U.S. v. Leekins

• Decision Date: 29 June 2007
• Docket Number: No. 05-1658.,05-1658.
• Citation: 493 F.3d 143
• Parties: UNITED STATES of America v. William Thomas LEEKINS, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

493 F.3d 143

UNITED STATES of America v. William Thomas LEEKINS, Appellant.

No. 05-1658.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit LAR 34.1(a) October 24, 2005.

Filed June 29, 2007.

Dennis E. Boyle, Camp Hill, PA, for Appellant.

Thomas A. Marino, United States Attorney, Theodore B. Smith, III, Eric Pfisterer, Assistant United States Attorneys, Harrisburg, PA, for Appellee.

Before: SLOVITER, FISHER, Circuit Judges, and THOMPSON, District Judge.^*

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Appellant William Thomas Leekins appeals from the judgment of the District Court sentencing him to imprisonment for a term of 262 months. First, Leekins asserts that his sentence was imposed in violation of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and that it denied him his Sixth Amendment right to a jury trial because it was based upon facts found by a judge at his sentencing hearing that he had not admitted in his plea colloquy. Second, Leekins argues the District Court erred in admitting a police report into evidence at the sentencing hearing because it bore no "indicia of reliability." U.S.S.G. § 6A1.3. We will affirm.¹

I.

Leekins was charged in a two-count indictment with possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (Count I), and possession of a firearm by a person subject to a domestic abuse restraining order in violation of 18 U.S.C. § 922(g)(8) (Count II). He entered into a written negotiated plea agreement with the Government in which he agreed to plead guilty to Count I and to admit prior convictions of violent felonies (in his case, burglaries) which made him subject to the armed career criminal sentencing enhancement under 18 U.S.C. § 924(e). The Government agreed to recommend imposition of the mandatory minimum sentence of fifteen years under 18 U.S.C. § 922(g)(1).

Pursuant to that agreement, Leekins pled guilty and the Government dropped Count II of the indictment and recommended imposition of only the fifteen-year mandatory minimum sentence on Count I of the indictment. Nonetheless, the District Court did not follow the Government's recommendation. After a hearing, the Court, following its consideration of the testimony presented at the hearing and the police report introduced at the sentencing hearing, adopted the presentence report ("PSR").

The PSR contained the following uncontested facts:

On November 15, 2003, officers responded to . . . a 9-1-1 hang-up call. . . . Officer Swank was the first to arrive at the residence. He approached the side door of the residence and observed that there was a dead-bolt lock lying on the kitchen floor and the door frame was splintered. He cautiously entered the residence and observed the defendant and an infant in a walker in the dining room area. Mr. Leekins told Officer Swank that he and his wife were just having an argument, but everything was alright.

At this time, Officer Bloss arrived at the residence and encountered Nancy Leekins, the defendant's estranged wife, in front of the residence. She told the officer that Mr. Leekins had threatened to kill her with a gun and that she had an active Protection From Abuse order against him. She also noted that her ten-month-old granddaughter was still in the residence. Officer Bloss proceeded into the residence and advised Officer Swank that Mr. Leekins was armed. The defendant, who had his hands in his pockets, was instructed to show the officers his hands.

. . . Shortly thereafter, the defendant surrendered to the officers. He had a pair of eyeglasses in one hand and a towel held to his throat. Mr. Leekins was taken to the hospital, where doctors reported that a bullet was lodged in his head, but had not penetrated his brain.

During a search of the residence, officers recovered a loaded .38 caliber Charter Arms revolver in the front bedroom, where a pool of blood was observed on the bed. They also found one spent shell casing in the bedroom. Officers also learned that Mr. Leekins was on work release at the time of the instant offense and had possession of a 1999 Chevrolet Malibu. Police located the vehicle parked one-half block away from the residence and recovered a black nylon holster.

PSR at ¶¶ 5-8.

Leekins contested the following portion of the PSR:

[After being asked to show his hands], Mr. Leekins turned and walked away from the officers. Officers continued to command Mr. Leekins to stop and show his hands. Mr. Leekins walked past the infant and headed toward the stairs. As the defendant reached the stairs, he turned and fired one shot in the officers' and infant's direction. Officers returned fire and Mr. Leekins fled up the stairs. Officer Swank removed the infant from the walker and took her outside.

PSR at ¶ 6.

The PSR concluded that Leekins had committed attempted murder because he had fired a gun at police officers. Leekins related a materially different version of the facts to the probation officer. He maintains that he went to his wife's home with the intention of killing himself and kicked in the door, announcing, "This is my house, and this is where I want to die." PSR at ¶ 11. He contends that when the police entered Ms. Leekins's residence and they told him to drop his gun, he put his hands in the air because he had no gun to drop. He states that the police responded by shooting him in the left hand, and that he then ran upstairs, retrieved his wife's gun from her dresser drawer, and shot himself in the head.

At the sentencing hearing, Leekins' counsel repeated Leekins' denial that he had ever fired on police officers and counsel noted that at the state preliminary hearing there was testimony to the effect that police investigators had found no bullets in any piece of furniture that was behind the officers when Leekins had allegedly shot at them.

Leekins' estranged wife also presented testimony at the sentencing hearing² and stated that she was sitting in the dining room of her home with her ten-month-old granddaughter when she saw Leekins walk by and look into her dining room window. She called 911 on a wall-mounted phone, at which point Leekins "kicked the door in and ripped the phone out of the wall." App. at 49. He pushed her onto the floor next to her granddaughter, held a gun (which Ms. Leekins had never seen before) to her head, and yelled accusations that she had turned his family against him and "was going to let him sit in jail and rot." App. at 49.

According to Ms. Leekins, Leekins then demanded that she again call 911 and tell them not to send anyone. Backing away, Ms. Leekins used the phone in the living room to call 911. The dispatcher informed her that a police officer was already en route. When the police arrived, Ms. Leekins walked outside and told an officer (Officer Bloss) that her husband was inside the house and had a gun.

Following Ms. Leekins' testimony, Leekins testified under oath, again denying having shot at the officers. Leekins admitted on cross-examination that the holster found in his car was the holster for the revolver he claimed to have obtained upstairs in the house.³ During and since his plea colloquy, Leekins has repeatedly denied that he fired a gun at police officers.

In his written comments to the PSR and his argument at the sentencing hearing, Leekins objected to: (1) the use of the attempted murder guideline to determine his base offense level, (2) all upward adjustments based upon the allegation that he had fired at police officers, or otherwise committed a crime of violence, and (3) the District Court's refusal to grant him a downward departure under the Guidelines for acceptance of responsibility. The District Court accepted the PSR's sentence calculation without ruling on Leekins' objections to the PSR.

Leekins admitted in his plea agreement to being an armed career criminal subject to enhanced penalties under 18 U.S.C. § 924(e). The PSR concluded that Leekins possessed or used a firearm in connection with a crime of violence and therefore set his offense level at thirty-four pursuant to U.S.S.G. § 4B1.4(b)(3)(A), and his criminal history category at VI pursuant to U.S.S.G. § 4B1.4(c)(2).⁴ Leekins' total offense level of thirty-four and criminal history category yielded a guideline imprisonment range of 262 to 327 months. The Court imposed a sentence of 262 months imprisonment, five years supervised release, a $2000 fine, and a $100 special assessment. Leekins filed a timely appeal.

II.

We turn first to Leekins' contention that the District Court failed to apply Booker correctly and that it denied him his Sixth Amendment right to jury trial. In Booker, the Supreme Court held that "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." Booker, 543 U.S. at 244, 125 S.Ct. 738 (extending the court's holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)). However, as we have explained, in the second of Booker's two opinions,

[t]he Court held that 18 U.S.C. § 3553(b)(1) [and 18 U.S.C. § 3742(e)], the provision[s] of the Sentencing Reform Act of 1984 that [made and relied on the Guidelines being mandatory were] incompatible with the Court's constitutional ruling and that [those sections] must be severed and excised . . . . The net result was to delete the mandatory nature of the Guidelines and transform them to advisory guidelines for the information and use of the district courts in whom discretion has now been reinstated.

United States v. Ordaz, 398 F.3d 236, 239 (3d Cir.2005).

Leekins does not argue that the District Court mistakenly treated the Guidelines as mandatory, and nothing in the record suggests any such error. In fact, the District Court explicitly acknowledged at the...