U.S. v. Goodman

• Decision Date: 17 March 2008
• Docket Number: No. 06-5513.,06-5513.
• Citation: 519 F.3d 310
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marvin GOODMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

519 F.3d 310

UNITED STATES of America, Plaintiff-Appellee, v. Marvin GOODMAN, Defendant-Appellant.

No. 06-5513.

United States Court of Appeals, Sixth Circuit.

Submitted: March 14, 2008.

Decided and Filed: March 17, 2008.

ON BRIEF: James E. Thomas, Law Office of James E. Thomas, Memphis, Tennessee, for Appellant. Steven S. Neff, Assistant United States Attorney, Chattanooga, Tennessee, for Appellee.

Before MOORE, GILMAN, and SUTTON, Circuit Judges.

OPINION

KAREN NELSON MOORE, Circuit Judge.

In this case the defendant, Marvin Goodman ("Goodman"), challenges the district court's use of a 1993 Tennessee escape conviction for an enhancement to his sentence under the Armed Career Criminal Act ("ACCA"). Although it is possible that a Tennessee court might no longer consider a violation of house arrest to qualify as an escape under Tennessee law, precedent binds us to consider that conviction a violent felony until such time that Goodman can overturn or expunge that conviction. Goodman also challenges the district court's decision to give him a one-level enhancement for possessing a firearm in connection with a controlled-substance offense. The evidence before the district court did not establish that the firearm was possessed in connection with a controlled-substance offense. We therefore VACATE Goodman's sentence and REMAND to the district court for resentencing consistent with this opinion.

I. BACKGROUND

According to the government's April 20, 2005 statement of factual basis in support of the proposed guilty plea, to which defendant Goodman agreed, the Athens Police Department responded to a 9-1-1 call on August 2, 2004, which reported the firing of shots. When the police arrived, they found one person lying dead on the property and Goodman inside the residence with the victim's girlfriend, Kim Arnwine ("Arnwine"). In addition, the "[o]fficers found a pistol on the couch inside the residence." Joint Appendix ("J.A.") at 19 (Guilty Plea Factual Basis ¶ a).

According to Goodman, he and the victim left the residence and were heading outside to a parked van, but after Goodman reached the van, "he heard several shots fired." Id. Goodman searched for his compatriot and discovered the victim's body lying on the ground. Goodman stated that "he thought he saw someone and while jumping up to run, slipped on a gun. . . . [Goodman] picked up the gun, put it under his arm and then in his waistband, and went inside the house, where he dropped the gun onto the sofa. . . ." J.A. at 19-20 (Guilty Plea Factual Basis ¶ a). "The weapon [officers] found which the defendant admitted to possessing was not the murder weapon." J.A. at 20 (Guilty Plea Factual Basis ¶ a).

The government-filed factual basis also states that Arnwine told police that she had observed the victim with a gun earlier in the day. Furthermore, the factual basis reports that Arnwine stated to the police that the gun was gone when Goodman and the victim left to sell crack cocaine. J.A. at 20 (Guilty Plea Factual Basis ¶ b). In addition, the factual basis asserts that "[h]ad this case proceeded to trial, the United States would have called multiple witnesses who would have testified that [Goodman and the victim] had been selling crack cocaine together in a nearby park and were engaged in an argument with some other narcotics traffickers from Athens immediately prior to the shooting." J.A. at 20 (Guilty Plea Factual Basis ¶ c).

On October 26, 2004, a grand jury indicted Goodman for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). J.A. at 7 (Indictment at 1). The indictment further alleged that Goodman had at least three prior felony convictions that satisfied the ACCA under 18 U.S.C. § 924(e). J.A. at 7 (Indictment at 1).

Goodman agreed to plead guilty, and on October 6, 2005, the district court held a hearing where Goodman revoked his initial not-guilty plea. At the rearraignment hearing, the district court asked Goodman whether the government's guilty-plea factual basis was accurate, to which Goodman responded "[m]ostly, sir." J.A. at 32 (Oct. 6, 2005, Rearraignment Hr'g Tr. at 9:7). Goodman apparently disagreed with Arnwine and wished to state that he had not been selling drugs prior to the shooting. See J.A. at 32-33 (Hr'g at 9:2-10:13). The district court, however, explained to Goodman that the factual basis stated only that Arnwine had given that statement to officers, not that Arnwine's statement was true. J.A. at 33-34 (Hr'g at 10:16-11:12). After the district court clarified that point, Goodman agreed to the factual basis. J.A. at 36 (Hr'g at 13:2-8).

Prior to sentencing, Goodman's Presentence Report ("PSR") recommended that the district court conclude that Goodman was an armed career criminal on the basis of four prior offenses, including a 1993 escape conviction. J.A. at 81 (PSR ¶ 27). In addition, the PSR recommended that the district court conclude that the firearm was possessed "in connection with . . . a controlled substance offense," which would yield a base offense level of 34. 2004 U.S. Sentencing Guidelines Manual ("U.S.S.G.") § 4B1.4(b)(3)(A); J.A. at 81-82 (PSR ¶ 27). Had the PSR not recommended that the district court conclude that the firearm was possessed in connection with a controlled-substance offense, then Goodman's base offense level would have been 33, not 34. U.S.S.G. § 4B1.4(b)(3)(B). The PSR also recommended a three-level deduction for acceptance of responsibility. J.A. at 82 (PSR ¶ 28). Thus, the PSR recommended a Guideline range of 188 to 235 months of imprisonment. J.A. at 91 (PSR ¶ 66).

Goodman filed several objections to his PSR. Goodman objected to the predicate offenses used to establish his eligibility for a sentence as an armed career criminal. J.A. at 94-106 (Objections to PSR at 1-13). In response, the probation officer accepted one of the objections, removing reference to a conviction for attempting to sell cocaine. J.A. at 127 (Supp. Addendum to PSR at 2). Goodman also objected to the PSR's reference to the alleged drug trafficking that appeared in paragraph c of Goodman's factual basis, claiming that it was not relevant to the felon-in-possession conviction. J.A. at 106 (Objections to PSR at 13). The probation officer, however, concluded that the reference to the alleged drug trafficking was appropriate because Goodman agreed to the factual basis, which mentioned the alleged trafficking. J.A. at 127 (Supp. Addendum to PSR at 2). Goodman also objected to the PSR's alternative calculation that would apply only if the district court did not sentence Goodman under the ACCA. J.A. at 107 (Objections to PSR at 14).

On March 24, 2006, the district court held Goodman's sentencing hearing. At the hearing, Goodman objected to the use of his 1993 conviction for escape as a prior violent felony for purposes of the ACCA. J.A. at 48 (Mar. 24, 2006, Sent. Hr'g Tr. at 11:9-22). Although he conceded that the district court was not allowed to pry into the factual details of the 1993 conviction, Goodman claimed that the district court could still consider some records from that conviction, such as the charging document, the plea colloquy, and other factual findings. See J.A. at 46 (Sent. Hr'g Tr. at 9:13-20). Because the escape conviction was for violating house arrest, J.A. at 44 (Sent. Hr'g Tr. at 7:4-7), Goodman argued that the district court should not consider the conviction to be a violent felony. The government responded by saying that "escape constitutes a violent felony, regardless of what the circumstances were in terms of how he escaped or what he had to do in order to escape. None of that matters." J.A. at 51 (Sent. Hr'g Tr. at 14:2-4).

At the hearing, Goodman did not initially mention his objection regarding the PSR's non-ACCA calculation, but the government did offer its own gloss on that objection. The government believed that even if the district court concluded that Goodman was eligible for sentencing under the ACCA, Goodman's objection was relevant to the PSR's use of § 4B1.4(b)(3)(A), which gave a base offense level of 34, as opposed to 33, for Goodman's alleged possession of the firearm in connection with a controlled-substance offense. J.A. at 59 (Sent. Hr'g Tr. at 22:3-7) ("I think that that is still a relevant objection even if the defendant is determined to be an armed career criminal, because I believe it would make the difference between whether he's a Level 34 or a Level 33."). The district court then restated the government's interpretation of the argument, to which Goodman's counsel responded "Judge, that's basically correct." J.A. at 61 (Sent. Hr'g Tr. at 24:1-9).

It is not clear whether the district court proceeded to address Goodman's non-ACCA objection or instead addressed the government's ACCA-based gloss on the original objection. In any event, the district court first restated the government's position that Goodman did not dispute the facts underlying the conviction, J.A. at 61 (Sent. Hr'g Tr. at 24:1-4), but Goodman then indicated that he wanted to make a statement. J.A. at 61 (Sent. Hr'g Tr. at 24:8-19). Goodman attempted to take the stand to explain his factual disagreement, but as he did so the district court reminded Goodman that he was under oath when he made his guilty plea. J.A. at 61 (Sent. Hr'g Tr. at 24:23-24). The district court reiterated the agreed-upon factual basis, stating "[l]ater on it indicates that the United States would have put on evidence through the use of multiple witnesses who would have testified that you and the shooting victim had been selling crack cocaine together in a nearby park and were engaged in an argument with some other narcotics traffickers from Athens immediately prior to the shooting." J.A. at 62 (Sent. Hr'g Tr. at 25:7-13). The district court then warned Goodman that "[s]ometimes defendants, once they come to sentencing, will make some statements that are contrary to either what's in the factual basis or to the...