U.S. v. McDonald

• Decision Date: 21 January 1999
• Docket Number: No. 97-5474,97-5474
• Citation: 165 F.3d 1032
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Larry Terrell McDONALD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1032

165 F.3d 1032

UNITED STATES of America, Plaintiff-Appellee, v. Larry Terrell McDONALD, Defendant-Appellant.

No. 97-5474.

United States Court of Appeals, Sixth Circuit.

Argued Sept. 23, 1998.

Decided Jan. 21, 1999.

Sunny A.M. Koshy (argued and briefed), Office of the U.S. Attorney, Nashville, TN, for Plaintiff-Appellee.

Caryll S. Alpert (argued and briefed), Federal Public Defender's Office, Nashville, TN, for Defendant-Appellant.

Before: WELLFORD, SILER, and GILMAN, Circuit Judges.

GILMAN, J., delivered the opinion of the court, in which SILER, J., joined. WELLFORD, J. (pp. 1037-38), delivered a separate concurring opinion.

OPINION

GILMAN, Circuit Judge.

After pleading guilty to theft from federally licensed firearms dealers and to being a felon in possession of firearms, Larry Terrell McDonald was sentenced by the district court. The court applied a two-level enhancement for obstruction of justice pursuant to United States Sentencing Guideline ("USSG") § 3C1.1 and a four-level enhancement for use or possession of a firearm in connection with another felony pursuant to USSG § 2K2.1(b)(5). McDonald argues on appeal that the lower court erred in its application of both enhancements. For the reasons set forth below, we AFFIRM the sentence enhancement pursuant to USSG § 3C1.1, REVERSE the sentence enhancement pursuant to USSG § 2K2.1(b)(5), and REMAND for resentencing consistent with this opinion.

I. BACKGROUND

On October 23, 1995, McDonald broke into a pawn shop operated by federally licensed firearms dealers. He was not carrying any weapons on his person when he entered the premises. McDonald gathered gold chains, money, and approximately 74 firearms into a duffel bag. Shortly thereafter, local police found McDonald hiding in the nearby bushes in close proximity to the duffel bag and to several loose pistols that had apparently fallen from the bag. McDonald was read his Miranda rights, handcuffed, and placed in a patrol car.

The police continued to investigate the scene. Approximately 20 to 30 minutes later, an officer noticed that McDonald had escaped from the patrol car. Based upon an anonymous tip, the police were able to locate McDonald approximately 4 hours after his escape in an apartment complex a couple of miles from the scene of the offense. He had removed his clothing, managed to shift his handcuffs from behind his back to his front, and had fallen asleep.

McDonald pled guilty to theft from a federally licenced firearms dealer, a violation of 18 U.S.C. § 922(u), and to being a felon in possession of firearms, a violation of 18 U.S.C. § 922(g)(1). The court enhanced McDonald's sentence two levels for obstruction of justice (based on his escape from custody) pursuant to USSG § 3C1.1. It also applied the four-level sentence enhancement pursuant to USSG § 2K2.1(b)(5) for the "use[ ] or possess[ion] of a firearm in connection with another felony offense." McDonald was sentenced to 96 months of imprisonment and to three years of supervised release on each count, to run concurrently. On appeal, McDonald does not dispute the district court's factual findings, but claims that the court erred in its application of both sentence enhancement provisions.

II. ANALYSIS

A. Sentence enhancement for obstruction of justice pursuant to USSG § 3C1.1

1. Standard of review

We begin by noting the existence of inconsistent opinions in this circuit regarding the proper standard of review for the application of USSG § 3C1.1. The court has articulated at least three different standards. In United States v. Sanchez, 928 F.2d 1450, 1458 (6th Cir.1991), the court stated that "[t]he question as to whether defendants' conduct constitutes obstruction of justice, 'turns primarily on the legal interpretation of a guideline term' and is thus reviewed de novo." (quoting United States v. Stroud, 893 F.2d 504, 507 (2d Cir.1990)).

The following year, the court explained that the district court had "considerable discretion" in deciding whether a defendant's conduct constitutes an obstruction of justice. "On appeal, we review whether the district court abused its discretion in applying § 3C1.1." United States v. Bennett, 975 F.2d 305, 308 (6th Cir.1992). The court in Bennett did not cite the Sanchez decision. See also United States v. Medina, 992 F.2d 573, 591 (6th Cir.1993) (stating that sentencing courts have discretion to determine whether a defendant's conduct constitutes an obstruction of justice). Two years after Bennett, however, this court decided United States v. Smart, 41 F.3d 263 (6th Cir.1994), in which it made the following comment on the standard of review applied in Bennett:

The Bennett court, however, did not rely on any case law or the Guidelines in arriving at this [new standard of review]. As a general rule, a court's factual findings in relation to the application of the Sentencing Guidelines are subject to a 'clearly erroneous' standard of review, and legal conclusions regarding the Guidelines are reviewed de novo.

Id. at 264 n. 1 (internal citations omitted).

To add to this confusion, at least one post-Bennett case stated that a district court's application of USSG § 3C1.1 is to be reviewed under a clearly erroneous standard of review. See United States v. Zajac, 62 F.3d 145, 148 (6th Cir.1995) ("This court has consistently applied the clearly erroneous standard to district court applications of § 3C1.1.").

Because of the existing inconsistency on this issue, it is important to clarify the proper standard to be applied when reviewing a district court's application of USSG § 3C1.1 The standard is best articulated as a three-step process of review. First, we apply the well-settled rule that a district court's findings of facts are reviewed under a clearly erroneous standard. Fed.R.Civ.P. 52(a). See United States v. Latouf, 132 F.3d 320, 331 (6th Cir.1997) ("A court's factual findings in relation to the application of Sentencing Guidelines are subject to a deferential 'clearly erroneous' standard of review."), cert. denied, --- U.S. ----, 118 S.Ct. 1572, 140 L.Ed.2d 805 (1998).

Second, a district court's determination of whether the facts constitute an obstruction of justice is a mixed question of law and fact that is reviewed de novo. See Razavi v. Commissioner of Internal Revenue, 74 F.3d 125, 127 (6th Cir.1996) ("Mixed questions of law and fact are reviewed de novo."); United States v. Kushmaul, 147 F.3d 498, 500 (6th Cir.1998) (holding that whether the facts before it constituted "brandishing a weapon" was a legal question to be reviewed de novo ). These are well-established rules, and there is no reason to deviate from them when reviewing the application of this particular enhancement.

Third, once there has been a finding of obstruction of justice, the court must apply the enhancement. The guideline states that if "the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense ... increase the offense by 2 levels." USSG § 3C1.1. Because the enhancement language of the guideline is mandatory rather than discretionary, such enhancement is reviewed under the de novo standard.

We recognize that this standard of review is inconsistent with Bennett, and that one panel of the court cannot under normal circumstances overrule a prior panel's decision. See United States v. Smith, 73 F.3d 1414, 1418 (6th Cir.1996). Here, however, we have no choice but to choose between prior conflicting decisions on the point in question. Because the Bennett decision is inconsistent with both prior and subsequent case law on the subject (see Sanchez, Smart and Razavi ), we decline to follow Bennett 's abuse of discretion standard.

The clearly erroneous standard cited in Zajac is also incorrect. That standard is reserved for the district court's findings of facts and is inappropriate for applications of law or mixed questions of law and fact. See Razavi, 74 F.3d at 127.

Because the facts underlying McDonald's obstruction of justice enhancement are undisputed, we review the district court's application of USSG § 3C1.1 de novo.

2. Obstruction of justice

The application notes to USSG § 3C1.1 provide examples of conduct to which that section does and does not apply. According to Application Note 3(e), an enhancement for obstruction of justice applies if a defendant "escape[s] or attempt[s] to escape from custody before trial or sentencing." USSG § 3C1.1, note 3(e). Note 4(d) states that "avoiding or fleeing from arrest" ordinarily does not warrant application of the enhancement. USSG § 3C1.1, note 4(d). The issue presented on appeal is whether McDonald's acts constituted an escape from custody or the fleeing from arrest.

We agree with the district court's conclusion that McDonald willfully and deliberately escaped from custody, thus calling for the two-level enhancement. McDonald clearly had been handcuffed, read his Miranda rights, and placed in a patrol car. As the district court stated during the sentencing hearing, "If this man wasn't in custody, then I don't know what could constitute custody."

This court recently held in United States v. Salvo, 133 F.3d 943, 948 (6th Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 1805, 140 L.Ed.2d 943 (1998), that the test for determining if a defendant was in custody should be based on whether, under the circumstances, a reasonable person would feel free to leave. See also Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) ("In determining whether an individual was in custody, a court must examine all of the circumstances surrounding the interrogation, but the ultimate inquiry is simply whether there [was] a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.") (internal quotation marks omitted) (brackets in original). Once a person is handcuffed, read his or her Miranda...