United States v. Raymone KelleyUnited States v. Raymone Kelley
Defendant Raymone Kelley pleaded guilty to being a felon in possession of a firearm, based on a plea agreement with the government, and was sentenced to 92 months’ incarceration, to be served consecutively to an undischarged state court sentence. He now appeals his sentence, contending: (1) that the district court erred in increasing his offense level under
The charge in this case grew out of a report to Covington police of gunshots fired at a city housing project. The police dispatcher told the responding officers that the shots came from a particular residential building in the development. When the officers arrived, they discovered discharged shotgun shells on the outside of the identified residential unit—both in front and in back—and, looking through a window, observed a loaded round on the kitchen counter. The police made contact with the individuals inside, Kelley and two others, but were denied entrance. They then called in the SWAT team and obtained and executed a search warrant for the residence. The search produced a Springfield 944 series shotgun with a sawed-off barrel and numerous rounds of ammunition, both spent and unspent, in the house and on Kelley‘s person. The two other individuals in the residence gave written statements naming Kelley as the shooter.
Kelley was arrested and charged by the state with felony wanton endangerment and being a convicted felon in possession of a firearm. He was later charged in federal court in this case with one count of being a felon in possession of a firearm, in violation of
In federal court, Kelley pleaded guilty to being a felon in possession of a firearm and the government dismissed the second charge as part of the plea agreement with Kelley. In the presentence report, the Probation Department determined that Kelley‘s range under the Sentencing Guidelines was 92-115 months of incarceration. This calculation was based on a base offense level of 22, a criminal history category of VI, a three-level reduction for acceptance of responsibility under
Kelley lodged two objections to the presentence report. The first was to the recommendation of the four-level enhancement, on the ground that the evidence in the case supported a charge of misdemeanor wanton endangerment only. The second was to the recommendation that his
In response to the first claim, the government introduced testimony from the arresting officer, who said that the area where Kelley fired the gunshots was a densely populated housing project with multiple residential units in close proximity to each other; that witnesses reported that Kelley was involved in an argument before he fired the gun and that he appeared to be “drinking and going crazy“; and that he had apparently fired the weapon in at least two different locations, based on the location of the shotgun shells found by police. The officer testified that he charged Kelley with felony wanton endangerment because there were a number of people present at the time Kelley fired the shotgun, including “several groups of kids ... within distance [of the shots]” and because Kelley “could have caused harm or serious physical injury to anyone in the area.” Indeed, one witness told the officer that Kelley “got the shotgun[,] then came out of the house [and] put the gun up in one of them rooms,” which could be taken to mean that he shot into one of the housing units. The district court reviewed the Kentucky statutory definitions of wanton endangerment and found that a preponderance of the evidence supported a felony charge and, therefore, a four-level enhancement under
“In the specific context of the
“The application notes [to
Under Kentucky law, a defendant is guilty of first-degree (felony) wanton endangerment “when, under circumstances manifesting extreme indifference to the value of human life, he wantonly engages in conduct which creates a substantial danger of death or serious physical injury to another person.”
The differences between first- and second-degree wanton endangerment are the mental state and degree of danger created. As to the mental state, both crimes require wanton behavior, but first-degree also requires “circumstances manifesting extreme indifference to the value of human life,” which has been described as “aggravated wan-
toness [sic].” E.g., Ramsey v. Commonwealth, 157 S.W.3d 194, 197 (Ky. 2005). As to the danger created, first-degree requires a substantial danger of death or serious physical injury, whereas second-degree requires only a substantial danger of physical injury. The distinction between the two degrees of the crime was described in the commentary in part as follows: Creation of the two offenses is necessitated by the wide differences in dangerousness that exist with the various types of wanton conduct. For example, aimlessly firing a gun in public is not as wanton in degree as firing a gun into an occupied automobile and should not carry the same criminal sanction.
KRS 508.060 Kentucky Crime Commission/LRC Commentary (1974). In the examples given, aimlessly firing a gun in public would be the second-degree crime and firing a gun into an occupied car would be the first-degree crime. Or, as described by Professors Lawson and Fortune, “Firing a weapon in the immediate vicinity of others is the prototype of first degree wanton endangerment. This would include the firing of weapons into occupied vehicles or buildings.” Robert G. Lawson & William H. Fortune, Kentucky Criminal Law § 9-4(b)(2), at 388 n. 142 (1998) (citations omitted).
Swan v. Commonwealth, 384 S.W.3d 77, 102-03 (Ky. 2012).
Kelley argues that there is no evidence to support a charge of first-degree felony wanton endangerment. He maintains that he merely shot a gun into the air and that such conduct meets neither the heightened mental state nor the level of danger required for a first-degree charge. Kelley also contrasts his actions with examples from case law that show the type of conduct that warrants a felony charge. The district court determined otherwise. After hearing testimony from the arresting officer, reviewing the other evidence in the record, and examining both statutes, the district court found that Kelley fired a gun multiple times “in the immediate vicinity” of other individuals in a densely populated area while intoxicated and engaged in an argument and concluded that Kelley‘s conduct satisfied the statutory elements for a felony charge. Thus, the district court properly applied
The district court also reviewed
The interpretation of Kelley‘s appellate-rights waiver is controlled by this court‘s decision in United States v. Bowman, 634 F.3d 357 (6th Cir. 2011). Bowman stands for the principle that when a plea agreement‘s waiver clause allows appeal on some grounds, disallows appeal on other grounds, and is silent regarding the appealability of a consecutive sentencing decision, that silence is construed against the government and the defendant may appeal the decision to impose a consecutive sentence. See id. at 361. As we observed in
For at least the three years since Bowman, the government has been on notice that general appeal-waiver language will not be construed to preclude the appeal of a consecutive sentence. The government has not “take[n] steps in drafting a plea agreement to avoid [this] imprecision,” despite Bowman‘s explicit invitation to do so. Id. As a result, there is no principled reason to avoid applying Bowman here and thereby reach the merits of Kelley‘s consecutive-sentencing claim, which we review for abuse of discretion. United States v. Brown, 579 F.3d 672, 677 (6th Cir. 2009).
Consecutive sentencing is governed by
For the reasons set out above, we AFFIRM the judgment of the district court.