U.S. v. Martin
| Decision Date | 23 May 2008 |
| Docket Number | No. 06-5002.,06-5002. |
| Citation | 526 F.3d 926 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Kenneth MARTIN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ARGUED: Peter B. Coughlan, Fort Thomas, Kentucky, for Appellant. Laura K. Voorhees, Assistant United States Attorney, Fort Mitchell, Kentucky, for Appellee. ON BRIEF: Peter B. Coughlan, Fort Thomas, Kentucky, for Appellant. Laura K. Voorhees, Assistant United States Attorney, Fort Mitchell, Kentucky, Charles P. Wisdom, Jr., Assistant United States Attorney, Lexington, Kentucky, for Appellee.
Before: BATCHELDER and DAUGHTREY, Circuit Judges; ROSEN, District Judge.*
Defendant-Appellant Kenneth Martin conditionally pled guilty in the United States District Court for the Eastern District of Kentucky to charges of being a felon-in-possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and was sentenced with an enhancement under the Armed Career Criminal Act to a term of imprisonment of 180 months. Martin now appeals his conviction and sentence arguing that the district court erred in denying his motions to suppress evidence and to disclose the identity of the confidential informant whose information led to the search of his residence and the ultimate discovery of the gun upon which the charges against him were predicated. Martin also argues that there is insufficient evidence to establish that the Walther .380 caliber semiautomatic pistol found by the agents during the execution of the search warrant had traveled in, or affected, interstate commerce. He further argues that his prior criminal convictions did not constitute sufficient predicate offenses for purposes of a sentencing enhancement under the Armed Career Criminal Act and that the district court's use of his prior convictions in fashioning his sentence violated the Sixth Amendment. For the reasons set forth below, we AFFIRM the district court's judgment.
On January 5, 2005, Agent Nathan Honaker of the Northern Kentucky Drug Strike Task Force ("NKDSF") received information from a confidential informant ("CI") concerning illegal drug activity at Defendant Kenneth Martin's residence at 1219 Greenup Street in Covington, Kentucky. At the time, Martin's mother, Lauretta Martin, owned the Greenup Street home but did not live there; only Martin and his sister, Kim, resided in the house. The information provided by the CI, however, was rather vague — there was no indication of a specific time or date on which the alleged drug activity occurred at the residence, nor was there any indication of the identity of the people engaged in the drug activity, or the type of drugs involved. All that Agent Honaker stated in his Affidavit in support of his search warrant application regarding the CI's tip was that he had "received information from a confidential informant that there was drug activity at 1219 Greenup Street, Covington, KY [and] the confidential informant advised that Kenneth Martin resides at th[at] residence." [2/9/05 Application and Affidavit in Support of Search Warrant.] Honaker further stated that the informant had "provided reliable information in the past on multiple occasions that ha[d] resulted in seizure of illegal controlled substances." Id.
After Honaker received the CI's tip, on February 8, 2005, two other NKDSF Agents, Agents Long and Hardcorn, inspected the trash that had been left on the curb in front of Martin's house and retrieved a material that subsequently field-tested positive for cocaine. The cocaine residue was found in the same garbage bag as mail with the address of 1219 Greenup Street. Honaker subsequently reviewed Martin's criminal history, which revealed that in July 1995, Martin had been convicted on four counts of trafficking in controlled substances in Kenton County, Kentucky. Martin's criminal history further revealed that he had been arrested for possession of marijuana on two earlier occasions. Honaker also verified through state records that Martin held an active Kentucky drivers' license with the address of 1219 Greenup Street, Covington, Kentucky.
Based upon the foregoing, the following day, February 9, 2005, Honaker applied for, and obtained from Judge Ann Ruttle of the Kenton County District Court, a search warrant for the 1219 Greenup Street residence.
On February 10, 2005, the NKDSF, aided by Covington and Kenton County Police Officers, executed the search warrant. During the search, agents discovered a Walther .380 caliber semiautomatic pistol, a magazine loaded with seven rounds, along with loose ammunition, a gun cleaning kit, a plastic bag containing marijuana, a tin with burnt material, assorted phone bills, a rolling machine, a hemostat with a burnt tip, foil-wrapped white tablets, assorted documents, a Motorola cell phone and two computer disks. However, no cocaine was found in the house. Honaker subsequently turned this case over to the Bureau of Alcohol, Tobacco and Firearms (the "ATF"), which determined that the firearm had been shipped or transported in interstate commerce.
On March 9, 2005, Martin was indicted for being a felon-in-possession of a firearm, in violation of 18.U.S.C. § 922(g)(1). Martin thereafter filed pretrial motions (1) to disclose the identity of the confidential informant and (2) to suppress the evidence seized during the execution of a search warrant. In support of his motion to disclose the identity of the confidential informant, Martin challenged the existence and reliability of the confidential informant. In support of his motion to suppress evidence, Martin argued that the warrant affiant, NKDSF Agent Honaker, knowingly or intentionally failed to disclose that the NKDSF director, Jim Liles, previously had had a romantic relationship with Martin's former girlfriend, Valerie Slaughter.
The district court denied both motions, finding that Martin was not entitled to a Franks evidentiary hearing1 and that, notwithstanding the paucity of Honaker's averments about the confidential informant, the CI's information and the cocaine residue found during the independent police investigation established sufficient probable cause to issue a search warrant. The district court also held that the search warrant affidavit was not deficient due to the lack of information concerning the NKDSF director and Martin's ex-girlfriend: "The fact that NKDSF Director Jim Liles may have had a romantic relationship twelve years earlier with someone who also had a relationship with Defendant has absolutely no bearing on probable cause in this case." [7/19/05 Sealed Memorandum Opinion and Order, pp. 8-9.]
Subsequently, Martin entered a conditional plea to being a felon-in-possession of a firearm; there was no written plea agreement. Martin did, however, specifically reserve in writing the right to appeal "the Adverse Determination and Decision relative to the Motion to Suppress Evidence seized during the search of the residence at 1219 Greenup Street, Covington, Kentucky, filed May 3, 2005." [9/16/05 Notice.]
During the plea hearing, Martin admitted to being a convicted felon who knowingly and unlawfully possessed a firearm. Also, Martin admitted, without objection, to understanding the third element of § 922(g)(1), requiring the firearm to have been in, or have affected, interstate commerce. The Government submitted that the firearm was manufactured in Alabama and had traveled in interstate commerce to Kentucky.
The district court accepted Martin's plea and, on December 21, 2005, sentenced Martin to 180 months imprisonment. During the sentencing hearing, Martin orally objected to his classification as an Armed Career Criminal. Martin argued that because his three previous cocaine trafficking offenses were consolidated into one indictment they did not satisfy 18 U.S.C § 924(e). The district court overruled Martin's objection, finding that his prior offenses were committed on different occasions, despite having been consolidated for trial.
Martin now appeals his conviction and sentence.
Martin first challenges the sufficiency of the evidence that supports his conviction. Specifically, he contends that there was no evidence that the firearm he is charged with possessing traveled in, or affected, interstate commerce. The Government contends that Martin waived his right to appeal the interstate commerce nexus by entering a guilty plea to the charge without reserving the right to appeal the issue. Martin counters that because his argument is a jurisdictional one, it is not waived.
Whether a defendant has waived his right to appeal is a legal question that an appellate court reviews de novo. United States v. McGilvery, 403 F.3d 361, 362 (6th Cir.2005).
Generally, a voluntary and unconditional guilty plea "bars any subsequent non-jurisdictional attack on the conviction." United States v. Pickett, 941 F.2d 411, 416 (6th Cir.1991). However, under Fed.R.Crim.P. 11(a)(2), a defendant may, with the approval of the court and consent from the government, enter a conditional guilty plea "reserving in writing the right to have an appellate court review an adverse determination of a specified pre-trial motion." Fed.R.Crim.P. 11(a)(2).2 The provision places an "affirmative duty on the defendant to preserve all potential collateral challenges through the preservation mechanism of Rule 11(a)(2)." Pickett, supra, 941 F.2d at 416. "[I]n the absence of a court-approved reservation of issues for appeal, [a defendant pleading guilty] waives all challenges to the prosecution except those going to the court's jurisdiction." Id. (citing Hayle v. United States, 815 F.2d 879, 881 (2nd Cir.1987)).
Where a defendant does not specify an issue for preservation on appeal, federal courts have normally held that Rule 11(a)(2) bars its...
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