United States v. Leonard Overmyer, III ( 2020 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0628n.06
Case No. 19-2448
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Nov 04, 2020
) DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,
)
)
Plaintiff-Appellee,
) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
v.
) THE WESTERN DISTRICT OF
) MICHIGAN
LEONARD GLEN OVERMYER, III,
)
)
Defendant-Appellant.
)
BEFORE: BOGGS, DONALD, and THAPAR, Circuit Judges.
BERNICE BOUIE DONALD, Circuit Judge. In this appeal, Leonard Overmyer
challenges the district court’s interpretation of U.S.S.G. § 2K2.1(b)(2). Section 2K2.1(b)(2) allows
for a reduction to the base-offense level of those convicted of being a felon in possession of a
firearm when those firearms are possessed for otherwise “lawful sporting purposes.” Here, the
district court found that, although Overmyer had three hunting weapons, he could not have held
them for otherwise lawful sporting purposes. In denying the reduction, the district court reasoned
that Overmyer could not have possessed the hunting weapons for otherwise lawful sporting
purposes because he was on supervised release and was barred from possessing firearms under the
terms of his release. We AFFIRM.
Case No. 19-2448, United States v. Overmyer
I.
This Court previously summarized the facts of Overmyer’s case:
In 2009, Overmyer pleaded guilty to transporting child pornography, in violation
of 18 U.S.C. § 2252A(a)(1). The district court sentenced Overmyer to 87 months
of imprisonment, to be followed by ten years of supervised release. The terms of
Overmyer’s supervised release, among other things, prohibited him from
possessing “a firearm, ammunition, destructive device, or any other dangerous
weapon.” We affirmed. United States v. Overmyer, 663 F.3d 862 (6th Cir. 2011).
In 2018, while on supervised release, Overmyer pleaded guilty to being a felon in
possession of firearms, in violation of 18 U.S.C. § 922(g)(1). The presentence
report described the firearms as bolt-or lever-action rifles stored on a shelf, with
cases or a sleeve, and covered by a towel in a detached pole barn adjacent to
Overmyer’s residential property. The presentence report calculated Overmyer’s
base offense level as 14 because he was a prohibited person at the time of the
offense. See USSG § 2K2.1(a)(6)(A). The presentence report also applied a two-
level increase because the offense involved three firearms, see USSG
§ 2K2.1(b)(1)(A), and granted a three-level reduction for acceptance of
responsibility, see USSG § 3E1.1. When combined with his criminal history
category of III, Overmyer’s total offense level of 13 resulted in a sentencing
guidelines range of 18 to 24 months of imprisonment.
Overmyer objected to the presentence report, arguing that his base offense level
should be 6, instead of 14, because he possessed the firearms “solely for lawful
sporting purposes or collection.” See USSG § 2K2.1(b)(2). Specifically,
Overmyer argued that the firearms were possessed for hunting purposes and as
family heirlooms. The government conceded that Overmyer possessed the firearms
solely for sporting purposes or collection but argued that his possession was
unlawful based on the terms of his supervised release. The district court overruled
Overmyer’s objection, reasoning that Overmyer failed to establish that the firearms
were possessed for collection. The district court sentenced Overmyer to 18 months
of imprisonment, to be served consecutively to any term imposed in his 2009 case.
United States v. Overmyer, No. 18-2222, 2019 U.S. App. LEXIS 24605, at *1-3 (6th Cir. Aug. 16,
2019) (order). The district court imposed an eight-year term of supervised release for Overmyer’s
supervised-release violation in the child-pornography case. [R. 62, PageID 96 (No. 1:09-cr-260-
PLM (W.D. Mich. Oct. 5, 2018)].
Regarding the felon-in-possession sentence, this Court upheld the district court’s
determination that Overmyer did not possess the firearms for “collection,” but we remanded the
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Case No. 19-2448, United States v. Overmyer
case so that “the district court [could] consider . . . whether the record sustains Overmyer’s
sporting-purposes argument.” Id. at *4. We also urged the district court to “consider the
government’s position that Overmyer’s possession of the firearms was unlawful based on the terms
of his supervised release.” Id. at *4-5.
On remand, the district court did just that. While the district court determined that the
firearms were “hunting weapons,” it ultimately determined that Overmyer’s possession of the rifles
could not have been “for lawful sporting purposes” because he was on supervised release and one
of the conditions of that release was that he could not possess firearms. [R. 49, PageID 11-12,
Case No. 1:18-cr-83-PLM (W.D. Mich. Dec. 10, 2019)]. The district court reasoned that, because
“[p]ossession of these weapons was in direct violation of the supervised release terms as set by the
[c]ourt,” [Id.,] Overmyer could not get the benefit of the reduction as he could not have possibly
possessed the firearms “for lawful sporting purposes.” See USSG § 2K2.1(b)(2) (emphasis added).
The district court re-imposed the original 18-month sentence [R. 49, PageID 278; R.45,
PageID 250] and re-imposed the same three-year term of supervised release [R. 49, PageID 279;
R. 45 PageID 251]. On appeal, Overmyer argues that the district court misinterpreted and
misapplied USSG § 2K2.1(b)(2) when re-sentencing him for the felony-in-possession conviction.1
II.
The Court declines to address the merits of Overmyer’s appeal, because any reduction in
his sentence for the felon-in-possession conviction would have no effect on his overall sentence.
Thus, the present case is appropriate for application of the concurrent-sentence doctrine.
1
We note the government urges us to find that this appeal is moot, but the government also acknowledges that we
might need to overturn, or at the very least depart from, Circuit precedent to reach such a decision. [Appellee Br. at
9-11, 11 n.1.] We decline to do so, as “[o]ne panel of this court may not overrule the decision of another panel.”
United States v. Ferguson, 868 F.3d 514, 515 (6th Cir. 2017).
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Case No. 19-2448, United States v. Overmyer
“Under the concurrent-sentence doctrine, an appellate court may decline to hear a
substantive challenge to a conviction when the sentence on the challenged conviction is being
served concurrently with an equal or longer sentence on a valid conviction, the defendant will
suffer no collateral consequence from the conviction, and the issue does not involve a significant
question.” Raines v. United States, 898 F.3d 680, 687 (6th Cir. 2018) (quotation omitted). The
Sixth Circuit “has been ... hesitant to apply this doctrine[,]” and “has invoked it [only] when there
is no possibility of adverse ‘collateral consequences’ if the convictions stand.” Winn v. Renico,
175 F. App’x 728, 732 (6th Cir. 2006); see also Groves v. Meko, 516 F. App’x. 507, 508 (6th Cir.
2013) (quoting Dale v. Haeberlin, 878 F.2d 930, 935 n.3 (6th Cir. 1989)) (“The concurrent
sentencing doctrine is a discretionary one, and courts ‘are admittedly hesitant to apply [it].’”).
Adverse consequences that will prevent a court from applying the doctrine include: “an effect on
parole or a potential pardon, the existence of state recidivist statutes, the possibility of
impeachment at a future trial, the potential for use as evidence of a prior bad act, and possible
stigma.” Pillette v. Berghuis, 408 F. App’x 873, 886 n.8 (6th Cir. 2010).
The present appeal challenges only Overmyer’s sentence for the felon-in-possession
conviction. As discussed above, Overmyer is serving concurrent terms of supervised release—the
three-year term stemming from the felon-in-possession conviction and an eight-year term in the
child pornography case. Thus, even if the Court were to invalidate the felon-in-possession
sentence, the maximum relief available would be invalidation of only that sentence, still leaving
Overmyer with the balance of his eight-year term of supervised release in the child-pornography
case. Neither elimination nor reduction of his supervised release for the child-pornography
conviction would be available even if the felon-in possession conviction and sentence were
vacated.
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Case No. 19-2448, United States v. Overmyer
Moreover, the sorts of collateral consequences that counsel against application of the
concurrent-sentence doctrine seem to be unlikely in Overmyer’s case. Overmyer contends that if
the instant sentence remains intact, “he could potentially be punished twice for any misconduct,”
but that with “a favorable ruling on this appeal, [he] could have sufficient evidence and grounds
for terminating or modifying one supervised release sentence.” [Appellant Reply Br. at 2]. But
this is not correct. The calculation of the firearms guidelines in the instant appeal would only alter
the terms of his supervised release as to the felon-in-possession conviction. Thus, even if we were
to remand this case for a third re-sentencing, Overmyer’s eight-year term of supervised release in
the child-pornography case would remain in full.
The Court appreciates Overmyer’s argument that a favorable resentencing on the felon-in-
possession conviction would benefit him in that it “would be compelling evidence that an injustice
occurred in the sentencing process[.]” [Appellant Reply Br. at 1]. But even so, he would still
remain on supervised release. Simply put, Overmyer has not demonstrated how a resentencing on
the felon-in-possession conviction would allow him to avoid the eight-year term of supervised
release that accompanies his child-pornography conviction.
Moreover, Overmyer has not identified an issue of legal significance that warrants deciding
even though doing so would have no impact on his overall sentence.
For all of these reasons, the Court exercises its discretion under the concurrent-sentence
doctrine to decline to review Overmyer’s felon-in-possession sentence.
III.
For the foregoing reasons, we AFFIRM.
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