U.S. v. Corbin, 92-1459
| Decision Date | 08 July 1993 |
| Docket Number | No. 92-1459,92-1459 |
| Citation | 998 F.2d 1377 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Willie CORBIN, Jr., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Steven D. DeBrota, Office of the U.S. Atty., Indianapolis, IN, for plaintiff-appellee.
Patrick Stern, Indianapolis, IN, for defendant-appellant.
Before MANION and ROVNER, Circuit Judges, and ESCHBACH, Senior Circuit Judge.
Willie Corbin, Jr., pled guilty to being a felon in possession of a firearm. After an evidentiary hearing, the district court found that Corbin had committed an aggravated assault while possessing the gun and calculated Corbin's sentence as if he had been convicted of that offense. Corbin contends that the district court erred in four ways: (1) in calculating the sentence, the court entertained evidence of a crime (aggravated assault) not charged in the indictment; (2) the court relied upon hearsay in finding that Corbin had committed an aggravated assault; (3) the court required only clear and convincing evidence of the aggravated assault rather than proof beyond a reasonable doubt; and (4) the court denied Corbin a two-level reduction for the acceptance of responsibility. We find none of these arguments to be meritorious and affirm.
On June 8, 1991, Corbin was arrested in possession of a .32 Smith & Wesson caliber Clerke 1st revolver in Kokomo, Indiana. A grand jury subsequently indicted Corbin, a convicted felon, on charges that he knowingly possessed a firearm that had moved in interstate commerce and that also had an obliterated serial number. See 18 U.S.C. §§ 922(g)(1), 922(k). Corbin elected to plead guilty to the felon-in-possession charge, and the government dropped the obliterated serial number charge.
On January 31, 1992, District Judge Sarah Evans Barker conducted both a plea and sentencing hearing. 1 After the government proffered the factual basis for Corbin's plea, Corbin acknowledged that he had been arrested in possession of the gun and that he had a prior felony conviction. (Tr. at 20-21.) 2 The district court accepted the guilty plea, finding that Corbin was competent to offer a plea and that the plea was both knowing and voluntary. (Id. at 21-22.)
The focus of the proceeding then shifted to the circumstances surrounding Corbin's possession of the gun. In the presentence report, the probation officer had applied a cross-referencing provision of the guideline governing firearms offenses and calculated the sentencing range as if Corbin had been convicted of unlawful restraint. See United States Sentencing Commission, Guidelines Manual, § 2K2.1(c)(1)(A) (Nov. 1991). 3 The government agreed that Corbin's sentence should be calculated using the guideline governing unlawful restraint or, in the alternative, aggravated assault. Corbin argued that because he had pled guilty only to a felon-in-possession charge, he should be sentenced based on that offense alone. The district court concluded that cross-referencing was appropriate and allowed the parties to present evidence as to the circumstances that culminated in Corbin's arrest. (Tr. at 44.)
Corbin concedes that he had a gun in his possession when he was arrested on June 8, 1991. 4 Corbin also acknowledges that prior to the arrest, he had been in the company of Earl Davis, Rodney Killibrew, and Lanette Eason, whom he had once dated. Corbin maintains that all of them had been together drinking heavily since the night before, that he and Eason had used cocaine, and that Killibrew had smoked marijuana. According to Corbin, the group ended up at Killibrew's apartment, where Corbin picked up a revolver that was laying about, waived it around for a while, and eventually left the apartment with the gun in his back pocket. Shortly thereafter, police officers arrived at the scene and arrested Corbin with the gun still in his pocket. The gun was not loaded, and Corbin describes it as "non-functional." He contends that Killibrew and Eason knew the gun was harmless. (Corbin Br. at 3.)
The government has portrayed a different scenario, which the district court credited after hearing the evidence. The government elicited testimony from three witnesses: Detective Sergeant David Mitchell and Lieutenant Thomas A. DiNardo of the Kokomo Police Department, and Agent B. David Gilbert of the Bureau of Alcohol, Tobacco and Firearms. In addition, the court admitted into evidence Eason's sworn statement. 5
In her statement, Eason explained that she and Corbin had been romantically involved a year before the incident and had lived together briefly. Eason said she ultimately had broken off the relationship and that she had had difficulty with Corbin since that time.
Eason described the events of June 8, 1991 as follows. She had visited Killibrew's apartment to style his hair. Davis and Benny Pollard were there also. Corbin entered the apartment uninvited, pressed a gun against the corner of her eye, and demanded that she leave with him. Killibrew attempted to intervene, but Corbin warned him: "[M]an, I'll shoot you too." Eason was frightened, not knowing whether the gun was loaded, so she began to leave the apartment with Corbin. However, she was able to break away from him briefly when Killibrew and Corbin began to scuffle. Eason told Pollard to call the police, ran down the stairs of Killibrew's building, and tried to hide next to some bushes. However, Corbin caught up with her, telling her "[S]top girl, ... I'm not going to hurt you I just want to talk to you" and "I just want my woman with me." Eason wanted "nothing to do with him." By this time, Corbin had the gun in his back pocket. It was at this point in the encounter that the police apparently arrived and arrested Corbin.
Lieutenant DiNardo recounted the following sequence of events. He and Sergeant Richard Nutt were driving in the area of Killibrew's apartment shortly before 5:00 p.m. on June 8 when Earl Davis came running from between several houses and flagged their car down. Davis was very agitated and told the officers, "You better get him before he kills someone!" Davis explained there had been a problem involving Corbin, indicated that Corbin had a gun, and pointed them in the direction of an apartment building where Corbin and the others remained. DiNardo and Nutt drove to that building. When they radioed in their location upon arrival, the police dispatcher informed them that someone else had also reported a disturbance at the same location.
The officers could hear screaming and yelling coming from the rear of the building as they approached, and they soon discovered four individuals--Corbin, Eason, Killibrew, and Larry Harrison 6--in the midst of a verbal altercation. DiNardo ordered all four to place their hands against an adjacent wall, and when Corbin complied, DiNardo noticed a revolver protruding from his back pocket. Nutt took the gun from Corbin. He and DiNardo then searched everyone and attempted to determine what had happened.
Eason "was crying, somewhat disoriented, and appeared to be in an emotional state." DiNardo observed a "round reddened spot" near her left eye that he believed to be consistent with the caliber of the gun taken from Corbin. Eason informed DiNardo that Eason told DiNardo she had feared for her life. She agreed to be interviewed further at the police station.
Corbin, who was also in an emotional state, repeatedly interrupted DiNardo's interview with Eason and attempted to plead his case. When Nutt attempted to calm him down, Corbin became argumentative and Nutt arrested him.
DiNardo and another police officer also interviewed Killibrew briefly. DiNardo said he observed a red mark on Killibrew's face as well. Killibrew told DiNardo that he had fought with Corbin on a porch outside Killibrew's second-story apartment and that Corbin had struck him in the head with a gun during the fracas.
Detective Sergeant Mitchell interviewed Eason when she arrived at the police station. Like DiNardo, Mitchell noticed a small, circular, red swelling beneath her left eye that was about the size of a dime. Mitchell thought the mark was "somewhat consistent" with the size of a .32 caliber handgun. Mitchell explained that he interviewed Eason informally at first, but later took a formal statement from her that was recorded and eventually transcribed. Eason reviewed the transcribed statement with him two days later and signed it in his presence. Mitchell maintained that the statement accurately reflected what Eason had told him, and although he acknowledged that he and Eason had discussed some matters that were not included in the statement, Mitchell represented that nothing Eason had said to him was inconsistent with her statement. Mitchell also indicated that Eason never said anything suggesting that she believed Corbin's gun was defective.
Although for the most part Mitchell did not recount the substance of his conversations with Eason, he was asked to describe two prior incidents involving Corbin and Eason. On direct examination, Mitchell testified that Eason told him she had run into Corbin on the street on the day before the June 8 incident. Corbin had brandished a gun and demanded that she sit with him. Eason said she felt compelled to sit and talk with Corbin for about an hour, until her mother happened to drive by and pick her up. On both cross- and redirect examination, Mitchell recounted a second incident that had occurred between three and eight weeks earlier. Eason said she had been sitting in a vehicle with a friend when Corbin threatened to remove her forcibly. Eason had responded by stabbing Corbin in the arm.
Mitchell had also interviewed Killibrew, 7 who said that Eason had been at his...
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