United States v. Deunta Finch ( 2019 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 19a0149n.06
No. 18-5415
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA, ) Mar 28, 2019
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellee, )
)
ON APPEAL FROM THE
v. )
UNITED STATES DISTRICT
)
COURT FOR THE MIDDLE
DEUNTA L. FINCH, )
DISTRICT OF TENNESSEE
)
Defendant-Appellant. )
)
)
BEFORE: McKEAGUE, GRIFFIN, and NALBANDIAN, Circuit Judges.
GRIFFIN, Circuit Judge.
Defendant Deunta Finch appeals his sentence after a guilty plea. In particular, he claims
the district court erred by failing to give him credit for acceptance of responsibility during
sentencing and by sentencing him to an allegedly unsupported upward variance. Finding no errors
requiring reversal, we affirm.
I.
Defendant is a member of the Athens Park Bloods Gang as well as a crack cocaine dealer
and previously convicted felon. He was indicted and charged with two counts of felon in
possession of a firearm, 18 U.S.C. § 922(g)(1); Hobbs Act robbery, 18 U.S.C. § 1951; and
brandishing or discharging a firearm during a crime of violence, 18 U.S.C. § 924(c)(1)(A)(iii);
arising out of two separate shooting incidents. The first shootout underlying the charges involved
defendant and his friend Jamarius Hill, as passengers in a moving vehicle, exchanging fire with
No. 18-5415, United States v. Finch
the driver of another vehicle over some driving-related disagreement. Defendant was ultimately
charged with two counts of felon in possession of a firearm related to this shooting—one for the
gun he possessed during the shooting, and one for a different gun that was found in his constructive
possession when he was arrested.
In the second shooting, for which defendant was charged with Hobbs Act robbery and
discharge of a firearm during a crime of violence, defendant and a rival drug dealer named
Geoffrey Mason were siting in the same car when defendant brandished a firearm and attempted
to rob Mason of cocaine, crack cocaine, and drug proceeds. The two tussled over the weapon, it
discharged, the bullet grazed Mason’s thigh, and both fell out of the car. They continued to wrestle
for the gun, and defendant ultimately shot Mason in the left knee and pistol-whipped him in the
head before taking some of Mason’s cocaine and his car.
Before trial, defendant and the government came to a Rule 11(c)(1)(C) plea agreement,
whereby defendant would plead guilty to all four charges in exchange for a total sentence of
180 months’ imprisonment. Before sentencing, however, the government moved to withdraw
from the plea agreement, citing defendant’s alleged violent attack on a fellow inmate while
awaiting sentencing. The government alleged that defendant beat his cellmate so badly that his
cellmate’s jaw was broken in two places and he suffered a broken rib. Furthermore, the
government alleged that defendant stole some of his cellmate’s property during or shortly after the
attack. The parties appeared for a hearing on the motion, at which the government presented
evidence of defendant’s attack. The district court took the government’s motion under advisement,
but while the motion was pending, defendant elected to simply reenter a plea of guilty to the open
indictment, with no agreement relating to his possible sentence.
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The presentence investigation report calculated a total offense level of 29, with a
corresponding advisory Sentencing Guidelines range of 151 to 188 months for Counts 1, 2, and 4,
and a mandatory 120-month sentence for Count 3, the 18 U.S.C. § 924(c) charge, to be served
consecutively. This gave defendant a cumulative sentencing range of 271 to 308 months on all
convictions. The parties appeared for sentencing, and defendant challenged the presentence
investigation report for failing to give him a two-point reduction for acceptance of responsibility.
The district court denied defendant’s challenge, ruling that defendant’s conduct in assaulting and
robbing his cellmate while incarcerated pending sentencing sufficiently paralleled his robbery
conduct to preclude an acceptance of responsibility adjustment. Ultimately, the district court
sentenced defendant to total of 290 months’ imprisonment.
II.
Defendant first challenges the district court’s denial of an acceptance-of-responsibility
reduction. We review a district court’s denial of an acceptance-of-responsibility adjustment under
USSG § 3E1.1 with “great deference on review,” § 3E1.1 cmt. 5, and will reverse that decision
only for clear error. United States v. Genschow, 645 F.3d 803, 813 (6th Cir. 2011).
Section 3E1.1(a) of the Guidelines provides that the district court should reduce a
defendant’s offense level by two “[i]f the defendant clearly demonstrates acceptance of
responsibility for his offense.” See also United States v. Calvetti, 836 F.3d 654, 670 (6th Cir.
2016). The Application Notes to § 3E1.1 are instructive and provide that appropriate
considerations for the district court in making such a determination include “truthfully admitting
the conduct comprising the offense(s) of conviction” and “voluntary termination or withdrawal
from criminal conduct or associations.” § 3E1.1 cmt. 1(A), (B). The latter consideration, we have
held, does not apply broadly to all criminal conduct, but rather means only criminal conduct related
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to the crime of conviction. United States v. Morrison, 983 F.2d 730, 735 (6th Cir. 1993) (“[W]e
consider ‘voluntary termination or withdrawal from criminal conduct’ to refer to that conduct
which is related to the underlying offense.”). We held that, to be relevant for an acceptance-of-
responsibility reduction, the subsequent criminal conduct “may be of the same type as the
underlying offense, . . . or may be the motivating force behind the underlying offense, . . . or may
be related to actions toward government witnesses concerning the underlying offense, . . . or may
involve an otherwise strong link with the underlying offense.” Id. (emphasis omitted).
Defendant first argues that his open plea to all four charges without a plea agreement is
ample evidence of his acceptance of responsibility by itself. This argument is meritless. First of
all, “[a] defendant who enters a guilty plea is not entitled to an adjustment under this section as a
matter of right.” USSG § 3E1.1 cmt. 3. Instead, “[e]ntry of a plea of guilty prior to the
commencement of trial combined with truthfully admitting the conduct comprising the offense of
conviction . . . constitute[s] significant evidence of acceptance of responsibility,” but may be
outweighed by other conduct that is inconsistent with such acceptance of responsibility. Id. While
defendant is correct that his open plea to the charges is evidence of his acceptance of responsibility,
that does not end the relevant inquiry.
Second, defendant argues that the district court erred in considering his “prison fight”
because it was unrelated to his offenses of conviction, and the district court failed to “review or
apply the Morrison standard.” This argument does no better. While the district court did not cite
Morrison in its analysis, it certainly considered the relevant standard, which is whether the
subsequent criminal conduct was related to the crimes of conviction. Morrison, 983 F.2d at 735.
In denying the adjustment, the district court concluded:
Here, . . . the activity, the assault activity, the theft activity of the defendant so
parallels the instant charge in terms of a mindset and in terms of the way the assault
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was carried out that I think it clearly is indication of not accepting responsibility.
So [defendant’s] objection will be overruled.
In other words, the district court specifically considered the relation of the conduct in the prison
beating and theft to his Hobbs Act robbery conviction and determined that it was “of the same type
as the underlying offense.” Id. This is explicitly permissible under Morrison, and the district court
did not err (let alone clearly so) in denying defendant an acceptance-of-responsibility reduction on
these grounds.
III.
Defendant next challenges the procedural reasonableness of his 170-month sentence on his
§ 924(c) conviction for discharging a firearm during the commission of a felony. Generally, we
review sentences for procedural reasonableness “under the deferential abuse-of-discretion
standard.” United States v. Lanning, 633 F.3d 469, 473 (6th Cir. 2011). But “if a sentencing judge
asks . . . whether there are any objections not previously raised, in compliance with the procedural
rule set forth in United States v. Bostic, 371 F.3d 865 ([6th Cir.] 2004)[,] and if the relevant party
does not object, then plain-error review applies on appeal to those procedural-reasonableness
arguments that were not preserved in the district court.” United States v. Penson, 526 F.3d 331,
337 (6th Cir. 2008) (brackets omitted). At the end of the hearing the district court twice asked the
Bostic question—i.e., if there were “any objections or anything else we have to determine at this
time”—to which defense counsel responded “[n]one that haven’t already been previously entered,
Your Honor.” Defendant did not “previously enter[]” any challenge to the procedural
reasonableness of his sentence. Therefore, defendant forfeited this challenge and may only obtain
relief upon a showing of plain error that affects his substantial rights. United States v. Vonner, 516
F.3d 382, 385–86 (6th Cir. 2008) (en banc).
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Plain-error review is a high bar. Defendant must first present an error that was not
intentionally relinquished or abandoned. United States v. Olano, 507 U.S. 725, 732–33 (1993).
Second, defendant must show that the error was clear or obvious. Id. at 734. Third, defendant
must show that the error affected his substantial rights, “which in the ordinary case means he or
she must show a reasonable probability that, but for the error, the outcome of the proceeding would
have been different.” Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016) (internal
quotation marks omitted). Finally, if those three conditions are met, this court “should exercise its
discretion to correct the forfeited error if the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. (internal quotation marks omitted).
At sentencing, the district court pronounced the sentence as follows:
THE COURT: . . . The sentencing guidelines call for a sentence of, let me get this
right, 271 to 308 months. Is that correct?
THE PROBATION OFFICER: Your Honor, it is a[,] technically Count Three is
not considered under the guidelines. I[t] has to be imposed consecutively and
separate.
THE COURT: Yes, I know.
THE PROBATION OFFICER: But in practicality, you are adding 120 months to
bottom to top, your math is correct.
THE COURT: I can go under the guidelines. I can go over them too. But I am
going to give you a guideline sentence, one that I think reflects the seriousness of
the crime and the reason we have to protect people from you. On Counts One, Two
and Four, I am going to sentence you to 120 months each concurrent with each
other. Consecutive to that sentence of 120 months, I am going to sentence you to
170 months for a total of 290 months. There will be a period of supervised release
on Count One, Two and Four of three years and on Count Five [sic: “Three”] of
five years all to run concurrent for a total of five years supervised release.
Defendant is correct that the district court apportioned 170 months of his total 290-month
sentence to his § 924(c) conviction, which defendant characterizes as an unsupported upward
variance, given that the Guidelines sentence for that conviction is 120 months. See 18 U.S.C.
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§ 924(c)(1)(A)(iii); USSG § 2K2.4(b) (“[I]f the defendant, whether or not convicted of another
crime, was convicted of violating [§ 924(c)], the guideline sentence is the minimum term of
imprisonment required by statute.”). But this immediately followed his discussion of the collective
sentence defendant would serve (given the consecutive nature of his felon-in-possession and
Hobbs Act robbery sentences to his § 924(c) conviction) and neither party argues that the
Guidelines range was improperly scored. In other words, rather than evidence of an unsupported
upward departure, the district court engaged in the verbal equivalent of scrivener’s error—applying
the 170-month Guidelines sentence to Count 3, the § 924(c) conviction, and the 120-month
sentence (which is actually a downward departure from the Guidelines range) to defendant’s
convictions on Counts 1, 2, and 4.
Moreover, here, plain-error review precludes relief. Assuming arguendo that defendant
has shown error and that it is clear (the first two prongs of plain error), he cannot prove prejudice.
Molina-Martinez, 136 S. Ct. at 1343. The district judge’s colloquy shows that he correctly scored
the Guidelines, he considered the Guidelines range, knew that defendant faced a consecutive
sentence for his § 924(c) conviction, and explicitly determined that he would sentence defendant
to a Guidelines sentence. Merely transposing the correct sentences from their proper charges does
not cause defendant to serve even one extra day in prison, and the total sentence—the proper
consideration—was correctly within the cumulative Guidelines range. Cf. United States v.
Rodgers, 278 F.3d 599, 604 (6th Cir. 2002) (holding that the total sentencing term, not the
component sentences, matters when determining whether judicial vindictiveness occurred). Given
the district court’s thorough explanation of the sentences, and the minor nature of this misstep,
defendant cannot show any probability (let alone a reasonable one) that the proceedings below
would have been meaningfully different absent the error. Furthermore, this minute mistake
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certainly doesn’t “affect[] the fairness, integrity or public reputation of judicial proceedings.”
Molina-Martinez, 136 S. Ct. at 1343 (internal quotation marks omitted). Thus, defendant cannot
show plain error.
Finally, it is important to note the district court’s detailed consideration of the 18 U.S.C.
§ 3553(a) factors at sentencing. See Gall v. United States, 552 U.S. 38, 51 (2007). While the court
did not do so in consideration of an upward variance (because the court did not consider its
sentence to be a variance), the court’s meticulous reasoning in support of the cumulative sentence
given to defendant also thwarts defendant’s claim of error. The district court discussed, in depth,
nearly all the pertinent considerations listed in § 3553(a), including defendant’s criminal
background and personal history, § 3553(a)(1); the sentencing goals of rehabilitation, punishment,
deterrence, protecting society, and providing defendant with mental-health and drug-abuse
services, § 3553(a)(2); and the Sentencing Guidelines and advisory sentence range, § 3553(a)(3),
(4). The thorough nature of the district court’s reasoning in deciding upon an adequate sentence
further undergirds our conclusion that plain error did not occur.
IV.
We affirm the judgment of the district court.
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