United States v. Penney ( 2009 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0276p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 05-6821
v.
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Defendant-Appellant. -
TERRY EUGENE PENNEY,
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Appeal from the United States District Court
for the Eastern District of Tennessee of Chattanooga.
No. 04-00036—R. Allan Edgar, District Judge.
Argued: October 24, 2008
Decided and Filed: August 7, 2009
Before: BOGGS, Chief Judge; and MERRITT and GRIFFIN, Circuit Judges.
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COUNSEL
ARGUED: Bryan H. Hoss, DAVIS & HOSS, Chattanooga, Tennessee, for Appellant.
Steven S. Neff, ASSISTANT UNITED STATES ATTORNEY, Chattanooga, Tennessee, for
Appellee. ON BRIEF: Bryan H. Hoss, C. Leland Davis, DAVIS & HOSS, Chattanooga,
Tennessee, for Appellant. Steven S. Neff, ASSISTANT UNITED STATES ATTORNEY,
Chattanooga, Tennessee, for Appellee.
BOGGS, C. J., delivered the opinion of the court, in which GRIFFIN, J., joined.
MERRITT, J. (p. 27), delivered a separate dissenting opinion.
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OPINION
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BOGGS, Chief Judge. After a jury trial, Defendant-Appellant Terry Eugene Penney
(“Penney”) was convicted of fifteen violations of federal drug and gun laws and an attempt
to kill a federal agent, and sentenced to 895 months of imprisonment. Penney now appeals
the district court’s denial of his motions to dismiss some of the charges and to suppress
1
No. 05-6821 United States v. Penney Page 2
evidence, the district court’s evidentiary rulings, and the reasonableness of his sentence.
Penney also argues that the evidence was insufficient to support the jury verdicts or that
some counts should have been merged. We hold that the district court committed no
reversible errors and, therefore, affirm.
I
Terry Eugene Penney lived at 10609 Dayton Pike, in Soddy-Daisy, Tennessee, less
than three miles away from the Soddy-Daisy Police Department. Penney raised roosters and
ran a bar called Penney’s Place, both familial activities that Penney has carried on. For about
six years, Penney was in a tempestuous relationship with Devota Bowman, during which
Bowman lived with Penney “off and on.” Soddy-Daisy police officers were no strangers to
Penney’s residence, where they were called on the “numerous occasions” when the
relationship between Penney and Bowman turned violent. The last of such visits took place
on August 2, 2003, when, according to the police report, Penney had “pushed [Bowman]
out,” and she had left the residence. By August 18, 2003, Bowman had again moved back
in with Penney.
On the morning of August 19, 2003, following another quarrel with Penney, a
barefoot Bowman hitch-hiked to the Soddy-Daisy police station to file a complaint for
assault against Penney. While Bowman was at the station, Penney arrived and demanded
that police remove Bowman from his residence. The police arrested Penney for assault and
transported him to the Hamilton County Jail. As the police officers worked on Bowman’s
report, she offered information about narcotics in Penney’s house. Detective Mike Sneed
requested her consent to search the residence; Bowman agreed and signed a consent form.
Soddy-Daisy officers then accompanied Bowman to the Dayton Pike residence.
Bowman led the officers, including Sneed, to the front door, which was locked. Because she
did not have a key, Bowman went around to the back door, which she opened without a key.
Sneed later learned that only a special “trick” opened the back door. Bowman led the
officers around the house, pointing to various items of contraband and picking up her own
clothing and personal items as they walked. Officers uncovered numerous guns, cash,
scales, and narcotics, removing some of these items from unlabeled, unlocked containers.
No. 05-6821 United States v. Penney Page 3
Police officers then took their search outside the house, discovering a .22-caliber rifle in a
pick-up truck and a shotgun in the chicken house.
The next day, Penney, having been released, went to the Soddy-Daisy police station
to inquire about his guns. Sneed explained that the guns were confiscated as a result of a
search, to which Bowman consented. Penney informed the police that Bowman did not live
with him and had no authority to consent to the search.
Following the search on August 19, 2003, the Soddy-Daisy Police and the Bureau
of Alcohol, Tobacco, Firearms and Explosives (“ATF”) opened an investigation of Penney.
During the course of the investigation, police recorded several conversations between
Penney and Leonard (a.k.a. Sonny) Stewart, a confidential informant (“CI”). A conversation
recorded four months later, on January 3, 2004, revealed that the CI would travel to
California to pick up approximately 200 pounds of marijuana, for which Penney would
provide two buyers, “Midget” and “Cotton” (a.k.a. William North). On January 12, 2004,
in a recorded phone conversation, the CI told Penney that he had returned from his trip and
instructed Penney to arrange a meeting with Cotton at Penney’s Dayton Pike residence the
next day at noon.
Prompted by this conversation, Detective Sneed obtained an anticipatory search
warrant for Penney’s residence, business, vehicles, and person. The warrant was executable
only after Penney met with the CI “to examine and attempt to purchase the narcotics by
obtaining funds or promising to obtain funds in the near future in order to complete the
transaction.” On January 13, 2004, at approximately 12:20 pm, the CI went to Penney’s
residence, where he found Penney alone without Cotton. In the course of a recorded
conversation between the CI and Penney, Cotton telephoned Penney, indicating that he was
on his way. The CI left, and made at least three recorded phone calls to Penney to determine
whether Cotton had arrived. When Penney finally told the CI to return to the residence, the
CI arrived, wired, at approximately 6:15 pm. The CI went inside the residence, met Cotton
and Penney, and told Cotton he wanted to see the money. Cotton agreed, stating that he had
$35,000 for fifty pounds of marijuana, at $700 per pound; Penney was to receive $100 per
pound as the middle-man. Penney remained inside, as the CI and Cotton stepped outside.
Cotton showed the CI the money inside Cotton’s vehicle. The CI stated that he could see
No. 05-6821 United States v. Penney Page 4
the money, a predetermined statement to indicate to the police that they should execute the
warrant.
Soddy-Daisy police, Hamilton County Sheriff’s Department, and ATF officers
moved to execute the search warrant. All of the officers were wearing dark bulletproof vests
with appropriate official insignia on front and back, identifying them as law enforcement.
Some of the officers (the “entry team”) knocked on the front door, yelling “Sheriff’s
Department! Search warrant! Get on the ground!” Other officers, including Sneed, Hamilton
County Detective Marty Dunn, and ATF Special Agent Paris Gillette, circled around to the
back of the residence, where the vehicle with the money was parked. Sneed testified that as
he approached, he saw Cotton and the CI being taken into custody by other officers, and
heard activity inside the residence. As Sneed went toward the residence, he heard gunshots.
When Sneed approached the back porch, Detective Dunn, who was standing at the back
door, told Sneed that Penney had shot him. Penney yelled that he wanted to see a badge, and
Dunn threw his badge through the open back door. Sneed also called out to Penney
identifying himself, and Penney recognized his voice. Sneed entered the residence with his
gun drawn and saw Penney holding a shotgun. Sneed ordered Penney to put down the gun
several times, and Penney eventually complied and surrendered the weapon. Detective Dunn
and another Hamilton County officer, Mark King, then placed Penney in handcuffs. As a
result of the operation, Agent Gillette sustained a serious head wound; Dunn and King were
also injured.
The subsequent search turned up $35,000 in Cotton’s truck and five weapons inside
Penney’s residence. No narcotics were found inside Penney’s residence.
On February 11, 2004, Penney was indicted for various federal drug and firearm
offenses, as well as an attempt to kill a federal agent. A jury convicted Penney of seven
counts of drug-related offenses (including possession with intent to distribute, conspiracy
and attempt to distribute various large quantities of marijuana and cocaine hydrochloride),
two counts of being a felon in possession of firearms, two counts of possession of firearms
in furtherance of drug trafficking, one count of possession of a firearm with an obliterated
serial number, two counts related to discharging a firearm and an attempt to kill an officer
No. 05-6821 United States v. Penney Page 5
of the United States. The district court sentenced Penney to 895 months in prison. Penney
timely appealed.
II
A
Penney was charged with two counts of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1), on the basis of his 1976 guilty plea in a Tennessee state
court. The district court denied Penney’s motion to dismiss the charges and to reconsider,
and Penney was convicted of both counts. Penney rests his appeal to these convictions on
two alternative theories. First, he claims that his 1976 conviction does not qualify as a
predicate offense for § 922(g)(1), for three reasons: his guilty plea was not knowing,
voluntary, or intelligent; “obvious errors in the paperwork” indicate that Penney was
convicted of a misdemeanor rather than a felony; and the 1976 judgment is not entitled to
a presumption of regularity because it was never signed by the trial court. Alternatively,
Penney argues that even if he were convicted of a felony, he cannot be convicted of a
violation of § 922(g)(1) because he did not lose his right to possess a firearm under
Tennessee law in 1976, and that any law that stripped him of that right after the conviction
violates the ex post facto clause.
We review de novo a district court’s denial of a motion to dismiss an indictment on
legal grounds. United States v. Crayton, 357 F.3d 560, 564 (6th Cir. 2004). 18 U.S.C.
§ 922(g)(1) criminalizes the possession of firearms by any person “who has been convicted
in any court of a crime punishable by imprisonment for a term exceeding one year.” Federal
courts must look to “the law of the state in which a defendant was tried in order to determine
whether the defendant was convicted” of such a crime. United States v. Cassidy, 899 F.2d
543, 545 (6th Cir. 1990); 18 U.S.C. § 921(a)(20). A “crime punishable by imprisonment
for a term exceeding one year” does not include convictions of “any State offense classified
by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two
years or less,” or convictions that were “expunged, or set aside or for which a person has
been pardoned or has had civil rights restored . . . unless such pardon, expungement, or
restoration of civil rights expressly provides that the person may not . . . possess . . .
No. 05-6821 United States v. Penney Page 6
firearms.” 18 U.S.C. § 921(a)(20); see also United States v. Robinson, 390 F.3d 853, 879
(6th Cir. 2004).
1
Penney argues that his 1976 state conviction cannot form the basis for charging
§ 922(g)(1) violations because it was unconstitutionally obtained as a result of a guilty plea
that was not knowing, intelligent, or voluntary. Because the state court record is silent with
regard to his guilty plea, Penney urges that his plea cannot be presumed intelligent or
voluntary under Boykin v. Alabama, 395 U.S. 238 (1969). The possibility that the 1976
conviction was constitutionally deficient, however, is immaterial. See Parke v. Raley, 506
U.S. 20, 29 (1992) (holding that the Boykin “presumption of invalidity” was decided on
direct review and cannot be “import[ed]” into the “very different context” of a collateral
attack, occurring years after the challenged convictions became final). Addressing a statute
analogous to § 922(g)(1), the Supreme Court explained that “federal gun laws . . . focus not
on reliability, but on the mere fact of conviction . . . in order to keep firearms away from
potentially dangerous persons.” Lewis v. United States, 445 U.S. 55, 67 (1980) (emphasis
added). Accordingly, we have held that “proof of a defendant’s prior felony convictions is
admissible for purposes of proving a § 922(g)(1) violation, even if the prior convictions are
constitutionally deficient.” United States v. Steverson, 230 F.3d 221, 224 (6th Cir. 2000).
2
Penney contends further that he was convicted of a misdemeanor, not a felony, and
that the district court did not adequately account for the numerous errors and inconsistencies
in the paperwork in concluding that he was convicted of a felony. Penney was indicted on
April 1, 1975 for “feloniously selling a controlled substance.” The courtroom minutes for
May 19, 1976, indicate that upon Penney’s plea, he is found “guilty of Selling A Controlled
Substance Schedule IV,” and is to serve “a term of 11 months and 29 days at the Hamilton
County Penal Farm.” The judgment, dated May 19, 1976, states that Penney was charged
with feloniously selling a controlled substance, but upon his plea, is adjudged guilty of an
“attempt to commit a felony.” Penney filed a petition for a suspended sentence, in which he
asserted that he pled guilty to “possession of marijuana, a misdemeanor, and was sentenced
to the workhouse for a period of Eleven (11) months Twenty-Nine (29) days.” Penney’s
No. 05-6821 United States v. Penney Page 7
petition was sustained at a June 28, 1976 hearing, and his sentence was reduced to five years
of probation. An additional notation was added to the May 19, 1976 judgment form, stating:
“6/28/76 Judgment ordered into execution – petition for suspended sentence sustained . . . .”
Penney points to the inconsistency with regard to the nature of the crime to which
he pleaded guilty in the May 19, 1976 courtroom minutes (“selling a controlled substance
schedule IV”) and in the judgment (“attempt to commit a felony”). That inconsistency,
Penney argues, should lead this court to give greater weight to his petition for probation, the
only document Penney signed, in determining the nature of his conviction. We find this
proposition unconvincing.
The inconsistency does not put in doubt the fact of Penney’s felony conviction for
the purposes of § 922(g)(1) because, first and foremost, “[t]he Court speaks through its
judgment,” Chapman v. United States, 247 F.2d 879, 881 (6th Cir. 1957); see also United
States v. Holloway, 142 F.3d 437, No. 96-6344, 1998 U.S. App. LEXIS 3939, at *6 n.1 (6th
Cir. Mar. 4, 1998) (“[A] court speaks through its judgment, not its minute entries”); Williams
v. Brown, 921 F.2d 277, No. 90-1034, 1990 U.S. App. LEXIS 21171, at *3 (6th Cir. Dec.
4, 1990) (“Since a court speaks through its orders and judgments, the language in the
judgment is controlling.”). The judgment states that Penney was convicted of an “attempt
to commit a felony,” which is a felony under Tennessee law, Rafferty v. State, 91 Tenn. 655,
658 (Tenn. 1891), and which was punishable by up to five years’ imprisonment under the
then-applicable Tennessee law, Penny v. State, 2005 WL 3262929, at *4 (Tenn. Crim. App.
Dec. 2, 2005) (quoting Tenn. Code Ann. § 39-603 (transferred, § 39-1-501, 1982, repealed
1989)); see also United States v. Beazley, 780 F.2d 1023, No. 84-5905, 1985 U.S. App.
LEXIS 13896, at *4-5 (6th Cir. 1985) (unpublished table decision) (quoting Tenn. Code
Ann. §39-1-501 and citing Rafferty, 91 Tenn. 655). The punishment for an attempt to
commit a felony – imprisonment in the penitentiary for not more than five years or in the
workhouse or jail for not more than one year, Tenn. Code Ann. § 39-603 (1975) (repealed
1982) – is also consistent with Penney’s original sentence of 11 months and 29 days in a
No. 05-6821 United States v. Penney Page 8
1
county penal farm. Penney’s argument that the judgment is not entitled to a presumption
of regularity because the judgment form is not signed by the judge is also misplaced: the
form is properly signed by the clerk of the criminal court.
Second, the inconsistency between the judgment and the May 19, 1976
courtroom minutes (identifying “Selling A Controlled Substance Schedule IV” as the
crime of conviction) does not erode the determination that Penney was in fact convicted
of a felony. Selling a Schedule IV controlled substance was also a felony under then-
Tennessee law. Tenn. Code Ann. § 52-1432(a)(1)(D) (1975). Since that felony was
punishable by no less than two years’ imprisonment, ibid., it is unlikely that Penney was
convicted of this offense, in view of his original sentence. The most this inconsistency
implies is that an attempt to commit a felony was indeed the crime of conviction. In no
way does it imply that Penney was actually convicted of possession of marijuana, as
stated in his petition for a suspended sentence. The petition is not a court-generated
document and has no independent probative value.2
Finally, the alleged inaccuracy or clerical error on the judgment form does not
vitiate the “fact” of conviction that is necessary and sufficient to support a conviction
under § 922(g)(1). See Lewis, 445 U.S. at 67. Indeed, Penney has unsuccessfully
attempted to amend the 1976 judgment on grounds of clerical error before a Tennessee
appellate court, which rejected the claim, thereby confirming the fact of Penney’s felony
conviction.3 Penny, 2005 WL 3262929, at *4.
1
That Penney’s sentence was ultimately probated is of no consequence: state law at the time
permitted judges to suspend and probate sentences for felonies if the maximum sentence imposed is ten
years or less. See State v. King, 603 S.W.2d 721, 725 (Tenn. 1980) (discussing Tenn. Code Ann. § 40-
2901 et seq. (1975)).
2
The petition for probation is of dubious probative value for yet another reason: there is no
reference to marijuana as the drug at issue in any court-generated documents, and marijuana could not have
been the Schedule IV drug charged in the indictment because it was classified in Schedule VI at the time.
See United States v. Penney, No. 1:04-cr-036 (memorandum op.) (citing Smithson v. State, 509 S.W.2d
526 (Tenn. Crim. App. 1974)).
3
That court explained:
The petition for probation is the only document that purports to show the petitioner pled guilty
to a misdemeanor, while the other two court documents, the judgment and the minutes, both show
he pled guilty to a felony. Under these circumstances, we cannot agree with the petitioner’s claim
that his petition for probation, drafted by his trial counsel, is the most reliable indicator that a
No. 05-6821 United States v. Penney Page 9
3
In the alternative, Penney argues that he cannot be deemed convicted of a crime
punishable by at least one year because he never lost his right to own, carry, or possess
a gun under Tennessee law. It is undisputed that Penney did not lose his right to possess
firearms at the time of his 1976 conviction. However, the district court determined, and
the government now argues, that Penney was prohibited from possessing a handgun
under Tenn. Code Ann. 37-13-1307(b)(1)(B) as of 1989, and became ineligible to obtain
a handgun permit under Tenn. Code. Ann. 39-17-1351 as of 1996. Penney offers a
number of arguments as to why the 1989 and 1996 state statutes do not apply to him, and
maintains that in any case, these statutes cannot deprive him of the right to possess
firearms without violating the ex post facto clause of the Constitution.
We find it unnecessary to decide whether Penney has lost his right to possess
firearms under Tennessee laws enacted after he has served his sentence for the 1976
offense. 18 U.S.C. § 921(a)(20) excludes convictions “for which a person has been
pardoned or has had civil rights restored,” from the category of predicate offenses under
§ 922(g)(1), “unless such . . . restoration of civil rights expressly provides that the person
may not . . . possess . . . firearms.” The “unless” clause – and the question of whether
a defendant is prohibited from possessing firearms under state law – is only relevant if
a defendant’s civil rights were restored. Logan v. United States, 128 S. Ct. 475, 479
(2007) (holding “that the § 921(a)(20) exemption provision does not cover the case of
an offender who retained civil rights at all times, and whose legal status, postconviction,
remained in all respects unaltered by any state dispensation”).
Penney does not argue that his civil rights were restored. On the contrary, he is
emphatic that he never lost his civil rights and therefore had no need to seek restoration
of these rights. Appellant’s Br. at 30-33. Because the Supreme Court has rejected the
clerical error in the judgment may have existed. In addition, regardless of whether we decide the
clerical error existed in either of the remaining two court documents, the judgment or the court
minutes, the result is the same, the petitioner is a convicted felon.
Penny v. State, 2005 WL 3262929, at *4 (Tenn. Crim. App. Dec. 2, 2005).
No. 05-6821 United States v. Penney Page 10
argument that “[r]ights retained . . . are functionally equivalent to rights revoked but later
restored,” Logan, 128 S. Ct. at 481, even if Penney retained a right to possess firearms
under Tennessee law as he argues, he would still not be exempt from conviction under
§ 922(g)(1).
B
Prior to trial, Penney moved to suppress the fruits of the August 19, 2003 search
pursuant to Bowman’s consent, as well as the fruits of the January 13, 2004 search
pursuant to an anticipatory search warrant. The magistrate judge, to whom the motions
were referred, recommended denying both motions;4 the district court adopted the
magistrate judge’s recommendations over Penney’s objections.
“In reviewing a district court’s denial of a motion to suppress, this court defers
to the district court’s findings of fact unless they are clearly erroneous and reviews the
district court’s legal conclusions de novo.” United States v. Smith, 510 F.3d 641, 647
(6th Cir. 2007) (citation omitted). We view the evidence “in a light most likely to
support the decision of the district court.” Ibid. (citation omitted). Insofar as the district
court relied on the factual findings and legal conclusions of the magistrate judge, the
same standard applies to the report and recommendations.
1
“The Fourth Amendment recognizes a valid warrantless entry and search of
premises when police obtain the voluntary consent of an occupant who shares, or is
reasonably believed to share, authority over the area in common with a co-occupant who
later objects to the use of evidence so obtained.” Georgia v. Randolph, 547 U.S. 103,
106 (2006) (citing Illinois v. Rodriguez, 497 U.S. 177 (1990)). A co-occupant’s
“common authority” depends not on property rights, but “on mutual use of the property
by persons generally having joint access or control for most purposes.” Rodriguez, 497
4
Magistrate Judge Carter recommended the denial of the motions to suppress with the exception
of the firearm found in Penney’s pick-up truck, over which the magistrate judge determined Bowman had
no actual or apparent authority.
No. 05-6821 United States v. Penney Page 11
U.S. at 181 (citing United States v. Matlock, 415 U.S. 164, 171 n.7 (1974)). Even if a
co-occupant in fact lacks common authority over the premises, a search conducted
pursuant to his or her consent will not violate Fourth Amendment guarantees if the
police reasonably believed that the co-occupant had such authority. Rodriguez, 497 U.S.
at 186.
Penney argues that Bowman did not have actual or apparent common authority
to consent to the search. He argues that Bowman did not have actual common authority
over the searched premises because she was at most an overnight guest, who was
stripped even of that status prior to the search, and she did not own or have control over
the chicken house or the closed containers that were opened during the search.
Moreover, Penney claims, police officers could not reasonably believe Bowman had
authority to consent because they received “actual notice” that she did not officially
reside with Penney and that her co-occupancy of Penney’s residence was terminated
either on August 2nd or August 19th, and because she did not have a key to the premises.
We need not decide whether Bowman had actual authority to consent to the
search because we find that the district court did not err in its determination that she had
apparent authority to do so.5 The magistrate judge and the district judge found that the
Soddy-Daisy police officers knew the following facts. Bowman and Penney had been
involved in an off-and-on relationship for approximately six years. When the
relationship was on, Bowman lived with Penney, which the police officers knew from
their numerous visits to the Dayton Pike residence on domestic violence calls. When the
relationship was off, Bowman would leave Penney’s place. During these periods she
resided with her mother, whose address she listed on her August 19, 2003 complaint
against Penney. The officers’ most recent visit to Penney’s residence connected to the
couple’s turbulent relations occurred on August 2, 2003, as a result of which Penney had
kicked Bowman out. Detective Sneed testified that he did not think Bowman was
staying at Penney’s at the conclusion of the August 2, 2003 incident.
5
The district court did not unambiguously specify on what basis it found Bowman’s consent to
be valid, stating that she had “actual and/or apparent authority to consent.”
No. 05-6821 United States v. Penney Page 12
On August 19, however, when Bowman arrived at the Soddy-Daisy police
station, Bowman told Sneed that although the couple has broken up six months ago, they
had now reconciled and that she had moved back in the day before. That morning, in the
heat of argument, Penney kicked Bowman out without giving her a chance to collect
shoes or her car keys. Bowman then hitched a ride with a passing motorist to the police
station.
Once at the residence with Bowman, officers observed further evidence that she
was not a mere overnight guest at Penney’s house. Bowman’s car was parked outside
the residence, consistent with her account of that morning’s events. She led officers
through the residence and picked up her belongings from drawers, a laundry basket, and
the washing machine, which she gathered into “several bags.” She showed police
officers firearms, most of which were in plain view, and identified particular unlocked,
unlabelled containers that she knew held narcotics. Bowman told the police that she fed
and took care of the chickens when Penney was not there, that she took care of “things
around the house,” and that she wrote Penney’s checks.
The magistrate judge and the district court determined that, given what Soddy-
Daisy officers learned on the morning of August 19 and what they knew about Penney’s
and Bowman’s relationship, it was reasonable for them to believe that Bowman was
Penney’s girlfriend and co-occupant with common authority over the residence. The
magistrate judge also noted that it was reasonable for the police not to investigate
whether Bowman’s name was on the lease “as it is a reality in today’s world that
consenting adults often co-habitat [sic] together without benefit of legal formalities –
including those formalities relating to the establishment of property interests.”
The factual findings relied on by the district court and the magistrate judge are
well-supported by the record. We agree that the facts known to Detective Sneed and
other Soddy-Daisy officers warranted men “of reasonable caution in the belief that the
consenting party had authority over the premises,” Rodriguez, 497 U.S. at 188 (internal
quotation marks and citation omitted). We have confirmed a number of times that a live-
in girlfriend has common authority over the premises wherein she cohabits with a
No. 05-6821 United States v. Penney Page 13
boyfriend. See, e.g., United States v. Grayer, 232 F. App’x 446, 449 (6th Cir. 2007);
United States v. Hudson, 405 F.3d 425, 442 (6th Cir. 2005); United States v. Gillis, 358
F.3d 386, 391 (6th Cir. 2004); United States v. Moore, 917 F.2d 215, 223 (6th Cir.
1990).
As may be inferred from the facts we confronted in Gillis, cohabitation need not
be uninterrupted to support a reasonable belief in common authority. 358 F.3d 386. In
that case, we held that police reasonably believed a girlfriend had authority to consent
to a search of a residence where defendant lived, although she told officers that she had
left that residence several months earlier as a result of defendant’s physical abuse, did
not have all the keys necessary to unlock the residence, and was also staying at another
address at the time of the search. Id. at 388, 391. We explained that the officers’ belief
was reasonable because the girlfriend stated that “she continued to reside at both”
residences, id. at 388, “that she had been at the residence earlier that same morning,” and
“provided them with detailed information about the premises, including the locations
where [defendant] had drugs hidden on the property,” id. at 391. We conclude that in
this case, it was likewise reasonable for Soddy-Daisy officers to believe that Bowman
was a live-in girlfriend, who enjoyed access to the premises for most purposes, even if
the relationship was known to be turbulent and the couple did not cohabit
uninterruptedly.
The factors emphasized by Penney on appeal do not undermine the district
court’s determination that police officers reasonably believed in Bowman’s authority to
consent. Penney argues that police officers received “actual notice” that Bowman had
no actual authority because she listed a different address on her complaint form, and that
any authority she had was terminated when Penney arrived at the station and demanded
that she be removed from his house. The bare fact that Bowman listed her mother’s
address on her complaint form is not dispositive: the absence of formalized property
rights does not automatically translate into the absence of common authority. See
Matlock, 415 U.S. at 172 n.7. That the police officers did not perceive this fact as
“actual notice” that Bowman has no common authority over Penney’s residence is
No. 05-6821 United States v. Penney Page 14
understandable, especially in view of their knowledge that Bowman occasionally stayed
elsewhere (i.e. her mother’s residence).
The second fact – Penney’s demand that Bowman be removed from his residence
– deserves greater consideration. We recognize that in the abstract, if an occupant with
formal authority over the premises takes affirmative and unambiguous action to break
relations with a live-in lover and to exclude the latter from the formerly shared dwelling,
it may not be reasonable to believe that the latter retains common authority to consent
to a search. However, the reasonableness of police officers’ beliefs is evaluated in light
of all particular facts known to the officers, not by abstracting from the particulars. And
in this situation, the particular facts Soddy-Daisy officers knew about this particular
couple supported their belief that Bowman had common authority over the residence.
The officers knew of numerous occasions when the couple has quarreled violently and
reconciled, and had no reason to think that the quarrel of August 19 was any different.
Lovers’ quarrels and reconciliations are as much of a “reality in today’s world” as is
cohabitation without “legal formalities,” and the police cannot be faulted for not
presuming that a particular quarrel put an end to the couple’s relationship and living
arrangements.
Penney further points out that Bowman did not have a key to the residence,
which should have indicated that she had no access or control over the residence. As the
magistrate judge and the district court reasoned, this is hardly surprising in view of the
circumstances: Bowman did not have a chance to even collect her shoes, let alone pick
up a key.
Finally, Penney argues that the rule formulated in Georgia v. Randolph “should
be extended” to his case. Appellant’s Br. at 48. In Randolph, the Supreme Court held
that “[t]he co-tenant wishing to open the door to a third party has no recognized
authority in law or social practice to prevail over a present and objecting co-tenant,
[and] his disputed invitation, without more, gives a police officer no better claim to
reasonableness in entering than the officer would have in the absence of any consent at
all.” 547 U.S. at 114 (emphasis added). Penney argues that because he was in custody
No. 05-6821 United States v. Penney Page 15
at the same police station when and where Bowman consented to the search, he was
effectively “present,” and that because the situation was ambiguous, police were
required to ask Penney’s permission for the search. Appellant’s Br. at 48-49. This is not
a viable extension of the Randolph rule. As we have explained, the Randolph court held
that when “a potential defendant with self interest in objecting to the search is present
and actually objects, then a third party’s permission does not suffice for a reasonable
search,” but when “that potential objector is ‘nearby but not invited to take part in the
threshold colloquy,’. . . that potential objector ‘loses out,’ and the search will be deemed
valid.” United States v. Ayoub, 498 F.3d 532, 537 (6th Cir. 2007) (quoting Randolph,
547 U.S. at 121).
We also think that Bowman had apparent authority to consent to the search of
closed, but unlocked and unmarked containers inside the residence. Police officers
reasonably believed that Bowman had access to the containers wherein narcotics were
stored: they could not fail to surmise this from her knowledge of where drugs were
located, as well as a note they found in the residence, indicating her assistance in
Penney’s drug deals. The note, written by Bowman to Penney stated: “Howie came by
Fri. evening, I gave him enough out of that I found to make 3 or 4. You can settle up
with him.” Similarly, Bowman’s apparent authority extended to the chicken house, in
view of her statement to the police that she helped Penney care for the chickens. In the
absence of any indication that Penney expected the containers and the chicken house to
be inaccessible to Bowman or sought to make them so, we agree that it was reasonable
for the officers to conclude that she had such access for most purposes. Thus, we affirm
the district court’s denial to suppress the fruits of the August 19, 2003 search executed
pursuant to Bowman’s consent.
2
With regard to the search conducted on January 13, 2004, Penney argues that the
evidence should have been suppressed because first, the triggering event identified in the
anticipatory warrant never occurred, and second, there was an insufficient nexus
No. 05-6821 United States v. Penney Page 16
between Penney’s residence and the contraband to support probable cause required for
an anticipatory warrant.
“An anticipatory search warrant is a search warrant that ‘by its terms [takes]
effect not upon issuance but at a specified future time.’” United States v. Miggins, 302
F.3d 384, 395 (6th Cir. 2002) (quoting United States v. Jackson, 55 F.3d 1219, 1223 (6th
Cir. 1995)). We have required that “conditions triggering the anticipatory search warrant
be ‘explicit, clear, and narrowly drawn.’” Ibid. (quoting United States v. Ricciardelli,
998 F.2d 8, 12 (1st Cir. 1993)). This requirement notwithstanding, an anticipatory
search warrant and its supporting affidavit are not to be read “hypertechnically, but in
a commonsense fashion.” Ibid. (internal quotation marks and citation omitted); see also
United States v. Ventresca, 380 U.S. 102, 109 (1965).
The search warrant obtained by Detective Sneed authorized the search of
Penney’s residence, locked containers therein, outhouses and vehicles once “Penney
meets with the C. I. to examine and attempts to purchase narcotics by obtaining funds
or promising to obtain funds in the near future in order to complete the transaction.”
Penney argues that this event never occurred because he never “examined” the drugs and
never obtained or possessed any of the funds himself. Instead, it was Cotton who
obtained the money, which remained inside Cotton’s vehicle at all times, the CI
(Stewart) who was expected to produce the drugs, and neither the money nor the drugs
ever touched Penney’s hands or crossed the threshold of his residence.
As the magistrate judge and the district court concluded, Penney advances the
kind of hypertechnical interpretation of the search warrant’s language that our case law
disavows. See e.g., Miggins, 302 F.3d at 395-96 (holding that a triggering event
requiring “the delivery and acceptance of the package by someone inside the residence”
was met when “the package was taken by someone who had been inside the residence
just prior to its delivery”). As the police knew from their months-long investigation,
Penney’s role in the upcoming transaction was that of a middle-man, who might not be
the one actually handing over the money or the narcotics. Instead, Penney was expected
to, as he did, bring together a buyer and a seller in an attempt to complete the deal, in the
No. 05-6821 United States v. Penney Page 17
course of which the drugs were promised and funds were produced. All the operative
transactions specified in the warrant actually occurred: Penney met with the CI, and an
attempt was made to purchase drugs with funds that were actually obtained. While the
triggering condition could have been formulated in language more attuned to Penney’s
known and expected role as a middle-man, we find that under a common-sense reading
of the warrant, the triggering condition was met when Penney met with Cotton and the
CI, and the CI signaled to the police that the funds to be used for the drug purchase were
present.
Second, relying on United States v. Ricciardelli, Penney argues that the warrant
was unsupported by probable cause because the triggering event did not explicitly link
the evidence of a crime to Penney’s residence. In Ricciardelli, the First Circuit held that
anticipatory warrants are valid only when “the contraband [is] on a sure and irreversible
course to its destination and a future search of the destination must be made expressly
contingent upon the contraband’s arrival there.” 998 F.2d at 12. In this case, Penney
claims, the contraband was not on a “sure and irreversible course” to Penney’s residence
and the triggering event did not condition the search on the contraband’s arrival there.
To establish probable cause necessary for every search warrant, the supporting
affidavit must set forth “a nexus between the place to be searched and the evidence
sought.” United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004). “The task of
the issuing magistrate is simply to make a practical, common-sense decision whether,
given all the circumstances set forth in the affidavit before him, . . . there is a fair
probability that contraband or evidence of a crime will be found in a particular place.”
Illinois v. Gates, 462 U.S. 213, 238 (1983). Our task as “a reviewing court is simply to
ensure that the magistrate had a substantial basis for concluding that probable cause
existed.” Carpenter, 360 F.3d at 594 (quoting Gates, 462 U.S. at 238-39). We hold that
the issuing magistrate in this case had a substantial basis for so concluding.
As the magistrate judge recognized, anticipatory search warrants are typically
sought to conduct searches triggered by a police-controlled delivery of contraband when
there is little or no evidence connecting the place to be searched with evidence of a crime
No. 05-6821 United States v. Penney Page 18
other than the contraband to be delivered. See Ricciardelli, 998 F.2d at 10
(“Anticipatory search warrants are peculiar to property in transit.”); United States v.
Prince, 57 F.3d 1071 (unpublished table decision), No. 94-4118, 1995 U.S. App. LEXIS
14815, *5 (6th Cir. June 13, 1995) (same). In these circumstances, rather than “seek
permission to search a house for an item they believe is already located there,” police
seek permission to search for an item they believe will be located there once specified
events occur. United States v. Grubbs, 547 U.S. 90, 95 (2006) (emphasis added). The
Ricciardelli court adopted the “sure and irreversible course” standard to govern a typical
anticipatory search warrant: if the contraband to be delivered is the only evidence of
criminal activity that the police believe will be located in the place to be searched, it is
logical to condition the search upon the contraband’s arrival at its destination. See 998
F.2d at 12.
The present search warrant, however, is not a typical anticipatory warrant
contemplated by Ricciardelli. The contraband involved in the drug deal arranged by the
CI and Penney was not the only evidence connecting Penney’s residence to criminal
activity. In making his decision with regard to probable cause, the magistrate was
entitled to look at the other information regarding prior illicit activity included in the
affidavit, see United States v. Rey, 923 F.2d 1217, 1220 (6th Cir. 1991),6 and he was
“entitled to draw reasonable inferences about where evidence is likely to be kept, based
on the nature of the evidence and the type of offense,” United States v. Williams, 544
F.3d 683, 687 (6th Cir. 2008) (internal quotation marks and citation omitted). We
decline to apply Ricciardelli’s “sure and irreversible course” standard to a search
warrant supported by a substantially dissimilar – and substantially more informative –
affidavit.
6
That a magistrate may rely on information in the affidavit other than the facts regarding the
anticipated event in the context of an anticipatory search warrant is undisputed. Federal courts, including
ours, have relied on such information to uphold a broader scope for the search than would be justified on
the basis of the “triggering” controlled delivery alone. See, e.g., United States v. Rey, 923 F.2d 1217, 1220
(6th Cir. 1991) (holding that “indications of prior illicit activity,” besides the controlled delivery, justified
a search beyond “the seizure of the controlled delivery package”); United States v. Garcia, 882 F.2d 699,
704 (2d Cir. 1989) (holding that “additional facts in the supporting affidavit gave rise to probable cause
to believe that the apartment was being used as a storage and distribution center for drugs,” authorizing
a broader search than may have been justified by the delivery of contraband alone).
No. 05-6821 United States v. Penney Page 19
Detective Sneed’s affidavit contained information about prior illicit activity,
which contributed to the probability that evidence of drug-trafficking would be found
at Penney’s residence. Sneed described the August 19, 2003 search and the evidence
recovered as a result thereof, noting that the recovered quantity of marijuana was stored
in a manner “indicative of large scale marijuana distribution.” The affidavit stated that
the police received information that Penney received 100 pounds of marijuana from
“[H]ispanic individuals” on September 16, 2003, that a Hispanic individual was arrested
with 60 pounds of marijuana and admitted having delivered 100 pounds of the drug to
Penney. It further related that on January 3, 2004, a discussion between the CI and
Penney took place at the latter’s residence, arranging for a delivery of over 100 pounds
of marijuana. Finally, in describing the anticipated controlled delivery, the affidavit
states that “Penny has previously utilized his house and business to transact drug deals,
[sic] in the house and business there will be evidence of this and other drug
transactions.” (emphasis added).
It is evident that the issuing magistrate was presented with facts that indicated
Penney’s more than casual participation in drug trafficking. We have repeatedly held
that an issuing judge is “entitled to draw reasonable inferences about where evidence is
likely to be kept, based on the nature of the crime and type of offense.” Williams, 544
F.3d at 686. On this basis, “we have held that an issuing judge may infer that drug
traffickers use their homes to store drugs and otherwise further their drug trafficking.”
Id. at 687 (collecting cases). While past drug-trafficking activity alone does not make
such an inference reasonable, “with continuing criminal operations, any issue of
staleness [of information regarding past criminal activity], or the lack of a direct known
link between the criminal activity and residence, becomes minimal.” United States v.
Newton, 389 F.3d 631, 635-36 (6th Cir. 2004) vacated in part on other grounds, 546
U.S. 803 (2005) (emphasis added) (citing United States v. Greene, 250 F.3d 471, 481
(6th Cir. 2001)). And in this case, the issuing magistrate was presented with an
anticipated event that, if and when it occurred, would show that Penney’s participation
in drug trafficking was “continuing.” As the magistrate judge below noted, a “more
No. 05-6821 United States v. Penney Page 20
immediate temporal context” is precisely what the anticipated drug deal added to the
prior illicit activity recounted in the affidavit.
In sum, although the triggering event did not explicitly require that contraband
be delivered to Penney’s residence, the issuing magistrate had a substantial basis to
conclude that the affidavit established a nexus between on-going drug trafficking and
Penney’s residence, and that there was a fair probability that evidence of drug trafficking
would be found when the triggering event took place. See also Williams, 544 F.3d at
687 (holding that “even though no criminal activity or contraband [was] observed” at
defendant’s residence, evidence of “continuing and related illegal firearm activity,”
allowed the issuing judge to conclude “that evidence pertaining to the handguns would
be found in [defendant’s] residence”).
C
Next, Penney challenges two of the district court’s evidentiary rulings: the
exclusion of exculpatory hearsay testimony, and the admission of rebuttal testimony by
two government witnesses. We review a district court’s evidentiary rulings for abuse
of discretion. United States v. White, 492 F.3d 380, 398 (6th Cir. 2007). “A district
court abuses its discretion when it relies on clearly erroneous findings of fact, when it
improperly applies the law, or when it employs an erroneous legal standard.” United
States v. Cline, 362 F.3d 343, 348 (6th Cir. 2004) (citations omitted). “We reverse only
where the district court’s erroneous admission of evidence affects a substantial right of
the party.” White, 492 F.3d at 398 (citing Fed. R. Evid. 103(a)).
1
The government filed a motion in limine to exclude testimony by Sgt. Van
Hinton that, after his arrest, Penney said “you guys don’t understand, I thought I was
being robbed.” Penney argued that this statement was an excited utterance or a present
sense impression, and constituted an exception to the hearsay rule under Fed. R. Evid.
803(2) or 803(1), respectively. Fed. R. Evid. 803(2) permits a trial court to admit
hearsay statements when they “relat[e] to a startling event or condition made while the
No. 05-6821 United States v. Penney Page 21
declarant was under the stress of excitement caused by the event or condition.” We have
held this exception requires the moving party to show, inter alia, that the statement was
“made before there is time to contrive or misrepresent.” United States v. Arnold, 486
F.3d 177, 184 (6th Cir. 2007) (en banc) (citing Haggins v. Warden, Fort Pillow State
Farm, 715 F.2d 1050, 1057 (6th Cir. 1983)).
The district court decided not to admit the statement because Penney had time
and motive to “contrive or misrepresent.” Sgt. Van Hinton testified, and Penney does
not dispute, that the statement was made ten to fifteen minutes after the confrontation
between Penney and law enforcement was over, and after EMT vehicles arrived at the
scene with sirens blaring. At that point, the district court reasoned, Penney “had to have
known . . . that . . . he had shot somebody, and most likely that that was a police officer.”
The district court did not commit reversible error in concluding that because Penney
knew what was at stake at the time he made the statement, the statement was unreliable.
We also agree with the district court’s determination that the statement could not be
admitted as a present sense impression for similar reasons, as it was not made “while the
declarant was perceiving the event or condition, or immediately thereafter.” Fed. R.
Evid. 803(1).7
2
Penney’s second challenge is to the admission of rebuttal testimony from two
fellow jail inmates, John Shropshire and Larry Dickerson. Both men testified that, while
in jail, Penney said that he wished he would have killed the police officers he had shot,
so that they could not testify against him. The government sought the introduction of
this testimony on rebuttal, after Penney had testified, as a prior inconsistent statement
under Fed. R. Evid. 801(d)(1). Penney objected to the admission of this testimony solely
on the grounds that it was irrelevant and unduly prejudicial, an argument that he renews
7
Moreover, we note that the exclusion of this statement was unlikely to have affected Penney’s
substantial rights because the jury was presented with the same information as was contained in the
excluded statement: Penney himself presented his argument that he did not know he was shooting at police
officers and that he thought he was being robbed, and Agent Melia testified that Penney told him the same
thing when Melia interviewed Penney shortly after his arrest.
No. 05-6821 United States v. Penney Page 22
on appeal.8 Penney argues that his state of mind months after the fact is not relevant to
“any issue in the case.” Appellant’s Br. at 53. Insofar as the statements have any
probative value, Penney argues, it is substantially outweighed by the prejudicial effect
the inflammatory statements had on the jury.
Relevant evidence “may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice.” Fed. R. Evid. 403. Unfair prejudice
“does not mean the damage to a defendant’s case that results from the legitimate
probative force of the evidence”; rather, it means the damage that results when the
introduction of the evidence “tends to suggest [a] decision on an improper basis.”
United States v. Caver, 470 F.3d 220, 240 (6th Cir. 2006) (citations omitted, alteration
in original). The government argues that the relevance, or the “legitimate probative
force,” of disputed testimony is two-fold. First, it was relevant to the question of
Penney’s intent at the time of the offense. And second, it was relevant to Penney’s
credibility.
We find dubious the proposition that a statement made months after the fact and
after Penney became aware of the charges against him was relevant to establishing
Penney’s intent at the time of the offense. However, we agree with the district court that
the statement was relevant to the question of Penney’s credibility. The jury had to
evaluate Penney’s credibility because his testimony – in particular regarding the January
13, 2004 confrontation – conflicted with that of the law enforcement officers. Penney
denied saying that he wished he had killed the officers, which was directly contradicted
by Shropshire’s and Dickerson’s testimony; thus, the possibility that Penney lied under
oath was relevant to the jury’s evaluation of his credibility. The testimony does not tend
to suggest a decision on an improper basis; and to the extent that risk was present,
8
We express no opinion on the question of whether Shropshire’s and Dickerson’s testimony was
properly admitted as a prior inconsistent statement under Fed. R. Evid. 801(d)(1). It appears to us at least
questionable whether all the requirements for that exemption from the hearsay rule were satisfied:
Penney’s statement, to which the two witnesses testified, does not appear to have been “given under oath
subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition,” as required by
801(d)(1)(A). Nonetheless, because Penney does not challenge the admissibility of the statement on this
basis, and because the statement would likely have been admissible as an admission by a party-opponent
under Fed. R. Evid. 801(d)(2), we limit our decision to the question of relevance and prejudice.
No. 05-6821 United States v. Penney Page 23
Penney had ample opportunity to argue that the statement had no “bearing on his intent
at the time of the incident,” as the district court observed.
We accord the district court “[b]road discretion . . . in determinations of
admissibility based on considerations of relevance and prejudice,” and we do not “lightly
overrule” those decisions. United States v. White, 563 F.3d 184, 191 (6th Cir. 2009)
(quoting United States v. Wagner, 382 F.3d 598, 616 (6th Cir. 2004)). Viewing the
decision to admit evidence “in the light most favorable to the government by maximizing
the probative value of the evidence and minimiz[ing] its potential prejudice,” as we
must, we conclude that the district court did not abuse its discretion in allowing the
witnesses to testify about Penney’s prior inconsistent statements.
D
Finally, Penney argues that evidence was insufficient to support his convictions
on Counts Six, Twenty, Twenty-One, and Twenty-Two. It appears from the record that
Penney did not renew his motion for acquittal after all the evidence was presented.
“[W]here, as here, a defendant does not renew his motion for judgment of acquittal for
insufficiency of the evidence at the close of all of the proofs, appellate review is limited
to determining whether there was a ‘manifest miscarriage of justice.’” United States v.
Price, 134 F.3d 340, 350 (6th Cir. 1998) (citations omitted). “A miscarriage of justice
exists when the record is devoid of evidence pointing to guilt.” United States v. Paige,
470 F.3d 603, 608 (6th Cir. 2006) (internal quotation marks and citation omitted).
First, Penney argues that there was insufficient evidence to convict him of Count
Six, possession of a firearm in furtherance of a drug trafficking crime on August 19,
2003, in violation of 18 U.S.C. § 924(c). As Penney argues, “the possession of a firearm
on the same premises as a drug transaction would not, without a showing of a connection
between the two, sustain a § 924(c) conviction.” United States v. Mackey, 265 F.3d 457,
462 (6th Cir. 2001). However, if the firearms are “strategically located so that [they are]
quickly and easily available for use,” their possession can be deemed “in furtherance of”
a drug crime. Ibid. (citation omitted). The August 19, 2003 search uncovered firearms
placed throughout Penney’s residence; at least one shotgun was loaded, and several were
No. 05-6821 United States v. Penney Page 24
next to the $1,300 stash hidden in a bathroom closet. The record is not devoid of
evidence to support the conclusion that the firearms were placed strategically and were
connected to Penney’s drug trafficking.
Second, Penney argues that there was insufficient evidence to convict him of
Count Twenty, attempt to kill an officer of the United States, in violation of 18 U.S.C.
§ 1114. Penney maintains that lighting outside his residence was poor, the blinds on his
window were closed, he did not hear or see the law enforcement officers at whom he
shot through the closed blinds; all of these factors, Penney argues, make it impossible
to establish an intent to kill, amounting to reckless conduct at most. Penney’s assertions,
however, were contested by the testimony of law enforcement officers, indicating that
the officers repeatedly and loudly announced their presence (e.g., Officer King’s
testimony) and that the entry team’s yells could be heard by the officers positioned
behind the residence (e.g., Detective Dunn’s testimony). The jury was presented with
conflicting evidence, and certainly could have rejected Penney’s account and believed
the testimony of the other witnesses.
Third, Penney challenges his convictions under Counts Twenty-One, discharging
a firearm during and in relation to a crime of violence, in violation of 18 U.S.C.
§ 924(c)(1)(A)(iii), and Twenty-Three, possessing a firearm in furtherance of drug
trafficking, in violation of 18 U.S.C. § 924(c). Penney does not elaborate why either
conviction lacks sufficient evidence, and we deem these claims waived.
In the alternative, Penney claims that these two counts should have been merged,
along with Count Twenty (attempted murder), for the purposes of sentencing. He argues
that sentences for Counts Twenty-One and Twenty-Three should be merged because
both are “924(c) violations stemming from the exact same incident, the exact same set
of facts.” Appellant’s Br. at 56.
We have previously rejected an identical argument on substantially similar facts.
United States v. Nabors, 901 F.2d 1351 (6th Cir. 1990). In particular, we held that when
“two separate predicate offenses for triggering § 924(c)(1) were charged and proven,”
a defendant may be convicted and sentenced for two separate crimes, even if both
No. 05-6821 United States v. Penney Page 25
offenses were committed in the course of the same event. Id. at 1357-58. Here, as in
Nabors, the two violations of § 924(c)(1) of which Penney is convicted are based on
distinct predicate offenses: attempted murder of a federal agent, and an attempt to
possess marijuana with the intent to distribute. Penney’s unelaborated claim that Count
Twenty should have been merged with Twenty-One and/or Twenty-Three for the
purposes of sentencing is precluded by the text of the statute. 18 U.S.C.
§ 924(c)(1)(D)(ii) (“[N]o term of imprisonment imposed on a person under this
subsection shall run concurrently with any other term of imprisonment imposed on the
person, including any term of imprisonment imposed for the crime of violence or drug
trafficking crime during which the firearm was used, carried, or possessed.”). Therefore,
the district court did not commit an error by imposing consecutive sentences for these
three crimes.
Lastly, Penney argues that there was insufficient evidence to convict him of
Count Twenty-Two. Penney’s argument relies on a misstatement of the crime of
conviction. He claims that he could not be convicted for “possessing marijuana with the
intent to distribute on January 13, 2004,” because there was no marijuana in Penney’s
home on that date. Penney was convicted, however, of aiding and abetting an attempted
possession of marijuana, along with Cotton (North). To justify a conviction on this
count, the government had to prove “(1) an act by a defendant that contributes to the
execution of a crime; and (2) the intent to aid in the crime’s commission.” United States
v. Gardner, 488 F.3d 700, 711 (6th Cir. 2007). There was ample evidence presented at
trial that Penney arranged the drug deal between North and the CI.
We conclude that the convictions on all of the disputed counts entailed no
manifest miscarriage of justice and do not warrant reversal.
III
Penney’s last challenge is to the reasonableness of his sentence. In particular,
Penney argues that the 660 months of his 895-month sentence that were based on the
three § 924(c) convictions are unreasonable because (1) two of these convictions are
based on occurrences of the same day and involved the same gun, (2) the district court
No. 05-6821 United States v. Penney Page 26
did not consider 18 U.S.C. § 3553(a) factors, and (3) this is effectively a life sentence
given his age.
The 660 months that Penney emphasizes as unreasonable were imposed pursuant
to mandatory minimum sentences and a statutory requirement that the sentences run
consecutively to any other terms of imprisonment. 18 U.S.C. § 924(c)(1)(D)(ii).
“§ 3553(a) factors do not apply to congressionally mandated sentences.” United States
v. Franklin, 499 F.3d 578, 585 (6th Cir. 2007). The balance of the sentence – 235
months – was imposed for the remaining counts. The sentences for each count ranged
from 60 to 235 months and were to run concurrently. The district court properly
considered the § 3553(a) factors, insofar as it had discretion in the imposition of the non-
statutorily mandated portion of the sentence. In particular, the district court stated that
after careful consideration, it found that the need for deterrence and the protection of the
public were the most important factors to consider in sentencing Penney. See United
States v. Mayberry, 540 F.3d 506, 518 (6th Cir. 2008) (“A judge is not required,
however, to expressly state each of these factors at sentencing, so long as his or her
opinion reflects a consideration of these factors.”) The sentence imposed was within the
Guidelines range, and is thus presumptively reasonable on review. See United States v.
Heriot, 496 F.3d 601, 608 (6th Cir. 2007); Gall, 128 S. Ct. at 597. Penney does not
provide us with any reason to doubt the presumption, and we conclude that the district
court’s sentence was reasonable.
IV
For the reasons stated above, we AFFIRM the district court on all issues
presented.
No. 05-6821 United States v. Penney Page 27
_________________
DISSENT
_________________
MERRITT, Circuit Judge, dissenting. I disagree with the Court’s holding that
the local Soddy-Daisy police had the authority under the Fourth Amendment to search
Penney’s home without a warrant on August 19, 2003, because Bowman, as Penney’s
intermittent, live-in girlfriend, had the “apparent authority” to consent to the warrantless
search. Therefore, I disagree with Section II.B.1 of the Court’s opinion. “Apparent
authority” is absent because the local police had observed and knew that the girlfriend
had just come to the police station that morning where she had stated that Penney had
made her leave his house — had actually “thrown her out.” They knew that she had no
key and that they would, and did, have to break into the house. The record is clear that
they also had observed and knew that Penney had followed the girlfriend to the police
station and had told the police he had removed her from his home and did not want her
staying there any longer. He made a request of the police that she be kept off of his
property. All of these facts are clear in the record. The Court does not deny that these
are the facts of the case. It does not point to any factual dispute to be resolved
concerning these facts.
Based on these undisputed facts, it is beyond me to understand how the girlfriend
could have any kind of authority, actual or apparent, from Penney to consent to a search
of his home. In my view, the Court has not performed its judicial duties in an impartial
manner on this issue and has simply followed its inclination to favor the authority of the
police over the liberty of the individual citizen granted by the Fourth Amendment. “The
right of the people to be secure in their . . . homes . . . against unreasonable searches and
seizures” has been openly abridged. The decision here is simply a backhanded way of
repealing the exclusionary rule and extinguishing the protections of the Fourth
Amendment because the law, as written by the Founders, is inconvenient and hinders
criminal convictions. What should be an open and shut Fourth Amendment violation is
spun as a close case and decided in favor of the police.