U.S. v. Penney

• Decision Date: 07 August 2009
• Docket Number: No. 05-6821.,05-6821.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Terry Eugene PENNEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

576 F.3d 297

UNITED STATES of America, Plaintiff-Appellee, v. Terry Eugene PENNEY, Defendant-Appellant.

No. 05-6821.

United States Court of Appeals, Sixth Circuit.

Argued: October 24, 2008.

Decided and Filed: August 7, 2009.

ARGUED: Bryan H. Hoss, Davis & Hoss, Chattanooga, Tennessee, for Appellant. Steven S. Neff, Assistant United States Attorney, Chattanooga, Tennessee, for Appellee. ON BRIEF: Bryan H. Hoss, C. Leland Davis, Davis & Hoss, Chattanooga, Tennessee, for Appellant. Steven S. Neff, Assistant United States Attorney, Chattanooga, Tennessee, for Appellee.

Before: BOGGS, Chief Judge; and MERRITT and GRIFFIN, Circuit Judges.

BOGGS, C.J., delivered the opinion of the court, in which GRIFFIN, J., joined. MERRITT, J. (p. 317-18), delivered a separate dissenting opinion.

OPINION

BOGGS, Chief Judge.

After a jury trial, Defendant-Appellant Terry Eugene Penney ("Penney") was convicted of fifteen violations of federal drug and gun laws and an attempt to kill a federal agent, and sentenced to 895 months of imprisonment. Penney now appeals the district court's denial of his motions to dismiss some of the charges and to suppress evidence, the district court's evidentiary rulings, and the reasonableness of his sentence. Penney also argues that the evidence was insufficient to support the jury verdicts or that some counts should have been merged. We hold that the district court committed no reversible errors and, therefore, affirm.

I

Terry Eugene Penney lived at 10609 Dayton Pike, in Soddy-Daisy, Tennessee, less than three miles away from the Soddy-Daisy Police Department. Penney raised roosters and ran a bar called Penney's Place, both familial activities that Penney has carried on. For about six years, Penney was in a tempestuous relationship with Devota Bowman, during which Bowman lived with Penney "off and on." Soddy-Daisy police officers were no strangers to Penney's residence, where they were called on the "numerous occasions" when the relationship between Penney and Bowman turned violent. The last of such visits took place on August 2, 2003, when, according to the police report, Penney had "pushed [Bowman] out," and she had left the residence. By August 18, 2003, Bowman had again moved back in with Penney.

On the morning of August 19, 2003, following another quarrel with Penney, a barefoot Bowman hitch-hiked to the Soddy-Daisy police station to file a complaint for assault against Penney. While Bowman was at the station, Penney arrived and demanded that police remove Bowman from his residence. The police arrested Penney for assault and transported him to the Hamilton County Jail. As the police officers worked on Bowman's report, she offered information about narcotics in Penney's house. Detective Mike Sneed requested her consent to search the residence; Bowman agreed and signed a consent form.

Soddy-Daisy officers then accompanied Bowman to the Dayton Pike residence. Bowman led the officers, including Sneed, to the front door, which was locked. Because she did not have a key, Bowman went around to the back door, which she opened without a key. Sneed later learned that only a special "trick" opened the back door. Bowman led the officers around the house, pointing to various items of contraband and picking up her own clothing and personal items as they walked. Officers uncovered numerous guns, cash, scales, and narcotics, removing some of these items from unlabeled, unlocked containers. Police officers then took their search outside the house, discovering a .22-caliber rifle in a pick-up truck and a shotgun in the chicken house.

The next day, Penney, having been released, went to the Soddy-Daisy police station to inquire about his guns. Sneed explained that the guns were confiscated as a result of a search, to which Bowman consented. Penney informed the police that Bowman did not live with him and had no authority to consent to the search.

Following the search on August 19, 2003, the Soddy-Daisy Police and the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") opened an investigation of Penney. During the course of the investigation, police recorded several conversations between Penney and Leonard (a.k.a. Sonny) Stewart, a confidential informant ("CI"). A conversation recorded four months later, on January 3, 2004, revealed that the CI would travel to California to pick up approximately 200 pounds of marijuana, for which Penney would provide two buyers, "Midget" and "Cotton" (a.k.a. William North). On January 12, 2004, in a recorded phone conversation, the CI told Penney that he had returned from his trip and instructed Penney to arrange a meeting with Cotton at Penney's Dayton Pike residence the next day at noon.

Prompted by this conversation, Detective Sneed obtained an anticipatory search warrant for Penney's residence, business, vehicles, and person. The warrant was executable only after Penney met with the CI "to examine and attempt to purchase the narcotics by obtaining funds or promising to obtain funds in the near future in order to complete the transaction." On January 13, 2004, at approximately 12:20 pm, the CI went to Penney's residence, where he found Penney alone without Cotton. In the course of a recorded conversation between the CI and Penney, Cotton telephoned Penney, indicating that he was on his way. The CI left, and made at least three recorded phone calls to Penney to determine whether Cotton had arrived. When Penney finally told the CI to return to the residence, the CI arrived, wired, at approximately 6:15 pm. The CI went inside the residence, met Cotton and Penney, and told Cotton he wanted to see the money. Cotton agreed, stating that he had $35,000 for fifty pounds of marijuana, at $700 per pound; Penney was to receive $100 per pound as the middle-man. Penney remained inside, as the CI and Cotton stepped outside. Cotton showed the CI the money inside Cotton's vehicle. The CI stated that he could see the money, a predetermined statement to indicate to the police that they should execute the warrant.

Soddy-Daisy police, Hamilton County Sheriff's Department, and ATF officers moved to execute the search warrant. All of the officers were wearing dark bulletproof vests with appropriate official insignia on front and back, identifying them as law enforcement. Some of the officers (the "entry team") knocked on the front door, yelling "Sheriff's Department! Search warrant! Get on the ground!" Other officers, including Sneed, Hamilton County Detective Marty Dunn, and ATF Special Agent Paris Gillette, circled around to the back of the residence, where the vehicle with the money was parked. Sneed testified that as he approached, he saw Cotton and the CI being taken into custody by other officers, and heard activity inside the residence. As Sneed went toward the residence, he heard gunshots. When Sneed approached the back porch, Detective Dunn, who was standing at the back door, told Sneed that Penney had shot him. Penney yelled that he wanted to see a badge, and Dunn threw his badge through the open back door. Sneed also called out to Penney identifying himself, and Penney recognized his voice. Sneed entered the residence with his gun drawn and saw Penney holding a shotgun. Sneed ordered Penney to put down the gun several times, and Penney eventually complied and surrendered the weapon. Detective Dunn and another Hamilton County officer, Mark King, then placed Penney in handcuffs. As a result of the operation, Agent Gillette sustained a serious head wound; Dunn and King were also injured.

The subsequent search turned up $35,000 in Cotton's truck and five weapons inside Penney's residence. No narcotics were found inside Penney's residence.

On February 11, 2004, Penney was indicted for various federal drug and firearm offenses, as well as an attempt to kill a federal agent. A jury convicted Penney of seven counts of drug-related offenses (including possession with intent to distribute, conspiracy and attempt to distribute various large quantities of marijuana and cocaine hydrochloride), two counts of being a felon in possession of firearms, two counts of possession of firearms in furtherance of drug trafficking, one count of possession of a firearm with an obliterated serial number, two counts related to discharging a firearm and an attempt to kill an officer of the United States. The district court sentenced Penney to 895 months in prison. Penney timely appealed.

II

A

Penney was charged with two counts of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), on the basis of his 1976 guilty plea in a Tennessee state court. The district court denied Penney's motion to dismiss the charges and to reconsider, and Penney was convicted of both counts. Penney rests his appeal to these convictions on two alternative theories. First, he claims that his 1976 conviction does not qualify as a predicate offense for § 922(g)(1), for three reasons: his guilty plea was not knowing, voluntary, or intelligent; "obvious errors in the paperwork" indicate that Penney was convicted of a misdemeanor rather than a felony; and the 1976 judgment is not entitled to a presumption of regularity because it was never signed by the trial court. Alternatively, Penney argues that even if he were convicted of a felony, he cannot be convicted of a violation of § 922(g)(1) because he did not lose his right to possess a firearm under Tennessee law in 1976, and that any law that stripped him of that right after the conviction violates the ex post facto clause.

We review de novo a district court's denial of a motion to dismiss an indictment on legal grounds. United States v. Crayton, 357 F.3d 560, 564 (6th Cir.2004). 18 U.S.C. § 922(g)(1) criminalizes the possession of firearms by any person "who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year." Federal courts must look to "the law of the state in which a defendant was tried in...