United States v. Yancy

• Decision Date: 06 August 2013
• Docket Number: No. 12–6204.,12–6204.
• Citation: 725 F.3d 596
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Christopher YANCY, aka “Tray”, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

725 F.3d 596

UNITED STATES of America, Plaintiff–Appellee,

v.Christopher YANCY, aka “Tray”, Defendant–Appellant.

No. 12–6204.

United States Court of Appeals,Sixth Circuit.

Aug. 6, 2013.

ON BRIEF:William Joshua Morrow, Doris Randle–Holt, Federal Public Defender's Office, Memphis, Tennessee, for Appellant. Kevin G. Ritz, United States Attorney's Office, Memphis, Tennessee, for Appellee.

Before: ROGERS and COOK, Circuit Judges; VAN TATENHOVE, District Judge.^*

OPINION

COOK, Circuit Judge.

Christopher Yancy, who pleaded guilty to felon-in-possession, carjacking, and use-of-firearm charges, 18 U.S.C. §§ 922(g), 2119, and 924(c), appeals his 156–month sentence ¹ asserting two errors: (1) misapplication of the use-of-a-minor enhancement, U.S.S.G. § 3B1.4; and (2) improper judicial fact-finding pertaining to uncharged conduct that increased his statutory minimum sentence. We AFFIRM.

I.

We review Yancy's guidelines objection—a challenge to the procedural reasonableness of his sentence—under a deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 41, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Stubblefield, 682 F.3d 502, 510 (6th Cir.2012). “In reviewing the district court's calculation of the Guidelines, we ... review the district court's factual findings for clear error and its legal conclusions de novo.” United States v. Bolds, 511 F.3d 568, 579 (6th Cir.2007); see also18 U.S.C. § 3742(e); Stubblefield, 682 F.3d at 510. Under the clear-error standard, we abide by the court's findings of fact unless the record “le[aves] [us] with the definite and firm conviction that a mistake has been committed.” United States v. Gardner, 649 F.3d 437, 442 (6th Cir.2011) (citation and internal quotation marks omitted).

Pointing to United States v. Butler, 207 F.3d 839 (6th Cir.2000), Yancy argues that the record lacks evidence that he “t[ook] affirmative acts to involve [a] minor,” see id. at 848, and thus his two-level sentence enhancement for “[u]s[ing] or attempt[ing] to use a [minor] to commit the offense” under U.S.S.G. § 3B1.4 cannot stand. Indeed, Butler recognized that using, in this context, “entails more than being the equal partner of that minor in committing a crime.” Butler, 207 F.3d at 848–49. The guideline's application note defines “us[e] and attempt[ed] us[e]” to “include [ ] directing, commanding, encouraging, intimidating, counseling, training, procuring, recruiting, or soliciting.” U.S.S.G. § 3B1.4 cmt. n.1.

Here, the district court found that Yancy used O.P., a minor, to facilitate an armed robbery and carjacking outside a liquor store. The court relied on two primary sources in making this determination: (1) the presentence report's account of Yancy's retrieving a shotgun “he could use to get some money” from an acquaintance's home; and (2) O.P.'s sentencing hearing testimony about the robbery. Despite inconsistencies in the minor's testimony, the court found that “[t]he one thing that is consistent ... is that throughout he has indicated that ... Mr. Yancy gave [O.P.] Mr. Yancy's phone and instructed him to act like he was talking on the phone and to initiate a conversation or initiate contact with the first person who came up.” (R.79, Sent'g Tr. at 68.)

O.P.'s sentencing hearing testimony confirmed that Yancy gave him a cell phone and told him to “[p]lay like [he] was on the phone ... [s]o [they] could see if [the intended victim] had some money.” ( Id. at 26–27. But see id. at 28–29 (denying that Yancy instructed him to ask the intended victim for a cup of change, because he “already knew what to do then”).) O.P. followed these instructions, pretending to talk on the phone and asking the first passerby if he had change. Then, as that person left the store, Yancy robbed him at gunpoint, and Yancy and O.P. fled the scene in the victim's car. ( Id. at 27–31.) Crediting parts of O.P.'s testimony and considering the above application note, the district court applied the enhancement, finding that “Mr. Yancy directed [O.P.] to take [a] phone, to stand in front of the store, [and] to initiate contact with the first person who came up.” ( Id. at 68.)

Though he quibbles with the government's account and argues that the evidence shows that O.P. acted as an equal partner, Yancy has no response to the evidence relied upon by the district court. The court's factual findings are not clearly erroneous. See United States v. Worley, 193 F.3d 380, 384 (6th Cir.1999) (“ ‘[W]here there are two permissible views of the evidence’ the district court's conclusions ‘cannot be clearly erroneous.’ ” (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985))).

Accepting these facts, the district court properly applied the use-of-a-minor enhancement. The evidence showed that Yancy gave O.P. general instructions and a tool (cell phone) to carry out his role in the robbery (identifying and/or distracting the intended victim). O.P. played his part, Yancy committed the robbery, and the two fled in the victim's car. In this manner, then, Yancy “t [ook] affirmative acts to involve a minor” in the crime. Butler, 207 F.3d at 848. Within the context of the application note, this conduct certainly qualifies as “directing, commanding, encouraging, ... counseling, [or] training” the minor for the offense. U.S.S.G. § 3B1.4 cmt. n.1. It matters not whether O.P. contributed to the planning of the crime. While not a “strict liability enhancement,” Butler, 207 F.3d at 848,section 3B1.4 does not require substantial use of a minor, only use or attempted use of a minor, see, e.g., United States v. Wheeler, 67 Fed.Appx. 296, 306 (6th Cir.2003) (affirming application of enhancement where evidence supported district court's conclusion that the defendant used the minor to sell drugs, despite the defendant's and minor's testimony that the minor was only a customer); United States v. Curtis, No. 99–3818, 205 F.3d 1342 (6th Cir.2000) (unpublished table decision) (same, where the defendant admitted asking a minor to print additional counterfeit money). The record amply supports application of the enhancement here, and we affirm.

II.

Yancy next argues that the district court violated his Sixth Amendment and due process rights, as articulated in Apprendi v. New Jersey, 530 U.S. 466, 477, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by issuing a consecutive, seven-year sentence for “brandish[ing]” a firearm during the offense, despite the fact that his indictment only charged “us[ing] or carr [ying]” a firearm. See18 U.S.C. § 924(c)(1)(A), (A)(ii) (imposing seven-year minimum sentence “if the firearm is brandished”). Though Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), foreclosed this argument at the time of briefing, the Supreme Court recently overruled Harris, extending the rule of Apprendi to preclude judicial factfinding from enhancing statutory minimums, as well as maximums. Alleyne v. United States, ––– U.S. ––––, 133 S.Ct. 2151, 2155, 186 L.Ed.2d 314 (2013). Having anticipated this outcome, Yancy argues that the overruling of Harris resuscitates an otherwise futile argument, necessitating de novo review, and that the indictment's failure to charge brandishing, § 924(c)(1)(A)(ii), compels vacating his sentence. The government stands by Yancy's sentence, arguing that plain-error review applies to this newly raised objection, and that Yancy's admission of brandishing—not judicial factfinding—justified the sentence.

Because Yancy voluntarily admitted the facts establishing brandishing during his plea, with full knowledge of their potential effect on his sentence, and because he suffered no prejudice from the indictment's failure to specify brandishing, we affirm.

A. Standard of Review

We review this challenge for plain error. Although the presentence report recommended a brandishing enhancement, Yancy did not object to that enhancement before the district court. Yancy nevertheless argues that we should give fresh review to this forfeited issue, noting that Harris rendered any such objection futile. See Harris v. United States, 536 U.S. 545, 556, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) (concluding that “ § 924(c)(1)(A) defines a single offense,” wherein “brandishing and discharging [are] sentencing factors to be found by the judge, not offense elements to be found by the jury”).

Forfeited constitutional sentencing issues generally receive plain-error review. E.g., United States v. Hadley, 431 F.3d 484, 498 & n. 8 (6th Cir.2005) (reviewing unpreserved Confrontation Clause claim for plain error); United States v. Milan, 398 F.3d 445, 451 (6th Cir.2005) (same, forfeited Sixth Amendment claim post-Booker ). We have also applied plain-error review to forfeited claims when “well-settled” law (destined to be overruled) made objection “futile.” United States v. Dedhia, 134 F.3d 802, 808 (6th Cir.1998); United States v. Rogers, 118 F.3d 466, 471 (6th Cir.1997). Johnson v. United States, 520 U.S. 461, 466–67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997), cited by these decisions, applied plain-error review to an unpreserved Sixth Amendment jury-question claim—whether the jury decides materiality for purposes of a perjury charge—even though controlling circuit precedent defeated this argument at the time of trial. See also Rogers, 118 F.3d at 471 (noting that “[s]everal circuit courts” had rejected the claim before the Supreme Court ruled to the contrary, but that Johnson still applied plain-error review to the forfeited claim). In so ruling, the Johnson Court explained that “the seriousness of the error claimed does not remove consideration of it from the ambit of the Federal Rules of Criminal Procedure,” specifically Rule 52.²Johnson, 520 U.S. at 466, 117 S.Ct. 1544.Johnson thus counsels in favor of plain-error review here.

So does our decision in Hadley, which applied plain-error review to a forfeited Confrontation Clause claim, despite the fact...