United States v. Tyrone Keys , 359 F. App'x 585 ( 2009 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0830n.06
No. 08-2012
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA, ) Dec 23, 2009
) LEONARD GREEN, Clerk
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
TYRONE L. KEYS, ) WESTERN DISTRICT OF MICHIGAN
)
Defendant-Appellant. )
Before: SUHRHEINRICH, SUTTON and COOK, Circuit Judges.
SUTTON, Circuit Judge. Tyrone Keys challenges his felon-in-possession conviction and
262-month sentence. We affirm Keys’ conviction (because he pleaded guilty without reserving the
right to challenge the district court’s suppression ruling) and his sentence (because it was
procedurally reasonable).
I.
At about 1:00 a.m. on October 2, 2006, Lansing Police Officer Nick Hughett and a civilian
ride-along, John Legwin, observed Keys approach a car in a parking lot and, less than a minute later,
enter the front-passenger seat of a nearby Suburban, which drove away. Hughett followed the
Suburban and stopped the car when it changed lanes several times without signaling.
No. 08-2012
United States v. Keys
Keys exited the Suburban as soon as it pulled over at a gas station and started to walk toward
the station’s convenience store. See id. at 29, 102. Hughett ordered Keys to return to the car and,
when Keys did not comply, Hughett approached Keys, grabbed him by the arm and began to escort
him toward the Suburban. Keys resisted and reached toward his waist, where Hughett saw a .45
caliber handgun tucked into Keys’ waistband. When Hughett tried to restrain Keys, Keys fought
back. During the struggle, the gun fell from Keys’ waistband to the ground, and Keys continued
reaching for it until Legwin stepped out of the cruiser and picked it up. Hughett eventually gained
control of Keys, and additional officers soon arrived on the scene to bring an end to the
confrontation. Injuries sustained by Hughett and Keys in the fight required both of them to get
medical treatment.
A grand jury indicted Keys for violating the federal felon-in-possession statute. Keys pleaded
not guilty and moved unsuccessfully to suppress the gun. Without entering into a plea agreement
or filing a conditional plea, Keys eventually pleaded guilty to a materially identical criminal
information.
At the sentencing hearing, the court rejected (1) Keys’ challenge to the presentence report’s
recommended enhancement for possessing a firearm in connection with another felony (assaulting
Hughett) and (2) his request for an acceptance-of-responsibility reduction. The district court
postponed sentencing Keys, however, because questions remained about whether Keys’ three prior
felony convictions triggered an armed-career-criminal enhancement. See 18 U.S.C. § 924(e);
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United States v. Keys
U.S.S.G. § 4B1.4. Two months later, the district court deemed Keys an armed career criminal and
sentenced him to 262 months—the bottom of the guidelines range.
II.
A.
Keys challenges the district court’s denial of his motion to suppress the gun as the fruit of
an unlawful seizure. See U.S. Const. amend. IV. He cannot attack that ruling here, however,
because he pleaded guilty without entering a written conditional plea preserving his right to appeal
the issue. See United States v. Herrera, 265 F.3d 349, 351 (6th Cir. 2001); Fed. R. Crim. P. 11(a)(2).
Keys asks us to overlook that waiver, but he forfeited that request by not raising it until his reply
brief. See Moulton v. U.S. Steel Corp., 581 F.3d 344, 354 (6th Cir. 2009).
B.
Through a supplemental pro se brief, Keys attacks his conviction on ineffective-assistance
grounds. See U.S. Const. amend. VI. That challenge is premature. We generally require federal
inmates to wait until they file a § 2255 claim before they may attack the performance of their trial
counsel—first and foremost because a separate collateral proceeding allows the inmate to develop
any factual record that might support his claim. See United States v. Franco, 484 F.3d 347, 354–55
(6th Cir. 2007). We stand by that common practice here.
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United States v. Keys
III.
Keys separately challenges the procedural reasonableness of his sentence, arguing that the
district court miscalculated his guidelines range. See Gall v. United States, 552 U.S. 38, 51 (2007)
(noting that “failing to calculate (or improperly calculating) the Guidelines range” constitutes
“significant procedural error”). We give abuse-of-discretion review to the procedural reasonableness
of the district court’s sentence, fresh review to its interpretation of the guidelines and clear-error
review to its factual findings. See id. at 51; United States v. Lay, 583 F.3d 436, 449 (6th Cir. 2009).
A.
Keys says that the district court improperly denied his request for a reduction based on
acceptance of responsibility. Under the guidelines, defendants who “clearly demonstrate[]
acceptance of responsibility for [their] offense” receive a two-level sentencing reduction, and as a
general matter pre-trial guilty pleas often establish the requisite acceptance. U.S.S.G. § 3E1.1 &
cmt. n.3. Defendants do not have to “affirmatively admit[] relevant conduct beyond the offense of
conviction in order to obtain a reduction.” Id. § 3E1.1 cmt. n.1(a). Silence or good-faith denials will
do. But when a defendant “falsely denies . . . relevant conduct that the court determines to be true,”
the denial casts a dark cloud over the request. See id. § 3E1.1 cmt. n.1(a); Lay, 583 F.3d at 448–49.
From the outset, Keys has admitted that he violated the felon-in-possession statute. But from
the outset he also has denied one feature of his relevant conduct—that he reached for his gun or tried
to use it in some way during the altercation. These denials contradict findings by the district court
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United States v. Keys
at the suppression hearing and at Keys’ initial sentencing hearing. See Suppression Hr’g Tr. at
102–03 (“When [Keys] got toward the vehicle again, he reached into his waistband . . . [and] a .45
caliber semiautomatic pistol was observed by the officer in [Key’s] waistband.”); R.88 at 11 (finding
that Keys tried to “get a hold of that firearm to assault, if not to shoot,” Hughett). In denying the
acceptance-of-responsibility reduction after hearing the competing evidence, the court explained that
Keys had not told “the truth about what happened at [his] confrontation” with Hughett. R.88 at 11;
R.89 at 41, 43.
This finding was not clear error, and it gave the court ample reason for denying the reduction.
Keys repeatedly denied the conduct, and the district court plausibly explained why it did not accept
his account. Without the opportunity to observe Keys’ demeanor and with only a transcript that sets
forth competing accounts of the confrontation, we are in no position to second-guess the district
court’s ring-side accounting of what happened—namely, that Keys was lying about the encounter
rather than somehow mistakenly thinking that he did not reach for his gun. See Lay, 583 F.3d at 449.
Keys’ attempt to brandish his gun “to assault, if not to shoot,” Hughett with it also properly
qualifies as relevant conduct. R.88 at 11. All “acts and omissions,” the guidelines say, qualify as
relevant conduct if they were “committed . . . during the commission of the offense of conviction
. . . or in the course of attempting to avoid detection or responsibility for that offense.” U.S.S.G.
§ 1B1.3(a) & cmt. background. Keys’ conduct fits within this definition. Criminals often brandish
weapons to facilitate escape—the ultimate way of avoiding detection or responsibility for criminal
behavior. And that conduct affects whether Keys qualifies for an enhancement for being a felon in
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United States v. Keys
possession who used a gun “in connection with another felony offense”—felony assault of a police
officer. Id. § 2K2.1(b)(6); see also Mich. Comp. Laws § 750.81d.
Not so, Keys protests, because he sufficiently accepted responsibility for his offense by
pleading guilty and truthfully admitting he was a felon in possession. But a guilty plea, as
explained, does not automatically entitle a defendant to an acceptance-of-responsibility reduction,
see United States v. Mahaffey, 53 F.3d 128, 134 (6th Cir. 1995), and the district court acted within
its discretion in finding that Keys’ untruthful denial of his related serious conduct outweighed his
confession.
The cases upon which Keys relies confront a distinct question: what types of post-offense
conduct may courts consider in assessing whether a defendant has voluntarily terminated or
withdrawn from criminal conduct or associations? See U.S.S.G. § 3E1.1 cmt. n.1(b); United States
v. Banks, 252 F.3d 801, 806 (6th Cir. 2001); United States v. Tilford, 224 F.3d 865, 868 (6th Cir.
2000); United States v. Morrison, 983 F.2d 730, 734–35 (6th Cir. 1993). Today’s case deals with
denials of relevant conduct, and the relevant precedent on that point consistently affirms denials of
acceptance-of-responsibility reductions when the defendant falsely denies the conduct. See, e.g.,
Lay, 583 F.3d at 448–49; United States v. Maye, 582 F.3d 622, 625–26 (6th Cir. 2009).
No better is Keys’ contention that district courts may consider false denials of relevant
conduct only if they occur after the court makes its factual findings. The guidelines draw no such
distinction, as they focus on “relevant conduct that the court determines to be true,” not conduct the
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United States v. Keys
court previously determined to be true. U.S.S.G. § 3E1.1 cmt. n.1(a) (emphasis added). Nor does
this theory conform with traditional sentencing practices, in which courts often make findings of fact
about relevant conduct moments before announcing a defendant’s sentence. Nor does the theory
respect § 3E1.1’s focus on sincere and voluntary acceptances of responsibility. It is difficult to
maintain that a defendant who falsely denies the true extent of his offense up until a district court
finds otherwise has sincerely accepted responsibility for his behavior. Cf. id. § 3E1.1 cmt. n.2
(noting that defendants who admit guilt and express remorse only after conviction by a trial rarely
qualify for a reduction).
Worse still, the argument fails on its own terms. Keys continued to deny reaching for the gun
when a probation officer interviewed him after the district court had found that he had done so. And
he repeated the denial after the court reiterated its finding at his initial sentencing hearing. The court
did not misread this guideline or abuse its discretion in applying it.
B.
Keys separately challenges the court’s four-level enhancement for illegally possessing a
firearm in connection with another felony. See U.S.S.G. § 2K2.1(b)(6). The felony assault of
Hughett, according to Keys, was not sufficiently distinct from the felon-in-possession conviction—in
time or conduct—to qualify as “another felony.” See United States v. Sanders, 162 F.3d 396, 400
(6th Cir. 1998). But this error, if error it was, made no difference to Keys’ sentence. The district
court calculated the guidelines range based solely on Keys’ status as an armed career criminal. See
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R.89 at 34, 49–54. And even if Keys were to prevail on his § 2K2.1 argument, that would not
undermine our conclusion that the district court properly refused to grant him an acceptance-of-
responsibility reduction; the fortuity that he falsely denied conduct that did not ultimately enhance
his sentence under § 2K2.1 would not diminish Keys’ unwillingness to accept responsibility for his
actions. See United States v. Winters, 247 F. App’x 665, 669 (6th Cir. 2007). Because it would not
affect his sentence, any error by the court in finding that Keys qualified for a § 2K2.1 enhancement
is at most harmless, which is another word for irrelevant. See United States v. Ward, 506 F.3d 468,
476 (6th Cir. 2007).
IV.
For these reasons, we affirm Keys’ conviction and sentence.
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