510 F.3d 562 (6th Cir. 2007), 06-5576, United States v. Bailey

Docket Nº:06-5576.
Citation:510 F.3d 562
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Terrell R. BAILEY, Defendant-Appellant.
Case Date:December 13, 2007
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 562

510 F.3d 562 (6th Cir. 2007)

UNITED STATES of America, Plaintiff-Appellee,

v.

Terrell R. BAILEY, Defendant-Appellant.

No. 06-5576.

United States Court of Appeals, Sixth Circuit.

Dec. 13, 2007 [*]

Argued: Sept. 18, 2007.

Appeal from the United States District Court for the Eastern District of Kentucky at Covington. No. 05-00038-David L. Bunning, District Judge.

Page 563

ARGUED:

Jessica A. Dipre, Dinsmore & Shohl, Cincinnati, Ohio, for Appellant.

Andrew Sparks, Assistant U.S. Attorney, Lexington, Kentucky, for Appellee.

ON BRIEF:

Michael J. Newman, Jennifer K. Swartz, Dinsmore & Shohl, Cincinnati, Ohio, for Appellant.

Charles P. Wisdom, Jr., David P. Grise, Assistant U.S. Attorney, Lexington, Kentucky, for Appellee.

Before: MOORE and GRIFFIN, Circuit Judges; and TARNOW, District Judge.[**]

GRIFFIN, J., , in which MOORE, J. (p. 569), and TARNOW, D.J. (p. 569), joined and delivered separate concurring opinions.

OPINION

GRIFFIN, Circuit Judge.

Defendant Terrell R. Bailey appeals his convictions and sentences for possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1); possession

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of a firearm in furtherance of drug trafficking, 18 U.S.C. § 924(c)(1)(A)(i); and being a convicted felon in possession of a firearm, 18 U.S.C. § 922(g)(1). Because of his prior convictions for drug trafficking and second-degree escape (KY.REV.STAT. § 520.030), the district court sentenced defendant as a career offender under the Sentencing Guidelines. On appeal, Bailey argues that his prior Kentucky state court conviction for second-degree escape does not qualify for a career offender enhancement; there was insufficient evidence to support his convictions; and the district court erred in enhancing his Guidelines offense level after finding that he had perjured himself at trial. For the reasons that follow, we affirm defendant's convictions and sentences.

I.

On November 7, 2004, Terrell Bailey was driving a stolen car in Covington, Kentucky. A Covington police officer identified the stolen car and attempted to stop Bailey. Defendant refused to stop and was eventually apprehended while attempting to flee into Ohio.

After Bailey was arrested, the officers searched him and, in the process, discovered two baggies of crack cocaine in his possession. One bag contained 9.41 grams and the other 5.50 grams. The officers also found two cellular telephones with Bailey, and a loaded .357 Magnum and empty holster under his seat in the car. The handgun had not been in the car when it was stolen. Elizabeth Stanford, age 17, was the only passenger in the car. At trial, she testified that she was not the owner of the handgun, and that she had told the police (through a written statement) that Bailey put the gun under the seat.1

A federal grand jury indicted Bailey, charging him with possession with intent to distribute five grams or more of crack cocaine in violation of 21 U.S.C. § 841(a)(1), possession of a firearm in furtherance of drug trafficking in violation of 18 U.S.C. § 924(c)(1)(A)(i), and being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). On January 5, 2006, following a three-day trial, a jury convicted Bailey on all charges.

The district court sentenced Bailey to 360 months on the distribution conviction to be served concurrently with 120 months on the conviction for being a felon in possession of a firearm, followed by a consecutive sentence of 60 months for possession of a firearm in furtherance of drug trafficking.

Bailey timely appealed.

II.

Defendant was sentenced as a career offender pursuant to U.S. SENTENCING GUIDELINES MANUAL § 4B1.1.2 The Guidelines section states, in pertinent part:

(a) A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior

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felony convictions of either a crime of violence or a controlled substance offense.

Id.

Bailey was 23 years old at the time of the arrest and the instant conviction is a controlled substance felony offense. In addition, Bailey had a prior felony conviction for trafficking in a controlled substance, and a Kentucky state conviction for second-degree escape in violation of KY. REV. STAT. § 520.030. However, defendant asserts that he does not meet the third element required for career offender enhancement. Specifically, he argues that the district court erred by considering his Kentucky second-degree escape conviction to be a "crime of violence" for purposes of § 4B1.1.

Bailey contends that his escape offense was "a far cry from a crime of violence." According to him, he "merely walked away from a halfway house; no violence was committed or threatened, and the escape charge was not filed until Bailey was in custody on another unrelated charge ...." Defendant argues that "[e]ven the most limited factual inquiry" into his escape would reveal that it was not violent.

The government responds by asserting that we are forbidden from conducting a "broad factual inquiry" into the circumstances surrounding a prior conviction and must instead rely on a "categorical approach." We agree. Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109...

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