United States v. Bradford, 14–3866.

• Decision Date: 03 December 2015
• Docket Number: No. 14–3866.,14–3866.
• Citation: 806 F.3d 1151
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Michael L. BRADFORD, also known as Derrick Lamont Brown, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

806 F.3d 1151

UNITED STATES of America, Plaintiff–Appellee

v.Michael L. BRADFORD, also known as Derrick Lamont Brown, Defendant–Appellant.

No. 14–3866.

United States Court of Appeals, Eighth Circuit.

Submitted: Sept. 25, 2015.

Filed: Dec. 3, 2015.

Rebecca L. Kurz, Research and Writing Specialist, Office of the Fed. Public Defender, Kansas City, MO, argued (Laine Cardarella, Fed. Public Defender, Ronna A. Holloman–Hughes, Asst. Fed. Public Defender, on the brief), for appellant.

Bruce A. Rhoades, Asst. U.S. Atty., Kansas City, MO, argued (Tammy Dickinson, U.S. Atty., Lajuana M. Counts, Philip M. Koppe, Asst. U.S. Attys., on the brief), for appellee.

Opinion

WOLLMAN, Circuit Judge.

Michael L. Bradford pleaded guilty to two counts of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1)and 924(a)(2), and one count of distribution and possession with intent to distribute a mixture or substance containing PCP and marijuana, in violation of 21 U.S.C. § 841(a)(1)and (b)(1)(C). Bradford appeals, arguing that the district court¹erred in denying his motions for a subpoena ad testificandumand a subpoena duces tecum.We affirm.

I. Background

In late 2011, a joint task force of federal and local authorities established a covert storefront operation. According to Special Agent Tyree Koerner of the Bureau of Alcohol, Tobacco, Firearms and Explosives, the purpose of the operation was “[t]o take illegal firearms off the street.”

Bradford sold or facilitated the sale of drugs and firearms to the storefront operation. In late September 2012, Bradford contacted an undercover agent and told him that a friend was willing to sell hand grenades. Bradford thereafter brought David LaBlance to the storefront, where Bradford facilitated the sale of a nonfunctioning grenade by LaBlance to an undercover agent. On October 30, 2012, LaBlance was found dead, having been shot twice in the head.

On November 1, 2012, Bradford called a confidential informant, telling him that he had a “dirty” firearm for sale. The confidential informant instructed Bradford to bring the firearm to the storefront on the following Monday, which he did. Bradford sold the firearm—a Llama .38 caliber revolver—to an undercover agent. When asked by the agent about the LaBlance murder, Bradford replied that he had been with him the morning of October 30, but that they later had separated. Bradford also said that he thought LaBlance was getting in “over his head.”

It was later determined that the Llama .38 caliber revolver had been used in LaBlance's murder, testing having revealed that the two bullets recovered from LaBlance's head matched the firearm. A bullet from an earlier gunshot woundwas found in LaBlance's hip.

Bradford was arrested and later charged in a five-count superseding indictment. He entered into a written plea agreement with the government. The agreement included an appeal waiver and a binding sentencing recommendation of no less than 180 months' imprisonment and no more than 300 months' imprisonment. Bradford thereafter pleaded guilty to the three counts set forth above, and the remaining charges were dismissed.

The presentence investigation report (PSR) applied § 2K2.1(a)–(b) of the U.S. Sentencing Guidelines Manual(Guidelines), which sets forth the base offense level for the unlawful possession of firearms and the specific offense characteristics that increase or decrease the base offense level. The PSR did not apply the cross-reference set forth in § 2K2.1(c)(1)(B), which instructs the district court to apply “the most analogous offense guideline” from the homicide subpart, 2A1, when the defendant used any firearm in connection with the commission of another offense, death resulted, and the resulting offense level is greater than the one determined without the cross-reference. The government argued that the cross-reference should apply because Bradford used the Llama .38 caliber revolver in the murder of LaBlance, the most analogous offense guideline was § 2A1.2 (second-degree murder), and Bradford's offense level under § 2A1.2 was greater than his offense level under § 2K2.1(a)–(b).

Bradford filed two pre-sentencing ex partemotions for subpoenas.²The first requested a subpoena ad testificandumthat would require Bradford's father to appear at the sentencing hearing for the purpose of testifying “to his contact with Michael Bradford on October 30, 2012 and October 31, 2012.” The second requested a subpoena duces tecumthat would require the Truman Medical Center to release “medical records related to treatment of David LaBlance ... related to gunshot woundsbetween the dates of October 29, 2011 and October 29, 2012.” The district court denied the motions.

At sentencing, defense counsel proffered that on October 30, the night of LaBlance's murder, Bradford's family had gathered to discuss what might happen in a criminal case pending against Bradford's father. Counsel stated:

It's not an alibi, because nobody can say [Bradford] was there at the time of the murder. So absolutely not an alibi. But they can say that he spent a good portion of his time that evening with them.

And I think it helps establish the fact that he's not thinking about going out and murdering somebody. He's actually very concerned about his father who then the next day pled guilty in a rape case in Jackson County and went to prison.

The government did not object to the proffer, and the district court accepted it. In support of the § 2K2.1(c)(1)(B)cross-reference, the government presented the testimony of Special Agent Koerner and a time line of events linking Bradford to LaBlance's murder. During cross-examination, defense counsel asked Koerner about the bullet found in LaBlance's hip. Koerner testified that, according to the forensics report, the bullet “was from a previous gunshot woundthat was never pulled out.”

The district court found that the evidence supported the § 2K2.1(c)(1)(B)cross-reference to § 2A1.2, which resulted in an advisory Guidelines sentencing range of 292 to 365 months' imprisonment. The district court sentenced Bradford to 300 months' imprisonment, the maximum term allowed under the plea agreement.

II. Discussion

A. Appeal Waiver

The government argues that Bradford's appeal should be dismissed because it falls within the scope of the appeal waiver set forth in his plea agreement. We generally will enforce an appeal waiver “as long as the appeal falls within the scope of the waiver, and the defendant's accession to the plea agreement and the waiver was knowing and voluntary.” United States v. Azure,571 F.3d 769, 772 (8th Cir.2009). The government bears the burden of establishing that the plea agreement clearly and unambiguously waives the defendant's right to appeal. United States v. Andis,333 F.3d 886, 890 (8th Cir.2003)(en banc). We conclude that the government did not meet that burden here.

The waiver in Bradford's plea agreement states, in relevant part:

The defendant expressly waives the right to appeal any sentence, directly or collaterally, on any ground exceptthe following five (5) claims: ... (3) an illegal sentence;.... An “illegal sentence” includes a sentence imposed in excess of the statutory maximum or different from the range recommended in this binding plea agreement, but does notinclude less serious sentencing errors, such as a misapplication of the Sentencing Guidelines or an abuse of discretion.

The government argues that the plea agreement gives the term “illegal sentence” the same meaning as our en banc court gave the term in United States v. Andis,in which we stated that we will “refuse to enforce an otherwise valid waiver if to...