United States v. Kerns

• Citation: 9 F.4th 342
• Decision Date: 12 August 2021
• Docket Number: No. 20-1563,20-1563
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Michael KERNS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

9 F.4th 342

UNITED STATES of America, Plaintiff-Appellee,

v.James Michael KERNS, Defendant-Appellant.

No. 20-1563

United States Court of Appeals, Sixth Circuit.

Decided and Filed: August 12, 2021

ON BRIEF: Michael M. Losavio, Louisville, Kentucky, for Appellant. Timothy VerHey, Kathryn Dalzell, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids, Michigan, for Appellee.

Before: SUTTON, Chief Judge; COLE and READLER, Circuit Judges.

COLE, J., delivered the opinion of the court in which SUTTON, C.J., and READLER, J., joined. READLER, J. (pp. 351–56), delivered a separate concurring opinion.

COLE, Circuit Judge.

James Michael Kerns pleaded guilty to one count of kidnapping and one count of possession of a firearm in furtherance of a crime of violence. The district court imposed a 192-month sentence. On appeal, Kerns challenges his guilty plea and sentence. For the reasons that follow, we affirm.

I.

On July 24, 2018, a sheriff's deputy observed a vehicle swerving in traffic and initiated a stop. Kerns was operating the vehicle. When the car came to a halt, the passenger, Kerns's prior romantic partner Alissa Colby, exited and yelled that Kerns had kidnapped her at gunpoint. Kerns was immediately arrested. He admitted to driving from Kentucky to Colby's Michigan residence and threatening to kill Colby and her family if she did not leave with him. Colby later explained that she had jerked the wheel of the car to get the attention of the deputy.

Kerns was indicted on three counts: kidnapping ( 18 U.S.C. § 1201(a)(1) ), interstate domestic violence ( § 2261(a)(1) ), and possession of a firearm in furtherance of a crime of violence ( § 924(c)(1)(a)(ii) ). Kerns requested and obtained a competency and sanity evaluation, which found he suffered from major depressive disorder

and borderline personality disorder. He was nonetheless found to have the capacity for criminal responsibility and to be competent to stand trial.

On February 12, 2020, Kerns pleaded guilty before a magistrate judge to kidnapping and possession of a firearm in furtherance of a crime of violence without the benefit of a plea agreement. Kerns confirmed that he understood the nature of the charges and the maximum prison time he could face, that his decision to plead guilty was voluntary, and that he was waiving certain constitutional rights. Both parties agreed that there was a sufficient factual basis to support Kerns's plea. Having found that Kerns's plea was knowing and intelligently made, the magistrate judge recommended that the district judge accept the plea. On February 28, the district judge adopted the magistrate judge's report and recommendation and accepted Kerns's guilty plea.

The district court sentenced Kerns on May 27. At sentencing, Kerns confirmed he had reviewed the presentence-investigation report and had no objection to its findings. The court explained that the recommended sentencing range for the kidnapping count was 87 to 108 months’ imprisonment and that the firearm count under § 924(c) carried a mandatory minimum sentence of 84 months’ imprisonment, to be served consecutively. Kerns's counsel asked for lenience in sentencing based on his substantial mental-health history. The court ultimately sentenced Kerns to 108 months’ imprisonment on the kidnapping count, the top of the Guidelines range, in addition to a consecutive mandatory minimum sentence of 84 months’ imprisonment on the firearm count. The court recommended mental-health treatment in light of the issues raised by Kerns's counsel.

The court also indicated that Kerns and his counsel had reviewed and signed an order noting additional sentencing conditions prior to sentencing. This signed order noted, among other things, that Kerns "must pay a below advisory guideline fine of $1,000.00 on Counts One and Three, for a total of $2,000.00." (Order, R. 79, PageID 293.) The court summarized this order from the bench, noting that "[t]he additional conditions include a fine of $1,000 on which interest is waived." (Sent'g Hr'g Tr., R. 86, PageID 338.)

Neither party raised any objections to Kerns's sentence. This appeal timely followed.

II.

A. SENTENCING INCONSISTENCY

Kerns first contends that an inconsistency exists between the court's oral reference to a fine of $1,000 and its imposition of a total fine of $2,000. Kerns asserts "that when an oral sentence conflicts with the written sentence, the oral sentence controls." United States v. Schultz , 855 F.2d 1217, 1225 (6th Cir. 1988). But there was no genuine ambiguity as to the total fine Kerns would be required to pay. Prior to sentencing, Kerns and his counsel reviewed and signed additional sentencing conditions that provided he would pay a fine of $1,000 per count for a total of $2,000. When considered in context, the court's failure to specify that the $1,000 fine applied to each count could not have reasonably misled Kerns.

B. PROCEDURAL AND SUBSTANTIVE REASONABLENESS

Next, Kerns purports to challenge both the procedural and substantive reasonableness of his sentence, but his arguments implicate only substantive reasonableness. Procedural reasonableness challenges, unlike substantive ones, focus on whether the district court "fail[ed] to calculate (or improperly calculate[ed]) the Guidelines range, treat[ed] the Guidelines as mandatory, fail[ed] to consider the § 3553(a) factors, select[ed] a sentence based on clearly erroneous facts, or fail[ed] to adequately explain the chosen sentence." Gall v. United States , 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) ; United States v. McBride , 434 F.3d 470, 476 n.3 (6th Cir. 2006). Kerns does not identify any procedural error in the district court's sentencing decision. Nor could he. The court calculated Kerns's sentencing range correctly, consulted the 15 U.S.C. § 3553(a) factors in ordering a 192-month sentence, and carefully explained its reasoning. To succeed in challenging his sentence, Kerns's arguments must thus go to his sentence's substantive reasonableness.

The district court's sentencing decision is reviewed for abuse of discretion. United States v. Lanning , 633 F.3d 469, 473 (6th Cir. 2011). A sentence is assessed for substantive reasonableness by asking whether it is "proportionate to the seriousness of the circumstances of the offense and offender, and sufficient but not greater than necessary, to comply with the purposes of § 3553(a)." United States v. Solano-Rosales , 781 F.3d 345, 356 (6th Cir. 2015) (quoting United States v. Vowell , 516 F.3d 503, 512 (6th Cir. 2008) ). Our review is "highly deferential" though not "without limit." United States v. Boucher , 937 F.3d 702, 707–08 (6th Cir. 2019) (quoting United States v. Rayyan , 885 F.3d 436, 442 (6th Cir. 2018) ).

Kerns argues that the district court failed to give sufficient weight to his mental-health history in weighing the § 3553(a) factors, and consequently his sentence was greater than necessary. First, Kerns's sentence fell within his Guidelines range and therefore is presumptively reasonable. Boucher , 937 F.3d at 707. Second, the court considered Kerns's significant mental-health issues but concluded that the seriousness of his offense, which was supported by a victim-impact statement, deterrence, and the need to protect the public favored a sentence at the top of the Guidelines range. At the same time, the court rejected the government's request for an above-the-Guidelines sentence as "greater than necessary to comply with the statute[.]" (Sent'g Hr'g Tr., R. 86, PageID 337.) A district court does not commit reversible error when it simply assigns more weight to certain § 3553(a) factors than others and arrives at a presumptively reasonable sentence. United States v. Robinson , 892 F.3d 209, 214 (6th Cir. 2018) ("[A] district court does not commit reversible error simply by ‘attach[ing] great weight’ to a few factors." (quoting Gall , 552 U.S. at 57, 128 S.Ct. 586 )). Kerns's sentence was not substantively unreasonable.

C. VALIDITY OF THE GUILTY PLEA

Kerns also challenges the validity of his guilty plea. First, he argues that his guilty plea to the kidnapping charge was invalid because the court improperly advised him of its elements. He also argues that the district court failed to determine a factual basis for his plea to both the kidnapping and firearm charges.

Because Kerns did not object contemporaneously to these purported errors, we apply plain-error review. United States v. Lalonde , 509 F.3d 750, 757 (6th Cir. 2007). To prevail, Kerns must show that the district court committed an "(1) error, (2) that is plain, and (3) that affects substantial rights," and if those elements exist, we may grant relief for the error "if (4) the error seriously affects the fairness, integrity, or reputation of judicial proceedings." Id. at 757–58. An error affects a defendant's substantial rights if there is a "a reasonable probability that, but for the error, he would not have entered the plea." United States v. Dominguez Benitez , 542 U.S. 74, 76, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004).

1. Violation of Rule 11(b)(1)(G)

Kerns's argument that he was improperly advised of the elements of the kidnapping offense implicates Federal Rule of Criminal Procedure 11(b)(1)(G). Under that rule, district courts "must inform the defendant of, and determine that the defendant understands ... the nature of each charge to which the defendant is pleading" before accepting the defendant's guilty plea. Fed. R. Crim. P. 11(b)(1)(G). The "district court must be satisfied, after discussion with the defendant in open court, that the defendant understands the elements of the offense." Lalonde , 509 F.3d at 760 (quoting United States v. McCreary-Redd , 475 F.3d 718, 723 (6th Cir. 2007) ). "Where a defendant is represented by competent counsel, the court usually may rely on that counsel's assurance that the defendant has been properly informed of the nature and elements of the charge to which he is pleading guilty." Bradshaw v. Stumpf , 545 U.S....