United States v. Hurley

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0277n.06
Filed: May 19, 2008
No. 06-6285
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA
Plaintiff-Appellee,
On Appeal from the
v. United States District Court for
the Eastern District of Tennessee
HUGH BRITT HURLEY
Defendant-Appellant.
______________________________
Before: KENNEDY, BATCHELDER, and GRIFFIN, Circuit Judges.
KENNEDY, J. Mr. Hugh Britt Hurley,1 appeals the sentence imposed after he pleaded guilty
to conspiracy to distribute over 500 grams of methamphetamine in violation of 21 U.S.C. §§
841(a)(1), 846 (2006). When the district court determined Mr. Hurley’s sentence, it imposed a two-
level upward adjustment to Mr. Hurley’s Guidelines’ offense level for possession of a dangerous
weapon pursuant to U.S.S.G. § 2D1.1(b)(1). The increase is given once the government has proven
possession at the time of the underlying offense, at which time the burden shifts to the defendant to
prove by a preponderance of the evidence that it is “clearly improbable” that the gun was connected
to the offense. United States v. Catalan, 499 F.3d 604, 606-07 (6th Cir. 2007). Mr. Hurley argues
that, by not placing the burden on the government to prove that the weapon was connected to the
offense, his substantive due process rights were violated.
1
Mr. Hurley’s last name was previously incorrectly spelled “Hurhley.” J.A. at 231.
1
Mr. Hurley’s argument fails. First, we can discern no substantive due process right at issue.
The burden-shifting provision at issue is not “conscience shocking,” nor is it wholly arbitrary.2 Cf.
Goeke v. Branch, 514 U.S. 115, 118-19 (1995). We therefore believe that he can only mean to raise
a procedural due process claim. We have previously rejected a constitutional procedural due process
challenge to the burden-shifting scheme of § 2D1.1(b)(1). United States v. McGhee, 882 F.2d 1095,
1097-99 (6th Cir. 1989).
There are three other assertions located within Mr. Hurley’s brief that, to the extent they
could be called argument, we deem waived because they are woefully underdeveloped. One is that
the burden-shifting scheme violates Booker. The full extent of Mr. Hurley’s argument on this
subject is as follows, “Further, Mr. Hur[]ley avers that the presumption triggered by U.S.S.G. [§]
2D1.1(b)(1) is violative of Booker in placing the emphasis squarely back on the guidelines.”
2
Mr. Hurley argues, without legal support or citations to the record, that attempting to sustain
the burden would be “a[n] exercise in futility,” Appellant’s Br. at 22, and that the burden is both
“impossible” and places the defendant “in an irreparably undefendable position,” Appellant’s Br. at
24. These arguments are easily dismissed. There are many plausible scenarios that if true would
allow Mr. Hurley to prove by a preponderance of the evidence that it is “clearly improbable” that the
gun was connected to his drug dealing. Mr. Hurley could have offered evidence, through his own
testimony or testimony of others, that he stores the weapon in his home for protection, and that he
does not deal drugs nor does he store drugs in his home. He then could have offered evidence that
when found in his vehicle with the gun and drugs, he was responding to an emergency, which he
could have proven through his own testimony or the testimony of others if it were the case. There
are numerous other possible scenarios that could allow a defendant to sustain his burden of proof.
The problem for Mr. Hurley is that he possessed a weapon on two of the three occasions on which
he was stopped and found to possess drugs. One of those times, March 30, 2005, police found Mr.
Hurley in a high crime area, crouched inside a vehicle with improper registration, with a loaded gun
on the seat next to him, and with 12-15 grams of methamphetamine hidden in his underwear. J.A.
at 220, 230. If evidence existed to prove that it was clearly improbable that the loaded gun within
easy reach had nothing to do with the methamphetamine in Mr. Hurley’s underwear, such evidence
was not introduced and, absent any such evidence, such a scenario permits no inference other than
a connection between the gun and Mr. Hurley’s drug dealing.
2
Appellant’s Br. at 24-25. We cannot divine any meritorious argument, or support for defendant’s
conclusion, from this single sentence.
Another waived argument is that the burden-shifting scheme at issue violates Blakely. Mr.
Hurley again used only one sentence to encapsulate this challenge: “Additionally, it would appear
that [the presumption] is violative of Blakley in that Mr. Hur[]ley never admitted that he possessed
the gun for purposes of criminal activity, nor was the [sic] determined by a jury.” Appellant’s Br.
at 25. To the extent this sentence raises an issue regarding judicial factfinding, such an argument
has been repeatedly rejected now that the Guidelines are only advisory. United States v. Mickens,
453 F.3d 668, 673 (6th Cir. 2006).
Lastly, any argument Mr. Hurley intends to assert regarding the burden-shifting scheme’s
potential infringement on his Second Amendment right to bear arms is also deemed waived. The
argument section of Mr. Hurley’s brief constitutes only five and a third pages. Appellant’s Br. at 20-
25. Mr. Hurley never invokes the words “Second Amendment” in that space. Roughly a page and
a third of that section consists of a quotation from United States v. Hunt, 459 F.3d 1180 (11th Cir.
2006). In that case the Eleventh Circuit was determining whether or not it would apply a
presumption of reasonableness when reviewing a within-the-Guidelines sentence. Hunt, 459 F.3d
at 1183-85. The applicability of such a case to Mr. Hurley’s argument regarding § 2D1.1 is a
mystery.3 That case, however, was a full one-third of Mr. Hurley’s case law support for his claims.
3
Mr. Hurley argues that the case is instructive on burdens generally, but we do not see any
connection between the Eleventh Circuit’s discussion of burdens and his argument in this case. It
could be instructive if we were interpreting where and when § 2D1.1(b)(1) placed the burden on the
defendant. We have already interpreted that section, however, to place the burden on the defendant
to prove that the gun was unconnected to the offense after the government has met its burden of
proving that the gun was possessed during commission of the offense. United States v. Catalan, 499
F.3d 604, 606-07 (6th Cir. 2007). Mr. Hurley does not challenge this interpretation.
3
Mr. Hurley’s second case also fails to provide him a whit of support for a Second
Amendment, or any other, argument. The citation arises as follows: “Mr. Hur[]ley, therefore, avers
that a presumption that shifts the entire burden of establishing by ‘clear and convincing’ evidence
that there is no causal or event[-]triggered connection between the two is fundamentally unfair, and
results in a[n] exercise in futility, on the part of the defendant and defense counsel, particularly in
the light of Mackey and it’s [sic] progeny (U.S. v. Mackey, 265 F.3[d] 457 (6th Cir. 2001)).”
Appellant’s Br. at 22 (footnote omitted). Mr. Hurley did not include a pincite to or otherwise explain
the alleged support Mackey provides him. Our review of Mackey discloses that it too is inapplicable
to Mr. Hurley’s case. Mackey involved a sufficiency of the evidence challenge to a conviction under
18 U.S.C. § 924(c), which punishes a person who “during and in relation to any crime of violence
or drug trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such crime,
possesses a firearm . . . .” While Mackey required the government to prove that the gun was
possessed “in furtherance” of the crime, that was because “in furtherance” is an element of § 924(c).
The issue in the instant case, however, is a sentencing factor, rather than an element of the crime.
Mr. Hurley’s third, and final, case authority is the one that, along with some other language
in his brief,4 seems to indicate that he may desire to raise a Second Amendment challenge to the
burden-shifting scheme of § 2D1.1(b)(1). Mr. Hurley’s citation is as follows, “The result is a clear
substantive due process violation that in the light of U.S. v. Emerson, 270 [F].3d 203 (5th Cir.
2001), wherein the individual personal ‘right’ to possess and carry is thoroughly examined and
4
Mr. Hurley asserts things such as, “The law is that any adult citizen of the United States
who has not been convicted of a felony, or who is not currently under a valid order of protection, has
the absolute right to own and possess a firearm.” Appellant’s Br. at 22. While this appears to assert
a Second Amendment right, Mr. Hurley does not include a single citation for his view of the law.
4
extolled, is exceedingly profound.” Appellant’s Br. at 24 (footnote omitted). In Emerson, the Fifth
Circuit held that the Second Amendment provides an individual right to bear arms.5 270 F.3d at 260.
Mr. Hurley, however, again fails to explain Emerson or to even include a pincite to where support
for his assertion could be located. He does not even mention that he is invoking the Second
Amendment.
To the extent Mr. Hurley’s general citation to Emerson and broad assertions without authority
could be deemed to assert a Second Amendment argument, it is deemed waived. See Fed. R. App.
P. (a)(9)(A). Mr. Hurley is required to provide his “contentions and the reasons for them, with
citations to the authorities and parts of the record on which [he] relies.” Id. Mr. Hurley has failed
to do the minimum required to raise a Second Amendment argument. He only cited a single case,
did not include a pincite to any particular part of that case, did not explain that case, did not analyze
how that case’s framework would apply to this case, did not cite any authority from our Circuit
regarding the issue, did not include a single cite to the record in the argument section, and, most
remarkably, never even invoked the Second Amendment by name. This failure certainly qualifies
as “inadequate development,” and we are not required to consider such “unsupported arguments.”
See United States v. Clark, No. 90-1575, 1991 WL 46481, at *1 (6th Cir. Apr. 4, 1991)
(unpublished); see also Lewless v. Sec’y of Health & Human Servs., No. 93-1581, 1994 WL 201887,
at *4 (6th Cir. May 23, 1994) (per curiam) (unpublished); see also United States v. Nichol, 134 F.
App’x 135, 138-39 (9th Cir. 2005) (mem.) (unpublished).
5
We note that we are assuming Mr. Hurley is pointing to the Second Amendment portion
of Emerson. That case, however, also included a discussion of whether § 924(g)(8) violated the due
process clause of the Fifth Amendment because the statute was too obscure to provide notice,
particularly when “there is nothing inherently evil about possessing a firearm.” Emerson, 270 F.3d
at 215-17. The Fifth Circuit determined that the statute did not violate the Fifth Amendment. Id.
5
For the foregoing reasons, the sentence and judgment of the district court are AFFIRMED.
6