United States v. Kelley

• Citation: 40 F.4th 276
• Decision Date: 11 July 2022
• Docket Number: 20-20580
• Parties: UNITED STATES of America, Plaintiff—Appellee, v. Deangelo KELLEY, Defendant—Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

40 F.4th 276

UNITED STATES of America, Plaintiff—Appellee,

v.Deangelo KELLEY, Defendant—Appellant.

No. 20-20580

United States Court of Appeals, Fifth Circuit.

FILED July 11, 2022

Anna Elizabeth Kalluri, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff—Appellee.

Marjorie A. Meyers, Federal Public Defender, Evan Gray Howze, Assistant Federal Public Defender, Federal Public Defender's Office, Houston, TX, for Defendant—Appellant.

Before Jones, Southwick, and Oldham, Circuit Judges.

Edith H. Jones, Circuit Judge:

Appellant Deangelo Kelley challenges the district court's 1) denial of his motion to dismiss under the Speedy Trial Act, 2) imposition of a sentencing enhancement for reckless endangerment, and 3) adoption of the Presentence Investigation Report ("PSR") that treated two of his prior convictions as crimes of violence. We reject the first two grounds but must vacate and remand for resentencing in light of Borden v. United States , ––– U.S. ––––, 141 S. Ct. 1817, 210 L.Ed.2d 63 (2021), and United States v. Bates , 24 F.4th 1017 (5th Cir. 2022) (per curiam ).

I. BACKGROUND

Kelley fled from Houston Police Department ("HPD") officers on April 6, 2019 after they stopped a vehicle in which he was a passenger. Kelley discharged his firearm while in flight, but the round struck the ground without causing any damage or harm to others.¹ The discharged round did, however, cause officers to retreat and enlist the services of a canine and a helicopter. While continuing the search for Kelley, an officer recovered "a Glock 17 9 mm handgun with an extended magazine containing 21 bullets attached."² Officers later discovered Kelley hiding in a tree and arrested him. Kelley conveyed that "he was trying to get away from officers because he did not want to go back to jail[,]"³ and that "he did not intend to shoot officers[.]" He supposedly "just ‘wanted to get rid of the gun.’ "

The day after Kelley's arrest, "the Harris County District Attorney's Office, Intake Division, accepted charges for Evading on Foot (Second) and Felon in Possession of a Weapon." On April 11, 2019, an HPD task force officer ("TFO") sent the offense report to an Assistant United States Attorney. The AUSA then requested a firearm nexus report on April 15th. That same day, the TFO entreated the Harris County Assistant District Attorney ("ADA") to "hold off on making a deal[ ]" with Kelley because the AUSA "agreed to take this."⁴ Kelley had posted a $10,000 bond for his felon in possession charge and a $5,000 bond for his evading arrest charge on April 11th. But he remained in Harris County custody until April 23rd "because of a motion to revoke parole on a prior conviction." On April 29th, the TFO authored a report stating that AUSA had "accepted this case for prosecution."⁵

Kelley appeared in the Harris County 180th Criminal District Court on April 30th, May 23rd, and June 25th. The court granted extensions during the first two appearances to allow Kelley to retain counsel before finally appointing counsel at the final hearing. On June 27th, Harris County returned separate indictments against Kelley for unlawfully possessing a firearm and evading arrest. On August 14th, the TFO forwarded the AUSA a firearm nexus report prepared by a special agent with The Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF").⁶ The TFO also requested "all body camera video associated with this case" that same day.

Kelley was separately charged on August 14, 2019 with Burglary of a Motor Vehicle in Harris County Criminal Court at Law 9.⁷ The next day, Kelley appeared in the 180th Criminal District Court on the evading arrest and felon in possession charges, and both counsel "requested further time to review discovery[.]" The court reset the hearing and ordered Kelley to appear on October 10, 2019. During the interim, the TFO obtained the body camera video associated with Kelley's arrest in this case on August 21st and gave it to the AUSA on September 11th.

The AUSA then consulted with TFO on October 9, 2019 "concerning a date for Grand Jury." That same day, the Fort Bend County, Texas Sheriff arrested Kelley and charged him with evading arrest or detention with a vehicle.⁸ The Sheriff held Kelley without bond on the felon in possession charge, preventing Kelley from attending his October 10th hearing before the 180th Criminal District Court. Harris County then immediately issued arrest warrants for Kelley based on the pending felon in possession and evasion charges from the April 2019 arrest and the burglary of a motor vehicle charge from the August 2019 arrest.

A federal grand jury indicted Kelley on October 24, 2019 for having been a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). The federal government then applied for a writ of habeas corpus ad prosequendum on December 19, 2019, requesting the court to order the United States Marshal to produce Kelley for an initial appearance on January 2, 2020. Kelley appeared in federal court on that date as ordered.

Kelley moved to dismiss the indictment on January 27, 2020, arguing that the government violated the Speedy Trial Act, 18 U.S.C. § 3161(b). He specifically contended that "actions taken by the state officials amounted to a ruse to detain him for later federal prosecution." The district court held an evidentiary hearing on February 24th and took the motion under advisement. Before ruling, the court held another hearing on March 2nd where it continued the case and clarified that it was "not counting any continuance time against the government other than any delay that may [have] already occurred up to this date." The court then denied the motion to dismiss on April 14th, finding that Kelley failed to show that the impending federal weapons charge "was ‘the’ or even ‘a’ primary [motivation for holding him] and [did] not prove[that] his ‘detention’ by state officials was a ruse."

The district court conducted a bench trial on August 13, 2020 and found Kelley guilty of possessing a firearm that travelled in interstate commerce despite having been previously convicted of a felony. Kelley did not contest any facts and "stipulate[d] to everything." The United States Probation Office then produced an initial PSR on October 1, 2020. Kelley raised several objections, and the Probation Office issued an amended final PSR as a result. The Probation Office then filed several addenda to the PSR, resulting in a total offense level of 27, a criminal history category of V,⁹ and a guideline imprisonment range of 120 months.¹⁰ Pertinent here, the PSR enhanced the base offense by four levels under U.S.S.G. § 2K2.1(b)(6)(B) because Kelley "used or possessed [a] firearm or ammunition in connection with another felony offense, to wit: evading arrest or detention." It further enhanced the base offense by two levels under U.S.S.G. § 3C1.2 because Kelley "recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer[.]"

The district court held a sentencing hearing on November 5, 2020 and sustained Kelley's objection to the four-level enhancement under USSG § 2K2.1(b)(6)(B), resulting in a total offense level of 23, because Kelley did not use his firearm to facilitate the felony at issue. But the court overruled Kelley's second objection after finding that Kelley had "the reckless mindset trying to escape officers like he did with the discharge of the gun[,] ....[because] not only could it have injured Mr. Kelley or the officers, it could have injured some innocent person ... walking down the street." The court adopted the PSR aside from the single objection it sustained. The court then sentenced Kelley to 84 months of imprisonment and three years of supervised release.¹¹ This sentence was in accord with the Probation Office's recommendation. Kelley timely appealed both his conviction and sentence.

II. STANDARD OF REVIEW

This court "review[s] the district court's factual findings regarding a Speedy Trial Act motion for clear error and its legal conclusions de novo. " United States v. De La Peña-Juarez , 214 F.3d 594, 597 (5th Cir. 2000) (citation omitted). It similarly "review[s] a district court's interpretation of the Sentencing Guidelines de novo and its factual findings for clear error." United States v. Barry , 978 F.3d 214, 217 (5th Cir. 2020) (citation omitted). Federal Rule of Criminal Procedure 52(b) otherwise affords this court discretion to correct unpreserved plain errors. Such discretion may, however, only be exercised upon "a showing of (1) an error (2) that is clear or obvious, (3) that affects substantial rights, and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings." United States v. Nava , 762 F.3d 451, 452 (5th Cir. 2014) (citations omitted). Satisfying each requirement is difficult. Id. (quotation omitted).

III. DISCUSSION

As initially noted, Kelley contends that the district court erred by denying his motion to dismiss the indictment for a violation of the Speedy Trial Act. Regarding his sentence, Kelley challenges the obstruction of justice enhancement for reckless endangerment, and he maintains that the district court erred by treating his two previous attempted aggravated assault convictions as crimes of violence. We address these in turn.

A.

The district court, while acknowledging "a level of cooperation between state officials and the United States Attorney's Office, ... [did] not find [that] the State's primary purpose in holding Kelley was to allow federal authorities time to indict him." It therefore denied Kelley's motion to dismiss his indictment for violating the Speedy Trial Act. Kelley contends that "the state proceedings were a mere ruse to hold him pending federal prosecution."

The Speedy Trial Act provides in relevant part that:

Any information or indictment charging an individual with the commission of an offense shall be filed

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