve because, argument re-sentencing. even if the matter for defendant’s government 6. Effective concedes retroactive November 4A1.2(c)(1)(A) require was amended to application 2007 amendments to probation “more term of be than one sentencing guidelines would allow Thus, year.” year” than “at rather least one history assigned point to be one criminal year probation exactly term of one would January resisting arrest conviction be- lead consideration of the offense convic- exactly period probation one cause the computation history prior tion in the criminal year. 1, 2007, to November not after that date. but BATCHELDER, er, M. ALICE Chief which displayed proximi- close Judge, concurring part and dissenting ty to transaction. Is that accu- part. rate? THE Yes, DEFENDANT: sir.

I infirmity Maye’s find no in Rieco con- victions or I agree sentence. with the THE COURT: Was a search warrant majority that the district court did not err executed on that same residence where denying Maye a three-level reduction in you and others were found inside? his offense acceptance level for of respon- Yes, THE DEFENDANT: sir. sibility. I agree also that the district court THE they COURT: And did find 2.1 correctly Maye’s determined criminal his- cocaine, of crack baggies, digital tory category. Unlike the majority, how- scales, telephones, cellular money a ever, I would that Maye’s guilty hold plea counter, and Smith & Wesson model 924(c) § to the 18 U.S.C. 6D73738? Is that accurate? knowing voluntary, and a had suffi- THE Yes, DEFENDANT: sir. Also, cient factual basis. there is no indi- At during no time plea his hearing did cation of error in the record that would Maye indicate that he did not understand justify a remand for resentencing on the the charges against him. He did ask the distribution count. provide court to “more detail” about his 924(c) Maye’s Charge § Plea to the Was trial, right to and indicated that he wanted Knowing Voluntary to know what be; his exact sentence would Maye pled guilty under the terms aof the court answered his questions and at- 11 plea agreement. Rule At tempted to Maye make sure understood hearing 23, 2007, on March the answers. explained govern elements the It was not until five months later at his ment prove would have to beyond a rea third sentencing hearing, August 23, sonable doubt Maye if right exercised his indicated that he “was 924(c) togo trial. As to the 18 U.S.C. kind of confused on one of charges.” count, the court recited that govern He wanted to know got “how charged [he] (1) ment would have prove that: 924(c)” with the and said that he wanted to possessed a firearm in furtherance of a “back away” from plea. Maye ex- (2) drug crime; trafficking that he did so plained: mean, “I I’m not denying the fact (3) knowingly intentionally; that I gun, had the but as far as what I jurisdiction proper.1 The Assistant 924(e) learned being jail, like the United Attorney States then read a state committing a crime a having gun.” ment of The Afterward, facts into the record. court instructed him: the court went through statement, paragraph by 924(c) paragraph, to see if Maye charge charged you pos- disputed any of the facts. colloquy This session of a firearm in furtherance of a included the following exchange: drug trafficking crime. You it in had

THE During transaction, your COURT: possession for use in drug traf- Maye possessed chrome-plated revolv- ficking crime. being You’re not charged crime, provides, 18 U.S.C. firearm, any relevant anee possesses such who, part: ''[A]ny person during shall, and in rela- punishment in addition provided tion to drug crime of violence or traffick- for such trafficking crime of violence or person crime ... may which the be (i) be imprison- sentenced to a term of crime— States, prosecuted in a court of the United years[.]” ment of not less than 5 firearm, who, uses or carries a or in further- it. using otherwise brandishing it, was sufficient. had and that You as Maye, you guilty COURT: Mr. are you previ- elements Specifically, the respect to Count charged [... ] Maye, you, Ricco ously heard were in further- firearm in furtherance of a a firearm drug trafficking [...]? crime ance of a crime.... drug trafficking like to He’d DEFENSE COUNSEL: explained the the district court After question, Your Honor. ask counsel had of the offense which elements COURT: Yes. following exchange oc- guilty, pled Mr. I think DEFENSE COUNSEL: curred: clear now. is Well, I Okay. just I think was MAYE: my And so he could answer COURT: I being that was the impression under question? gun period, point charged having MAYE: Yes. blank. 1 and guilty You are of Counts COURT: again sorry. I’m Come with

COURT: charged, as correct? that. the impres- I I MAYE: That’s correct.

MAYE: said was just being charged I that was sion why you COURT: And understand From having gun my apartment. in you’re guilty? jail or—I I from mean—

what learned Yes, I now. MAYE: understand place get the best Which is COURT: one Why you don’t tell me COURT: advice, right? legal jail, is you Why guilty? are more time. Okay. why you why you don’t So don’t — 2, I was MAYE: and on [...] Count your lawyer standing who learn just I had—I hand guilty because you, passed next to the one that’s right just I gun point blank. period, bar, your unlike friends the coun- impression that— under the ty jail. you, had the gun COURT: You right. Why you gentlemen All don’t you selling crack cocaine? have a seat and chat about this for me, like, you saying MAYE: Are Okay? moment. on me? your possession,

COURT: No. your your possession, constructive Honor, I Your DEFENSE COUNSEL: apartment? Maye to explained to Mr. the best Oh, apart- yes, my MAYE: it inwas I can the elements of offense ment. why why them or I guilty he’s believe them, I guilty of don’t know Okay. your gun? he’s And it was COURT: anymore anybody that I can do —or MAYE: Yes. anymore, and I’m still at this can do it in your apartment? And was COURT: time not certain that Mr. under- MAYE: Yes. given why the stands situation-— nobody else lived And COURT: was— explained

facts of the situation as were there? applying why law to those facts MAYE: No. guilty that makes him offense. Okay. Very good. COURT: that the Court requested explain He has him, MAYE: Oh. it to and that’s where are. Go ahead. principals,” court,

COURT: including the “did not specific Al believe that ‘a right. thing MAYE: But the nexus between the —the thing main I gun was confused about is that and crime charged’ need be shown place but, rather, the sale took on the front porch government need in my apartment, and not I so was only show the defendant thinking that the 924 means that firearm and that the firearm was located happen crime would have to at the same somewhere illegal drug near the transac- place was at. tion.” majority Id. The even asserts that Maye’s “jailhouse acquaintances” under- argued never before the district proper stood the “the preconditions plea hearing court—at his or at for a his 924(c) conviction, sentencing hearings three his while —that was uninformed or based on court ... Maye astray.” Maj. insufficient Op. [led] review, therefore, facts. Our is for plain 630. may error. vacate We conviction The record gratuitous contradicts this “(1) (2) only if there was error that jab at the district court. Section (3) plain, affected a right, substantial and criminalizes not the possession mere of a (4) fairness, ‘seriously affects the integrity, firearm, possession but in furtherance of a public reputation judicial proceed drug trafficking crime. The district court ” Robinson,

ings.’ United States v. 547 correctly explained Maye to that a convic- (6th Cir.2008) 632, (quoting F.3d 640 Unit 924(c) tion under requires more than mere Martin, (6th 656, ed States v. 520 F.3d 658 possession but require does not a showing Cir.2008)). This is an “exceedingly defer that the firearm was brandished or other- standard, ential” Kemp, United States v. wise used. (6th Cir.2008); 546 F.3d 764 ‘“[t]he Given our stringent review, standard of Supreme Court and numerous federal say we cannot that the district court com- repeatedly courts have stated that any certainly mitted “plain” not er- plain error doctrine is to be used sparing error — accepting ror —in Maye’s guilty plea ly, only circumstances, or in exceptional ” refusing to allow him solely to withdraw Al- justice.’ to avoid a it. miscarriage of Unlimited, though Maye Inc., express United States v. continued to Gold 177 confu- (6th Cir.1999). F.3d 483 sion about how he Put could be convicted given another way, plain gun the error must be “so that apartment that the was in the while trial ... derelict in [was] counte the transaction porch, occurred on the he nancing it.” United States v. Herrera- dispute did not that gun he (6th Cir.2009) Zuniga, 571 F.3d in furtherance of his crack-dealing busi- Gardiner, (quoting United States v. sure, ness. To be Maye wanted to with- (6th Cir.2006)). F.3d draw his questioned because he sufficiency of the nexus between the fire- acknowledging While that our review is arm drug and his trafficking. But the error, plain majority adopts district court required was not accept to most reading possible uncharitable Maye’s post hoc assertion that he did not exchanges Maye between and the district understand the court. which he majority The had contends that “it was pled guilty; obvious” that to the extent that Maye the court was “confused as to exactly arguing what was that required was he overestimated establish 924(c) guilt strength case, of a section possession-in-fur- government’s he did charge.” Maj. Op. provide therance Specif- the court with a basis for ically, majority that states the “various him allowing plea. withdraw the intentionally, and knowingly and lengthy excerpt a did so majority quotes

The “to hearing transcript date from the that this on or about the you did demonstrate,” claims, consistency “the in the in the alleged that was indictment expressed a court which the district with Southern District Ohio. that a understanding mistaken court The that the context demonstrates of a fire- possession conviction for mere of a fire- did not consider drug-trafficking in furtherance of arm arm, any drug nexus to a traffick- without simply by be evi- could established crime crime, to constitute an offense gun present prem- that was dence 924(c). The not- court twice U.S.C. Maj. occurred.” drug ises where sale “[y]ou saying before and after ed—both however, absent, Noticeably at 630. Op. it, Maye had and that was sufficient”—that by majority attempt serious firearm possessing charged any contextually supportable

identify drug trafficking crime. furtherance by court that dem- statements even defined “in furtherance” court misunderstanding. this alleged onstrate charged that explaining footnote, points my majority out “for in a possessing use the court acknowledgment “stated crime”; time, at the it, trafficking same ‘[y]ouhad plainly being that I fail to was not explained was sufficient’ and asserts words at their unambiguous brandishing take ‘those charged actually using or ” n. Maj. Op. at 630 2. Rather face value.’ way, com- weapon. In this the court’s one attempt explain than how sentence it, had that was “[y]ou ment five-page colloquy from a dem- extracted distinguish a sufficient” was intended to error, majority the a consistent onstrates possession-in-furtherance charge simply declares that the sentence is “un- 924(c) a using carrying a of or from (but ambiguous” does not indicate what weapon under that same subsection. Un- is) unambiguous meaning and the accuses (and interpretation colloquy der this the “imputing explanatory me of some hidden it is not that it should be otherwise “plain” “judicial in cre- meaning” engaging did interpreted), the court not err. daring ationism” for to read statement 924(c) Charge Id. Mage’s in context. Had Plea to the a Sufficient Factual Basis meant the district court when it What it, Maye that had and that told was “[he] incorrectly “the majority The holds that is not hidden and needs no im- sufficient” that prosecution never evidence identified Again, paragraph full reads: putation. ‘in fur- stringent would that more meet ” 924(c) you charge charged pos- The standard[,]’ Maj. at Op. therance session of a firearm in furtherance of a government’s even that the evidence states drug You it in trafficking crime. had “leads the conclusion that the firearm your possession drug use in a traf- promote possessed was not advance or being ficking charged crime. You’re not offense[,]” at trafficking Maj. Op. the drug it. brandishing using it or otherwise conclusion, reaching n. this it, You had and that was sufficient. our standard majority ignores deferential you that Specifically, previ- the elements and relevant review caselaw. ously you, Maye, heard that Ricco were 265 F.3d Mackey, United States a in of a firearm furtherance (6th Cir.2001), that “the we held And drug trafficking crime. I would possession prem- of a firearm on the same upon that fact assume it was based that not, it, with- you you drug ises as a transaction would charged brandishing gun; pled guilty a he showing of connection between out a drug “In it in traf- two, possessing a conviction.” furtherance of a sustain in possession ficking to be further- crime. And the fact that order for crime,” “the drug explained, ultimately moved the transaction anoth- ance of strategically must be located so nearby firearm because of activi- police er location quickly easily available for possess that it mean that ty does not he did not in Id. Factors we deter- use.” consider gun drug trading. in furtherance of his possession drug in furtherance of mining were sufficient to The facts show that trafficking crime include: “whether the scales, baggies, revolver—like the and oth- loaded, weapon, gun type was along with paraphernalia er discovered possession, drug of its legality type another tool of The it—was trade. conducted, and cir- activity and the time argues my majority “[mjerely stating cumstances under which the firearm ... necessarily such a conclusion does Although Id. of factors is found.” this “list Op. statement Maj. make the true.” helps distinguish ... it not exclusive But it is majority opinion 631 n. 3. crime furtherance of a possession is, explain fails to its conclusion—that an- innocent of a wall-mounted opinion majority explain ap- does not how an unloaded rifle locked tique hunting plication Mackey to a factors leads Id. cupboard.” that Maye possess conclusion did not drug in furtherance of his trade. Here, application of each of those factors finding Maye possessed supports Indeed, strikingly the facts here are traf- the firearm furtherance of a case, those in Mackey. similar to In that crime. The firearm loaded. It ficking police arranged for a infor- confidential revolver, handgun was a .38 caliber de- partic- crack purchase mant to cocaine at a quick easy access and maneu- signed day, ular The next execut- house. officers verability. Maye did not the re- acquire ed a warrant at the search house “off legally bought volver but loaded, illegally possessed, found “an type drug activity con- street.” living shotgun room short-barreled transaction, was a ducted hand-to-hand house, easily of the crack to the accessible protec- a dealer one where would want and located near the scales a tion of firearm. The revolver was found Defendant, by po- stopped razor blades. day drug transaction oc- the same and a gun, possessed lice near the cocaine curred, Maye while in the resi- was still large Mackey, sum of cash.” 265 F.3d gun From the table on dence. which held that the evidence “[f]rom We found, officers 2.1 also recovered jury a reasonable could infer presented, cocaine, baggies, of crack plastic of the firearm was to purpose scales, telephones, a digital several cellular or in further- provide defense deterrence cash, money amount a significant drug de- trafficking ance of the for which counter. fendant arrested.” Id. at 462-63. Likewise, it was not for the plain error majority points

The out that did government’s to find that the district court gun during not his transac- brandish all informant, proffered facts tended to show the confidential did tion with the firearm in furtherance informant, out the point to the transaction; doubt, without a did not otherwise threaten the informant “wall- here was not like a gun. These are true firearm with the facts antique hunting or an but are irrelevant: mounted unloaded enough, completely in a at 462. using cupboard.” did not rifle locked Id. plead guilty to 640 Resentencing impose a below-Guidelines on the Dis- discretion”

A Remand Santillana, v. States is Unwarranted sentence. United Count tribution Cir.2008) (6th 428, (citing 431 540 F.3d should that we majority also decides The Puckett, 422 F.3d v. United States on the distribution Maye’s sentence vacate Cir.2005)). “Rather, (6th presume we 346 resentencing so the and remand count understood its dis- the district court whether can determine court district cretion, to the con- clear evidence absent based on guidelines the crack depart from v. (citing United States trary.” Id. Kimbrough policy considerations. Cir.2002)). (6th Crouch, 907, 910 288 F.3d States, 85, 128 S.Ct. 552 U.S. United in this the rule Circuit (2007), And it remains Supreme 169 L.Ed.2d to some sen- may point must sentencing a court that a defendant held that Court the crack a remand. depart from error to warrant tencing its discretion use Guest, mine-run case. even guidelines, 564 F.3d at 779. — States, Spears v. United year, This “[wjhen majority notes 840, 843-44, -, 129 S.Ct. U.S. ... amended guidelines were (2009), it made the Court L.Ed.2d of- simply ... reduced the relevant judge may depart court clear that imposed the low- again ... and fense level solely policy on guidelines based fur- range without sentence within the est Kimbrough But neither considerations. concludes that this explanation” and ther pre- for a provided basis Spears nor to believe” that the provides fact “reason a sentenc- just of error because sumption authority its recognize failed to not, expound on sponte, court did sua reject guidelines the crack categorically explain why scope of its discretion or Al- Maj. Op. at 633. policy grounds. guidelines’ to stick with had decided judge who chooses sentence though Rather, decisions— recommendation. our apparently is guideline range outside Spears Kimbrough after even —“make so, do it does not of his discretion to aware indication that there should be some clear held—that a have we ever follow—nor justifying remand.” in the record of error within-guidelines sen- imposes who Guest, F.3d States v. United is unaware of his discre- presumably tence Cir.2009). (6th ... justify a remand “[T]o Indeed, majori- otherwise. tion to do identify specific error appellant an must repeated that the court’s ty’s suggestion id., below[,]” which proceedings in the within-guidelines sentences imposition Maye has failed to do. ignorance runs somehow indicative Guest, rejected argument an sim- falling counter to the rule “sentences Maye, and de- ilar to that made here range may advisory Guidelines within resentencing to remand for because clined presumptively reasonable be considered that the district there was “no indication deviate from ... [while] [sentences any policy disagreement court had ... are afforded no such the Guidelines ” Al- relevant Id. Guidelines.... Herrera-Zuniga, 571 F.3d presumption.” district court in affirma- though the Guest States, Rita v. United (citing at 582 au- tively “that it understood its indicated 338, 2456, 347-51, 127 S.Ct. U.S. thority to deviate from the relevant (2007)). L.Ed.2d 203 calculation,” Maj. Op. guidelines nothing in the rec- Ultimately, there is silence here may not read the court’s that the district court here suggest ord to its discre- to mean that misunderstood with the crack disagree was inclined to that a district require tion. do not “We or that policy grounds guidelines that it is aware of its explicitly court state guide- crack argument made appealable no

lines were unfair. “There is ...

issue saved when a defendant wishes appeal discretionary factor and does request to exercise such during sentencing hearing.”

discretion Simmons, v.

United States 501 F.3d (6th Cir.2007). Maye did not ask the depart to exercise discretion to

downward, plain and it was not error for

the court not to do so.

Accordingly, I would affirm con-

viction and sentence on both counts. America,

UNITED STATES of

Plaintiff-Appellee, Raynard MOORE,

Kenta Defendant-

Appellant.

No. 08-1699. Appeals,

United States Court of

Sixth Circuit.

Argued: Aug. 2009. Filed:

Decided and Oct. notes the discussion of “relevant lB1.2(a)(l)(A) only conduct,” refers as he cannot duct” in section 19 sale “relevant during commis- “that occurred to acts successfully challenge now conviction, prepa- sion of the offense of judge’s contesting determination that offense, or in course of ration for that preclud- germane facts to that transaction responsi- to avoid detection or attempting Maye actually finding accepted ed May bility for that offense.” Because those actions. responsibility for of crack cocaine preparation and sale into did not factor the March “offense Understanding Factual Basis

Case Details

Case Name: United States v. Maye

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Oct 5, 2009

Citation: 582 F.3d 622

Docket Number: 07-4311

Court Abbreviation: 6th Cir.