United States v. Senecca Freeman , 679 F. App'x 450 ( 2017 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0114n.06
Case No. 16-1004
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Feb 17, 2017
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE WESTERN
SENECCA FREEMAN, ) DISTRICT OF MICHIGAN
)
Defendant-Appellant. )
OPINION
BEFORE: GIBBONS, ROGERS, and McKEAGUE, Circuit Judges.
McKEAGUE, Circuit Judge. Senecca Freeman dealt heroin mixed with fentanyl—a
synthetic opioid 50 to 100 times more powerful than morphine.1 After a customer’s girlfriend
fatally overdosed on this concoction, police discovered Freeman’s operation. A five-count
indictment on gun and drug charges followed. The Government then offered Freeman a deal.
He could plead guilty to a single firearms charge while conceding that his earlier convictions
qualified him for a minimum 15-year sentence under the Armed Career Criminal Act—rather
than the firearm offense’s usual 10-year maximum. In exchange, the Government would drop
the remaining charges. If Freeman rejected the deal, the Government would try to supersede the
1
NIDA (2016). Fentanyl. Retrieved January 9, 2017, from https://www.drugabuse.gov/drugs-
abuse/fentanyl.
Case No. 16-1004, United States v. Freeman
indictment with a charge of distribution resulting in death—an offense carrying a minimum
sentence of life.
Freeman took the deal. Per the agreement, the parties could litigate at sentencing the
propriety of any departure from the guidelines range. The Government moved for a departure
citing a provision, U.S.S.G. § 5K2.1, that allows for an increased sentence when a death results.
The district court, finding Freeman at least knew his product to be highly potent and dangerous,
granted this departure to account for the overdose victim’s death. Ultimately, Freeman was
sentenced to over 22 years in prison.
On appeal, Freeman challenges his sentence on two grounds. First, he asserts that his
attorney misadvised him that Michigan’s unarmed-robbery statute constituted a “violent felony”
under the ACCA and thereby qualified him for that statute’s 15-year minimum sentence. Thus,
he maintains that his Sixth Amendment right to effective assistance of counsel was violated.
Second, although he concedes that the Government could seek an upward departure, he believes
the district court erred in granting one. For the following reasons, the first challenge was
premature and the second challenge was waived.
I
Both parties ask us to address Freeman’s ineffective assistance of counsel claim—or IAC
claim as it is commonly called—on the merits, but we decline their invitation. As a general rule,
we refuse to hear such claims on direct appeal. See, e.g., United States v. Bradley, 400 F.3d 459,
461–62 (6th Cir. 2005). This policy results from the mismatch between the information needed
to adjudicate an IAC claim and the record typically generated at the district court. See id. To
prevail on an IAC claim, a defendant must show: (1) “that counsel’s representation fell below an
objective standard of reasonableness”; and (2) that the defendant suffered “prejudice” from the
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deficient performance. Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Trial court
proceedings, however, focus on different questions—like the defendant’s guilt, innocence, or
degree of culpability. Often, the record reveals little about counsel’s strategic thinking or advice
to the client. See Massaro v. United States, 538 U.S. 500, 504–05 (2003). Thus, we may “have
no way of knowing whether a seemingly unusual or misguided action by counsel had a sound
strategic motive or was taken because the counsel’s alternatives were even worse.” Id. at 505.
This case presents no exception. Freeman faults how trial counsel resolved an open
question: whether Michigan’s unarmed-robbery statute counted as a “violent felony” under the
ACCA. Even if we accepted a necessary premise in Freeman’s IAC claim—that counsel erred in
resolving this question—that counsel performed deficiently does not inevitably follow. If the
answer to the underlying legal question were clear, counsel’s simply getting it wrong would, of
course, be deficient performance. Cf. Padilla v. Kentucky, 559 U.S. 356, 368 (2010) (holding
that counsel performed deficiently by failing to advise defendant on the consequences from his
guilty plea where the applicable statute was “succinct, clear, and explicit”). But when the law
lacks clarity, counsel’s duty becomes harder to define. See id. at 369.
And counsel lacked a clear answer in this case. He advised Freeman just weeks after the
Supreme Court limited what offenses could qualify as “violent felonies” under the ACCA, and
thus could contribute to making Freeman eligible for its minimum sentence. See Johnson v.
United States, 135 S. Ct. 2551, 2563 (2015). Perhaps, as Freeman asserts, Michigan’s statute no
longer counts toward making him eligible for an enhancement. But counsel’s failure to predict
how the law will develop does not necessarily make him ineffective. See Thompson v. Warden,
Belmont Corr. Inst., 598 F.3d 281, 288 (6th Cir. 2010) (collecting cases); States v. Davies,
394 F.3d 182, 190–91 (3d Cir. 2005) (holding that counsel did not perform deficiently by failing
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to challenge a conviction using a Commerce Clause argument that succeeded in a later case); cf.
Lafler v. Cooper, 566 U.S. 156, 174 (2012) (“[A]n erroneous strategic prediction about the
outcome of a trial is not necessarily deficient performance.”). After all, at least one court has
agreed with counsel’s take on Michigan’s statute. See United States v. Lamb, 638 F. App’x 575,
576 (8th Cir. 2016), cert. granted, judgment vacated, 2016 WL 4399374 (2016). Without
knowing how counsel prepared, or how he advised Freeman on the possible risks related to
litigating this issue, we decline to determine whether counsel performed deficiently or whether
the offense is a violent felony.
II
Freeman presents his second challenge—that the district court impermissibly granted an
upward departure—in a manner that bleeds together conceptually distinct arguments. They may
be split into a few contentions, however. First, he claims that the district court improperly
considered “relevant conduct,” as defined by U.S.S.G. § 1B1.3, when departing upward to
account for the overdose death under § 5K2.1. Second, he says that the court neglected to make
a mens rea finding required by that departure provision. Finally, he argues a point that he
concedes this court’s precedent forecloses: that the district court violated his Fifth and Sixth
Amendment rights by establishing his dismissed and uncharged conduct under a preponderance-
of-the-evidence standard.
We find these arguments unconvincing, but we do not address the merits here because
Freeman waived these challenges. In his plea agreement, Freeman waived “all rights to appeal
or collaterally attack his conviction, sentence, or any other matter related to this prosecution.”
R. 22, Plea Agreement, PID 47. Further, he agreed that the district court could consider
“uncharged, relevant conduct” and “dismissed counts” in determining the “propriety of any
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departure from the sentencing guidelines.” Id. at PID 44–45. His arguments—based primarily
on the district court’s consideration of uncharged conduct—are unambiguously covered by the
waiver. We enforce appellate waivers according to their terms. United States v. Toth, 668 F.3d
374, 377–78 (6th Cir. 2012).
Given this broad language, these challenges are presumptively covered by the waiver
unless Freeman can channel them into one of the waiver’s enumerated exceptions. So Freeman
argues that the challenges fit into an exception for claims that his “sentence was based on an
unconstitutional factor, such as race, religion, national origin, or gender.” R. 22, PID 47. His
argument that his burden-of-proof challenge falls within this unconstitutional-factor exception
proceeds in two steps. First, he notes that the court considered his uncharged conduct as a
“factor.” And, he believes, the court unconstitutionally established the conduct by a mere
preponderance of the evidence. Thus, he concludes, the court considered an “unconstitutional
factor.” As to his other departure-related challenges, he merely asserts that, especially where a
departure provision requires some specified intent, a court’s departure decision implicates
“constitutional considerations.”
Perhaps sensing some weakness in these interpretive moves, Freeman suggests that—
even if we find his reading of the provision wanting—the unconstitutional-factor exception is at
least ambiguous. In particular, he notes that the exception uses the phrase “such as,” which
means the list that follows—“race, religion, national origin, or gender”—must be non-
exhaustive. If the list is non-exhaustive, he says, ambiguity necessarily exists as to what it might
include. Because we apply a contra-proferentem-like rule that ambiguities must be resolved
against the Government, see, e.g., United States v. Bowman, 634 F.3d 357, 360–61 (6th
Cir.2011), Freeman asserts that we must read the exception to cover his claims.
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But a quasi-tiebreaker like contra proferentem only comes into play when the court
confronts two reasonable interpretations of a provision. See Restatement (Second) of Contracts
§ 206 (1981). Freeman’s contention that the unconstitutional-factor exception reaches his
arguments is simply untenable. The “such as” language that Freeman cites, rather than
introducing any ambiguity favorable to him, actually clarifies what “unconstitutional factor”
means: one’s membership in a protected class. The list forecloses the argument that his
uncharged conduct is an “unconstitutional factor” contemplated by the provision.
Moreover, Freeman’s challenge is not even to the court’s consideration of his conduct as
a “factor” per se. Rather, he challenges how the court evaluated that factor—that is, the standard
used to establish his conduct and how the court applied a departure provision to it. This court
has rejected similar attempts to reframe arguments related to the sentencing process as
unconstitutional-factor arguments. See United States v. Mizori, 604 F. App’x 413, 417 (6th Cir.
2015); United States v. Lash, 584 F. App’x 285, 286 (6th Cir. 2014). The same result applies in
this case.
For the foregoing reasons, we affirm.
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