739 F.3d 923 (6th Cir. 2014), 12-4313, United States v. Seymour

Docket Nº:12-4313.
Citation:739 F.3d 923
Opinion Judge:CLAY, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Irving T. SEYMOUR, Defendant-Appellant.
Attorney:Jeffry F. Kelleher, Jeffry F. Kelleher & Associates, Co., Cleveland, Ohio, for Appellant. Bernard A. Smith, United States Attorney's Office, Akron, Ohio, for Appellee.
Judge Panel:Before: COLE and CLAY, Circuit Judges; BERTELSMAN, District Judge. [*]
Case Date:January 15, 2014
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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739 F.3d 923 (6th Cir. 2014)

UNITED STATES of America, Plaintiff-Appellee,

v.

Irving T. SEYMOUR, Defendant-Appellant.

No. 12-4313.

United States Court of Appeals, Sixth Circuit.

January 15, 2014

Page 924

[Copyrighted Material Omitted]

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ON BRIEF:

Jeffry F. Kelleher, Jeffry F. Kelleher & Associates, Co., Cleveland, Ohio, for Appellant.

Bernard A. Smith, United States Attorney's Office, Akron, Ohio, for Appellee.

Before: COLE and CLAY, Circuit Judges; BERTELSMAN, District Judge. [*]

OPINION

CLAY, Circuit Judge.

Defendant Irving Seymour was convicted by a jury of one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and sentenced to 100 months' imprisonment. He appeals four decisions of the district court: (1) the district court's denial of his motions for discovery; (2) the court's denial of his motion to suppress; (3) the court's application of the four-point firearm enhancement of U.S.S.G. § 2K2.1(b)(6)(B); and (4) the court's decision to have Defendant's sentence run consecutive to an already-imposed state sentence. For the reasons set forth below, we AFFIRM the district court's rulings on Defendant's motions for discovery and to suppress, REVERSE the district court's application of the firearm enhancement, VACATE Defendant's sentence, and REMAND for resentencing.

BACKGROUND

A. Arrest and Conviction

On the afternoon of August 19, 2010, Detective James Welsh of the Elyria, Ohio Police Department was meeting in his office with Jourdan Powell, a confidential informant. Powell, who happens to be Defendant's cousin, had made undercover drug buys for Welsh on several occasions, but Powell's sources were drying up. Welsh asked Powell if he knew of any other illegal activity afoot in Elyria, including anyone illegally trying to sell handguns.

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Welsh's request paid immediate dividends. Just a few minutes after Powell left Welsh's office, he called Welsh to report that Defendant was trying to sell a .25 caliber handgun. Powell told Welsh where he and Defendant were, and Welsh set off to the location with two other officers— Detective Michael Fairbanks and Detective Gerald Lantz.

The detectives caught up with Defendant and Powell a few minutes later at a nearby gas station and convenience store. The detectives observed Powell pumping gas into a white Impala while Defendant sat in the front passenger seat. When Powell drove the Impala out of the gas station, the detectives followed in a marked police car. Powell immediately made two left turns without signaling— a violation of Ohio Rev.Code § 4511.39. The detectives flipped on their sirens and attempted to pull over the Impala.

At first, Powell resisted stopping the car and hit the brakes erratically. The detectives could see and hear Defendant telling Powell to keep driving. Powell eventually pulled over the car, but before the Impala came to a complete stop, Defendant jumped out of the car and tried to escape on foot. He stumbled as he leaped out of the car, got up, and starting running with all three detectives giving chase. Welsh was right behind Defendant and saw Defendant digging into his waist band. This motion indicated to Welsh that Defendant was reaching for a weapon. A few seconds later, Welsh watched Defendant reach to his waistband again and actually saw the handle of a handgun in Defendant's hand. At that moment, Detective Fairbanks appeared from Welsh's right and tackled Defendant, sending a handgun flying from his hand. The weapon turned out to be a .25 caliber handgun, with three rounds loaded in the magazine. The detectives searched Defendant and found 2.4 grams of crack cocaine and five hydrocodone pills.

Defendant was arrested for numerous violations of Ohio law. Later, he was transferred to federal custody and indicted for one count of being a felon in possession of a firearm. Defendant filed several motions before trial— seeking discovery of Powell's whereabouts and impeachment material about Powell, and seeking to suppress the evidence seized incident to his arrest. After holding a suppression hearing, the district court denied all of these motions. A jury convicted Defendant of the single count against him following a two-day trial.

B. Sentencing

Defendant's sentencing proceeding centered on two disputes: whether the four-point firearm enhancement of U.S.S.G. § 2K2.1(b)(6)(B) should apply, and whether Defendant's sentence should be affected by a prior state sentence that had been ordered to run consecutive to Defendant's federal sentence. The probation office recommended that the firearm enhancement apply on the basis that Defendant " possessed any firearm or ammunition in connection with another felony." U.S.S.G. § 2K2.1(b)(6)(B). Defendant objected and the parties argued this issue at the sentencing hearing. The government asserted that Defendant had possessed the .25 caliber handgun to facilitate the offense of felony drug possession under Ohio law. See Ohio Rev.Code § 2925.11(C)(4). The government even suggested that Defendant might have intended to sell his crack and hydrocodone pills. But the government walked back this statement shortly after making it, conceding that nothing in the record supported the supposition that Defendant was trying to sell drugs. Defendant countered that his possession of a small amount of narcotics was not related to his possession of a handgun— in fact, the government's evidence showed that he was trying to sell the gun. The district

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court imposed the firearm enhancement, but did not explain its reasoning.

The consecutive sentence issue stemmed from an Ohio state conviction for drug possession several months before Defendant's arrest in this case. The state court sentenced Defendant to 11 months' imprisonment, and further ordered that its sentence run consecutively to Defendant's federal sentence in this case. However, at the time the state court sentenced Defendant, his federal sentence had not yet been imposed. Defendant asserted to the district court that the state court's consecutive sentence violated Ohio law and asked for a downward variance to account for this error. The district court did not contest Defendant's characterization of Ohio law, but told him that state court was the proper forum for his argument.

The four-point firearm enhancement increased Defendant's total offense level to 24. Combined with Defendant's Criminal History Category of VI, this resulted in a Guidelines sentence range of 100-125 months. The district court carefully considered Defendant's extensive criminal history and sentenced him to 100 months' imprisonment, to run consecutive to his already-imposed state sentence.

DISCUSSION

Defendant contests four of the district court's rulings: the district court's denial of Defendant's motions for discovery; its denial of his motion to dismiss; the application of the four-point firearm enhancement; and the court's failure to consider the already-imposed state sentence. We address each in turn.

A. Defendant's Motions for Discovery

Defendant first argues that the district court should have granted his two motions for discovery, which sought information to impeach Powell, as well as information concerning his whereabouts. We review the district court's denial of these motions abuse of discretion, see United States v. Jenkins, 4 F.3d 1338, 1341 (6th Cir.1993), and affirm.

Defendant's motions suffer from a fatal flaw— Powell did not testify at the suppression hearing or at trial. Defendant cites no law to support the proposition that he was entitled to impeachment material for a witness not called by either party. Although Defendant relies on Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), that case does not help his argument. In Roviaro, the Supreme Court held that, under certain circumstances, the government can be required to reveal the identity of a confidential informant, even though the government generally has the authority to withhold this information. See id. at 60-61, 77 S.Ct. 623. Defendant, however, knew Powell's identity and his status as a confidential informant prior to the suppression hearing. Nor has Defendant carried his burden in establishing that the government withheld material information favorable to his defense in violation of its Brady and Giglio obligations. See United States v. Graham, 484 F.3d 413, 417 (6th Cir.2007). Defendant speculates that Powell's two unsignaled turns were a ruse schemed up by Detective Welsh to manufacture probable cause. But this speculation is just that— speculation. Defendant also cites nothing to support his request for information concerning Powell's whereabouts. In sum, the district court did not abuse its discretion in denying Defendant's motions for discovery.

B. Defendant's Motion to Suppress

Defendant next contends that the district court should have suppressed the evidence seized after his arrest— namely, the handgun, crack cocaine, and hydrocodone

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pills. " When reviewing a district court's decision on a motion to suppress, we review its findings of fact for clear error and its legal conclusions de novo." United States v. Lyons, 687 F.3d 754, 762 (6th Cir.2012). " A factual finding is clearly erroneous when a court, on reviewing the evidence, is left with the definite and firm conviction that a mistake has been committed." United States v. Gunter, 551 F.3d 472, 479 (6th Cir.2009) (quotation marks omitted). And when " a district court denies a motion to suppress, we consider the evidence in the light most favorable to the government." United States v. Moon, 513 F.3d 527, 536-37 (6th Cir.2008) (quotation marks omitted).

Although...

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