United States v. Henry

• Decision Date: 08 April 2016
• Docket Number: No. 15–5578.,15–5578.
• Citation: 819 F.3d 856
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Rodney HENRY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

819 F.3d 856

UNITED STATES of America, Plaintiff–Appellee,

v.Rodney HENRY, Defendant–Appellant.

No. 15–5578.

United States Court of Appeals, Sixth Circuit.

Decided and Filed: April 8, 2016.

ON BRIEF:Isaiah S. Gant, Andrew C. Brandon, Federal Public Defender, Nashville, Tennessee, for Appellant. Clay Lee, United States Attorney's Office, Nashville, Tennessee, for Appellee.

Before: SILER, COOK, and DONALD, Circuit Judges.

OPINION

SILER, Circuit Judge.

After pleading guilty to one count of selling a firearm to a convicted felon, in violation of 18 U.S.C. § 922(d)(1), and one count of intent to distribute and distribution of morphine, in violation of 21 U.S.C. § 841(a)(1), Rodney Henry was sentenced to fifty months' imprisonment followed by three years of supervised release, the first eighteen months of which is to be served in a halfway house. Henry now challenges the terms of his sentence, arguing that the district court erred by (1) applying various provisions of the United States Sentencing Guidelines ("Guidelines" or "USSG") related to firearms, (2) applying a Guidelines enhancement for obstruction of justice, and (3) imposing an eighteen-month term of confinement in a halfway house. Because the district court erroneously applied the § 2K2.1(b)(5) firearms-trafficking enhancement to Henry, and because a serious, unresolved issue exists as to whether his conduct satisfied the obstruction-of-justice enhancement's willfulness requirement, we VACATE Henry's sentence and REMAND for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

In 2011, the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") and the Tennessee Bureau of Investigation ("TBI") began a joint investigation of Henry following a tip from a confidential informant ("CI"). At the behest of law enforcement, the CI, who had a prior felony conviction, approached Henry for the purpose of purchasing a 9mm pistol and twenty Percocet pills. On June 30, 2011, the CI and an undercover TBI agent travelled to Henry's residence to complete the transaction. The pills were not at the residence when they arrived, but the agent expressed interest in purchasing an AK–47 rifle from Henry. The TBI agent told Henry that he and the CI had prior felony convictions (though the agent, in fact, did not) and they would therefore be unable to register either the rifle or the pistol. On the first visit to Henry's residence, the CI purchased the pistol for $350.

After the initial meeting, the CI arranged for the undercover agent to purchase ten morphine pills and the rifle from Henry. On July 13, 2011, two weeks after the first transaction, the agent and the CI travelled back to Henry's residence to purchase the morphine pills and the rifle. Ultimately, the agent bought six pills containing morphine from Henry for $180 and the rifle for $950.

In 2012, a grand jury indicted Henry on one count of selling a firearm to a convicted felon, in violation of 18 U.S.C. § 922(d)(1), and one count of possession with intent to distribute and distribution of morphine, in violation of 21 U.S.C. § 841(a)(1). In December 2012, Henry was released on his own recognizance, subject to pretrial supervision and the condition, among others, that he submit to random drug testing. Henry immediately tested positive for hydromorphone and morphine, and he did not provide his pretrial services officer with a valid prescription for those drugs. However, the officer recommended that the court take no action. In January and February 2013, Henry tested positive for morphine twice more. As a result, the court scheduled a hearing to address whether to revoke Henry's bond. After a number of continuances, the hearing was rescheduled to occur on June 6, 2013.

Henry failed to appear for the June 6 hearing. His attorney suggested that Henry "may have been confused because counsel recently notified him of the date to which the trial had been rescheduled[,] and [Henry] might have believed that he did not need to appear on June 6, 2013." The court determined that, "taking into account the possible explanations for [Henry]'s failure to appear," it would take no action and that Henry would remain on release with the conditions previously imposed.

Henry's pretrial services officer made several unsuccessful attempts to contact him. Henry failed to submit his monthly reports for June and July 2013, and he failed to appear for a July meeting with his pretrial services officer. Accordingly, the pretrial services officer determined that Henry had "virtually absconded from supervision." The district court issued an arrest warrant on July 15, 2013, and Henry was ultimately arrested over a year later, on July 25, 2014. He pleaded guilty in 2015 to both counts of the indictment.

The Presentence Investigation Report ("PSR") started with a base offense level of twenty under § 2K2.1(a)(4)(B) of the Guidelines because the AK–47 was a semiautomatic firearm capable of accepting a large-capacity magazine. It applied a four-level increase for "trafficking" firearms under § 2K2.1(b)(5) because Henry "transferred a firearm to the [CI] and one firearm to the undercover [agent] when he had reason to believe that both individuals were convicted felons and their possession of the firearms would be illegal." It enhanced Henry's offense level by four points under § 2K2.1(b)(6) because he possessed the rifle in connection with another felony offense—possession with intent to distribute and distribution of morphine, in violation of 21 U.S.C. § 841(a)(1). The PSR also included a two-point enhancement for obstruction of justice under § 3C1.1 related to Henry's pretrial conduct. This resulted in an adjusted offense level of 30.¹ After a three-level reduction for acceptance of responsibility, the PSR calculated Henry's total offense level at 27 and Criminal History Category II. With these calculations, Henry's Guidelines' range was 78 to 97 months of imprisonment, followed by three years of supervised release.

Henry did not object to any of the PSR's factual findings, but he argued that the base level under § 2K2.1(a)(4)(B) and the enhancements under §§ 2K2.1(b)(5), 2K2.1(b)(6), and 3C1.1 should not apply. The Government responded that Henry's conduct met the requirements for these provisions to apply and requested a sentence of 60 months of incarceration, followed by three years of supervised release, the first 18 months to be served on home confinement.

At the sentencing hearing, the TBI agent testified as to the events of June 30 and July 13, 2011. Lisa Bryan, Henry's mother, also testified that Henry missed a court appearance in either June 2012 or June 2013 because she told him shortly before the hearing that she was unable to bring him to court due to a work conflict.

The district court overruled Henry's § 3C1.1 (obstruction of justice) objection, finding that he "d[id]n't show up multiple times and then d[id]n't show up after being told that if [he] fail[ed] to show up, there w[ould] be an arrest warrant issued." The court determined that "the arrest warrant [was] issued," that "it [was] outstanding for almost a year," and Henry "apparently ... d[id]n't tell anybody why he didn't show up on the day" of the hearing.

In ruling on Henry's § 2K2.1(a)(4)(B) (firearms) objection, the court found that the Government established that the rifle was capable of accepting a large-capacity magazine and that § 2K2.1(a)(4)(B) therefore provided the correct base offense level.

The district court also applied § 2K2.1(b)(5), finding that Henry "transported, transferred, or otherwise disposed of two or more firearms to another individual" and that Henry did not have to "sell two or more firearms to one person.... If he s[old] two or more firearms[,] and he s[old them] to somebody else, then it's covered."

Ultimately, the court agreed with the PSR that Henry's total offense level was 27 with Criminal History Category II, for a Guidelines range of 78 to 97 months of incarceration, followed by three years of supervised release. The court considered that Henry's conduct was "serious," but that the Guidelines may have overstated the seriousness of the offense, and that Henry had committed no prior felonies. In light of these conclusions, and the finding that Henry had "a serious addiction problem" and was likely "selling ... weapons to finance his addiction," the court imposed a sentence of 50 months' imprisonment on each count, to be served concurrently, followed by three years of supervised release, the first 18 months of which were to be served in a halfway house. The court inquired as to whether there were any objections, and Henry's counsel responded that there were none that had not already been raised.

DISCUSSION

On appeal, Henry claims that the district court erroneously applied several provisions of USSG § 2K2.1 to him related to firearms, and he challenges the district court's application of the obstruction-of-justice enhancement under § 3C1.1. Henry also argues that the district court's imposition of an eighteen-month term in a halfway house as a special condition of supervised release² was procedurally and substantively unreasonable.

I. Firearm Provisions

A. Standard of Review

In reviewing the district court's calculation of a defendant's Guidelines sentencing range, including the application of enhancements under § 2K2.1, we review the district court's legal conclusions de novo and its factual findings for clear error. United States v. Taylor, 648 F.3d 417, 431 (6th Cir.2011) (citing United States v. Davis, 372 Fed.Appx. 628, 629 (6th Cir.2010) ). A district court's interpretation of a Guidelines provision presents a legal question subject to de novo review. United States v. Tolbert, 668 F.3d 798, 800 (6th Cir.2012) (citing United States v. Anglin, 601 F.3d 523, 526 (6th Cir.2010) ).

B. The § 1B1.3(a)"Relevant Conduct" Standard

Henry's contention that his actions related to the rifle transaction do not constitute "relevant conduct" for purposes of the Guidelines provides the...