United States v. Kathea Geneva Adams

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-12329
Non-Argument Calendar
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D.C. Docket No. 1:11-cr-00290-CB-B-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KATHEA GENEVA ADAMS,
a.k.a. Shay Henderson,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Alabama
________________________
(May 8, 2013)
Before CARNES, BARKETT and HULL, Circuit Judges.
PER CURIAM:
After pleading guilty, Kathea Geneva Adams appeals her 120-month
sentence for possession of a firearm by a convicted felon, in violation of 18 U.S.C.
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§ 922(g)(1). On appeal, Adams argues that the district court erred by applying the
cross-reference of U.S.S.G. § 2K2.1(c)(1)(A) to calculate her base level offense
because there was insufficient evidence that Adams possessed the gun in
connection with the commission of an attempted murder. After review, we affirm.
I. BACKGROUND
A. Offense Conduct
At the outset, we note that the vast majority of the facts recounted here are
undisputed and thus are admitted. On October 3, 2011, Defendant Adams, who
was on probation for a felony kidnapping at the time, 1 and a female associate,
Kimberly Pickron, took Rachel Lents 2 on a car ride out of Mobile, Alabama, under
the false pretense of meeting wealthy prostitution clients. After driving
approximately 100 miles on a rural road, Adams pulled off the road. Adams then
brandished a small black revolver, and informed Lents that “[Adams] brought her
to the area ‘to put a bullet in her head.’” Lents jumped out of the vehicle and
began running toward a wooded area.
What happened next is disputed by Defendant Adams. According to the
Presentence Investigation Report (“PSI”), Lents heard multiple gunshots fired with
1
Adams was convicted of second degree kidnapping in state court on November 30,
2009.
2
The victim’s last name is spelled “Lents” in the PSI and “Lentz” in the sentencing
hearing transcript. For consistency, the PSI’s spelling “Lents” is used throughout this opinion.
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several bullets impacting the ground around her. Adams denied firing at Lents. 3 It
is undisputed that Lents then crawled into the trees, sustaining numerous wounds,
and remained there until Lents believed Adams had left the area. Thereafter, Lents
sought refuge in a nearby home, and the police were called.
Clarke County Sheriff’s Office Investigators Ron Baggette and Virgil
Chapman interviewed Lents within 30 minutes after the incident was reported.
The investigators also interviewed the resident of the home to which Lents
retreated, who stated that he heard four shots. Investigator Baggette next searched
Adams’s vehicle, pursuant to a warrant, and found Adams’s driver’s license, three
plastic bags of crack cocaine, a small black revolver holding four spent .38-caliber
shells, and one live round of .38-caliber hollow-point ammunition.
The following day, Investigators Baggette and Chapman interviewed
Defendant Adams, who admitted to having lured Lents to the remote area under
false pretenses. Adams stated that she meant to simply leave Lents there in
retribution for Lents having slept with Adams’s husband. Adams initially denied
owning a firearm. When Investigator Baggette confronted her with the revolver
taken from her vehicle, Adams admitted to owning the weapon and to firing “a few
rounds in the air” to scare Lents off after Lents had fled Adams’s car. Adams
maintained, however, that she did not shoot at Lents.
3
In a factual resume signed by Defendant Adams and submitted to the district court,
Adams admitted that she confessed to driving Lents out to the remote area under false pretenses
and to firing a gun.
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In addition to her federal firearm charge, Adams was also charged in state
court with attempted murder. At the time of her federal sentencing, Adams’s state
court criminal proceedings were still pending.
B. Presentence Investigation Report
The PSI calculated Defendant Adams’s base offense level of 33 by applying
a cross-reference to U.S.S.G. § 2A2.1(a)(1), as mandated by U.S.S.G.
§ 2K2.1(c)(1), based on Adams’s use of the firearm in the commission of
attempted murder. The probation officer noted that although the base offense level
for possession of a firearm by a felon is usually determined by § 2K2.1, and that
under that guideline Adams’s offense level would be 24, the application of
§ 2K2.1(c)’s cross-reference is proper where, as here, the firearm is used in
connection with the commission of a connected offense, here, attempted murder.
After applying a 3-point reduction for timely acceptance of responsibility,
the PSI arrived at a total offense level of 30. When coupled with Adams’s criminal
history category of III, that offense level yielded an advisory guidelines range of
121 to 151 months. As the maximum statutory penalty was 10 years, the PSI
recommended a guidelines range of 120 months.
Adams objected to the application of the cross-reference to § 2A2.1(a)(1)
because she maintained that the firearm was not used in connection with the
commission of another offense.
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C. Sentencing Hearing
At sentencing, the government presented two witnesses to show that Adams
used the firearm in connection with the commission of an attempted murder: (1)
Investigator Baggette, who recounted his interviews with Lents and Adams, and
(2) Special Agent Nicholas Murphy of the Bureau of Alcohol, Tobacco, Firearms
and Explosives, who testified about Adams’s prior kidnapping conviction.
Over Defendant Adams’s hearsay objection, Investigator Baggette testified
that Lents said she heard bullets striking around her while she fled and after she
had fallen to the ground after running. Although Investigator Baggette
acknowledged that Lents admitted to being a drug addict, he stated that he did not
observe any indications of Lents being under the influence of any substance while
giving her statement. The government then played a portion of Lents’s videotaped
statement.
As to his interview with Adams, Investigator Baggette testified that Adams
initially lied about possessing a firearm and only recanted when confronted with
the weapon removed from her car. Baggette verified that Adams admitted to
having fired the weapon four times, but that Adams insisted that she fired into the
air and not at Lents. Investigator Baggette also confirmed that Adams admitted
that she was mad at Lents for Lents having slept with Adams’s husband.
Investigator Baggette denied hearing that Adams was simply going to let Lents go
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from anyone but Defendant Adams herself.
Special Agent Murphy then testified about Adams’s 2009 conviction for
kidnapping. He confirmed that Adams, holding a black handgun, and a male
accomplice ambushed a female acquaintance on the street and forced her into a car.
Adams drove the vehicle to a remote location, where Adams and her accomplice
beat the victim for the alleged theft of money from Adams and others. They then
placed the victim, tied hand and foot, in the trunk of the car, and drove the vehicle
to an abandoned house before releasing her. During cross-examination, Special
Agent Murphy acknowledged that no bullets were fired during the 2009
kidnapping.
Defendant Adams called no witnesses. Instead, Adams argued that the
government’s evidence was insufficient to support a finding that the gun was used
in connection with an attempted murder. 4
Prior to ruling on Adams’s objection, the district court made a specific
finding by clear and convincing evidence that “Ms. Adams did commit the
attempted murder on Ms. Lent[s] [and that] the evidence is sufficient to support
4
Adams also objected to the district court’s admission of Lents’s statement into evidence
through Investigator Baggette’s testimony, in violation of her Sixth Amendment right to confront
her accuser. The district court overruled Adams’s objection, and Adams has abandoned her Sixth
Amendment challenge on appeal. See United States v. Cunningham, 161 F.3d 1343, 1344 (11th
Cir. 1998) (noting that an issue is deemed abandoned when the defendant fails to offer an
argument on that issue on appeal).
We also note that Lents’s whereabouts were unknown at the time of the sentencing
hearing.
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that finding by the [c]ourt.” The district court further pointed to the “thin line of
difference between what the [d]efendant has admitted and what the victim ha[d]
said actually happened.” Specifically, the district court referred to the uncontested
facts that Adams threatened to “put a bullet in [Lents’s] head,” and that Adams
fired multiple shots.
The district court then overruled Adams’s objection on the basis of the
district court’s factual finding and adopted the PSI’s recommendations without
change. The district court sentenced Adams to 120-months’ imprisonment, the
statutory maximum. The district court rejected Adams’s argument for a lower
sentence, by stating that Adams’s offense was “extremely dangerous, extremely
life threatening” and that, along with Adams’s prior kidnapping conviction, it
reflected a “personal pattern of behavior and how [Adams] deal[s] with conflict.”
II. STANDARD OF REVIEW
We review a district court’s application of the Sentencing Guidelines
de novo and its factual determinations for clear error. United States v. Rhind, 289
F.3d 690, 693 (11th Cir. 2002). “A trial court’s choice between ‘two permissible
views of the evidence’ is the very essence of the clear error standard of review.”
United States v. Rodriguez De Varon, 175 F.3d 930, 945 (11th Cir. 1999) (en
banc) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S. Ct.
1504, 1511 (1985)). Thus, we will not “disturb a district court’s findings [absent]
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‘a definite and firm conviction that a mistake has been committed.’” United States
v. Ghertler, 605 F.3d 1256, 1267 (11th Cir. 2010) (internal quotations omitted).
III. DISCUSSION
On appeal, Adams argues that the district court clearly erred in finding that
she committed attempted murder in conjunction with unlawful possession of the
firearm. As a result, the district court improperly applied U.S.S.G.
§ 2K2.1(c)(1)(A)’s cross-reference to § 2A2.1(a)(1)’s base offense level guidelines
for attempted murder.
A. Section 2K2.1’s Cross-Reference Provision
If the defendant committed or attempted to commit a crime while unlawfully
possessing a firearm, § 2K2.1’s cross-reference provision instructs the district
court to apply § 2X1.1, the guideline for attempt, to calculate the defendant’s
offense level, “if the resulting offense level is greater than” the offense level
calculated under § 2K2.1. See U.S.S.G. § 2K2.1(c)(1)(A). The guideline for
attempt, in turn, directs the district court to apply “[t]he base offense level from the
guideline for the substantive offense.” U.S.S.G. § 2X1.1(a). The guideline for the
substantive offense of attempted murder, § 2A2.1(a)(1), assigns a defendant a base
offense level of 33 for a first degree murder attempt. See U.S.S.G. § 2A2.1(a)(1).
In this case, the district court found that Defendant Adams attempted to
murder Lents. Thus, if the application of the attempted murder guideline produces
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a higher offense level than would otherwise be obtained by applying the unlawful
firearm possession guideline, then § 2K2.1(c)(1)(A) mandates that the district court
apply the attempted murder guideline to determine Adams’s offense level. Here,
the probation officer determined that under § 2K2.1, the unlawful firearm
possession guideline, Adams’s offense level would be 24. However, under
§ 2A2.1(a)(1), the attempted murder guideline, Adams’s offense level was 33.
Accordingly, assuming that the district court’s attempted murder finding is not
clearly erroneous, the district court was required to use the attempted murder
guideline rather than the unlawful firearm possession guideline to determine
Adams’s offense level. See U.S.S.G. § 2K2.1(c)(1)(A).
B. District Court’s Finding of Attempted Murder
We first reject Adams’s claim that the district court impermissibly relied on
hearsay testimony. At sentencing hearings, district courts may “consider relevant
information without regard to its admissibility under the rules of evidence
applicable at trial, provided that the information has sufficient indicia of reliability
to support its probable accuracy.” U.S.S.G. § 6A1.3(a); see also United States v.
Baker, 432 F.3d 1189, 1253–54 (11th Cir. 2005). Hearsay evidence, including
statements by absent witnesses, can be relied on at sentencing, so long as the
evidence bears “sufficient indicia of reliability” and “the defendant ha[d] an
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opportunity to rebut the evidence.” Baker, 432 F.3d at 1253; United States v.
Gordon, 231 F.3d 750, 760–61 (11th Cir. 2000).
Here, the district court was permitted to rely on Investigator Baggette’s
testimony and Lents’s videotaped statement to find that Defendant Adams
attempted to murder Lents because Lents’s hearsay statement was corroborated by
other evidence and was reliable, and because Adams testified and had an
opportunity to rebut that evidence.
First, as the district court noted, Lents’s statement, taken within 30 minutes
after the incident was reported, and Adams’s version of events were nearly
identical. Adams’s account differs from that of Lents only in two regards.5 Lents
stated that Adams fired at her, while Adams claimed firing into the air. And,
Adams insisted that she told Lents that Adams was letting Lents go instead of
killing her.
Second, by corroborating much of Lents’s statement, Adams’s own
confession obliterates the “thin line of difference” between both accounts. Adams
admitted to luring Lents out to a remote rural area under false pretenses. Adams
confessed to pointing a gun at Lents and telling Lents that she had brought her to a
5
Adams points to a perceived inconsistency in Lents’s statement. At one point, Lents told
Investigator Baggette that Lents heard bullets impact the ground next to her after she fell to the
ground. At another point, Lents told Baggette that she heard the gunshots after Lents exited
Adams’s vehicle. But even if Lents was inconsistent as to whether she heard the gunshots while
running or after having fallen to the ground, Lents was clear that she heard bullets strike the
ground. This one minor inconsistency, by itself, does not undermine the reliability of her
statement.
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remote area to “put a bullet” in her head. Adams further acknowledged that her act
was driven by her anger over Lents’s sleeping with Adams’s husband.
Importantly, Adams admitted to firing her weapon four times.
Moreover, Adams’s lies to police about the fact that she did not own a gun,
coupled with the circumstances surrounding her prior violent kidnapping
conviction, lent reliability to the disputed portion of Lents’s account. Thus,
Lents’s statement, as reported by Investigator Baggette, bore sufficient indicia of
reliability and was properly considered by the district court. U.S.S.G. § 6A1.3(a);
see also Baker, 432 F.3d at 1253–54.
Third, we find no merit to Defendant Adams’s claim that Adams was denied
the opportunity to attack Lents’s credibility, in violation of the Federal Rules of
Evidence. After the district court viewed portions of the video recordings of
Lents’s statement, taken within 30 minutes after the incident was reported, Adams
cross-examined Investigator Baggette about possible inconsistencies. Further, the
district court heard Investigator Baggette verify that Lents identified herself as a
prostitute and a drug addict, but that Baggette did not observe any indication of
Lents being under the influence at the time Lents gave the statement. And Adams
was at no time precluded from presenting her version of events. The district court
ultimately weighed the evidence and chose to believe Lents over Adams. The
Federal Rules of Evidence did not bar any of this evidence from being heard and
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considered by the district court. Because Defendant Adams had the opportunity to
and did rebut the evidence during cross-examination, her claim fails.
IV. CONCLUSION
For all these reasons, we conclude that the district court did not clearly err in
finding that Defendant Adams had committed attempted murder. Consequently,
the district court properly cross-referenced Adams’s base offense level from
unlawful possession of a firearm to attempted murder. Accordingly, we affirm
Adams’s sentence.
AFFIRMED.
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