U.S. v. Forrest

• Decision Date: 30 March 2005
• Docket Number: No. 03-5685.,No. 03-5672.,03-5672.,03-5685.
• Citation: 402 F.3d 678
• Parties: UNITED STATES of America, Plaintiff-Appellant/Cross-Appellee, v. Antonio L. FORREST, Defendant-Appellee/Cross-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

402 F.3d 678

UNITED STATES of America, Plaintiff-Appellant/Cross-Appellee, v. Antonio L. FORREST, Defendant-Appellee/Cross-Appellant.

No. 03-5672.

No. 03-5685.

United States Court of Appeals, Sixth Circuit.

Argued: August 3, 2004.

Decided and Filed: March 30, 2005.

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ARGUED: Terry M. Cushing, Assistant United States Attorney, Louisville, Kentucky, for Appellant. James A. Earhart, Louisville, Kentucky, for Appellee. ON BRIEF: Terry M. Cushing, Michael A. Bennett, Assistant United States Attorneys, Louisville, Kentucky, for Appellant. James A. Earhart, Louisville, Kentucky, for Appellee.

Before: NELSON and COOK, Circuit Judges; ROSEN, District Judge.^*

OPINION

DAVID A. NELSON, Circuit Judge.

This is a federal criminal case that stems from the armed robbery of a convenience store by the defendant and two others. Found guilty by a jury, the defendant was sentenced to imprisonment for one year on a Hobbs Act charge and seven years — the statutorily mandated minimum — on a charge of brandishing a firearm in the commission of the robbery.

The Hobbs Act sentence reflected both a reduction in the defendant's sentencing guidelines offense level for acceptance of responsibility and a downward departure from the guideline range. The departure was based on the proposition that, as the defendant argued, "this is not the typical federal robbery case" — it is a case, according to the defendant, that would not have been prosecuted in a federal court but for the defendant's unwillingness to plead guilty to a robbery charge brought against him earlier in a state court.

Had there been no sentence adjustments under the guidelines, and given that the defendant was sentenced at a time when the guidelines were being applied as mandatory, the district court would have been required to sentence the defendant to at least 33 months for the Hobbs Act violation — a sentence nearly three times as long as the 12-month sentence he actually received. The government has appealed the defendant's sentence, and the defendant has appealed his conviction.

The conviction will be affirmed. As to the sentence, we agree with the government that the district court erred in its understanding of the sentencing guidelines. The case will be sent back for resentencing, with the guidelines — construed in accordance with this opinion — to be taken into account by the district court, but no longer to be treated as mandatory. See United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

I

The defendant, 19-year-old Antonio Forrest, joined two other young men — Blake Jones and Randy Banks — in robbing a Louisville convenience store in January of 2002. Jones and Banks carried loaded handguns, and Mr. Forrest carried what he says was a toy cap gun. (The cap gun was never recovered, but the weapons carried by Jones and Banks — a revolver and a semi-automatic pistol — were recovered and were placed in evidence at Forrest's trial.)

A store employee named Mohamad Tariq was manning a cash register at the time of the robbery. A second register was being worked by an employee named Mohamad Arif. Cursing and brandishing their guns, the robbers forced a third employee and several customers to lie down on the floor, while Tariq and Arif were importuned, in the foulest of language and at gunpoint, to hand over the store's money. One of the robbers threatened to kill the obviously terrified Tariq if he didn't hurry up in opening his cash register. Approximately $400 was taken, some of it in the form of rolled coins, and the robbers ran out of the store carrying the money in a plastic bag.

Mr. Arif called 911, and officers of the Louisville police department responded to the call. One of the officers saw three men running. After giving chase, he succeeded in apprehending Blake Jones. Jones was taken back to the store and identified as one of the robbers.

A short time later an officer with a tracking dog discovered the defendant, Antonio Forrest, lying on his back in an apartment building alcove not far from the convenience store. A plastic bag containing rolled coins was found near Forrest, and a total of $391 was recovered from his person. In his pocket was the stub of a $190.64 paycheck. Forrest too was taken back to the store, and Tariq identified him as one of the robbers. Randy Banks, the third robber, evaded capture by the Louisville police, but he was eventually picked up on unrelated charges in another state.

After being identified at the convenience store, Jones and Forrest were taken to police headquarters. There Jones gave a confession. Both men were charged with first degree robbery under Kentucky law, and they were subsequently indicted for that crime by a Kentucky grand jury. They pleaded not guilty.

In June of 2002 a federal grand jury handed up a two-count indictment charging Forrest and Jones with obstructing interstate commerce by robbery, a violation of the Hobbs Act, 18 U.S.C. § 1951(a), and with brandishing firearms during and in relation to a crime of violence, a violation of 18 U.S.C. § 924(c)(1)(A). These charges were based on the same episode that formed the basis of the Kentucky indictment. Forrest contends — and the government as much as admits — that the federal indictment resulted from the defendants' refusal to plead guilty to the state charge. Both men initially pleaded not guilty to the federal charges as well.

Prior to his indictment by the federal grand jury, Forrest had been kept in a Kentucky jail cell because of his inability to make bond on the state robbery charge. At the time of the federal indictment he was transferred to the custody of the United States under a writ of habeas corpus ad prosequendum. Following a detention hearing, a federal magistrate ordered that Forrest be released on an unsecured bond subject to the condition that he be confined at home with electronic monitoring. Forrest was then returned to the Kentucky jail, apparently because he had been transferred from state custody under a writ. Forrest remained in jail for several days, at which point the state robbery charge was dismissed.

Forrest moved for dismissal of the federal charges on the ground that his return to state custody violated the Interstate Agreement on Detainers Act, 18 U.S.C.App. 2, § 2. The district court denied the motion.

Blake Jones pleaded guilty to the federal charges prior to trial and agreed to cooperate with the prosecution. Antonio Forrest stuck with his plea of not guilty.

The case against Forrest proceeded to trial in January of 2003. During jury selection, at a time when there was only one African-American (a woman) on the panel of prospective jurors, the government exercised a peremptory challenge against her. Forrest — also an African-American — moved for a mistrial, but the motion was denied.

The testimony of Blake Jones formed a major part of the government's case against Forrest. Jones named Forrest as a participant in the robbery, along with himself and Banks.

Forrest did not take the stand at trial, but his attorney argued to the jury that Jones was lying and that Forrest had simply had the misfortune of being at the wrong place at the wrong time. The jury did not see it that way, and Forrest was found guilty of both of the charges against him.

Forrest moved for a new trial on the ground that in final argument the prosecutor had commented improperly on his decision not to testify. The motion was denied.

Prior to sentencing Forrest was interviewed by a United States Probation Officer. Forrest acknowledged to the probation officer that he had been a participant in the robbery. He said that the idea for robbing the convenience store had originated with Banks, the man who had the semi-automatic pistol. Jones carried the revolver during the robbery, according to Forrest, while he himself carried a toy cap gun that he subsequently threw away while running from the police.

The probation officer prepared a presentence investigation report in which, among other things, he recommended that Forrest's sentencing guidelines offense level be reduced under U.S.S.G. § 3E1.1 for acceptance of responsibility. "It appears that the defendant went to trial to assert and [preserve] issues that do not relate to factual guilt," the probation officer wrote, adding that "the defendant has admitted his involvement in the instant offense to the U.S. Probation Officer." The government objected to the proposed acceptance-of-responsibility adjustment, but the district court overruled the objection.

Mr. Forrest had no criminal history points, which meant that the sentencing guidelines placed him in Criminal History Category I. As calculated by the district court, and with the acceptance-of-responsibility adjustment included, the guideline range for Mr. Forrest's Hobbs Act offense was imprisonment for between 27 and 33 months. Mr. Forrest asked the court to depart downward from the guideline range. The court did so, moving down 5 more notches on the "Offense Level" scale of the sentencing table and imposing a 12-month sentence. With respect to the firearm conviction, the relevant statute mandated the imposition of a term of imprisonment for not less than 84 months, to run consecutively to the other sentence. See 18 U.S.C. § 924(1)(A)(ii). The court imposed the mandatory minimum, so Forrest's total sentence came to 96 months.

The government filed a timely notice of appeal, and Mr. Forrest took a timely cross-appeal. The government's appellate brief contends that the district court erred both in reducing the defendant's offense level for acceptance of responsibility and in departing downward from the sentencing range prescribed by the guidelines.

Mr. Forrest denies that the sentence reductions were erroneous, but he claims error in four other respects. Forrest contends (1) that the government violated his rights under the Interstate Agreement on Detainers, (2) that...