United States v. Andre Jones

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0530n.06
No. 11-1324 FILED
UNITED STATES COURT OF APPEALS May 22, 2012
FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
ANDRE JONES, ) DISTRICT OF MICHIGAN
)
Defendant-Appellant. )
BEFORE: BOGGS, SUHRHEINRICH, and COOK, Circuit Judges.
Suhrheinrich, Circuit Judge. In this criminal appeal Defendant Andre Jones (“Defendant”)
challenges his sentence, arguing that the district court erred in applying a four-level enhancement
for possession of a firearm in connection with another felony under U.S.S.G. § 2K2.1(b)(6). We
AFFIRM.
I. Background
On July 17, 2010, two women flagged down a Detroit Police patrol vehicle and informed the
officers that a man was shooting an “AK-47” in the Sojourner Truth Homes, a housing project in
Detroit. As the officers approached the housing complex, they heard several shots. The officers
parked their vehicle and approached on foot.
The parties disagree as to what happened next. In its sentencing memorandum, consistent
with the Police Investigator’s Report, the United States represented that as the officers approached
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18081 Fenelon Drive, Defendant appeared at the front door holding an AK-47 assault rifle and
walked out of the house onto the front porch. Defendant shouted at the other residents and waived
the AK-47 in the air. One of the officers immediately ordered Defendant to drop his weapon and
step away from the house, but Defendant ignored the order and went back inside, shutting and
locking the door behind him. The police reported to dispatch that they had “a barricaded gunman.”
The police learned that the owner of the house, Michelle Harris, was inside, along with several
children.
Defendant remained downstairs alone while the police told him to come out with the weapon.
According to both the Police Investigator and Harris, after roughly twenty minutes, one of the
officers convinced Defendant to exit the house unarmed. Defendant was immediately arrested.
Inside the house, the officers recovered Defendant’s loaded AK-47, underneath a bed, as well as a
.22-caliber rifle that belonged to him, in the lower hallway closet. Thus, according to the United
States, Defendant disobeyed the police by retreating into the home with a loaded firearm.
Defendant, on the other hand, claimed that he was already inside the home when the police
arrived. In support, he relied on statements made by Harris to police the day after the incident.
Harris told police that after Defendant finished firing, he walked back into the house and slammed
the door shut. Harris stated that the officers did not arrive until five minutes after the shots. Thus,
Defendant claimed that, because he was already inside the home, his only act of resistance was a
brief two- to five- minute delay in exiting the home at the officers’ orders.
Defendant pleaded guilty to one count of felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1).1 This gave Defendant a base offense level of 20. The presentence report
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There was no Rule 11 plea agreement.
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recommended a four-level sentencing enhancement under U.S.S.G. § 2K2.1(b)(6), for use of a
firearm in connection with the commission of another felony offense, namely using an AK-47 to
resist arrest. The presentence report found that Defendant had violated Mich. Comp. Laws Ann.
§ 750.81d(1), which makes it a felony to assault, batter, wound, resist, obstruct, or endanger a police
officer. The presentence report also recommended a three-point reduction for acceptance of
responsibility. This resulted in a total offense level of 21. Defendant’s criminal history category was
IV. Without the section 2K2.1(b)(6) enhancement, the sentencing guidelines range would have been
37 to 46 months. With the enhancement, the recommended sentencing guidelines range was 57 to
71 months.
Defendant objected to the section 2K2.1(b)(6) enhancement on the ground that he “did not
resist and obstruct the police department,” relying on Harris’s statement that he had re-entered the
home before the police arrived. The United States countered that the factual dispute was irrelevant
because even if Defendant’s version of events were credited, the fact that he barricaded himself was
also “resisting, obstructing, and impeding.” R. 23 at 5. Defendant responded that “[t]he most you
can say is it took him a couple of minutes, two to five minutes to come out of the house, and I don’t
see that as resisting or obstructing.” R. 23 at 6.
The district court determined that:
It’s a long two to five minutes when you see someone, they have a high-power
weapon and they’re behind the door, it’s a pretty long time for police officers to be
standing there and to–I just don’t buy your argument. He came out. He had the
weapon, the police gave him a direction. He didn’t follow the direction. And more
importantly, did he not follow the direction he went inside and whether he locked the
door, didn’t lock the door, I don’t think is the issue, the issue is he restricted them
from doing their duty. Even if it took ten seconds, somebody could get hurt and
potentially the police officers. So I think that your objection to– the report as written
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by Probation is correct and your objections are noted, but I don’t think they apply in
this case.
R. 23 at 6-7. The court found that “the situation here was very, very extreme,” R. 23 at 13, and
sentenced Defendant to 71 months in prison at the highest end of the guidelines range.
Defendant appeals.
II. Analysis
We review the application of a section 2K2.1(b)(6) enhancement under a specific standard.
See United States v. Taylor, 648 F.3d 417, 431-32 (6th Cir. 2011). Factual findings are reviewed
for clear error, and due deference is given to the district court’s determination that the firearm was
used or possessed in connection with another felony. Id. To the extent a challenge to the application
of the section 2K2.1(b)(6) enhancement presents strictly a question of law, de novo review applies.
Id. at 431.
The advisory guidelines provide for a four-level enhancement to the defendant’s base offense
level “[i]f the defendant used or possessed any firearm or ammunition in connection with another
felony offense.” U.S.S.G. § 2K2.1(b)(6) (2009). To apply the section 2K2.1(b)(6) enhancement, the
district court must find that the government has established by a preponderance of the evidence that
the defendant (1) committed another felony, and (2) used or possessed a firearm in connection with
that offense. United States v. Mojica, 429 F. App’x 592, 594 (6th Cir. 2011).
According to the application notes, the “in connection with” element of U.S.S.G.
§ 2K2.1(b)(6) requires that the firearm “facilitated, or had the potential of facilitating, another felony
offense.” Id. cmt. n.14(A). “Another felony offense” is defined as “any federal, state, or local
offense, other than the explosive or firearms possession or trafficking offense, punishable by
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imprisonment for a term exceeding one year, regardless of whether a criminal charge was brought,
or a conviction obtained.” Id. § 2K2.1(b)(6) cmt. n.14(C).
This court has held that section 2K2.1(b)(6) requires the government to establish, by a
preponderance of the evidence, a nexus between the firearm and an independent felony. United
States v. Burns, 498 F.3d 578, 580 (6th Cir. 2007) (internal citations omitted). In other words, the
government must prove that “the connection between the firearm and the other felony was not
merely coincidental, that the firearm served some purpose in relation to the other offense, such as
embolden[ing] the defendant in committing it.” United States v. Berkey, 406 F. App’x 938, 939 (6th
Cir. 2011) (internal quotation marks and citations omitted). See also United States v. Coleman, 627
F.3d 205, 212 (6th Cir. 2010) (holding that a firearm or ammunition facilitates the commission of
a felony if it makes it “easier or less difficult,” or if it serves “some emboldening role in a
defendant’s felonious conduct” (internal quotation marks, alteration, and citation omitted)), cert.
denied, 131 S. Ct. 2473 (2011). The firearm “need not be actively used” in the other offense. United
States v. Angel, 576 F.3d 318, 320 (6th Cir. 2009) (internal quotation marks and citation omitted).
This court has also recognized that “demonstrating this nexus is not a particularly onerous burden.”
United States v. Davis, 372 F. App’x 628, 629 (6th Cir. 2010).
Here, the “other felony” is resisting arrest under Michigan law, which states that “an
individual who assaults, batters, wounds, resists, obstructs, opposes, or endangers a person who the
individual knows or has reason to know is performing his or her duties is guilty of a felony.” Mich.
Comp. Laws § 750.81d(1). The act of obstructing an officer from performing his or her duties
“includes the use or threatened use of physical interference or force or a knowing failure to comply
with a lawful command.” Id. § 750.81d(7)(a) (emphasis added). See also United States v. Mosley,
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575 F.3d 603, 607 (6th Cir. 2009) (holding that Mich. Comp. Laws § 750.81(d)(1) contains “at least
two categories” of violations, including violations “involving an individual who ‘obstructs’ an
officer through ‘a knowing failure to comply with a lawful command’”).
Defendant argues on appeal that:
Without making clear whether it believed that Mr. Jones had actively resisted
arrest by fleeing the police while armed as the Government maintained, or merely
passively resisted arrest by hesitating to exit the Fenelon house as the defense argued,
the district court determined that Mr. Jones’s possession of a firearm facilitated the
offense of resisting arrest. Because it appears to have been based on the legal
conclusion that the form of resistance was immaterial–i.e., that the firearm facilitated
even the passive resistance in the form of Mr. Jones delaying his exit from the
house–the district court’s finding was in error.
Appellant’s Br. at 11. He asserts that “[e]ven assuming that Mr. Jones’s passive failure to exit the
Fenelon house immediately constituted a violation of M.C.L. § 750.81(d)(1)–a premise he disputed
below but will not reargue for purposes of this appeal–that particular crime was not furthered by the
presence of a firearm.” Id. at 9. He asks this court to remand for resentencing, “making clear that
Mr. Jones’s possession of a firearm was merely coincidental to his brief delay in following police
orders to exit a home and did not ‘further’ that conduct.” Id.
No matter how he paints the district court’s ruling, Defendant’s variegated argument fails.2
First of all, contrary to Defendant’s assertion, the district court actually found as a matter of fact that
Defendant was outside when the police order was issued: “He came out. He had the weapon, the
police gave him a direction. He didn’t follow the direction. And more importantly, did he not follow
2
In the district court Defendants focused on the “other felony” aspect of section 2K2.1(b)(6).
There Defendant alleged that he was inside the house when the police issued their order and that he
responded within two to five minutes. He contended that he did not resist and obstruct the police
department in violation of Mich. Comp. Laws § 750.81d(1). On appeal, his argument is focused on
the “in connection with” element of the guideline. The government takes no issue with Defendant’s
altered argument on appeal, so we decide the matter using a de novo standard of review.
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the direction he went inside.” R. 23 at 6-7. Later, in exercising its authority to apply the advisory
guideline, the court specifically found that “he didn’t respond to the police officers’ lawful request,
that he went back into the house which again created a horrible situation for both the police officers.”
Id. at 13.
Second, the district court found that even at “two to five minutes” Defendant “knowingly
fail[ed] to comply with a lawful command,” Mich. Comp. Laws § 750.81d(7)(a), which is what the
“other felony” statute at issue in this case requires. In other words, the district court was not obliged
to characterize Defendant’s resistance as either “active” or “passive.” See also Angel, 576 F.3d at
320 (stating that the firearm “need not be actively used” in the other felony offense for purposes of
a section 2K2.1(b)(6) enhancement (internal quotation marks and citation omitted)).
Third, the record supports the conclusion that the firearm “facilitated, or had the potential of
facilitating” the other felony. Defendant never disputed he had easy access to the weapon and the
district court clearly found that even with a brief delay the police officers could potentially get hurt.
Cf. id. at 321-22 (noting that the defendant’s objection did not specifically address the finding that
the firearms were possessed “in connection with” another felony, but that under either a preserved
or unpreserved error standard, the district court did not err in applying the section 2K2.1(b)(6)
standard). Defendant had a loaded AK-47 with him in a locked house. The residents of the home
(as well as his own children) were hiding from him upstairs. Whether he received an order to drop
the weapon before he retreated into the house or merely heard the police order him to immediately
exit the house, as the district court found, Defendant admittedly “neglected to exit a home
immediately when police ordered him to do so.” Appellant’s Br. at 14. As the United States points
out, if Defendant had been unarmed, the police could have entered the house and arrested him.
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However, “because Jones was armed with a high-power assault rifle, the police were constrained to
surround the house and attempt to coax Jones to surrender before he used his weapon to injure
himself, the police, or the woman and children barricaded inside.” Appellee’s Br. at 9-10.
Therefore, possessing the AK-47 facilitated Jones in resisting arrest by making it easier for him to
avoid coming out of the house.
Moreover, the AK-47 “emboldened” Defendant in resisting arrest. As noted, the AK-47 was
loaded and operational. Defendant knew the officers knew he had it because they had ordered him
to drop it. The gun’s presence put the police on notice that he was armed and dangerous. The
weapon made it easier for Defendant to “delay” complying with a direct police order. It prevented
the officers from storming the house to rescue the women and children and increased the risk of
violence by heightening the potential need for the police to use force if Defendant did not ultimately
surrender. Cf. Coleman, 627 F.3d at 212 (applying the enhancement where “the ammunition
emboldened [the defendant] in the knowledge that he was one step closer to having a fully-loaded
firearm to protect himself and his illegal drugs, and the ammunition potentially served notice to
potential buyers that [the defendant] was a step closer to having a fully-loaded firearm”). Like the
district court, we think that two to five minutes is a long time to “hesitate to obey” a police order to
drop an AK-47 and submit to arrest.
As this court has explained, U.S.S.G. § 2K2.1(b)(6) “was created in response to a concern
about the increased risk of violence when firearms are used or possessed during the commission of
another felony.” United States v. Burke, 345 F.3d 416, 427 (6th Cir. 2003) (internal quotation marks
and citation omitted). See also United States v. Hurst, 228 F.3d 751, 763 (6th Cir. 2000) (same).
We think the district court correctly recognized that this is precisely the kind of situation the
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enhancement was intended to address. We therefore hold that the court application of U.S.S.G.
§ 2K2.1(b)(6) to the facts of this case was proper.
III. Conclusion
The judgment of the district court is AFFIRMED.
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