U.S. v. Maney, 99-5626

• Decision Date: 06 July 2000
• Docket Number: No. 99-5626,99-5626
• Citation: 226 F.3d 660
• Parties: (6th Cir. 2000) United States of America, Plaintiff-Appellee, v. Jerry Lee Maney, Defendant-Appellant. Submitted:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 660

226 F.3d 660 (6th Cir. 2000)

United States of America, Plaintiff-Appellee, v. Jerry Lee Maney, Defendant-Appellant.

No. 99-5626

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Submitted: July 6, 2000

Decided and Filed: September 11, 2000

Appeal from the United States District Court for the Western District of Kentucky at Bowling Green. No. 98-00016--Thomas B. Russell, District Judge.

Terry M. Cushing, Asst. U.S. Atty., Larry E. Fentress, Terry M. Cushing, ASSISTANT UNITED STATES ATTORNEYS, Louisville, Kentucky, for Appellee.

Scott T. Wendelsdorf, Jamie L. Haworth, Asst. F.P. Defender, WESTERN KENTUCKY FEDERALS OFFICE, FEDERAL COMMUNITY DEFENDER, INC., Louisville, Kentucky, for Appellant.

Before: GUY and MOORE, Circuit Judges; DOWD,^* District Judge.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Jerry Lee Maney was convicted of attempt to escape from federal custody and forcible assault by use of a dangerous weapon. On appeal, he argues (1) that the Indictment failed to allege the essential elements of the escape count, and (2) that the district court abused its discretion in not imposing Maney's sentence of imprisonment to run partially concurrently with his undischarged term of imprisonment for his previous convictions for bank robbery and being a felon in possession of a firearm when the district court, in calculating that sentence, had imposed a two-level enhancement for obstruction of justice and had denied a three-level reduction for acceptance of responsibility based on his same conduct in the instant escape offense. Based on the following reasons, we AFFIRM the district court's judgment.

I. FACTS AND PROCEDURE

On June 16, 1997, Jerry Lee Maney pleaded guilty to four counts of bank robbery in violation of 18 U.S.C. § 2113(a) and to one count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) in the U.S. District Court for the Middle District of Tennessee. Under the plea agreement, the government stated that it could file a motion under U.S.S.G. § 5K1.1 requesting a downward departure if Maney provided substantial assistance in the investigation or prosecution of other individuals who have committed federal crimes. Maney was already in custody at this time. He was arrested in connection with these offenses on March 17, 1997, and was ordered into the custody of the U.S. Marshals Service pending trial after waiving his right to a detention hearing on March 21, 1997. On July 28, 1997, the U.S. Marshals Service transferred Maney to the Warren County Regional Jail in the Western District of Kentucky.

On October 23, 1997, Maney attempted to escape from the Warren County Regional Jail. Maney grabbed Deputy Jailer Cathy Jo Flora, put a razor blade to her throat, and threatened to slit her throat if he was not allowed access to the main control room, where the doors to the jail were controlled. Flora told Maney that she was about to faint, and as she fell down, Maney lost his balance and was subdued by other guards. Flora sustained cuts and bruises to her throat and has suffered from emotional problems as a result of the incident.

On December 18, 1997, Maney was sentenced to 240 months of imprisonment by the U.S. District Court for the Middle District of Tennessee for his convictions for bank robbery and being a felon in possession of a firearm. In calculating that sentence, the district court applied a two-level enhancement for obstruction of justice under U.S.S.G. § 3C1.1 based on three separate escape attempts by Maney. In addition to the October 23, 1997 escape attempt described above, Maney attempted to escape from the custody of Davidson County correctional personnel on March 25, 1997, and then attempted to escape from the Warren County Regional Jail on October 3, 1997. Accordingly, the district court also denied Maney's request for a three-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1, which the government had not opposed.

On June 3, 1998, an indictment was issued in the U.S. District Court for the Western District of Kentucky charging Maney with attempt to escape from federal custody in violation of 18 U.S.C. § 751(a) in Count One and with forcible assault by use of a dangerous weapon on a person assisting a federal officer in the performance of official duties in violation of 18 U.S.C. § 111(a) and (b) in Count Two, in connection with his actions at the Warren County Regional Jail on October 23, 1997. The case proceeded to trial on November 17, 1998. After the government's opening statement, Maney moved to dismiss Count One of the Indictment on the grounds that it failed to state an offense against the United States because it omitted a necessary element of the offense. The court denied Maney's motion. Maney renewed this objection in motions for a judgment of acquittal, which also were denied. The jury found Maney guilty of both Counts One and Two of the Indictment.

On April 20, 1999, the district court held a sentencing hearing. Maney filed a motion requesting the court pursuant to U.S.S.G. § 5G1.3 to run his sentence concurrently or partially concurrently with his undischarged term of imprisonment for his convictions for bank robbery and being a felon in possession of a firearm because the U.S. District Court for the Middle District of Tennessee already had increased his sentence for those convictions by applying the obstruction of justice enhancement and denying the acceptance of responsibility reduction based on his escape attempts. The district court rejected this argument and sentenced Maney to a term of 150 months of imprisonment to be served consecutive to his undischarged term of imprisonment for his convictions for bank robbery and being a felon in possession of a firearm.

II. ANALYSIS

A. Sufficiency of the Indictment

Under the Notice Clause of the Sixth Amendment, a criminal defendant has the right "to be informed of the nature and cause of the accusation" against him. U.S. Const. amend VI. In addition, the Indictment Clause of the Fifth Amendment requires that a defendant be charged with only those charges brought before the grand jury. U.S. Const. amend. V. The Supreme Court has instructed that an indictment satisfies these constitutional requirements "if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." Hamling v. United States, 418 U.S. 87, 117 (1974); see Russell v. United States, 369 U.S. 749, 763-64 (1962); United States v. Sturman, 951 F.2d 1466, 1478-79 (6th Cir. 1991), cert. denied, 504 U.S. 985 (1992). We have stated that "[t]o be legally sufficient, the indictment must assert facts which in law constitute an offense; and which, if proved, would establish prima facie the defendant's commission of that crime." United States v. Superior Growers Supply, Inc., 982 F.2d 173, 177 (6th Cir. 1992). "Courts utilize a common sense construction in determining whether an indictment sufficiently informs a defendant of an offense." Allen v. United States, 867 F.2d 969, 971 (6th Cir. 1989). We review de novo a district court's determination that an indictment adequately alleges the elements of the offense charged. See Superior Growers Supply, 982 F.2d at 177.

In order to state a felony escape charge under 18 U.S.C. § 751(a),¹ an indictment must allege the following elements: (1) that the defendant escaped or attempted to escape; (2) from the custody of the Attorney General or his or her appointed agent, from a facility or institution where the defendant was confined at the direction of the Attorney General, from custody by virtue of any process issued under the laws of the United States by any court, judge, or commissioner, or from the custody of an officer or employee of the United States pursuant to lawful arrest; and (3) that custody was based on an arrest on a felony charge or conviction of any offense. See United States v. Vanover, 888 F.2d 1117, 1121 (6th Cir. 1989), cert. denied, 495 U.S. 934 (1990).

Count One of the Indictment charges Maney as follows:

On or about the 23rd day of October, 1997, in the Western District of Kentucky, Warren County, Kentucky, JERRY LEE MANEY, defendant herein, did attempt to escape from the Warren County Regional Jail, a facility in which he was being held in custody pursuant to the laws of the United States while awaiting sentencing on federal felony charges. In violation of Title 18, United States Code, Section 751(a).

J.A. at 8 (Indictment).

Maney asserts that the Indictment does not set forth facts sufficient to establish the second element of custody. The government responds that the Indictment's statement that Maney "was being held in custody pursuant to the laws of the United States while awaiting sentencing on federal felony charges" alleges that he was in custody "by virtue of any process issued under the laws of the United States by any court, judge, or commissioner" to establish custody under 18 U.S.C. § 751(a). We agree with the government that the Indictment's allegation is sufficient to establish the element of federal custody for a violation of § 751(a).

At the time of Maney's attempted escape, he had pleaded guilty to charges of bank robbery and being a felon in possession of a firearm and was being detained pending sentencing pursuant to 18 U.S.C. § 3141(b), which provides that "[a] judicial officer of a court of original jurisdiction over an offense . . . shall order that, pending imposition or execution of sentence . . . a person be released or detained under this chapter," and under 18 U.S.C. § 3143(a), which requires that a person who has been found guilty of an offense be detained pending the execution or imposition of sentence unless the court finds by clear and convincing evidence that the person is not likely to flee or to pose a danger...