United States v. Fouse ( 2007 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0727n.06
Filed: October 10, 2007
No. 05-1847
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
) ON APPEAL FROM THE
Plaintiff-Appellant, ) UNITED STATES
) DISTRICT COURT FOR
v. ) THE WESTERN DISTRICT
) OF MICHIGAN
GERALD WILMER FOUSE, )
) OPINION
Defendant-Appellee. )
BEFORE: COLE and COOK, Circuit Judges; and FROST, District Judge.*
GREGORY L. FROST, District Judge. Appellant, Gerald Wilmer Fouse, appeals from
a 92-month sentence imposed after he pleaded guilty to a single count of felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). Fouse argues on appeal that the trial judge
erroneously relied on conduct from a dismissed count as relevant conduct in determining his
sentence, that the trial judge impermissibly increased his criminal history category, that the
government violated his plea agreement, that the lack of a mens rea requirement in U.S.S.G. §
2K2.1(b)(4) is impermissible, and that the Sentencing Commission exceeded its authority in
creating the guideline. For following reasons, this Court AFFIRMS.
*
The Honorable Gregory L. Frost, United States District Judge for the Southern District of
Ohio, sitting by designation.
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I. BACKGROUND
On November 4, 2003, police officers went to Fouse’s home in order to investigate a tip
that he had a large amount of marijuana in a blue Ford Tempo or a silver Lincoln. Although
Fouse consented to a search of both the Lincoln and his home, he insisted that the Ford Tempo
was not his. The officers searched the Lincoln without finding marijuana, but before they entered
Fouse’s home, a police canine alerted to the presence of marajuana in the Ford Tempo.
The officers found keys in Fouse’s bedroom, one of which unlocked the Ford Tempo’s
doors and started the ignition. After none of the keys unlocked the trunk, the officers opened the
trunk with a crowbar. Fouse continued to deny that he owned the Ford Tempo and asserted that
the keys belonged to a Ford van and fit both the van and the Ford Tempo. In the opened trunk,
the officers found a box containing two revolvers, one of which was later determined to be
stolen. The officers also found a 227.9-gram bag of marijuana and a scale.
In a subsequent interview with Fouse’s housemate and son, officers then learned of two
rifles that Fouse kept in his housemate’s closet. Officers also retrieved these firearms.
On June 29, 2004, a federal grand jury indicted Fouse on three counts: two counts under
18 U.S.C. § 922(g)(1), felon in possession of as firearm, and one count under 18 U.S.C. §
922(g)(3), unlawful user of a controlled substance in possession of a firearm. Fouse maintained
his innocence and argued that neither the Ford Tempo nor the revolvers in the trunk belonged to
him. Even when confronted with fingerprint and DNA evidence that he possessed the revolvers,
Fouse still maintained his innocence, insisting that he had only moved the box containing the
revolvers, that he did not know what was inside the box, and that he did not know a revolver was
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stolen. He further asserted that he was framed by another individual because of a child-custody
dispute. Fouse admitted the two rifles were his, but asserted that he used them only to teach his
children how to hunt. He did not admit guilt with respect to the marijuana.
Fouse eventually entered into a plea agreement in which he pleaded to Count Two, felon
in possession of a firearm in violation of § 922(g)(1), for possession of the rifles, while the
government dismissed Counts One and Three. This plea agreement provided that “[t]he
Defendant understands that the Court is not a party to this agreement and is under no obligation
to accept any recommendation by the U.S. Attorney’s Office or the parties regarding the sentence
to be imposed.” (JA at 23.) Furthermore, Fouse was informed, and understood through the plea
agreement, that he would be unable to change his plea if the trial judge were to ignore the
sentencing guidelines. Fouse also understood pursuant to the plea agreement that no one was
capable of making a “binding prediction or promise” about what the sentence would be and that
as long as the sentence was within the statutory maximum, Fouse must serve the prescribed
sentence. (JA at 23-24.)
Because Fouse is illiterate, the district judge at the change of plea hearing read each
paragraph of the plea agreement aloud to ensure that Fouse understood its terms. The district
judge also inquired as to whether Fouse understood what he was signing when Fouse signed the
plea agreement. The district judge read aloud the count to which Fouse pled guilty.
Additionally, the district judge stated the potential maximum sentence for Fouse’s crime: “ten
years in prison, a period of three years supervised release, . . . a fine of $250,000, and a
mandatory special assessment of $100.” (JA at 31.) Of import is that during this review, the
district judge stated that “[t]he U.S. Attorney makes the following agreements: First of all, it
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agrees that it will move to dismiss the Counts One and Three at the time of sentencing. And I
can make another promise to you, if I’m going to sentence you on Count Two, I will grant that
motion and have Counts One and Three put aside.” (JA at 39.)
A presentence report was prepared and made available to Fouse and the government in
sufficient time to object. That report placed Fouse’s Total Offense Level at 21 with a Criminal
History Category (“CHC”) of III, resulting in a guideline range of 46-57 months. (JA at 52.)
Although the government initially indicated that it did not object to any portion of the report, the
government later objected via letter to any enhancement based on the two revolvers. Apparently,
the presentence report writer failed to forward this letter to the trial judge, who did not become
aware of that objection until sentencing.
At sentencing–despite the government’s arguments to the contrary, which the government
acknowledged that the trial judge was free to ignore–the trial judge found that Fouse possessed
the two revolvers identified in the dismissed Count One. In making this finding, the district
judge rejected Fouse’s explanation of a frame-up and relied on Fouse’s fingerprints being on the
case containing the revolvers, as well as his DNA being on a revolver and his possession of the
keys to the Ford Tempo. The judge also noted that Fouse had a long history of acquiring
firearms that the police routinely confiscated and a long history of lying to officers. Additionally,
targeting the under-representation of the seriousness of Fouse’s criminal history and of his likely
recidivism, the trial judge disagreed with the report’s analysis of Fouse’s criminal history and
found that it failed to take into account sufficiently Fouse’s thirty-one criminal convictions and
the context in which they occurred. The trial judge therefore detailed Fouse’s extensive criminal
history and stated that Fouse “is an incorrigible person who continues to engage in criminal
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behavior, including assaultive behaviors, gun crimes and drug crimes” (JA at 87), that Fouse had
continually “received exceptionally lenient treatment from the criminal justice system” (JA at
78), and that Fouse “is a person whose psychological overlay makes it very likely that he will
continue to offend, particularly through assaultive behaviors” (JA at 79).
The trial judge ultimately enhanced for relevant conduct (for possessing 3-7 firearms,
one of which was stolen), deducted a level for substantial assistance (for Fouse’s work as a police
informant), and awarded no points for acceptance of responsibility (as a result of Fouse denying
possession of the revolvers and portraying himself as a father only teaching his sons to hunt
instead of as a felon in possession of firearms). The district judge also departed from Criminal
History Category III to VI and arrived at a recalculated guideline range of 92-115 months, rather
than the lesser range suggested by the presentence report.
The district judge sentenced Fouse to 92 months incarceration and three years of
supervised release. Fouse timely appealed.
II. ANALYSIS
In his first argument on appeal, Fouse asserts that the district court erred in enhancing his
sentence because there was no evidence in the record to support the finding that he was guilty of
possessing a stolen gun. Fouse also contends that the district court erred in concluding that his
criminal history category was understated, and that all of the foregoing findings rendered his
guilty plea to be not knowingly and involuntary in violation of his due process rights. These
contentions are without merit.
Count One, which was dismissed, targeted the possession of two revolvers recovered
from Fouse’s vehicle. As noted, the trial judge indicated during the plea hearing that he would
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put Counts One and Three “aside” and sentence Fouse on Count Two. (JA at 39.) Fouse argues
that the trial judge’s consideration of the conduct involved in Count One as relevant conduct did
not place that count “aside” and in fact deceived him into pleading guilty to Count Two in
connection with the plea agreement.
Fouse’s argument fails to credit sufficiently that the district court did not sentence him on
Count One; rather, the trial judge ultimately considered the conduct involved in Count One as
relevant to sentencing on Count Two. The distinction is more than semantic. The trial judge did
not punish Fouse for being guilty of Count One, but for being guilty of Count Two with related
conduct of which the Sentencing Guidelines permit consideration. See United States v.
Partington, 21 F.3d 714, 717 (6th Cir. 1994) (“Conduct which forms the basis for counts
dismissed pursuant to a plea bargain may be considered in determining the base offense level
under the guidelines.”). The conduct involved in Count One falls within the commentary to
USSG § 1B1.4. As the government correctly notes in its briefing, the district judge’s actions
afforded Fouse a potential benefit in that the trial court did not inquire into the facts surrounding
Counts One and Three when taking the plea, which left the facts underlying the conduct involved
in these counts open to dispute by Fouse at sentencing. Fouse took partial advantage of the
opportunity, contesting at sentencing his possession of the revolvers.
There was ample evidence to support the trial judge’s factual findings. This Court
reviews a district court’s factual findings at a sentencing proceeding for clear error and its
application of the Sentencing Guidelines to those facts de novo. United States v. Butler, 297 F.3d
505, 516 (6th Cir. 2002), cert. denied 538 U.S. 1032 (2003); see also United States v. Hunt, 487
F.3d 347, 350 (6th Cir. 2007). Here, the record indicates that the district judge did not believe
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Fouse’s story that he had been framed and credited the presence of Fouse’s fingerprints on the
gun case, his DNA on one of the revolvers, and the presence of the two firearms in a vehicle to
which Fouse held the keys in his bedroom as circumstantial evidence of possession. This
supports the finding that two firearms were involved, and the stolen firearm enhancement does
not require knowledge that the Anaconda revolver was stolen. Fouse objected to the sufficiency
of these facts, not to their existence. Moreover, as discussed below, Circuit precedent teaches
that by not specifically objecting to these factual contentions, Fouse admitted the foregoing facts,
including the fact that the weapon was stolen, which moots his argument that there was
insufficient evidence from which the trial judge could conclude that the revolver was stolen.
Fouse’s possession of four firearms (two revolvers and two rifles) thus properly invoked
the applicable three-to-seven firearm enhancement under U.S.S.G. § 2K2.1(b)(1)(A). The fact
that one of the revolvers was stolen rendered the enhancement under U.S.S.G. § 2K2.1(b)(4)
similarly applicable. That Fouse denies the sufficiency of the factfinding below provides support
for the district court denying him an acceptance of responsibility adjustment based on those facts.
See United States v. Webb, 335 F.3d 534, 538 (6th Cir. 2003) (“ ‘[A] defendant who falsely
denies, or frivolously contests, relevant conduct that the court determines to be true has acted in a
manner inconsistent with acceptance of responsibility.’ ” (quoting U.S.S.G. § 3E1.1 cmt.
N.1(a))).
Additionally, the district court pointed to Fouse’s long history of possessing guns and his
thirty-one prior convictions, as well as other unprosecuted charges and a history of what the trial
judge described as lenient treatment, before concluding that the lesser criminal history categories
the trial court considered did not sufficiently appreciate the noted danger to the public that the
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trial judge specifically found Fouse posed. Although the trial judge could have conceivably
explained his analysis with more step-by-step detail, no magic words are required in such an
explanation, but at most only a reasoned statement from the bench. See United States v.
Kennedy, 893 F.2d 825, 828 (6th Cir. 1990). The record here supports that the trial judge
adequately considered and rejected intervening criminal history categories in arriving at the
criminal history departure. Unlike in Kennedy, 893 F.3d at 828, or in Wells, 878 F.2d 1232, 1233
(9th Cir. 1989), the district judge here identified specific criminal activity that justified a finding
that the guidelines under-represented Fouse’s criminal history and explicitly stated that the
guidelines indeed under-represented his criminal history.1 The trial judge did demonstrate that he
looked to the next higher criminal history category and did demonstrate that he found the
sentence imposed by the next higher criminal history category too lenient. See Kennedy, 893
F.3d at 829.
By sufficiently identifying and explaining the 18 U.S.C. § 3553(a) factors involved, the
district court satisfied the requirement that the departure be procedurally reasonable. See United
States v. Smith, 474 F.3d 888, 894 (6th Cir. 2007). The district court’s explanation also satisfied
the requirement that the departure be substantively reasonable because there is no indication that
the district court selected the sentence arbitrarily, based the sentence on impermissible factors,
1
The government argues that Kennedy’s “stepwise” approach no longer applies because that
portion of U.S.S.G. § 4A1.3 cited in Kennedy as mandating such analysis is no longer a part of the
guidelines. See Kennedy, 893 F.2d at 829 n.6. The Court has, however, referred to Kennedy in the
departure context as recently as 2005 in United States v. Loggins, 136 F. App’x 789, 794 (6th Cir.
2005). This panel need not and ultimately does not opine on the government’s contention because
the trial judge’s explanation indicates that he engaged in a somewhat condensed but sufficient
analysis satisfying both the category-step Kennedy approach and the less-mechanistic reasonableness
approach of United States v. Smith, 474 F.3d 888, 894 (6th Cir. 2007).
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failed to consider pertinent factors, or gave any pertinent factor an unreasonable amount of
weight. Id. The district court was therefore within its discretion to adjust Fouse’s criminal
history category as it did.
Given that the trial court’s factual findings and sentencing conclusions were permissible,
as well as the exculpatory language of the plea agreement emphasizing the district court’s role as
the sole sentencing entity and that withdrawal of the plea for an undesirable sentence was not an
option, there is no basis for concluding that invalidation of Fouse’s plea is warranted. See United
States v. Benjamin, 188 F.3d 509, 1999 WL 685924, at *3 (6th Cir. 1999) (table decision)
(holding that warnings in plea agreement rendered failure to give Rule 11 warning harmless).
In his second argument on appeal, Fouse asserts that the district court violated the plea
agreement either explicitly or in spirit by enhancing Fouse’s sentence based on the revolvers
without advising Fouse that he could not withdraw his guilty plea. Fouse further asserts that the
district court promised not to sentence Fouse on the behavior underlying Count One. This
argument ignores the fact that the plea agreement explicitly stated that the court was not bound
by the parties’ recommendations and that Fouse is bound even if the court ignored the
recommendations. (JA at 23.)
The plea agreement restricted the court only to the statutory maximum sentence.
Paragraph 10 of the Plea Agreement states that the court is under “no obligation to accept any
recommendation by . . . the parties regarding the sentence to be imposed. The defendant further
understands that, even if the Court ignores such recommendation or imposes any sentence up to
the maximum established by statute, the Defendant cannot, for that reason, withdraw his guilty
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plea.” (JA at 23.) Because Fouse was illiterate, the district court meticulously summarized the
plea agreement to ensure Fouse understood the agreement.
Fouse argues that the government breached the plea agreement because of the facts
described in the presentence report by the United States Probation Department and because the
prosecuting attorney recounted various facts on the record. Describing the United States
Attorney’s Office and the United States Probation Department as “all the same prosecutorial
agency” (Aplt. Br. at 33), Fouse reasons that a promise by the prosecuting attorney in the plea
agreement must bind the probation department. Because the probation department departed from
the plea agreement in its guideline calculations by citing the two revolvers, Fouse concludes, the
government failed to honor the contract into which it entered.
This Court has previously distinguished between the United States Attorney’s Office and
the probation department in United States v. Garavaglia, 178 F.3d 1297, 1999 WL 220125 (6th
Cir. 1999) (table decision). See also United States v. Espalin, 350 F.3d 488, 490 (6th Cir. 2003)
(referencing with approval characterization of probation department set forth by concurrence).
The defendant in Garavaglia had appealed, arguing that the prosecuting attorney had breached
that defendant’s plea agreement because the presentence report and trial judge both calculated his
sentence by using a guideline not included in the plea agreement, which purported to set forth all
the applicable guidelines “that the parties will raise.” Id. at *3. The Court affirmed, reasoning in
part that the plea agreement stated that “this agreement does not bind or obligate governmental
entities other than the United States Attorney's Office for the Eastern District of Michigan” and
that “[i]t was the probation department that first raised [the disputed] guideline.” Id. Similarly,
Fouse’s plea agreement states that “[t]his agreement is limited to the U.S. Attorney’s Office for
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the Western District of Michigan and cannot bind any other federal, state or local prosecuting,
administrative or regulatory authorities.” (JA at 24.) As in Garavaglia, then, the fact that the
probation department raised the disputed conduct and enhancement involved here does not equal
a breach of the plea agreement.
Even assuming arguendo that Fouse’s characterization of the various government actors
as fungible is somehow correct, his argument nevertheless overlooks the import of the fact that
the prosecuting attorney did in fact object to the presentence report, that he explained the plea
agreement to the district court, and that he explicitly argued against the gun enhancement for the
two revolvers. Fouse appears to reject any notion that the presentence report could be “cured” by
arguing that prejudice was irreversible because the trial judge was determined to enhance his
sentence regardless of the plea agreement and the government’s attempted cure.
This argument gives the trial judge too little credit and ignores the lengthy discussion that
took place at the sentencing hearing. After discussing the government’s objections and the
specifics of the plea agreement, the trial judge recessed and, upon resuming the hearing, cited
comments to sections 1B1.3 and 1B1.4 of the guidelines in specifically overruling the
government’s objection, which focused on paragraph 34 of the presentence report. The trial judge
also cited on the record United States v. Partington, 21 F.3d 714, 717 (6th Cir. 1994), which, as
noted above, permits consideration of conduct forming the basis for dismissed counts in
determining a defendant’s base offense level under the guidelines. Thus, the government worked
to meet its obligations, but was unsuccessful at persuading the trial judge to follow a plea
agreement that the law does not require him to follow. The trial judge was not bound by that
agreement and properly considered the information regarding Count One that the government
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sought to exclude. Although judicial consideration of this information may have effectively
nullified the effect of the plea agreement, this is a permissible course of conduct that resulted in a
permissible sentence. See United States v. Hill, 79 F.3d 1477, 1481 (6th Cir. 1996). The trial
court thus did not err in concluding that the nature and character of the revolvers Fouse
contemporaneously possessed with his rifles constituted relevant conduct under § 1B1.3(a)(4)
and Partington and informed the Count Two conviction for possession of two rifles.
Additionally, possession of the revolvers constituted a common scheme and were part of Fouse’s
course of conduct under §1B1.3(a)(2).
The fact that the prosecuting attorney recited many of the damning facts does not, taken
in context, mean that the government breached the plea agreement because that attorney
continually urged the trial judge not to apply the facts. A neutral recitation of facts does not
breach a plea agreement. United States v. Allen, 434 F.3d 1166, 1175-76 (9th Cir. 2006). This
was not an attempt by the government to influence the district court to impose a harsher sentence
than the one to which the government agreed in the plea agreement. The government had already
lost that argument, and the prosecuting attorney expressed a desire simply to “support [the trial
judge’s] decision by evidence that the United States has in its possession” without “going over
[his] objection.” (JA at 80.) The account of the facts arguably supplied a neutral record
permitting adequate understanding of context. See id. at 1175.
To the extent that protecting the record on appeal could be regarded as advocating a
sentence in the district court, such action must be viewed in light of the plea agreement. Here,
“the plea agreement makes clear that the trial judge is the one who determines and resolves all
sentencing issues and, consistent with this proposition, the government reserved the right to
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defend any and all sentencing determinations made by the judge.” United States v. Martinez, 16
F. App’x 410, 414 (6th Cir. 2001). The former proposition is explicit in the plea agreement,
while the latter proposition is a logical implication thereof. There was thus no breach of the plea
agreement resulting in an erroneous sentence.
In his last two remaining arguments on appeal, Fouse attacks the role that his possession
of firearms played in his sentencing. He argues that there are insufficient public policy grounds
to support the Sentencing Commission’s decision to omit a mens rea requirement from §
2K2.1(b)(4) because 18 U.S.C. § 922(i) and (j), which include a mens rea component, already
reinforce the public’s interest in regulating firearms. The lack of a mens rea requirement, Fouse
reasons, constitutes a due process violation because the government obtained via sentencing a
penalty that it could have otherwise obtained only through a conviction under 18 U.S.C. § 922(i)
and (j). Fouse contends that § 2K2.1(b)(4) therefore provides the government with a “back door”
or way around the heightened burden of proof that a conviction would require. Additionally,
Fouse asserts that the Sentencing Commission exceeded its authority by enacting § 2K2.1(b)(4)
because the Commission is only authorized to impose incremental penalties for crimes of which
a defendant has been convicted.
Fouse’s arguments fail to distinguish this Court’s prior decisions upholding the
constitutionality of § 2K2.1(b)(4), its lack of scienter, and the Sentencing Commission’s
interpretation of its enabling legislation. This Court has in fact specifically addressed and
rejected the exact same arguments Fouse presents on appeal. See United States v. Burns, 109 F.
App’x 52, 54-56 (6th Cir. 2004) (collecting cases supporting the proposition that “[t]his circuit
and every other circuit to have considered the issue have also concluded that the lack of a mens
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rea requirement in § 2K2.1(b)(4) comports with constitutional requirements”); United States v.
Woods, 61 F.3d 904, 1995 WL 428334, at *3 (6th Cir. 1995) (table decision) (“Neither the
absence of a scienter requirement in the guidelines nor the presence of a scienter requirement in
18 U.S.C. § 922(i)–a statute under which the defendant was not charged–makes the sentencing
enhancement unconstitutional.”); United States v. Hendricks, 956 F.2d 1164, 1992 WL 44737, at
*6 (6th Cir. 1992) (table decision) (“The language of section 994[I](1) does not seem to restrict
the Commission's power to impose increased penalties for uncharged conduct”).
Fouse offers no compelling reason to distinguish this precedent. Acknowledging Burns
in his brief, Fouse offers that, in contrast to his situation, the defendant in that case had admitted
that the firearm at issue was stolen. But this provides little contrast to the case sub judice, where
Fouse never contested below that one of the revolvers recovered from his car was stolen. Rather,
Fouse argued in the district court only that he did not possess the two firearms and that he did not
know that the Anaconda revolver was stolen. (JA at 58.) A failure to object to a factual
contention contained in a presentence report amounts to an admission of that fact. See United
States v. DeCarlo, 434 F.3d 447, 460 (6th Cir. 2006) (“The two-level enhancement for computer
use was admitted by DeCarlo because he did not object to that fact as reported in his presentence
report.”). Fouse therefore admitted the stolen nature of the Anaconda revolver.
This admission negates the need for opining on plain error review here. The Court
recognizes that the government suggests that Fouse has waived all but plain error as to the trial
court’s determination that the Anaconda revolver was in fact stolen. See Fed. R. Crim. P. 52(b).
Under this argument, the government suggest that the Court need not engage in extended
discussion of plain error inquiry because any error below could not be said to have affected
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Fouse’s substantial rights so as to warrant potential relief. This is because the 92-month sentence
he received with the disputed enhancement is within the guideline range in which Fouse would
have fallen without application of the enhancement (but still with the increased criminal history
category), which the government posits precludes finding plain error here. See United States v.
Mazyck, 178 F. App’x 321, 322 (4th Cir. 2006). There is potentially some qualified support
within this Circuit for following the Mazyck rationale. See United States v. Parks, 149 F.3d
1185, 1998 WL 384562, at *2 (6th Cir. 1998) (table decision) (holding that where the sentencing
judge indicated that a defendant would receive the same sentence under overlapping guideline
ranges regardless of whether an enhancement applied, the sentence imposed using the
enhancement did not affect a defendant’s substantial rights and therefore did not constitute plain
error). But given that Mazyck is a Fourth Circuit decision and that this Court’s own DeCarlo
characterizes the failure to object as an admission as opposed to a waiver, the Court declines the
government’s unnecessary invitation to engage in a plain-error analysis here. Fouse’s arguments
as to § 2K2.1(b)(4) are of no merit.
III. CONCLUSION
For the foregoing reasons, the Court AFFIRMS.
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