United States v. Hoyle

• Decision Date: 13 May 2014
• Docket Number: No. 13–3180.,13–3180.
• Citation: 751 F.3d 1167
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Taurus D. HOYLE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

751 F.3d 1167

UNITED STATES of America, Plaintiff–Appellee,

v.Taurus D. HOYLE, Defendant–Appellant.

No. 13–3180.

United States Court of Appeals, Tenth Circuit.

May 13, 2014.

R. Bruce Kips, Shawnee, KS, for Defendant–Appellant.

James Brown, Assistant United States Attorney, (and Barry R. Grissom, United States Attorney, on the brief), Topeka, KS, for Plaintiff–Appellee.

Before KELLY, BALDOCK, and HARTZ, Circuit Judges.

KELLY, Circuit Judge.

Defendant–Appellant Taurus D. Hoyle appeals from the remand proceedings of his prior appeal. In United States v. Hoyle (Hoyle I), 697 F.3d 1158 (10th Cir.2012), this court affirmed Mr. Hoyle's conviction of 18 U.S.C. § 922(g)(1) but remanded for proper sentencing. Mr. Hoyle appeals again, this time challenging the district court's denial of his motion for a new trial on remand and consideration of prior state convictions at resentencing. Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.

Background

The facts underlying Mr. Hoyle's conviction are detailed in Hoyle I, 697 F.3d at 1161–63. Briefly, Mr. Hoyle was charged with violating 18 U.S.C. § 922(g)(1), which makes it unlawful for a convicted felon to “possess in or affecting commerce, any firearm or ammunition.” Id. at 1162–63. The charge came after an incident where Mr. Hoyle pointed a gun at Tyda Hall and threatened to shoot. Id. at 1161. Ms. Hall called 911, and Mr. Hoyle fled. Id.During the 911 call, Ms. Hall described the gun as a silver revolver. Id. Officer Ruben Rodriguez located Mr. Hoyle and attempted to make contact. Id. at 1161–62. Mr. Hoyle fled, and Officer Rodriguez noticed that it looked like Mr. Hoyle was holding something. Id. at 1162. Officers eventually apprehended Mr. Hoyle, and Officer Rodriguez saw that Mr. Hoyle's hands were scratched and dotted with blood. Id. No gun was found on Mr. Hoyle's person; however, Officer William Saunders searched the immediate area and found a silver revolver under an automobile. Id. Blood was found on the revolver—blood that a DNA test showed to be Mr. Hoyle's. Id.

Mr. Hoyle made several incriminating statements after arrest. First, in an interview with Detective Pat Greeno at Wyandotte County Jail, Mr. Hoyle asked whether he would be prosecuted by state or federal authorities; he wanted to know because he was a felon caught with a gun, and he should be in a federal holding facility. Id. Later, when Detective Greeno was transporting Mr. Hoyle to the United States Marshal's booking facility, Mr. Hoyle asked, “[C]an I plead guilty today?” Id. And when Detective Greeno was reading Mr. Hoyle the terms of a search warrant, Mr. Hoyle interrupted with, “I'm guilty of this, man. You don't need to go through all this.” Id.

On this record, we rejected Mr. Hoyle's insufficient-evidence argument and affirmed his conviction. Id. at 1163, 1170. However, we held that his two prior Kansas convictions did “not qualify as predicate convictions for the [Armed Career Criminal Act's] enhanced sentencing provisions” because his civil rights had been restored under Kansas law. Id. at 1161, 1170. We therefore vacated his sentence and remanded “for resentencing consistent with this opinion.” Id. at 1170.

On remand, Mr. Hoyle did not content himself with challenging his sentence; rather, he again challenged his conviction, this time arguing that the government suppressed evidence he could have used to impeach various witnesses. Aplt. Br. 4; Aplee. Br. 8. The district court denied Mr. Hoyle's motion for a new trial and proceeded to resentencing. Aplt. Br. 4.

In preparation for resentencing, the probation office prepared a presentence investigation report (PSR) using the November 1, 2012 edition of the Sentencing Guidelines (U.S.S.G.). 3 R. 4–29. The PSR took into account Mr. Hoyle's two prior felony convictions—a 1994 Kansas conviction for aggravated assault and a 1994 Kansas conviction for aggravated escape from custody. Id. at 8, 11, 13. Given these prior felonies, the PSR arrived at a base offense level of 24 under U.S.S.G. § 2K2.1(a)(2) and assessed each conviction three criminal history points under § 4A1.1(a). Id. at 8, 16. This resulted in a criminal history category of VI. Id. at 16. The PSR also added four offense levels under § 2K2.1(b)(6)(B) because Mr. Hoyle “used or possessed the firearm” in connection with the Kansas felony of “criminal threat.” Id. at 8.

Mr. Hoyle objected. He argued that, because his civil rights had been restored, his two state felony convictions could not be used to either enhance his base offense level under § 2K2.1(a)(2) or assess criminal history points under § 4A1.1(a). Id. at 26, 28. He also objected to the four-level increase for committing “criminal threat,” arguing that Ms. Hall, who testified at trial that Mr. Hoyle pointed his revolver at her and threatened to shoot, was not a credible witness. Id. at 27–28.

The district court overruled Mr. Hoyle's objections. 2 R. 41–44. The court adopted the PSR's total offense level of 28 and criminal history category VI, and notedthat the guidelines range was 140 to 175 months. Id. at 44. However, because the statutory maximum sentence was 120 months, id. at 44–45, the court sentenced Mr. Hoyle to 120 months' imprisonment followed by three years' supervised release, 1 R. 78–79.

Discussion

In this appeal, Mr. Hoyle argues that, on remand of Hoyle I, the district court erred by (1) denying him a new trial based on violations of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); (2) using his two state convictions—to which his civil rights had been restored—to (a) enhance his base offense level under U.S.S.G. § 2K2.1 and (b) assess criminal history points under § 4A1.1; and (3) finding that he used or possessed the revolver in connection with the Kansas felony “criminal threat.” Aplt. Br. ii, 23.

1. New Trial for Brady Violations

We review a Brady claim asserted in a Rule 33 motion for a new trial de novo, reviewing any factual findings for clear error. United States v. Torres, 569 F.3d 1277, 1281 (10th Cir.2009). Mr. Hoyle alleges that, after our remand in Hoyle I, his counsel discovered three Brady violations that occurred during his trial. Aplt. Br. 6. First, he argues the government failed to disclose a disciplinary letter received by Officer Saunders, and this impeachment evidence creates “a reasonable probability that the jury might not have believed [Officer Saunders's] testimony that he found the firearm underneath an automobile in the area where [Mr. Hoyle] was arrested.” Id. at 6, 11. Second, Mr. Hoyle alleges that the government failed to disclose a disciplinary letter received by Officer Palmerin—whom the government did not call as a witness—and with this evidence he “could have called Palmerin as a witness and questioned his credibility” regarding a police report. Id. at 6, 12. Finally, he alleges the government failed to disclose that Tyda Hall had a Kansas City, Kansas conviction of misdemeanor theft. Id. at 6. Although there is no reason to believe that the government knew about Ms. Hall's conviction before trial, he argues that “the Government should or could have learned about” it before then. Id. at 13.

We reject Mr. Hoyle's arguments that the government suppressed material impeachment evidence at his trial. ¹ First, the district court reviewed Officer Saunders's disciplinary letter in camera and found that the letter did not relate to “truthfulness” or “honesty.” 1 R. 56. Mr. Hoyle does not challenge this finding as clearly erroneous, see Aplt. Br. 10–12, so the issue is waived, Silverton Snowmobile Club v. United States Forest Serv., 433 F.3d 772, 783 (10th Cir.2006). Second, Mr. Hoyle neither presented the content of Officer Palmerin's disciplinary letter to the district court, 1 R. 55, nor placed it in the appellate record. Mr. Hoyle has thus failed to meet his burden of establishing the existence of favorable, material evidence rather than hinting at its suspected existence. See United States v. Erickson, 561 F.3d 1150, 1163 (10th Cir.2009). Finally, the district court found that the government did not suppress knowledge of Tyda Hall's conviction because the government did not know of that conviction. 1 R. 54–55. This finding is not clearly erroneous. Moreover, Mr. Hoyle's suggestion that the government “should or could have” learned of this conviction highlights that this evidence was not in the “possession or control of the government,” Erickson, 561 F.3d at 1163, and Mr. Hoyle does not allege that the government kept itself intentionally ignorant of Ms. Hall's conviction, see Aplt. Br. 13–14. The district court properly denied Mr. Hoyle's motion for a new trial.

2. Prior State Convictions under Sentencing Guidelines

We review the district court's interpretation of the sentencing guidelines de novo. United States v. Hodge, 721 F.3d 1279, 1280 (10th Cir.2013). In this appeal, Mr. Hoyle argues that the sentencing guidelines' use of the term “imprisonment for a term exceeding one year” conflicts with the use of that term in statutes. Aplt. Br. 14, 18. Specifically, he argues U.S.S.G. § 2K2.1(a)(2)'s definition of “felony conviction” (i.e., a conviction “punishable by death or imprisonment for a term exceeding one year”), and § 4A1.1(a)'s definition of “prior sentence of imprisonment exceeding one year and one month,” conflict with 18 U.S.C. § 921(a)(20)'s definition of “crime punishable by imprisonment for a term exceeding one year.” Id. The latter statute expressly excludes from that definition “[a]ny conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored.” 18 U.S.C. § 921(a)(20). Because the sentencing guidelines nonetheless take such convictions into consideration, Mr. Hoyle argues the sentencing guidelines impermissibly deviate from the statute.

We must first determine whether § 921(a)(20) governs or controls the use of felony convictions under the sentencing guidelines as...