United States v. Anthony Polando McGhee, III ( 2023 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 23a0254n.06
No. 22-3471
FILED
UNITED STATES COURT OF APPEALS Jun 05, 2023
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
)
UNITED STATES OF AMERICA,
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE NORTHERN
ANTHONY POLANDO McGHEE, III, ) DISTRICT OF OHIO
Defendant-Appellant. )
) OPINION
Before: GRIFFIN, KETHLEDGE, and THAPAR, Circuit Judges.
GRIFFIN, Circuit Judge.
Defendant Anthony Polando McGhee, III, pleaded guilty to unlawfully possessing a
firearm, for which the district court imposed a consecutive within-Guidelines sentence of
92-months’ imprisonment. On appeal, he challenges his sentence on three grounds. Because we
find one of his claims meritorious, we vacate defendant’s sentence and remand for resentencing.
I.
The relevant facts are set forth in the presentence report, which the district court adopted
without change. It serves as the sole basis supporting the Guidelines enhancements that are at
issue:
On October 21, 2020, Cleveland Police Department (CPD) received a call over the
radio for shots fired in the area of 2853 East 119th Street in Cleveland, Ohio. The
dispatcher reported that approximately 20 shots had been fired, and four males were
observed running away from the area with what appeared to be handguns and rifles.
The officers responded to the area and they observed four males fitting the
descriptions broadcasted by the dispatcher. Once the four males noticed the police
No. 22-3471, United States v. McGhee
cruiser turning around, they all began running. The officers exited their cruiser and
began pursuing the males on foot. Three males jumped the fence as the officers
approached, and one of the officers observed one of the individuals toss a firearm
over the fence. The fourth male, who was later identified as the defendant, was
observed throwing a black firearm with an extended magazine over the fence, and
he was apprehended as he was attempting to climb over the fence.
After the defendant was detained, officers located a black Glock, model 27,
.40 caliber pistol bearing serial number MAR717, loaded with 15 rounds of
ammunition, in the back yard of 2894 East 117th Street in Cleveland, Ohio, where
the defendant was trying to jump the fence. Additionally, officers located a FN,
model five-seven, 5.7 X 28mm pistol bearing serial number 386395595, loaded
with one round of ammunition, in the same location.
The defendant subsequently asked the officers to take him to his vehicle, as he
claimed he was a victim of the shooting. Officers read the defendant his Miranda
rights and he was escorted to his vehicle. Upon checking the vehicle, the officers
discovered the windows were shot out and there were two 5.7 X 28 shell casings in
plain view on the driver seat and passenger side of the dashboard. Based on the
officer’s experience, he/she determined the bullet holes on the vehicle were shot
from inside the vehicle, not from the outside of additional 5.7 X 28mm shell casings
in the middle of the street near the defendant’s vehicle.
The defendant told officers he was the sole occupant of the vehicle. Officers
observed a black firearm holster in the driver door compartment, which was visible
from outside the vehicle. Lastly, the defendant claimed he was not running with
the other males, he was running because he was scared of being shot. When
asked why he did not flag down the officers upon seeing them if he was scared,
the defendant had no response.
Following the apprehension of the defendant, officers interviewed a witness who
advised he/she heard the gunshots, and following the gunshots, he/she saw three
males running from the area. Additionally, the witness observed the defendant
running and meeting up with the other three males, and they all fled from the area
together.
The defendant was arrested, transported to the Cuyahoga County Jail, and charged
with Discharging a Firearm on or near Prohibited Premises (F3), two counts of
Having Weapons While Under Disability (F3), Tampering With Evidence (F3), and
Falsification (M1) in the Cuyahoga County Court of Common Pleas, Case Number
CR-20-654042. While on the scene, the defendant provided a false name and date
of birth. It was not until the officers arrived at the Cuyahoga County Jail, that they
learned his true identity.
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A DNA report was obtained from the Cuyahoga County Regional Forensic
Science Laboratory, and it was determined that the DNA found on the 5.7 X 28mm
caliber pistol matched the defendant’s DNA profile.
The defendant has a prior conviction in Cuyahoga County Court of Common
Pleas on March 18, 2016, for Domestic Violence (M1), Case Number CR-15-
598633-A.
McGhee was charged with, and pleaded guilty to, unlawful possession of a firearm,
18 U.S.C. § 922(g)(9), based on his previous conviction for misdemeanor domestic violence under
Ohio law. The presentence report recommended two sentencing enhancements that are pertinent
to this appeal: using a firearm in connection with another felony offense, U.S.S.G.
§ 2K2.1(b)(6)(B), and “recklessly creat[ing] a substantial risk of death or serious bodily injury to
another person in the course of fleeing from a law enforcement officer,” § 3C1.2. Over defendant’s
objections, the district court applied these enhancements and imposed a 92-month sentence. And
it imposed the sentence consecutive to an unrelated state sentence that he was (and still is) serving.
McGhee timely appealed.
II.
McGhee first objects to the application of the two sentencing enhancements set forth above.
The government must demonstrate an enhancement applies by a preponderance of the evidence.
United States v. Dunham, 295 F.3d 605, 609 (6th Cir. 2002). “We review de novo a district court’s
legal interpretation of the Sentencing Guidelines, and we review for clear error a district court’s
factual conclusions.” United States v. Flores, 974 F.3d 763, 765 (6th Cir. 2020).
A.
In connection with another felony offense enhancement. The Guidelines increase a
defendant’s base offense level by four if he “used or possessed any firearm . . . in connection with
another felony offense.” § 2K2.1(b)(6)(B). The predicate felony here is one the State of Ohio
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charged McGhee with following this incident (before dismissing it upon his federal indictment):
“[d]ischarg[ing] a firearm upon or over a public road” that “created a substantial risk of physical
harm to any person or caused serious physical harm to property.” See Ohio Rev. Code Ann.
§ 2923.162(A)(3), (C)(2).
Ample evidence supports the district court’s application of this enhancement. Most
notably, physical evidence and McGhee’s own statements connect him to firing a gun from his car
at another person: officers found a loaded gun with McGhee’s DNA near the crime scene, bullet
casings matching that gun were in and around McGhee’s car, and McGhee admitted to both being
involved in a shootout and the only occupant of his car. We agree with the district court that these
facts, alone, rise to the level of a preponderance of the evidence.
McGhee resists this conclusion by contending the district court erroneously placed the
burden on him to demonstrate he was, as he claimed, acting in self-defense. See Ohio Rev. Code
Ann. § 2901.05(B)(1). Although Ohio law appears unsettled whether self-defense is applicable
here, see, e.g., State v. Gilcrease, No. 108148, 2020 WL 729744, at *12 & n.2 (Ohio. Ct. App.
Feb. 13, 2020), we need not decide that issue—even if it is a viable defense, we discern no clear
error in the district court’s factual determination that McGhee’s claim of self-defense was
incredible given the circumstances of the incident. A witness contradicted McGhee’s version of
how he fled, McGhee lied to officers at the scene about his own identity, and no other evidence
supports McGhee’s assertion of innocence. That there exists “some evidence that [McGhee] may
have been acting in self-defense”—i.e., his statement to that effect—“is not necessarily preclusive
of an ultimate finding that [he] was not acting in self-defense.” United States v. Adkins, 729 F.3d
559, 565 (6th Cir. 2013). The district court’s factual determination that McGhee did not act in
self-defense was not clearly erroneous.
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B.
Reckless endangerment enhancement. If a defendant “recklessly created a substantial risk
of death or serious bodily injury to another person in the course of fleeing from a law enforcement
officer,” the Guidelines increases his base offense level by two. § 3C1.2. “Reckless,” in this
context, means “a situation in which the defendant was aware of the risk created by his conduct
and the risk was of such a nature and degree that to disregard that risk constituted a gross deviation
from the standard of care that a reasonable person would exercise in such a situation.” See § 3C1.2
cmt. n.2; § 2A1.4 cmt. n.1. (Neither party contests the applicability of the commentary, so we may
assume that the commentary permissibly defines “reckless.” See United States v. Hill, 963 F.3d
528, 531–32 (6th Cir. 2020)). Below, the district court concluded this enhancement applied
because McGhee threw the “gun in a public place during daylight,” creating a danger to the public.
Tossing a loaded gun aside may qualify as reckless, but binding caselaw concerning what
must be in the record regarding the risk of danger to others mandates reversal in this case. See
United States v. Mukes, 980 F.3d 526, 539 (6th Cir. 2020). Cataloging our pertinent decisions,
Mukes highlighted that “[t]he idea that a discarded gun creates a substantial risk of serious bodily
harm to another person is well supported by caselaw.” Id. (citation omitted). But, we emphasized,
the record must connect the gun’s placement to the risk it created. Specifically, we have upheld
the enhancement many times over when location of the discarded weapon is one where another
person might reasonably discover it (like behind a restaurant, a public-housing complex, or in a
residential neighborhood), thus indicating that its disposal under those circumstances creates a risk
of harm to other people. See id. (collecting cases).
It is the government’s burden to demonstrate that risk and, in Mukes, it did not do so. The
defendant there dropped a loaded gun in front of officers, he was apprehended, and the gun was
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recovered immediately after. Id. at 530–31. “The only information provided about the nature of
the place in which the gun was discarded was a cursory mention that the area was a ‘residential
and commercial area,’” id. at 539, and the district court “did not identify any person whom Mukes
had placed at substantial risk of death or injury,” id. at 532. We noted the lack of evidence “about
any potential risk that a bystander might have come across the weapon during the brief encounter
between Mukes and the police, particularly in light of the late hour of arrest, around three a.m.,”
and highlighted that “no search was needed to recover the firearm because Mukes dropped it in
plain view of the police officers.” Id. at 539.
Here, the record is nearly just as barren. We know little about where the gun was dropped,
other than being in a backyard. The record is silent on whether any third parties were (or could
have been) near the weapon. And, most critically, the officers here saw McGhee dispose of the
gun, and they located it after detaining him. The facts of this case are substantially similar to
Mukes, which the government does not even address (despite McGhee prominently relying upon
the case).1 Therefore, based on this record, the district court erred in finding applicable the § 3C1.2
enhancement. Id.; see also United States v. Shivers, 56 F.4th 320, 326 (4th Cir. 2022) (when
“evidence shows that the gun was discarded in view of a police officer within an established
perimeter, and there is no evidence that the gun could have gone unnoticed by the officer or that
there were bystanders in the area who could have picked up the gun,” this enhancement does not
apply).
1
The government also contends McGhee threw two firearms, not one, and that he did so in
the bright of day. Although police recovered two guns near the fence, the record demonstrates
McGhee threw one and a different man threw the other. The record is also silent on when this
incident occurred.
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III.
Finally, McGhee challenges the imposition of his federal sentence consecutive to a state
sentence. When a district court imposes a sentence on a defendant who is already facing an
undischarged sentence for a state conviction, the court may order the federal sentence to run
concurrently, partially concurrently, or consecutively to the state sentence. 18 U.S.C. § 3584(a);
U.S.S.G. § 5G1.3(d). Ordering a consecutive sentence is reasonable if the district court adequately
explains its rationale for doing so. See United States v. Berry, 565 F.3d 332, 342 (6th Cir. 2009).
Here, at the time the district court sentenced McGhee, he was serving a four-year state
sentence for trafficking heroin, carrying a concealed weapon, and obstructing official business.
The court made very clear why it imposed a consecutive sentence to that state sentence: “the
conduct is separate and distinct” from that underlying his state convictions. On review of this
record, this articulated “generally clear” rationale was sufficient. Thus, the district court did not
abuse its discretion (as defendant argues), let alone plainly error (the standard the government
suggests) in imposing a consecutive sentence. See United States v. Potts, 947 F.3d 357, 369 (6th
Cir. 2020) (citation omitted). Indeed, promoting “respect for the law” and providing “just
punishment for the offense” were relevant factors for the court’s consideration. See 18 U.S.C.
§§ 3553(a)(2)(A), 3584(b).
McGhee does not challenge the district court’s reasoning and instead argues he should have
received jail-time credits for having been held by the State of Ohio for probation violations and on
the state charges for this incident that were ultimately dismissed. But the district court was aware
of that issue, explaining that his federal sentence would begin “whenever the State sentence ends.”
Accordingly, we see no reason to disturb that decision.
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IV.
For these reasons, we vacate McGhee’s sentence and remand to the district court for
resentencing with instructions for it not to apply the § 3C1.2 enhancement.
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