UNITED STATES of America, Plaintiff-Appellee, v. Michael B. MAY, Defendant-Appellant.
No. 09-4354.
United States Court of Appeals, Sixth Circuit.
Aug. 29, 2011.
CONCLUSION
For the aforementioned reasons, we AFFIRM the district court‘s sentence.
OPINION
McKEAGUE, Circuit Judge.
Defendant Michael B. May appeals his conviction for being a felon in possession of a firearm, arguing that there was insufficient evidence to link him to the firearm. May also challenges the sentence imposed, arguing that an enhancement for reckless endangerment and $1,000 fine were improper. For the reasons that follow, we AFFIRM both the conviction and sentence.
I. Background
On August 26, 2008, at approximately 12:30 a.m., Officеr Eric Williams (“Williams“) and Sergeant Christopher Svec (“Svec“) of the Cuyahoga Metropolitan Housing Authority (“CMHA“) Police Department were conducting a foot patrol in the Cedar Avenue CMHA housing project. The officers noticed four men standing in a parking lot outside of one of the apartment buildings. As the officers approached and called out to the men, the men fled. The officers pursued two of the men who headed toward an apartment building. One of the men was wearing a gray sweatshirt, and the other was wearing a red pоlo. The men entered the building and the door locked behind them. As Williams tried to open the door, Svec stood back and watched the men climb the stairs through the illuminated stairwell windows. Svec was able to “see a hand with a gray sweatshirt come out the window and drop a weapon” onto a second-floor balcony, and then see the men enter a third-floor apartment. Another officer arrived on scene with a master key, but at about the same time the resident of the second floor apartment came down to let thе officers in. Svec and the other officer proceeded to the second floor, where Svec entered the apartment with the balcony and recovered a loaded firearm from the balcony. Svec came back downstairs to secure the gun in his police vehicle, and then Williams and Svec entered the build
The officers arrested both men, and May was indicted for being a felon in possession of a firearm in violation of
Prior to sentencing, the Prоbation Office prepared a Presentence Investigation Report (“PSR“). According to the PSR, Mays had a base offense level of 24, and a criminal history category of VI. Additionally, the PSR included a two-level enhancement under
II. Analysis
First, May challenges the jury verdict, arguing that there was insufficient evidence to link him to the discarded gun. Second, May challenges the sentence imposed, arguing that the two-level enhancement under
A. The Sufficiency of the Evidence
We conduct de novo review of a district court‘s denial of a motion for acquittal for insufficiency of the evidence. United States v. Graham, 622 F.3d 445, 448 (6th Cir. 2010). “A defendant claiming insufficiency of the evidence bears a very heavy burden.” United States v. Abboud, 438 F.3d 554, 589 (6th Cir. 2006). “The relevant question . . . is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Graham, 622 F.3d at 448 (quoting United States v. McAuliffe, 490 F.3d 526, 537 (6th Cir. 2007)). In answering this question, we view “the evidence in ‘a light most favorable to the prosecution, giving the prosecution the benefit of all reasonable inferences from the testimony.‘” Id. (quoting McAuliffe, 490 F.3d at 537). “We afford the same weight to both circumstantial and direct evidence,” id. (citation omitted), and “[c]ircumstantial evidence alone is sufficient to sustain a conviction,” United States v. Wettstain, 618 F.3d 577, 583 (6th Cir. 2010). “We may not weigh the evidence presented, consider the credibility of witnesses, or substitute our judgment for that of the jury.” Graham, 622 F.3d at 448 (citation and internal quotation marks omitted). Challenges to witness credibility at this stage “would invade the province of the jury as the sole finder of fact in a jury trial.” Id. at 449 (quoting United States v. Bearden, 274 F.3d 1031, 1039 (6th Cir. 2001)). Indeed, an attack on witness credibility is not a prоper challenge to the sufficiency of the evidence, but rather an
We look first to the essential elements of the crime. “‘To obtain a conviction pursuant to
The evidence that linked May to the firearm shows that both officers testified that they saw two men, one wearing a red shirt, and one wearing a gray shirt, run to and enter the apartment building. Svec‘s description was even more specific; he testified that one male was “anywhere between 5‘8 to 5‘10 tall, about 150 to 170,” wearing a gray sweatshirt with blue jeans, and that the other malе “had a red polo shirt on,” and “was about 5‘3, 5‘4 maybe about 120 pounds.” R.60, Trial Tr., at 72-73. Both officers testified that they pursued the men to the apartment building, and Svec was able to watch the same men climb the stairs through the illuminated stairwell. As the men were climbing the stairwell, Svec testified that he saw the man in the gray shirt reach out of one of the stairwell windows and drop a firearm onto the balcony of a second floor apartment. Svec also testified that he was able to watch the men reach the third floor and enter an apartment nоtwithstanding the bars over the windows and the dirty glass. Id. at 75. The officers further testified that after recovering the firearm, they encountered Lockhart outside of the third-floor apartment. Svec testified that he asked her if two men ran into her apartment, to which Lockhart replied that two friends had recently come back from the store. Id. 78. The officers testified that after receiving permission from Lockhart to enter the apartment, and once they were inside, they found a male, who was about 5‘3 and wearing a red polo shirt, in the living roоm. Id. at 25. Moreover, they saw May, who was about 5‘9 and wearing a gray sweatshirt, leaving the bathroom. Inside the bathroom, Svec testified that he found a “[l]arge amount of loose marijuana that was in the toilet that appeared to [be] ready to be flushed or discarded.” Id. at 80.
As to merits of May‘s argument, May‘s challenges to the consistency of the officers’ testimony are not well taken because they are improper challenges to the credibility of the officers and the quality of the evidence. See Graham, 622 F.3d at 449. Furthermore, even assuming for a moment that there were some inconsistencies with regard to some of the officers’ testimony, we do not see how the inconsistencies noted by May affect the sufficiency of the evidence because there were no inconsistencies as to the officers’ testimony on the
We may, however, consider May‘s argument that it was physically impossible for Svec to observe the two males climbing the stairs, and to see an arm with a gray sweatshirt drop a firearm on the balcony, because we do not “blindly accept implausible stories swallowed by the jurors” that are “beyond the realm of physical possibility.” United States v. Caraway, 411 F.3d 679, 682-83 (6th Cir. 2005). May‘s defense counsel cross examined Svec on this issue, using photographs taken during daylight hours as exhibits. In particular, counsel used Exhibit NN, a photograph that according to Svec‘s testimony was taken from a vantage point that was at least close to where he was standing when he observed the men climbing the stairs. R.60, Trial Tr., at 90-91. In this photograph, despite some obstructions, we can clearly see an individual on the stairwell between the seсond and third floors. The photograph also leaves little doubt that it was possible to see someone reach an arm out the window to drop something on the balcony from this vantage point. Moreover, Svec testified that he believed his view was better at night because it was dark outside and the stairwell was illuminated. R.60, Trial Tr., at 93. Thus, the evidence was more than sufficient for a reasonable jury to conclude that Svec: (1) saw the two males enter the apartment building; (2) saw the male with a gray sweatshirt drop a firearm out the second story window; and (3) watched the two males climb the stairwell to the third floor.
This leaves us with whether Svec could see the two males enter Lockhart‘s apartment. In this particular apartment building, once an individual reaches the third-floor landing there are three apartment doors—one to the left, one directly ahead, and one to the right—without a hallway. Because the building only had three stories, there were only three places the two males could have entered once they reached the landing. Svec testified that he had no problem seeing the individuals run into Lockhart‘s apartment. R.60, Trial Tr., at 107. The photograph that was taken from Svec‘s approximate vantage point does not provide us with what would have been Svec‘s view of the third floor windows, so it is irrelevant as to this question. Instead, May relies on photographs taken from the vantage point of an individual who is looking through the windows from the third-floor landing. But these photos are not helpful because, as Svec testified, they provide an entirely different line of sight. Thus, there is no evidence that would lead us to conclude definitively that it was “beyond the realm of physical possibility,” Caraway, 411 F.3d at 683, for Svec to see which apartment the men entered when they reached the third-floor landing.
Furthermore, even assuming that Svec could not see which apartment the three men entered, there was strong evidence linking May to the gun, despite May‘s attempt to pile coincidence upon coincidence. When the officers encountered Lockhart on the landing, she told them that two men had recently entered her apartment. Perhaps, that was mere coincidence, but after Lockhart let the officers inside, the officers encountered two men who fit the exact description of the two men that Svec watched climb the stairwell. It is possible, though doubtful, that in the middle of the night there were two other men in one of the other two apartments matching the same description, but the fact that May appeared to be flushing marijuana down the toilet—an act that provides a strong indication that May believed the officers were searching for him—rеmoves any remaining doubt that May was the man who discarded the firearm.
B. Sentencing Issues
We review a district court‘s sentencing determinations for procedural and substantive reasonableness under the abuse of discretion standard. See Gall v. United States, 552 U.S. 38, 51 (2007). Furthermore, we accept the district court‘s factual findings unless they are clearly erroneous. United States v. Moon, 513 F.3d 527, 539 (6th Cir. 2008). “A factual finding is clearly erroneous when the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Id. at 540 (citation and internal quotation marks omitted). However, we conduct de novo review of the district court‘s legal conclusions. Id.
1. The Enhancement for Reckless Endangerment
Next, May argues that the district court erred by imposing a two-level enhancement for reckless endangerment during flight. Under the Guidelines, the enhancement is appropriate “[i]f the defendant recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer.”
Here, the district court considered the applicability of the enhancement by first disсussing whether the evidence presented supported the enhancement. The district court noted that the firearm was discarded in a housing project, “where children, teenagers or others are likely to be.” Sent. Tr. at 9. Further, the court noted that there was at least one woman in the apartment connected to the balcony where the fire
[W]here an individual discards a firearm in the vicinity of an apartment complex, where рedestrian traffic, I think we can make that finding by a preponderance of the evidence, that children and teenagers are likely to reside, that this creates a possibility that a child or teen or another individual, I don‘t think it matters if it‘s just children and teenagers as such, but where children and teenagers are likely to reside and may recover the weapon.
In this case, we had a loaded firearm, and discarding a loaded firearm, like in the instant case, did recklessly create a substantial risk of death or serious bodily injury to another.
Id. at 11.
May argues that this enhancement is “typically—and most appropriately—applied in cases of high speed automobile chases in residential areas, physical altercations with officers involving weapons, and when discharging firearms while fleeing.” Furthermore, May notes, there was no evidence that children or teenagers could have recovered the firearm, or that the firearm could have accidentally discharged. Thus, May contends, it was clear error to conclude that discarding a firearm, which was quickly recovered, “onto a locked, second-story balcony of an apartment with a single resident,” recklessly created a substantial risk of death or serious bodily injury to another. The Government responds that it is of no consequence that the firearm was quickly recovered because such a recovery does not affect the conclusion that May‘s decision to discard the firearm was reckless. Further, the Government argues that the district court‘s finding that the firearm was discarded in a densely-populated area, creating a risk that someone else might recover the loaded firearm, was enough to support a finding that May recklessly created a substantial risk of death or serious bodily injury. Additionally, the Government contends that “the firearm could have discharged when it struck the concrete floor.”
To begin, it would be inappropriate for us to uphold this enhancement based on the argument that May created a risk of the firearm discharging for two reasons. While we have upheld the application of this enhancement based оn the risk created by a defendant who threw a cocked and loaded firearm, see United States v. Howard, 301 F. App‘x 446, 448-49 (6th Cir. 2008) (noting that “[t]he risk [of discharge] created by throwing a cocked and loaded gun is obvious“), the record does not indicate that the district court considered this as a basis for applying the enhancement. Furthermore, and unlike the firearm in Howard, there is no indication in the record that May‘s firearm was actually cocked when he tossed it onto the balcony.
Still, we cannot say that the district court committed reversible error in enhancing May‘s sentence. Certainly, it was reckless to discard a loaded firearm in a public-housing complex where it would likely be found by someone because such conduct is a “gross deviation from the standard of care that a reasonable person would exercise.” Moreover, because it was possible that someone, whether an adult or child, would recover and discharge the firearm, May created a risk of death or serious bodily injury. The closer question is whether the risk was “substantial.” Looking to our cases, however, we have рreviously found “no persuasive argument to hold that the risk created by throwing a loaded gun near other people is not ‘substantial,‘” even when it is done “in front of police officers” and with no children pres
Here, the district court found that the loaded firearm was discarded in a place where someone could recover and discharge the weapon. May has not contradicted that factual finding. While May‘s conduct may not have been as severe as is typical for this enhancement, in light of these cases, and the significant deference that we afford to the district court‘s determination, we cannot say that the district court erred in concluding that May‘s conduct recklessly created a substantial risk of death or serious bodily harm. Accordingly, we affirm the district court‘s enhancement for reckless endangerment.
2. The $1,000 Fine
Next, May challenges the district court‘s imposition of a $1,000 fine. According to the Guidelines, the district court “shall impose a fine in all cases, except where the defendant establishes that he is unable to pay and is not likely to become able to pay any fine.”
May argues that the district court abused its discretion by: (1) failing to articulate a sufficient basis to impose a fine; (2) failing to adequately explain the basis for the amount of the fine; and (3) failing to justify the requirement that the fine be paid in a single lump sum. We see no reason to decide the question of whether a district court must make explicit findings on the record in imposing a fine because we think that May‘s arguments fail regardless.
The district court imposed the fine in this case immediately after discussing thе applicable
Although a fine is not recommended in this case because the defendant lacks the ability to pay a fine, and because of the length of the prison sentence, I think a non-guideline finе is appropriate. It is time for Mr. May to step up to the plate, and he can earn money through the Bureau of Prisons financial responsibility program. So the court is going to impose a fine of $1,000.
Also, the defendant must pay a special assessment of $100, which is due and payable immediately. The fine is also due and payable immediately, but any amount that is not paid in full shall be part of his supervision.
Sent. Tr., at 23-24.
This record shows that the district court considered a number of factors in deciding to impose a fine. First, May‘s contention that “the district court did not demonstrate any consideration of Mr. May‘s financial capacity” is patently wrong because the district court clearly recognized that May lacked the ability to pay a fine within the Guidelines range. Further, the district court found that May would be able to pay a smaller amount, by earning money while in prison, and on supervised release. Considering May‘s ability to earn income in prison and upon release was not improper because “[c]urrent assets are not determinative of an ability to pay a fine.” United States v. Stone, 218 F. App‘x at 440 (citing United States v. Perez, 871 F.2d 45, 48 (6th Cir. 1989)). Additionаlly, we can fairly infer that the district court imposed the fine to promote respect for the law and cause May to “step up to the plate” based on the court‘s discussion of May‘s criminal history, young age and need to develop skills. May has not identified any other relevant factors that the district court failed to discuss, and
In short, the indicia of the court‘s consideration of May‘s ability to pay the fine, and the reasons for imposing the fine, are sufficient to show that the district court did not abuse its discretion, “especially because [May] did not request more specific findings . . . or carry [his] burden of putting forth evidence that [he] would not be able to pay [his] fine under the term the court specified.” United States v. Woods, 367 F. App‘x 607, 614 (6th Cir. 2010) (citing United States v. Tosca, 18 F.3d 1352, 1355 (6th Cir. 1994)). Accordingly, we hold that the district court did not abuse its discretion in imposing a $1,000 fine.
III. Conclusion
For these reasons, we AFFIRM May‘s conviction and the sentence imposed.