United States v. Delaney , 214 F. App'x 356 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4868
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
PHILLIP TERRY DELANEY,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver, Jr.,
District Judge. (2:06-cr-00039-ALL)
Submitted: January 9, 2007 Decided: January 25, 2007
Before NIEMEYER and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
John R. McGhee, Jr., KAY, CASTO & CHANEY, P.L.L.C., Charleston,
West Virginia, for Appellant. Charles T. Miller, United States
Attorney, R. Booth Goodwin, II, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Phillip Delaney appeals his conviction and sentence for being
a felon in possession of a firearm in violation of 18 U.S.C.A.
§ 922(g)(1) (West 2000). Finding no reversible error, we affirm.
I.
Delaney was completing a sentence of 21 months imprisonment at
Bannum Place Community Corrections Center, a half-way house, in
Charleston, West Virginia. Nine days before his scheduled release,
Delaney called Bannum Place staff and informed them that he was
required to work a double shift at Bob Evans and would be returning
later than his authorized absence. A staff member called Bob Evans
to verify Delaney’s reported over-time and discovered that Delaney
was not scheduled to work that day and had not reported to work the
previous day. Bannum Place placed him on escape status and the
Bureau of Prisons issued an authorization to the United States
Marshal Service to apprehend and detain Delaney.
Delaney was apprehended at his nephew’s house in Huntington,
West Virginia, by a team of federal marshals and Huntington police
officers. When the officers approached the house, Delaney was
quickly apprehended, but his nephew, Jermaine Johnson, fled.
Johnson was quickly apprehended by the officers on the scene. A
protective search of the house conducted during Delaney’s arrest
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uncovered a .25 caliber pistol, a .22 caliber long barrel Ruger, a
.22 caliber rifle, and a .22 caliber bolt action rifle.
Marshal Seckman, who had arrested Delaney, informed Delaney
that someone had to take responsibility for the guns. Since
Johnson was a felon at the time of the search, and the firearms
were in his home, Johnson was the most likely individual to be
charged with the possession of the firearms. However, Delaney told
Marshal Seckman that the guns were his, signed a waiver-of-rights
form, and then wrote a description of the four firearms on a sheet
of paper. His description of the firearms was relatively accurate,
and he was charged as a felon in possession of firearms as well as
escape. Delaney pleaded guilty to the escape charge but pleaded
not guilty to the felon in possession of a firearm charge. Delaney
claimed that he was just covering for his nephew when he said that
the guns were his. At trial, the jury found him guilty, and he was
sentenced to 180 months imprisonment based on the finding of an
offense level of 32 and a criminal history category of VI. Delaney
appeals.
II.
Delaney first contends that the district court committed error
when it ruled to exclude the results of his polygraph examination.
It is well-established in this circuit that polygraph examination
results are not admissible. United States v. Prince-Oyibo, 320
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F.3d 494, 501 (4th Cir. 2003). We decline to revisit this per se
rule against polygraph evidence here. Thus, the district court
committed no error in excluding Delaney’s polygraph results.
Delaney next argues that the district court erred when it
denied his motion to exclude his confession. “An appellate court
must make an independent determination on the issue of
voluntariness [of a confession]. Although the review of this
ultimate issue is to be independent, the district court's findings
of fact on the circumstances surrounding the confession are to be
accepted unless clearly erroneous.” United States v. Pelton, 835
F.2d 1067, 1072 (4th Cir. 1987) (internal citations omitted).
Since Delaney does not contest that his confession was completely
voluntary, he has no grounds to appeal the district court’s
decision to deny the motion to exclude.
Delaney next contends that the district court’s denial of his
motion for a bench trial constituted an abuse of discretion. This
Court reviews the district court’s rulings regarding waiver of a
jury trial for abuse of discretion. See United States v. Morlang,
531 F.2d 183, 186-87 (4th Cir. 1975). The Supreme Court has held
that while a defendant has a constitutional right to a jury trial,
a defendant does not have a constitutional right to a non-jury
trial. Singer v. United States, 380 U.S. 24, 34-35 (1965).
Moreover, Delaney offers no argument as to how he was prejudiced by
the jury trial. Thus, this argument has no merit.
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III.
In the wake of Booker, when sentencing a criminal defendant,
the district court must properly calculate the sentence range
recommended by the guidelines and determine whether a sentence
within that range and within statutory limits serves the factors
set forth in § 3553(a). United States v. Green, 436 F.3d 449, 456
(4th Cir.), cert. denied, 126 S. Ct. 2309 (2006). We review a
sentence for reasonableness. “A sentence falling outside of the
properly calculated Guidelines range is not ipso facto
unreasonable. But if that sentence is based on an error in
construing or applying the Guidelines, it will be found
unreasonable and vacated.” Id. at 457. “An error of law or fact
can render a sentence unreasonable.” Id. at 456. This court
reviews the district court’s factual findings for clear error and
its application of the sentencing guidelines de novo. United
States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989).
Delaney claims that the district court erred in calculating
his sentence when it enhanced his base offense level for two prior
crimes of violence pursuant to U.S.S.G. § 2K2.1(a)(2). Delaney
contends that his assault on a federal officer and prior escape
charges should not be considered crimes of violence because Delaney
was not violent towards the federal marshal during the assault and
his escape was simply to walk away from the courthouse.
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The guidelines define “crimes of violence” as “any offense
under federal or state law punishable by imprisonment for a term
exceeding one year, that (1) has as an element the use, attempted
use, or threatened use of physical violence against the person of
another.” U.S.S.G. § 4B1.2(a). Escape is not specifically
designated as a crime of violence under the guidelines, but this
Court has held that escape (both attempted and actual) is a crime
of violence because it “involves conduct that presents a serious
potential risk of physical injury to another.” United States v.
Dickerson, 77 F.3d 774, 777 (4th Cir. 1996). Delaney’s escape was
therefore properly categorized as a crime of violence, whether or
not any violence was used during the escape. Regarding the
forcible assault charge, a conviction of “forcibly assaulting,
resisting, opposing, impeding, intimidating, or interfering with [a
federal officer],” under § 111(a)(1), “has as an element the use,
attempted use, or threatened use of physical force against the
person of another.” U.S.S.G. § 4B1.2(a). Thus, the district court
did not clearly err when it enhanced Delaney’s base offense level
for two prior crimes of violence.
Delaney next argues that the possession of a firearm cannot be
considered “in connection with” his escape charge because the
government did not provide any facts to connect the two charges.
Delaney contends that he simply walked away from his supervision at
Bannum Place and at no time used the firearms found at the scene of
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his arrest into his escape. A determination that there were
sufficient facts to impose a § 2K2.1(b)(5) enhancement is a factual
finding and is subject to a two step analysis. See United States
v. Garnett, 243 F.3d 824, 828 (4th Cir. 2001) (government has
burden of proving facts to support § 2K2.1(b)(5) enhancement by
preponderance of the evidence and district court's fact finding is
reviewed for clear error). The government must show that the
defendant used or possessed a firearm and that such use was in
connection with another felony offense. See id. “And while
neither ‘used’ nor ‘in connection with’ is defined in the
Guidelines, these terms are deemed analogous to the terms ‘use’ and
‘in relation to’ found in 18 U.S.C. § 924(c). Such ‘use’ is
defined expansively. Thus, a district court may find that a
firearm is ‘used’ ‘in connection with’ another felony offense if it
facilitates or has a tendency to facilitate the felony offense.”
Id. at 828-29 (internal citations omitted). The district court
correctly followed the two step analysis and found by a
preponderance of the evidence that Delaney possessed the weapons
when he arrived at Johnson’s house and had them when the officers
arrived to arrest him. The district court also found that Delaney
possessed the firearms in connection with his escape by carrying
the weapons with him as he moved from place to place. Thus, the
district court did not clearly err when it enhanced Delaney’s
sentence pursuant to § 2K2.1(b)(5).
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Delaney’s final argument is that the district court erred when
it enhanced Delaney’s base offense level for obstruction of justice
pursuant to U.S.S.G. § 3C1.1. Given the polygraph evidence showing
Delaney was telling the truth when he said he was not in possession
of the firearms, the fact that his nephew fled the scene, the fact
that his nephew gave inconsistent testimony regarding the timing of
when the firearms arrived, and that Delaney’s fingerprints were not
found on the firearms, Delaney argues that this corroborating
evidence demonstrates that he did not lie when he testified at
trial that the guns were not his.
In United States v. Dunnigan, 507 U.S. 87 (1993), the Supreme
Court stated:
Of course, not every accused who testifies at trial and
is convicted will incur an enhanced sentence under §
3C1.1 for committing perjury. As we have just observed,
an accused may give inaccurate testimony due to
confusion, mistake, or faulty memory. In other
instances, an accused may testify to matters such as lack
of capacity, insanity, duress, or self-defense. H[is]
testimony may be truthful, but the jury may nonetheless
find the testimony insufficient to excuse criminal
liability or prove lack of intent. For these reasons, if
a defendant objects to a sentence enhancement resulting
from h[is] trial testimony, a district court must review
the evidence and make independent findings necessary to
establish a willful impediment to, or obstruction of,
justice, or an attempt to do the same, under the perjury
definition we have set out.
Id. at 95. “Upon a proper determination that the accused has
committed perjury at trial, an enhancement of sentence is required
by the Sentencing Guidelines.” Id. at 98. The district court made
factual findings that Delaney committed perjury –he denied that the
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guns were his, a story that was clearly rejected by the jury.
Under the circumstances, the obstruction of justice enhancement was
proper and the district court did not clearly err.
IV.
For the foregoing reasons, we affirm Delaney’s conviction and
sentence. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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