United States v. Sandidge

• Decision Date: 20 April 2015
• Docket Number: No. 14–1492.,14–1492.
• Citation: 784 F.3d 1055
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Kenneth SANDIDGE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

784 F.3d 1055

UNITED STATES of America, Plaintiff–Appellee

v.Kenneth SANDIDGE, Defendant–Appellant.

No. 14–1492.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 5, 2014.

Decided April 20, 2015.

Nicholas Padilla, Attorney, Office of the United States Attorney, Hammond, IN, for Plaintiff–Appellee.

Daniel J. Hillis, Attorney, Office of the Federal Public Defender, Springfield, IL, Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant–Appellant.

Before FLAUM, EASTERBROOK, and KANNE, Circuit Judges.

Opinion

KANNE, Circuit Judge.

In December 2013, Appellant Kenneth Sandidge pled guilty to one count of being a felon in possession of a firearm. On appeal, he raises four challenges to his sentence. He argues that the district court erred: (1) in applying a 4–level enhancement to his base offense level; (2) in denying him a 3–level reduction in his base offense level; (3) in imposing his federal sentence to run consecutively with an undischarged state sentence; and (4) in imposing a number of conditions of supervised release. For the reasons that follow, we affirm in part and vacate and remand in part.

I. Background

During the early morning hours of April 22, 2012, sheriff's deputies from Lake County, Indiana, responded to an emergency call on the 4400 block of Grant Street in Gary, Indiana. During that response, the officers discovered and confiscated a loaded .32 caliber Smith & Wesson revolver in Sandidge's residence. Because Sandidge had previously been convicted of a crime punishable by a term of imprisonment exceeding one year, subsection (g)(1) of 18 U.S.C. § 922 prohibited him from possessing that firearm. Sandidge pled guilty to one count of violating that statute on December 2, 2013, pursuant to an open plea.

The U.S. Probation Department (“Probation”) prepared a presentence investigation report (“PSR”) in advance of Sandidge's sentencing hearing. Probation calculated a base offense level of 20, per U.S.S.G. § 2K2.1(a)(4), because Sandidge obtained this felon-in-possession conviction after having previously been convicted of a crime of violence.¹

Probation recommended applying a 4–level enhancement to Sandidge's base offense level, pursuant to U.S.S.G. § 2K2.1(b)(6)(B). That section provides for a 4–level increase to a defendant's base offense level if he used or possessed the subject firearm “in connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). Probation contended that during the incident that led to the April 22 emergency call, Sandidge had pointed the loaded revolver at another person. If he had, that would constitute a felony violation of Indiana law, and would render him eligible for the 4–level enhancement. See I.C. 35–47–4–3(b) (“A person who knowingly or intentionally points a firearm at another person commits a Class D felony.”). Sandidge timely submitted written objections to the application of this enhancement.

Per U.S.S.G. § 3E1.1, Probation also recommended a 3–level reduction to Sandidge's base offense level for acceptance of responsibility. This, combined with the 4–level enhancement, resulted in a recommended offense level of 21. Sandidge had 10 criminal history points, and a consequent criminal history category of V. Sandidge's resultant recommended Guidelines range was 70 to 87 months' imprisonment.

A. Officer William Poe's Testimony

Sandidge's sentencing hearing was held on February 26, 2014. First at issue was the imposition of the 4–level firearm enhancement. In order for the enhancement to apply, the government was required to prove by a preponderance of the evidence that Sandidge had pointed the loaded firearm at another person. That fact would establish that the firearm was used “in connection with another felony” under U.S.S.G. § 2K2.1(b)(6)(B). Sandidge denied having done so.

The government offered the testimony of two witnesses, as well as documentary evidence, to prove the conduct underlying the enhancement. The district court first heard testimony from Officer William Poe of the Lake County Sheriff's Department. Through direct and cross-examination, as well as through questioning by the district judge, Officer Poe testified to the following account of the events of April 22, 2012.

At 3:26 a.m., Officer Poe was dispatched to 4454 Grant Street in Gary, Indiana. The dispatch was based on an emergency call reporting that a female subject was running and screaming down Grant Street. She was knocking on doors, begging for help and for someone to call the police. Officer Poe made contact with the subject—Barbara Harris—as soon as he arrived. Consistent with the initial report, Officer Poe found Harris crying, distraught, and frightened.

Harris told Officer Poe that a black male had chased her with a gun and had attempted to kill her. She recounted that she had been drinking with that man, whom she knew as “Kenny Mo,” and that she had fled from his residence. While she did not know the precise address of the house, she was able to provide Officer Poe with its general location and description. Officer Poe placed Harris in the back of his police vehicle, and they began to drive up Grant Street toward the residence.

As Officer Poe and Harris drove, another sheriff's deputy, Officer Solomon, stopped a black male who was riding a bicycle along Grant Street. Officer Solomon identified the subject as Kenneth Sandidge. The officer ran a warrant check on Sandidge and released him when no warrants were discovered. Officer Poe and Harris witnessed that stop from inside Officer Poe's police vehicle.² From her vantage point in the vehicle, Harris indicated that she could not get a good look at the subject who was stopped, so she could not say whether Sandidge was the man she knew as Kenny Mo.

Officer Poe and Harris then continued to drive along Grant Street and ultimately arrived at the residence identified by Harris as Kenny Mo's. After running the license plate of a vehicle parked in front, Officer Poe discovered it was registered to Kenneth Sandidge. He pulled up a photo of Sandidge on his in-vehicle computer system, and Harris identified him as Kenny Mo.

Officer Poe called for backup officers, and as he waited for them to arrive, Harris provided the following additional details of the evening's events. According to Harris, earlier that evening, Sandidge had picked her up from her home and brought her to his Grant Street residence. While seated on a leather couch in Sandidge's living room, the two had a few drinks. Sandidge drank wine, and Harris drank two shots of vodka. Harris described the layout of Sandidge's home and stated that a black dog was chained in the kitchen area. She also stated that Sandidge told her he had recently been released from jail.

At some point in the evening, Sandidge went into his bedroom to change clothes and emerged wearing a robe. He then told Harris to take off her clothes and make herself comfortable. After advising Sandidge that she “wasn't there for that,” Harris tried to leave. A struggle ensued, with Sandidge pulling Harris's jacket and pushing her down on the couch. He went back into his bedroom and returned holding a silver revolver, which he pointed at Harris's head. He told her she was not leaving, and that “[people] are dropping like flies around here. I'm not playing with you.”

Sandidge then sat down next to Harris on the couch and advised her to “give him head.” Harris refused, and another struggle ensued. She was able to escape from the residence through the front door as Sandidge threatened to release his dog on her. She ran down Grant Street, and was able to gain the assistance of another resident, who called the police. Harris told Officer Poe that she did not engage in any sexual activity with Sandidge, despite his attempts to force such contact.

When Officer Solomon arrived as backup, he and Officer Poe made contact with Sandidge at his residence. Sandidge first denied any involvement with Harris. After continued discussion, Sandidge changed his story, saying that Harris had been there to clean his house. He stated that she left because she became ill. After being questioned as to why Harris would be cleaning Sandidge's home at 3:00 in the morning, Sandidge stated that he would “come out and tell the truth.” He said that he and Harris had first been drinking at the home of another individual, and had then relocated to Sandidge's house. He acknowledged that he was “trying to hook up with” Harris, hoping to engage in sexual intercourse or oral sex. She had become ill, however, and left. When asked why he had been riding his bike down the block at 3:00 in the morning, Sandidge told Officer Poe that he “does that sometimes.”

In Sandidge's living room, the officers discovered in plain view a silver .32 caliber Smith & Wesson revolver wedged between the cushions of a leather couch. It was fully loaded. The officers seized the weapon, and Harris identified that firearm as being the one Sandidge pointed at her during their encounter.

B. Other Evidence Offered at the Sentencing Hearing

Following Officer Poe's testimony, the court then heard testimony from Special Agent Jason Gore of the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”). Agent Gore conducted a recorded interview of Harris in October 2012. He testified to the following account of that interview.³

On April 22, Harris was at the home of a man named Don, along with several other individuals, when Sandidge arrived. Sandidge came with the apparent purpose of selling crack cocaine. Sandidge collected money from those present who wished to buy crack. He indicated that he would leave to make the buy and would return with the drugs. Harris accompanied Sandidge in order to ensure he did not abscond with the money or the drugs.

After completing the drug buy, Harris and Sandidge drove to Sandidge's house. Sandidge indicated that he needed to feed his dog and complete a few other short errands. Sandidge and Harris had a few drinks. At some point,...