United States v. Kevin Mills , 541 F. App'x 88 ( 2013 )

12-3131-cr
United States v. Kevin Mills
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
21st day of October, two thousand thirteen.
Present:
PIERRE N. LEVAL,
PETER W. HALL,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
____________________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 12-3131-cr
KEVIN MILLS,
Defendant–Appellant.
____________________________________________________
FOR APPELLANT: Marsha R. Taubenhaus, Law Offices of Marsha R. Taubenhaus,
New York, NY.
FOR APPELLEE: Robert M. Spector, Assistant United States Attorney (Joseph
Vizcarrondo, Special Assistant United States Attorney, on the
brief), for Deirdre M. Daly, Acting United States Attorney for the
District of Connecticut.
____________________________________________________
Appeal from a judgment of the United States District Court for the District of
Connecticut (Bryant, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the verdict is AFFIRMED, but the matter is REMANDED for reconsideration of
the sentence.
Defendant-Appellant Kevin Mills appeals from a judgment of conviction entered
following a trial by jury, in which Mills was found guilty of one count of unlawful possession of
a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The district court
sentenced him pursuant to the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), to
a 15-year term of imprisonment and a 5-year term of supervised release based on a combination
of prior convictions for violent crimes and drug offenses. On appeal Mills challenges the
sufficiency of the government’s proof that he knowingly and intentionally possessed a firearm.
He also argues the district court erred in sentencing him pursuant to the ACCA, asserting that the
application of the law to him was procedurally flawed, that he did not have three qualifying
predicate convictions, and that the sentence imposed violated the Eighth Amendment. We
assume the parties’ familiarity with the relevant facts, the procedural history, and the issues
presented for review.
When reviewing a challenge to the sufficiency of the evidence, “[w]e will not disturb the
conviction if, viewing the evidence in the light most favorable to the government, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
United States v. Greer, 631 F.3d 608, 613 (2d Cir. 2011) (internal quotation marks omitted); see
also United States v. Gaines, 295 F.3d 293, 299–300 (2d Cir. 2002).
Mills was found in the front passenger seat of a vehicle carrying him and three other
suspects immediately after a high-speed pursuit by law enforcement ended with the crash of the
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vehicle. In attending to Mills, who was unconscious at the time, the officers discovered a
shotgun “wedged in between [Mills’s] legs.”
Mills contended that it was only as a result of the high-speed crash that the gun dislocated
to the position where the officers found it. Reviewing this record as a whole and drawing all
inferences in favor of the government, we hold that a jury could reasonably conclude that prior to
the accident Mills had possession of the shotgun. Any argument that this firearm somehow
ended up in its location beside Mills as a result of the accident was for the jury to resolve. See,
e.g., United States v. Payton, 159 F.3d 49, 55–56 (2d Cir. 1998); see also United States v.
Lewter, 402 F.3d 319, 322-323 (2d Cir. 2005). The evidence presented at trial was sufficient to
support Mills’s conviction for violation of 18 U.S.C. § 922(g)(1).
With respect to the sentence imposed pursuant to the ACCA, 18 U.S.C. § 924(e), “[w]e
review de novo all questions of law relating to the district court’s application of a federal
sentence enhancement.” United States v. Beardsley, 691 F.3d 252, 257 (2d Cir. 2012). To
determine if a prior conviction constitutes a violent felony for purposes of imposing an enhanced
sentence under § 924(e), courts apply a categorical approach to determine “whether the elements
of the offense are of the type that would justify its inclusion within the residual provision” of
section 924(e)(2)(B)(ii). United States v. Baker, 665 F.3d 51, 54 (2d Cir. 2012) (internal
quotation marks and citation omitted). When the statutory offense includes both violent and
nonviolent felonies “in distinct subsections or elements of a disjunctive list,” we “undertake a
limited inquiry into which part of the statute the defendant was convicted of violating . . . .” Id.
at 55 (internal quotation marks and citation omitted). Application of this modified categorical
approach is limited to considering “‘particular documents that can identify the underlying facts
of a prior conviction with certainty.’” Id. (quoting United States v. Rosa, 507 F.3d 142, 161 (2d
Cir. 2007)). “The questions of what documents a district court may rely on to determine the
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nature of a prior conviction and of the scope of a district court’s authority to make factual
findings are questions of law, which we review de novo.” Rosa, 507 F.3d at 151 (citation
omitted).
Mills argues that, in determining whether his prior convictions were cognizable as
predicates for his ACCA sentence, the district court did not examine or rely on permissible
sources of information as dictated by Shepard v. United States, 544 U.S. 13, 26 (2005), which
would allow the court to reach the conclusion that Mills was an armed career criminal. He
asserts it was error for the court to rely on the presentence report (“PSR”) alone in handing down
his sentence. See United States v. Reyes, 691 F.3d 453, 459 (2d Cir. 2012). In response the
government asserts, inter alia, that Mills failed to preserve the objections he now advances, that
his attorney conceded Mills was an armed career criminal, and that the PSR’s findings of fact,
backed up by the transcript of Mills’s June 2005 guilty plea, supported the district court’s
determination that Mills should be sentenced as an armed career criminal.
The district court engaged Mills and his counsel in a discussion of Mills’s prior state
convictions during an ex parte proceeding. Throughout the ex parte proceeding Mills repeatedly
challenged the bases for his classification as an armed career criminal on the ground that the
prior state charges were not, in his view, violent felonies. Even though Mills may have backed
away from his objections, there is no question that his attorney preserved those objections,
stating to the court that “just for appellate purposes” Mills’s “objection to ACCA is not waived.”
On the record before us, therefore, Mills’s objection to being sentenced under the ACCA is
preserved for appeal.
We now examine both the sources of information and the manner by which the district
court analyzed that information to reach its conclusion that Mills is an armed career criminal. At
oral argument, the government, having supplemented the record on appeal with certified copies
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of documents from ostensibly relevant state court proceedings, invited this Court to engage in
our own analysis of the state proceedings to determine that Mills’s state convictions are adequate
predicates for imposition of his sentence under the ACCA. This we will not do in the first
instance. The government, having sought to have Mills sentenced as an armed career criminal,
bears the responsibility of presenting in the district court evidence cognizable under Shepard and
related cases to support imposition of an ACCA sentence. Rosa, 507 F.3d at 151. In analyzing
such evidence, the district court is required to employ a categorical or modified categorical
approach to determine if, and how many of, Mills’s prior convictions may be counted as
predicate felonies under 18 U.S.C. § 924(e)(1). See Baker, 665 F.3d at 54-55. We note that, to
the extent the district court relies on Mills’s assault convictions under Conn. Gen. Stat § 53a-
167c, our decisions in United States v. Brown, 629 F.3d 290, 295 (2d Cir. 2011), and Canada v.
Gonzales, 448 F.3d 560, 568 (2d Cir. 2006), require that those offenses be analyzed under the
modified categorical approach. The district court failed to analyze competent evidence of
Mills’s state court convictions and explain its rationale for determining that Mills was an armed
career criminal. Accordingly, we direct the district court to conduct the required inquiry and
make a determination based on appropriate sources whether Mills was properly sentenced under
the ACCA. If not, the district court should vacate the judgment and impose a new sentence.
For the reasons stated, the verdict is AFFIRMED, but the matter is REMANDED for
reconsideration of the sentence.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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