United States v. Malachi Scurry ( 2020 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0631n.06
No. 19-4038
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Nov 05, 2020
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
ON APPEAL FROM THE UNITED
)
STATES DISTRICT COURT FOR
v. )
THE NORTHERN DISTRICT OF
)
OHIO
MALACHI SCURRY, )
)
OPINION
Defendant-Appellant. )
)
Before: BOGGS, STRANCH, and THAPAR, Circuit Judges.
STRANCH, J., delivered the opinion of the court in which BOGGS and THAPAR, JJ.,
joined. THAPAR, J. (pg. 17), delivered a separate concurring opinion.
JANE B. STRANCH, Circuit Judge. Malachi Scurry was sentenced to 96 months in
prison after pleading guilty to being a felon in possession of a firearm and ammunition, in violation
of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and being convicted by a jury of assaulting, resisting, or
impeding an officer designated by 18 U.S.C. § 1114, in violation of 18 U.S.C. § 111(a)(1). He
now challenges the legal basis for his conviction and the reasonableness of his sentence. For the
following reasons, we AFFIRM Scurry’s conviction and sentence.
I. BACKGROUND
A. Facts
The facts set forth in this section, which Scurry does not dispute, are derived from the
presentence report (PSR) and the testimony adduced at trial.
No. 19-4038, United States v. Scurry
In the summer of 2018, Scurry was twenty-one years old and living in Akron, Ohio. He
was under the supervision of the Ohio Adult Parole Authority following his release from custody
on a prior felony conviction. John Christie was an officer with the Ohio Adult Parole Authority
assigned to a task force with the Bureau of Alcohol, Tobacco, and Firearms (ATF). That task force
worked closely with the Akron Police Department’s Gun Violence Reduction Tactical Unit and
Uniformed Narcotics Unit, often executing targeted enforcement operations. During such
operations, undercover units set up surveillance based on intelligence about illegal possession of
firearms, then radio marked patrol units to conduct traffic stops to advance the investigation.
Because ATF did not have its own patrol cars—only undercover units—Akron police officers
typically conducted the necessary traffic stops and law enforcement encounters so that the subjects
could identify the officers as members of the police.
In August 2018 and January 2019, Christie learned that Scurry had posted multiple
Facebook videos depicting himself in possession of firearms. Christie contacted Akron Police
Department Detective James Alexander, a member of the Gun Violence Reduction Tactical Unit,
and several other ATF special agents to open an investigation into Scurry. At the time, Alexander
had no prior knowledge of Scurry and was not investigating him. Christie asked Alexander to
obtain a search warrant for Scurry’s residence and e-mailed Alexander the facts providing probable
cause for the search. Alexander copied that information into a search warrant application and
without adding any additional information, submitted it to the Akron Municipal Court. He
obtained a search warrant that evening.
Christie then formulated an “ATF operation plan,” a printed document that provides
information on the target of the operation, including a photo of the target; sets forth the Department
of Justice Use of Force Policy; and lists the officers and agencies participating in the operation and
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their individual roles. The team—made up of ATF agents along with Akron police officers from
the Gun Violence Reduction Tactical Unit and the Uniformed Narcotics Division—then convened
at the ATF task force headquarters in Akron. Alexander briefed the team because he was familiar
with the Akron Police officers; Christie observed to ensure Alexander’s briefing was correct and
distributed copies of the plan.
Following the plan, the officers set up surveillance of the address on Juneau Avenue where
they suspected Scurry was staying, intending to conduct a traffic stop once Scurry left in order to
simultaneously search the residence pursuant to the warrant obtained by Detective Alexander.
That night, however, Scurry did not leave the residence, and the plan was called off.
The next day, Christie modified the operational plan and held another briefing. At
Christie’s request, another Ohio parole officer set up a meeting with Scurry later that day at a
residence on Jason Avenue, where Scurry claimed to be living. Once Scurry left for the meeting,
Akron Police officers were to conduct a traffic stop on his vehicle and other officers would execute
the search warrant. This time, Christie also instructed the police officers to take Scurry into
custody on a parole violation. To authorize such an arrest, Christie completed a “parole violation
hold and parole violation arrest order.” Christie characterized the parole order as “a tool” that the
team was using to apprehend Scurry.
Executing the modified plan, ATF special agents and unmarked Akron Police units set up
surveillance at both the Jason Avenue and Juneau Avenue addresses. That afternoon, Scurry left
the Jason Avenue address riding in the passenger seat of an SUV. The undercover team radioed
this information, and Alexander and another officer, Sergeant Patrick Dugan, began following
Scurry’s vehicle and pulled him over. Christie was not present.
Approaching the driver’s side of the vehicle, Dugan called out that he could see a gun.
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Alexander then attempted to open the passenger side door to remove Scurry from the vehicle,
informing him that he was under arrest. Scurry refused to get out of the car and a struggle ensued.
Finally, Alexander was able to pull Scurry out, pin him to the ground, and handcuff his wrists
behind his back. Scurry turned out to have a loaded and cocked Glock 23 pistol on his person.
After Scurry was taken into custody, Christie and ATF Special Agent Clay McCausland
led a search of the Juneau Avenue residence and recovered multiple firearms, magazines,
ammunition, and a bulletproof vest. Scurry was then taken to the Akron Police station and
interviewed by Christie and McCausland. He admitted that he owned the firearms found in his
bedroom.
B. Case History
On March 6, 2019, the Government filed a grand jury indictment against Scurry that
charged him with one count of being a felon in possession of a firearm and ammunition, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); one count of assaulting, resisting, or impeding
a federal officer, in violation of 18 U.S.C. § 111(a)(1); and one count of possessing a firearm
during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(i). Because
the term “federal officer” as used in 18 U.S.C. § 111(a)(1) encompasses a person who is “assisting”
an officer or employee of the United States, see 18 U.S.C. § 1114, Count 2 of the indictment
alleged that violation as to Detective Alexander, “who was engaged in the performance of his
official duties assisting an officer and employee of the United States while engaged in and on
account of official duties as a federal law enforcement officer.”
Scurry moved to dismiss Counts 2 and 3 of the indictment, arguing that Detective
Alexander was not a protected “federal officer” under 18 U.S.C. § 111(a)(1) because he was
“working in his official capacity as a detective for the Akron Police Department, enforcing state
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No. 19-4038, United States v. Scurry
law violations,” and “was not contemporaneously assisting a federal agent in the scope of his
official duties.” At the final pretrial hearing on May 7, 2019, the district court denied the motion
because Scurry’s arguments on Count 2 raised factual issues for determination by the jury.
Scurry’s attorney of record withdrew from the action and was replaced by new counsel on May
10, 2019. A few weeks later, and a week before trial, Scurry pled guilty without a plea agreement
to Count 1 of the indictment.
The parties submitted proposed jury instructions, and both parties agreed that the jury
should be instructed that a federal officer included a task force officer with the ATF, but disagreed
on how “federal officer” should be defined. Scurry proposed to instruct the jury that “[a] federal
officer . . . includes a state law enforcement officer acting in cooperation with and under the
control of federal officers in a matter involving the enforcement of federal laws.” The Government
proposed that “[a] federal officer . . . includes a state law enforcement officer assisting a federal
officer in the performance of his official duties,” including providing “actual physical assistance”
while the officer is “in the act of performing his . . . official duties.”
At the trial on Counts 2 and 3, before the Government put on its case, the district court read
to the jury a short-form instruction, explaining in relevant part that one of the elements of Count 2
was that Detective Alexander qualify as a “federal officer.” The district court did not provide a
more specific definition of the term “federal officer.”
At the close of the Government’s evidence, Scurry moved for a judgment of acquittal on
both counts; on Count 2, he argued that the evidence was insufficient to establish that when Scurry
resisted arrest, Detective Alexander had been “assisting a federal officer in pursuit of his duties.”
The district court denied Scurry’s motion in full, and Scurry did not testify or put on any evidence.
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No. 19-4038, United States v. Scurry
The district court then read the full jury charge, reiterating that to satisfy the first element
of Count 2, the Government was required to prove that Alexander was a federal officer, then
providing the following definition of a “federal officer”:
A federal officer includes a task force officer with the Bureau of Alcohol, Tobacco,
Firearms and Explosives. A federal officer also includes a state law enforcement
assisting a federal officer in the performance of his or her duties. To assist means
to provide supplemental help or support in carrying out . . . some task of mutual
involvement. It is for you to determine if Detective Alexander was assisting the
federal officer.
The jury convicted Scurry on Count 2 and acquitted him on Count 3.
C. Sentencing
Scurry’s presentence report (PSR) assigned him a total offense level of 22 and a criminal
history category of IV because he had two prior adult felony convictions, one for felonious assault
and one for having weapons under disability and resisting arrest. Based on these scores, the PSR
recommended a Guidelines range of 63 to 78 months in prison.
At sentencing, Scurry’s sole objection to the PSR rested on its failure to provide him with
acceptance of responsibility credit even though he had pled guilty to Count 1. Scurry’s counsel
also presented mitigating evidence and requested a within-Guidelines sentence. The Government
sought a sentence of 120 months in prison based on Scurry’s conviction; the circumstances of the
offense; and his criminal history, including two prior juvenile adjudications after the age of 17 and
the two adult convictions. The Government also submitted 21 pages of Scurry’s social media
activity and played two Facebook videos at the sentencing hearing, all of which featured or
referenced firearms. The audio in these videos was not transcribed by the court reporter and the
videos were not entered into the record.
The district court overruled Scurry’s objection to the PSR and sentenced Scurry to 96
months in prison, reasoning that Scurry was an “extremely dangerous individual” who needed to
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be “incarcerat[ed] . . . for a long, long period of time” to deter him from future gun-related crime
and to protect others.
Scurry now appeals his conviction on Count 2 and the reasonableness of his sentence.
II. ANALYSIS
A. Scurry’s Conviction on Count 2
Citing evidence adduced at trial—but conceding that no operative facts are in dispute—
Scurry argues that Alexander was not “assisting” a federal agent in the scope of the agent’s official
duties. Instead, he argues, Alexander was “conducting a state operation contemplated through
state judiciary authorization”; he was not supervised by the ATF, was not contracted by the ATF,
and was not accompanied by any federal officers at the scene of Scurry’s arrest. So although
Scurry purports to appeal the district court’s denial of his pretrial motion to dismiss, in fact he
challenges his conviction on Count 2 on a theory that the proof developed at trial was insufficient
at law to support the jury’s verdict. Put differently, the question is whether the phrase “assisting”
an “officer or employee of the United States” or its agencies, as used in 18 U.S.C. § 1114,
encompasses Alexander’s conduct as established at trial. This is a question of statutory
interpretation, which we review de novo. See U.S. v. Lively, 852 F.3d 549, 558 (6th Cir. 2017).
Our starting point is the language of the statute. See Hale v. Johnson, 845 F.3d 224, 227 (6th Cir.
2016). “Where the statute’s language is clear and unambiguous and the statutory framework is
coherent and consistent, ‘the sole function of the courts is to enforce it according to its terms.’”
Id. (quoting U.S. v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989)).
Section 111(a) applies to “whoever [] forcibly assaults, resists, opposes, impedes,
intimidates, or interferes with any person designated in section 1114 of this title while engaged in
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No. 19-4038, United States v. Scurry
or on account of the performance of official duties.” 18 U.S.C. § 111(a)(1). In turn, those
designated in § 1114 include:
any officer or employee of the United States or of any agency in any branch of the
United States Government (including any member of the uniformed services) while
such officer or employee is engaged in or on account of the performance of official
duties, or any person assisting such an officer or employee in the performance of
such duties or on account of that assistance . . . .
18 U.S.C. § 1114.
As we have previously held, the word “assist” as used in § 1114 has an “unambiguous,
coherent” plain meaning that is “consistent with the broader statutory scheme,” and should be
“enforce[d] . . . according to its terms.” U.S. v. Bedford, 914 F.3d 422, 427 (6th Cir. 2019)
(quoting Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004)). Looking to Merriam-Webster’s online
dictionary, we concluded in Bedford that the ordinary meaning of “assist” is “to give usually
supplementary support or aid to” or “to give support or aid.” Id. at 427–28 (citation omitted); see
also Assist, Merriam-Webster, http://merriam-webster.com/dictionary/assist (last visited Nov. 2,
2020)); see also Assist, The American Heritage Dictionary of the English Language,
ahdictionary.com/word/search.html?q=assist (last visited November 2, 2020) (defining assist as
“[t]o give help or support to, especially as a subordinate or supplement; aid”). Applying that
definition, we found that a private truck driver contracted to deliver mail for the United States
Postal Service (USPS) was assisting an officer or employee of the United States because he
“provided ‘supplemental help or support’ to the USPS, an agency of the federal government, in a
task of ‘mutual involvement.’” Bedford, 914 F.3d at 428 (quoting United States v. Reed, 375 F.3d
340, 344 (5th Cir. 2004)).
Here, too, the evidence presented at trial demonstrates that Alexander provided
“supplemental help or support” to Christie—undisputedly a federal officer—and the ATF task
force in a task of “mutual involvement.” Id. (quoting Reed, 375 F.3d at 244). Christie, in his
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capacity as a task force officer, received information about Scurry and asked Alexander to help
conduct an investigation. Christie asked Alexander to obtain a search warrant, providing him with
all the information necessary to do so; Christie also issued the parole arrest order granting
Alexander arrest authority and developed the operational plan, which specified the roles of all
participants and established the use of force policy that would govern the operation. Alexander
stopped and arrested Scurry pursuant to that plan, facilitating the ATF task force’s investigation
and leading to the federal indictment in this case.
Scurry seeks to assess Alexander’s actions at the moment he arrested Scurry in isolation.
He argues that because Alexander was a state officer enforcing a state parole warrant to safely
execute a search warrant issued by a state court, he cannot have been “assisting” a federal officer.
That Alexander’s authority came from state law does not mean he was not assisting the federal
investigation. And Scurry offers no authority for the proposition that § 1114 requires a person to
assist a federal officer exclusively pursuant to federal authority or exclusively to advance a federal
interest.
Scurry also argues that because no federal officers were on the scene of the arrest,
Alexander was not under the direct supervision of a federal agency, and was not under contract to
the ATF, Alexander was not assisting Christie or the ATF. This theory is foreclosed by Bedford,
where we explicitly rejected the argument that a driver was not assisting the USPS because “‘there
was no direct federal participation on the date in question’ . . . and [the driver] was not acting upon
‘orders or instruction from anyone at the USPS.’” 914 F.3d at 428 (quoting defendant’s brief); see
also United States v. Jacquez-Beltran, 326 F.3d 661, 663 (5th Cir. 2003) (declining to “add to the
statutory elements by requiring that a federal agent be physically present with the victim at the
time of the assault”). We did, as Scurry points out, find it significant that the truck driver had been
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No. 19-4038, United States v. Scurry
formally contracted by the USPS to carry mail and cited cases from other circuits finding that
similar relationships constituted “assisting.” See Bedford, 914 F.3d at 428–30. But neither the
statute nor that opinion suggests that such a contract is a necessary condition to be a designated
person under § 1114.
Our application of § 1114 here also comports with the history and purpose of the statutory
scheme. See Hale, 845 F.3d at 227. In United States v. Feola, 420 U.S. 671 (1975), the Supreme
Court explained that § 111 was intended to make prosecution for assaults on federal officers
cognizable in the federal courts to protect both “federal officers” and “federal functions.” Id at
679. And in passing § 111 and § 1114’s antecedent statute, Congress was “concerned with the
safety of federal officers insofar as it was tied to the efficacy of law enforcement activities.” Id.
at 681. “While Feola came before the current version of § 1114 was incorporated into § 111, recent
opinions have echoed the Supreme Court’s earlier sentiment and applied a federal-functions
approach to § 111.” Bedford, 914 F.3d at 429–30 (citing cases). Prosecuting offenses like Scurry’s
protects both federal officers and federal functions because Alexander’s participation was a key
component of the ATF task force’s plan. Alexander testified that the traffic stop and arrest were
executed to ensure that Scurry was not in the residence so the ATF agents could safely search it
for firearms. And as Christie testified, the ATF task force did not have its own marked units and
depended on the Akron police for law enforcement encounters like traffic stops.
Our sister circuits have come to similar conclusions. In United States v. Hooker, 997 F.2d
67 (5th Cir. 1993), for example, an officer of the Mississippi Bureau of Narcotics was assaulted
during a drug buy conducted as part of a joint investigation of three federal agencies that was
headed by the Federal Drug Enforcement Agency (DEA). Id. at 69–70. No federal officers were
present at the drug buy when the state officer was assaulted, and the government argued that
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“[b]ecause it [was] so short-handed [in the region] . . . the DEA relie[d] heavily on local and state
support in almost all of its investigations.” See id. at 70–71, 74. The operation was financed
primarily with state and local funds and the officers who implemented the operation on the
ground—by executing a pre-buy meeting and conducting surveillance during the buy itself—were
primarily state and local officers. Id. at 74. The Fifth Circuit held that the state officer was covered
by § 111 and § 1114 because he “was acting in cooperation with federal officers in a federal
operation.” Id.; see also United States v. Chunn, 347 F.2d 717, 720 (4th Cir. 1965) (holding that
employee of the state of North Carolina who was assaulted while on loan to the Internal Revenue
Service as an undercover agent was protected by § 1114).
Accordingly, when he was arresting Scurry, Alexander was “assisting” a federal officer
under § 1114. We therefore affirm Scurry’s conviction.
B. Scurry’s Sentence
Criminal sentences must be both procedurally and substantively reasonable. Gall v. United
States, 552 U.S. 38, 51 (2007). Scurry principally challenges the substantive reasonableness of
his sentence, but his argument that the district court unfairly rejected his request for an acceptance
of responsibility credit raises a challenge to the procedural reasonableness of his sentence. We
typically review such challenges under an abuse-of-discretion standard. Id. at 41.
1. Procedural Reasonableness
A sentence is procedurally unreasonable if the district court committed a “significant
procedural error, such as failing to calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” Gall, 552
U.S. at 51. Scurry contends that the district court erred in rejecting his request for an acceptance
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No. 19-4038, United States v. Scurry
of responsibility credit because he made a full confession to law enforcement shortly after his
arrest, was appointed new counsel only a month before trial and could not have pled guilty on
Count 1 any earlier, and proceeded to trial on the remaining counts based only on his challenges
to the applicability of § 1114 and § 924(c).
If a defendant “clearly demonstrates acceptance of responsibility for his offense,” his
offense level should be decreased two levels. USSG § 3E1.1. A sentencing court’s factual
determination that a defendant has not accepted responsibility “is entitled to great deference,”
USSG § 3E1.1, comment. (n.5), and we review it for clear error, United States v. Denson, 728 F.3d
603, 614 (6th Cir. 2013). See also United States v. Bolden, 479 F.3d 455, 464 (6th Cir. 2007)
(describing our scope of review as deferential because Ҥ 3E1.1 determinations involve an overall
legal decision that is fact-bound, the district court has comparatively great expertise, and the value
of uniform court of appeals precedent is limited”).
In rejecting Scurry’s request for an offense level reduction under § 3E1, the district court
acknowledged that he had pled guilty on Count 1, but took issue with the plea’s “timeliness” and
Scurry’s decision to go to trial on Count 2.
A district court may consider the timeliness of a defendant’s acceptance of responsibility
to the extent it reflects the defendant’s sincerity. United States v. Hollis, 823 F.3d 1045, 1047 (6th
Cir. 2016); USSG § 3E1.1, comment. (n.1). There is no indication here that the district court
considered timeliness for an impermissible reason. See, e.g., Hollis, 823 F.3d at 1048 (“Waste of
government resources may not be considered under § 3E1.1(a).”). And although trial counsel was
appointed on May 10, a month before trial, Scurry had prior counsel and offers no reason why he
could not have entered his plea then.
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No. 19-4038, United States v. Scurry
With respect to Count 2, Scurry argues that he only proceeded to trial because he believed
the statutes were inapplicable as a matter of law. Acceptance of responsibility adjustments are
available to defendants who exercise their right to go to trial to “preserve issues that do not relate
to factual guilt,” such as “the applicability of a statute to his conduct.” USSG § 3E1.1, comment.
(n.2). But the record here indicates that Scurry did dispute the relevant conduct, not just the
applicability of the statute. Scurry maintained throughout trial that he did not resist arrest. In his
closing statement, for example, Scurry’s counsel contended that Scurry “did not forcibly assault,
resist or oppose” arrest, but rather that he closed the car door so Alexander could not enter and
“simply [sat] there . . . doing nothing.”
“[A] defendant must accept responsibility for all counts before he is entitled to a reduction
in sentence for acceptance of responsibility.” United States v. Chambers, 195 F.3d 274, 278 (6th
Cir. 1999) (affirming a district court’s denial of the reduction where the defendant admitted to
being a felon in possession but denied his guilt as to another offense). Because Scurry did not do
so, the district court appropriately denied his request for a § 3E1.1 reduction. See id.; United States
v. Austin, 797 F. App’x 233, 246 (6th Cir. 2019) (affirming district court’s denial of reduction
where defendant’s “assertions of innocence were not simply, as appellate counsel now claims,
legal arguments challenging the applicability of the conspiracy statute to the defendant’s conduct,”
but were actually “deni[als] that he had committed a key element of the conspiracy charge”).
Accordingly, the district court did not abuse its discretion in declining to award an acceptance of
responsibility credit.
2. Substantive Reasonableness
The substantive reasonableness inquiry determines if the length of a sentence conforms
with the sentencing goals set forth in 18 U.S.C. § 3553(a) and asks whether the district judge
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“‘abused his discretion in determining that the § 3553(a) factors supported’ the sentence imposed.”
Holguin-Hernandez v. United States, 140 S. Ct. 762, 766 (2020) (quoting Gall, 552 U.S. at 56).
This is a separate inquiry from procedural reasonableness: even if the district court followed
proper procedures and considered the appropriate factors, we ask whether the district court
imposed a sentence that was “greater than necessary.” Id. at 766–67.
To gauge the substantive reasonableness of a sentence, we may ask whether reasonable
weight was given to each sentencing factor. United States v. Boucher, 937 F.3d 702, 707 (6th Cir.
2019). When “the court place[s] too much weight on some of the § 3553(a) factors and too little
on others” in reaching its sentencing decision, the sentence that results is substantively
unreasonable. United States v. Parrish, 915 F.3d 1043, 1047 (6th Cir. 2019) (quoting United States
v. Rayyan, 885 F.3d 436, 442 (6th Cir. 2018)); Boucher, 937 F.3d at 707.
Sentences within a defendant’s Guidelines range are presumptively reasonable. United
States v. Christman, 607 F.3d 1110, 1118 (6th Cir. 2010); see also Kimbrough v. United States,
552 U.S. 85, 109 (2007) (“[I]n the ordinary case, the Commission’s recommendation of a
sentencing range will ‘reflect a rough approximation of sentences that might achieve § 3553(a)’s
objectives.’” (quoting Rita v. United States, 551 U.S. 338, 350 (2007)). But when the district court
varies upward or downward from the Guidelines range, it must ensure its justification is
“sufficiently compelling to support the degree of the variance.” Gall, 552 U.S. at 50. “A district
court may vary outside the Guidelines range if it explains how the present case is different from
the typical or mine-run case that occupies ‘the heartland’ to which the Commission intends
individual Guidelines to apply.” United States v. Perez-Rodriguez, 960 F.3d 748, 754 (6th Cir.
2020) (quoting Kimbrough, 552 U.S. at 109).
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Scurry argues that the district court placed too much weight on his criminal history and
perceived dangerousness, failed to explain why his case deviated from an ordinary Guidelines
case, and was “inflamed” by the Facebook videos played by the Government.
In imposing sentence, the district court explained that it believed Scurry was a “dangerous
individual” who posed a risk to the community, distinguishing his case from “mere possession of
firearms” or “merely resisting an officer.” The court addressed the “dangerous” circumstances of
Scurry’s offense—that he resisted arrest while armed with a loaded pistol. Scurry also had a
history of prior criminal conduct that had escalated in seriousness over time, including three
juvenile adjudications, two felony convictions as an adult for offenses involving firearms, and one
prior parole violation. He had also reportedly resisted the marshals’ attempts to bring him to court
on at least one occasion. The district court concluded that Scurry was willing to use a gun to harm
others, as evidenced by social media posts and videos that depicted him using firearms and
apparently making threats. Although the Facebook videos should have been entered into the record
for appellate review, the record and the court described them adequately for us to conclude that
the court did not abuse its discretion in considering them.
The district court adequately explained its concern that Scurry “still doesn’t get it” and was
“a dangerous individual” who was “on the path to shooting somebody.” And on these facts, the
court’s conclusion that Scurry posed an ongoing risk of harm to himself, the community, and law
enforcement, was reasonable and distinguishable from mere speculation “that an individual will
cause some particular harm at a future point in time.” United States v. Tristan-Madrigal, 601 F.3d
629, 635 (6th Cir. 2010). Finally, because Scurry’s mitigating characteristics did not demonstrate
that he “ha[d] any insight or any willingness to change his ways,” the court explained that a “long
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sentence [was] necessary.” It did, however, discount the Government’s proposal by 24 months in
light of Scurry’s youth.
Whether another judge might have found a different sentence appropriate is not the point.
The district court reasonably balanced the relevant factors and presented a sufficiently compelling
justification for treating Scurry’s case differently from a “heartland” case. Kimbrough, 552 U.S.
at 109. Its decision to assign greater weight to the interests of protecting the public and providing
adequate deterrence, and less weight to Scurry’s mitigating characteristics, was within its
discretion. Scurry’s sentence must be affirmed.
III. CONCLUSION
For the foregoing reasons, we AFFIRM Scurry’s conviction on Count 2 and AFFIRM his
sentence.
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THAPAR, Circuit Judge, concurring. I join the majority opinion in full, except to the
extent it relies on statutory purpose. As the majority acknowledges, the text of the statutes is clear,
so resort to statutory purpose is improper.
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