U.S. v. Hoosier

• Decision Date: 05 April 2006
• Docket Number: No. 04-6297.,04-6297.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Mark Van HOOSIER, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 939

442 F.3d 939

UNITED STATES of America, Plaintiff-Appellant, v. Mark Van HOOSIER, Defendant-Appellee.

No. 04-6297.

United States Court of Appeals, Sixth Circuit.

Argued: March 14, 2006.

Decided and Filed: April 5, 2006.

ARGUED:

Michael A. Rotker, United States Department of Justice, Washington, D.C., for Appellant. Jerry H. Summers, Summers & Wyatt, Chattanooga, Tennessee, for Appellee.

ON BRIEF:

Michael A. Rotker, United States Department of Justice, Washington, D.C., Perry H. Piper, Assistant United States Attorney, Chattanooga, Tennessee, for Appellant. Jerry H. Summers, Summers & Wyatt, Chattanooga, Tennessee, for Appellee.

Before: MARTIN, SILER, and CLAY, Circuit Judges.

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

In this case, Mark Van Hoosier pled guilty to a four-count indictment involving manufacturing methamphetamine and possession of a firearm in connection with a drug trafficking crime. The district court accepted Van Hoosier's guilty plea and proceeded to sentence him pursuant to the five-year mandatory minimum required for possession of a firearm in connection with a drug trafficking crime under 18 U.S.C. § 924(c)(1)(A)(i). The government now appeals alleging that Van Hoosier ought to have been sentenced pursuant to the ten-year mandatory minimum contained in 18 U.S.C. § 924(c)(1)(B)(i). For the reasons stated below, we REVERSE the district court's judgment and remand the case for imposition of the ten-year mandatory minimum.

I.

On June 5, 1998, two DEA agents received information that methamphetamine was being manufactured on or near the property of Stanley Layne. The agents knew that Layne previously owned several acres of land in Grundy County that had been forfeited to the United States government. The two agents went to the property and while searching for evidence of a methamphetamine lab, they encountered a man, later identified to be Van Hoosier, on an ATV. Van Hoosier had a propane torch, and a .45 caliber pistol strapped to the front of his ATV a cooler. Van Hoosier informed the agents that he was waiting for his friend who had fallen behind. When one of the agents approached Van Hoosier he fled on his ATV. Soon after the agents spotted another man, later identified to be James "Dobber" Green, on another ATV. Green was wearing a back pack and had a canvas sports bag and an SKS assault rifle strapped to the back of his ATV. Green was apprehended by the agents while attempting to flee.

On December 14, 1999, Van Hoosier and Green were charged with four counts relating to the events of June 5, 1998. Count one of the indictment alleged that Van Hoosier and Green conspired to manufacture methamphetamine. Count two alleged that Van Hoosier and Green aided and abetted one another in the manufacture of methamphetamine. Count three alleged that the two aided and abetted one another in the possession of equipment, chemicals, products and materials which may be used to manufacture methamphetamine. Finally, count four stated that:

The Grand Jury Further charges that on or about June 5, 1998, in the Eastern District of Tennessee, the defendant MARK VAN HOOSIER, and Jimmy "Dobber" Green (not charged herein), aided and abetted by each other, did knowingly carry firearms; that is, a .45 caliber semi-automatic handgun and an SKS assault rifle, during and in relation to a drug trafficking crime; that is, the conspiracy to manufacture methamphetamine, as charged in Count One of this Indictment; the attempt to manufacture of methamphetamine, as charged in Count Two of this indictment; and the knowing and intentional possession of equipment, chemicals, products and materials which may be used to manufacture methamphetamine, as charged in Count Three of this indictment, and incorporated fully herein; in violation of Title 18, United States Code, Section 924(c).

Following his indictment, Green entered into a plea agreement with the government in which Green agreed to plead guilty to counts three and four of the indictment in exchange for the dismissal of the remaining counts. As to count four, Green admitted to carrying an SKS semiautomatic assault rifle during and in relation to a drug trafficking crime. Because of the rifle's semiautomatic nature, this offense normally carries a mandatory minimum sentence of ten years imprisonment. See 18 U.S.C. § 924(c)(1)(B)(i). As part of his plea agreement, however, Green was permitted to plead guilty to the lesser-included offense of carrying a firearm during and in relation to the charged drug offenses, a crime mandating a minimum sentence of only five years imprisonment. See 18 U.S.C. § 924(c)(1)(A)(i). Ultimately, Green was sentenced to seventy months imprisonment: a ten-month sentence on count three and a sixty-month sentence on count four.

In May 2000, Van Hoosier was released to the custody of his mother pending trial. On September 5, a magistrate judge issued a warrant for Van Hoosier's arrest and a show cause order as to why Van Hoosier's bond should not be revoked. The warrant was issued in response to a petition filed by Pretrial Services which alleged that Van Hoosier's mother had contacted Pretrial Services and informed them that Van Hoosier had absconded. Van Hoosier remained a fugitive for the next three years. On December 22, 2003, a Deputy U.S. Marshal located Van Hoosier and attempted to arrest him. Van Hoosier then engaged in a four-hour armed standoff with the marshal before finally being arrested.

Following Van Hoosier's arrest, he and the government engaged in plea agreement negotiations. A plea agreement was reached, but the plea agreement was rejected by the district court for lack of timeliness. Van Hoosier then decided to plead guilty to all four counts without the benefit of plea agreement. Prior to Van Hoosier's change-of-plea hearing, the prosecution drew up a document entitled "Factual Basis and Statutory Penalties." The document was signed by the prosecutor but not by Van Hoosier. The document reiterated the facts in the indictment, stating that Green was stopped while carrying an SKS assault rifle. The document also stated that count four (possession of a semiautomatic during the commission of a drug trafficking offense) carries "a mandatory minimum sentence of ten years which must run consecutively to any other sentence imposed." At Van Hoosier's change-of-plea hearing, Van Hoosier pled guilty to all four counts of the indictment, including count four where the following exchange occurred:

The Clerk: Count Four. The grand jury further charges that on or about June 5, 1998, in the Eastern District of Tennessee, the defendant, Mark Van Hoosier, and Jimmy "Dobber" Green, not charged herein, aided and abetted each other, did knowingly carry firearms, that is, a .45 caliber semiautomatic handgun and an SKS assault rifle, during and in relation to a drug trafficking crime, that is, the conspiracy to manufacture methamphetamine as charged in Count 1 of this indictment, the attempt to manufacture methamphetamine as charged in Count 2 of this indictment, and the knowing and intentional possession of equipment, chemicals, products, and materials which may be used to manufacture methamphetamine as charged in Count 3 of this indictment and incorporated fully herein, in violation of Title 18, United States Code, Section 924(c). How do you plead to Count 4, Mr. Van Hoosier—guilty or not guilty?

The Defendant: Guilty.

The district court then informed Van Hoosier as to the elements of each of the crimes to which he was pleading guilty. As to count four, the district court and Van Hoosier engaged in the following discussion:

[The Court]: With respect to Count 4, the elements are: (1) the defendant committed any one of the drug offenses charged in Counts 1, 2, or 3 of the indictment, and (2) during and in relation to the commission of that drug crime, the defendant knowingly carried a firearm.

Do you understand what it is you are pleading guilty to, Mr. Van Hoosier?

The Defendant: Yes, Sir.

The district court then had the prosecutor inform Van Hoosier of the maximum penalty on each count, including the fact that count four carried "a mandatory minimum sentence of 10 years, which must run consecutively to any other sentence." The district court asked Van Hoosier whether, knowing the penalties at issue, he still wished to plead guilty and Van Hoosier stated that he did. Finally, Van Hoosier also affirmed both that he had read the document entitled "Factual Basis and Statutory Penalties" drawn up by the government and that the information contained in the document was correct. The district court then accepted Van Hoosier's change of plea.

A Presentence Report was subsequently prepared by the Probation Department. The Report indicated that pursuant to 18 U.S.C. § 924(c)(1)(B)(i), the mandatory minimum sentence for count four was ten years, to be served consecutive to the sentence imposed for counts one through three. Neither Van Hoosier nor the government objected to the Presentence Report.

Prior to his sentencing hearing, Van Hoosier filed a motion for a downward departure based on the disparity between his likely sentence of at least ten years pursuant to the mandatory minimum contained in 18 U.S.C. § 924(c)(1)(B)(i) and the seventy-month sentence Green received as a result of his plea agreement. The motion argued that given that it was Green carrying the semiautomatic weapon, it created an unreasonable disparity for the ten year mandatory minimum to be imposed on Van Hoosier and not Green.

A sentencing hearing was held on September 3, 2004. At the hearing, Van Hoosier's counsel argued that Van Hoosier ought to receive a downward departure based upon: (1) the disparity between his sentence and Green's sentence, (2) the Supreme Court's recent decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and (3) the totality of the circumstances in the case. The government countered arguing that ...