United States v. Michael Henry ( 2018 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 18a0051n.06
Case No. 16-2745
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jan 25, 2018
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
MICHAEL JEROME HENRY, ) THE EASTERN DISTRICT OF
) MICHIGAN
Defendant-Appellant. )
)
)
)
BEFORE: CLAY and SUTTON, Circuit Judges, and WATSON, District Judge.*
SUTTON, Circuit Judge. A jury convicted Michael Jerome Henry of robbing several
banks and using a firearm in the process. In his first appeal, we reversed two of the firearm
convictions because the district court did not instruct the jury properly—in truth because a
Supreme Court decision after the trial required a different instruction. See Rosemond v. United
States, 134 S. Ct. 1240 (2014). On remand, the jury convicted him again on the relevant counts.
Because the prosecution submitted evidence sufficient to support the convictions and because the
statute defining “crime of violence” is not unconstitutionally vague, we affirm both convictions.
But in light of yet another intervening Supreme Court decision, see Dean v. United States, 137 S.
Ct. 1170 (2017), we must remand for the limited purpose of resentencing him in light of Dean.
*
The Honorable Michael H. Watson, United States District Judge for the Southern
District of Ohio, sitting by designation.
No. 16-2754
United States v. Henry
I.
At about 10:30 AM on September 22, 2009, Henry and a cohort entered a Chase Bank
branch in Ypsilanti, Michigan. Each wore a mask, hood, gloves, and several layers of clothing.
The unknown compatriot, armed with a handgun, stood watch while Henry, equipped with a BB
gun, leapt on the counter to collect the cash. About a minute later, they left with $4,382,
shedding clothes and gear during their escape.
At about 9:30 AM on November 5, 2009, Henry and an unknown partner did the same
thing at a Bank of America in Ann Arbor, Michigan. Both covered their faces and wore gloves.
The partner again stood watch with the pistol in hand while Henry leapt on the counter to grab
the money. They left with $23,179. And they again left a trail of clothes and gear as they fled.
At 10:12 AM on October 21, 2010, Henry and an unknown partner targeted the same
Ann Arbor Bank of America. They arrived with masks, gloves, and layers of clothes. One stood
watch with a rifle, which he fired several times. The other leapt the counter and took $11,966.
They took off after 41 seconds, again shedding clothes and gear along the way.
Police arrested Henry, who confessed to the first two robberies but denied
any involvement in the third. A grand jury indicted him for three counts of bank robbery.
See 18 U.S.C. § 2113. Each robbery charge came with a federal firearms charge. See id.§ 924(c)(1). Henry pleaded not guilty, but a jury convicted him on all six counts.
Henry appealed the firearms conviction arising from the second robbery and the robbery
and firearms convictions arising from the third robbery. We affirmed his bank robbery
conviction. United States v. Henry, 797 F.3d 371, 374–77 (6th Cir. 2015). But we reversed the
firearm convictions predicated on his second and third robberies because the district court did not
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United States v. Henry
instruct the jury that Henry had to have “advance knowledge” that a real firearm would be used
in connection with each robbery. Rosemond, 134 S. Ct. at 1243.
On remand, a properly instructed jury convicted Henry on both § 924(c) charges. The
presentence report recommended a Guidelines range of 70 to 87 months for the three federal
bank robbery charges. It noted that his first conviction under § 924(c) came with a mandatory
minimum sentence of 60 months, while his second and third convictions came with mandatory
minimum sentences of 300 months apiece. The report noted that the statute required Henry to
serve all three firearms sentences consecutively. 18 U.S.C. § 924(c)(1)(A)(i), (C)(i), (D)(ii). All
told, the report recommended a Guidelines range of 730 to 747 months. After adopting the
recommended Guidelines range and reviewing the relevant sentencing factors, the district court
sentenced Henry to 738 months in prison.
Henry challenges his convictions and sentence on several grounds.
II.
Sufficiency of the Evidence. Henry first argues that the evidence did not support his
firearms convictions for the second and third robberies, claiming he did not know that his partner
would use a real weapon during the robberies. We disagree.
A person violates § 924(c) if he possesses a firearm “during and in relation to any crime
of violence” or “in furtherance of any such crime.” 18 U.S.C. § 924(c)(1)(A). To convict Henry
of aiding and abetting that crime, the jury had to find that he had “advance knowledge” that his
accomplice would bring a firearm. Rosemond, 134 S. Ct. at 1252. In challenging the evidence
of advance knowledge, Henry faces a tough road. We must view the evidence in the light most
favorable to the prosecution, and he must show that no “rational trier of fact could have found
the essential elements of the crime.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).
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United States v. Henry
Ample evidence showed that Henry knew in advance that his cohort would use a firearm
during each robbery. Henry never acted surprised or dismayed when his partner brandished a
gun. Still-frames taken from Bank of America’s surveillance cameras during the second robbery
show Henry walk past his firearm-brandishing accomplice, vault the bank counter, and seize the
cash. Witness testimony confirms that Henry carried out the third robbery much the same way.
There is no indication that Henry balked after his partner drew a firearm. And there is little
reason for doubt that Henry knew the firearm used during each robbery was real. He confessed
that he recognized the gun used in the second robbery was the same one used in the first, which
he knew was real. Meanwhile, the robber carrying the rifle during the third robbery proved its
authenticity by periodically firing it. The jury could “permissibly infer from [Henry’s] failure to
object or withdraw” after his accomplice brandished the firearm that Henry knew about the gun
beforehand. Rosemond, 134 S. Ct. at 1250 n.9.
In addition, all three of the robberies followed the same pattern, suggesting that each part
of the plan, including his partner’s use of a real gun, was preconceived. Each participant wore
gloves, masks, and layers of clothing. Each played a specific role: guard or cash collector.
While the former controlled the crowd, the latter leapt on top of the counter to collect the money.
And each robbery lasted less than a minute. A jury reasonably could infer that the participants
executed each robbery so efficiently because they knew the plans inside and out, including the
role of the gun brandished by Henry’s accomplice. See United States v. Akiti, 701 F.3d 883, 887
(8th Cir. 2012).
At some point, a jury is permitted to infer that what happened was not a random event or
a coincidence but an intended pattern. Because all three robberies followed the same blueprint,
the jury could infer that Henry and his partner had a standard method for each heist. Henry
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United States v. Henry
admitted that he knew that his accomplice brought an actual firearm to the first robbery. And the
jury was free to infer that he expected his accomplice to use a firearm during the next two
robberies when everything else about the robberies followed the same mode of operation.
Henry counters that several cases undermine this conclusion. He is right about one thing:
The cases reverse convictions on sufficiency grounds. But after that, the comparisons break
down. For example, in Brown v. Palmer, 441 F.3d 347 (6th Cir. 2006), we reversed an aiding-
and-abetting conviction because the evidence showed little more than the defendant’s presence at
the scene. Id. at 350–53. But here, the evidence shows that Henry prepared for and participated
in the execution of the predicate robberies. He was not a bystander or a bit player caught up in a
sudden expansion of the scope of a crime. In Newman v. Metrish, 543 F.3d 793 (6th Cir. 2008),
we decided that the circumstantial evidence drawn from the weeks before and days after a crime
did not prove that the defendant committed the murder. Id. at 796–97. But there is no doubt that
Henry committed three robberies. The only question is whether he knew that his accomplice
would bring a gun, an inference that the record supports. Newman has nothing to teach on that
score.
Henry adds that the robberies were sufficiently distinct to refute the inference that Henry
and his partner followed a standard operating procedure. Each robbery, he points out, involved a
different type of firearm. But not every precise feature of the robberies had to be the same.
What mattered was that in the main they revealed a standard procedure for robbing banks that
involved using a firearm. The jury was free to infer that Henry knew that procedure by the time
he participated in the second and third robberies and thus knew a real gun would be used.
Void for Vagueness. Henry argues that the firearm statute’s residual clause is
unconstitutionally vague, invoking Johnson v. United States, 135 S. Ct. 2551 (2015). The statute
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United States v. Henry
defines a predicate “crime of violence” as a felony that either “has as an element the use,
attempted use, or threatened use of physical force against the person or property of another,”
18 U.S.C. § 924(c)(3)(A) (the elements clause), or “that by its nature, involves a substantial risk
that physical force against the person or property of another may be used in the course of
committing the offense,” id. § 924(c)(3)(B) (the residual clause). Henry argues that, if
§ 924(e)(2)(B) is unconstitutional under Johnson, then § 924(c)(3)(B) must be invalid too.
We rejected the same argument in United States v. Taylor. There too, the defendant
challenged the statute as void for vagueness after Johnson. But there too, we reasoned that
§ 924(c)(3)(B) “is considerably narrower than the statute invalidated by the Court in Johnson”
and upheld the statute. 814 F.3d 340, 375 (6th Cir. 2016). Unlike § 924(e)(2)(B), the statute at
issue in Johnson, § 924(c)(3)(B) requires (i) that the risk involve physical force rather than
physical injury, (ii) that the risk of force arise “in the course of” the crime, and (iii) that the
felony “by its nature” involve the risk that the offender will use physical force. Id. at 376–77.
Section 924(c)(3)(B) remains constitutional under circuit law.
Even if that were not the case, even if this residual clause were unconstitutional, we
would not have to rely on it to find that Henry’s predicate crimes count as crimes of violence.
All three of the firearm convictions grew out of federal bank robbery convictions under 18
U.S.C. § 2113(a). A necessary element of bank robbery is the use of “force and violence” or
“intimidation.” 18 U.S.C. § 2113(a). And intimidation is all it takes to satisfy § 924(c)(3)(A)’s
elements clause, which defines crimes involving the “threatened use of physical force” as crimes
of violence. See United States v. McBride, 826 F.3d 293, 296 (6th Cir. 2016) (construing
identical language in U.S.S.G. § 4B1.2(a)(1)).
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United States v. Henry
Sentence. While Henry’s second appeal was pending, the Supreme Court decided Dean
v. United States, 137 S. Ct. 1170 (2017). The Court held that a district court was permitted to
consider, but not required to consider, the mandatory minimum sentences imposed by § 924(c)
when deciding whether to depart from the Guidelines sentence for the predicate crimes. Id. at
1177–78. Dean abrogated United States v. Franklin, 499 F.3d 578, 586 (6th Cir. 2007), which
had required district courts to ignore § 924(c) when sentencing the offender for the predicate
crimes. Id. We recently sent back a similar case for resentencing, see United States v. Person,
No. 16-4031, 2017 WL 5191864, at *4–5 (6th Cir. Nov. 9, 2017), and see no reason not to do the
same thing here. We thus must remand the case for the limited purpose of resentencing him and
allowing the district court to consider the mandatory minimum sentences applicable to him.
That said, we take the time to reject Henry’s three remaining sentencing arguments.
First, he cites United States v. Payton, 754 F.3d 375 (6th Cir. 2014), for the proposition that the
district court should have considered the advanced age at which he would be released before
sentencing him. We see two problems. To start, the Payton district court imposed a sentence
that exceeded the Guidelines range by over twenty years and had a special responsibility to
explain why. Id. at 377–79. Not so in Henry’s case, where his sentence fell comfortably within
the range. To finish, we can infer from the record that the district court knew about and
considered his age when deciding the risk he posed to public safety. Before the sentencing,
defense counsel drew attention to the fact that Henry would “be in excess of 85 years old before
he’s eligible for release.” R. 132 at 6. And the court noted his “current age” and discussed how
he would likely backslide into crime if released “relatively early.” R. 132 at 10–11. No error
lurks here.
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United States v. Henry
Next, Henry challenges the district court’s interpretation of the firearms statute. Pointing
to its legislative history, he argues that a “second or subsequent conviction” triggering § 924(c)’s
consecutive 25-year mandatory minimums cannot arise from the same indictment as the first
conviction. But (as he points out) the Supreme Court has held otherwise. Deal v. United States,
508 U.S. 129 (1993).
Finally, he argues that the Sixth Amendment requires the prosecution to prove to a jury
the existence of prior convictions triggering § 924(c)’s mandatory minimums. Again, binding
precedent forecloses the argument. In Apprendi v. New Jersey, the Court specifically carved out
an exception to the rule for prior convictions. 530 U.S. 466, 490 (2000). The Supreme Court’s
more recent decisions have not held otherwise. See United States v. Mack, 729 F.3d 594, 609
(6th Cir. 2013) (citing Alleyne v. United States, 133 S. Ct. 2151, 2160 n.1 (2013)). The district
court committed no error.
For these reasons, we affirm Henry’s convictions but remand for the limited purpose of
resentencing Henry in light of Dean.
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