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Date: 10-28-2021
Case Style:
United States of America v. Ronqueize Head and Seronte Newby
Case Number: 19-3730
Judge: BEFORE: MOORE, GILMAN, and GRIFFIN, Circuit Judges.
PER CURIAM.
Court: UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Plaintiff's Attorney: United States Attorney’s Office
Defendant's Attorney:
Description:
Cincinnati, Ohio- Criminal defense lawyer represented both defendants for one count of conspiring to commit theft of a federal firearms licensee and two counts of theft from a federal firearms licensee charge. The grand jury also charged Head (but not Newby) with one count of possessing a stolen firearm and one count of possession of a firearm by a prohibited person
Defendants challenge the procedural reasonableness of their sentences. Newby did not
preserve his procedural-reasonableness attacks on his sentence, so they are subject to plain-error
review. United States v. Davis, 751 F.3d 769, 773 (6th Cir. 2014). Head, however, did preserve
his procedural-reasonableness challenges to his sentence, so we review them under the abuse of
discretion standard. United States v. Mack, 808 F.3d 1074, 1084 (6th Cir. 2015). The party
challenging the procedural reasonableness of a sentence has the burden to demonstrate that the
district court abused its discretion when it imposed the sentence. United States v. Houston, 529
F.3d 743, 756 (6th Cir. 2008). A district court abuses its discretion when it imposes a procedurally
unreasonable sentence. United States v. Amawi, 695 F.3d 457, 486 (6th Cir. 2012). “A sentence
is procedurally unreasonable if, among other things, the district court ‘fail[s] to calculate (or
improperly calculate[s]) the Guidelines range, treat[s] the Guidelines as mandatory, fail[s] to
consider the § 3553(a) factors, select[s] a sentence based on clearly erroneous facts, or fail[s] to
adequately explain the chosen sentence.’” Davis, 751 F.3d at 773 (alterations in original) (quoting
Gall v. United States, 552 U.S. 38, 51 (2007)). And in this context, “our review of the district
court’s specific legal determinations . . . is de novo, and our review of the district court’s specific
factual findings is for clear error.” Id.
B.
Newby also attacks the substantive reasonableness of his sentence, which we review for an
abuse of discretion. United States v. Sherrill, 972 F.3d 752, 769 (6th Cir. 2020). The party
disputing the substantive reasonableness of a sentence has the burden to show that the district court
abused its discretion when it imposed the sentence. Houston, 529 F.3d at 756. A district court
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abuses its discretion when it imposes a substantively unreasonable sentence. Amawi, 695 F.3d at
486. Generally, “a sentence is unreasonable ‘if it is selected arbitrarily, if it is based on
impermissible factors, if it fails to consider a relevant sentencing factor, or if it gives an
unreasonable amount of weight to any pertinent factor.’” United States v. Massey, 663 F.3d 852,
857 (6th Cir. 2011) (quoting United States v. Rosenbaum, 585 F.3d 259, 267 (6th Cir. 2009)).
Here, however, Newby challenges a below-Guidelines sentence caused by a downward variance.
Because of that wrinkle, “rather than asking whether considerations based upon § 3553(a) are
sufficiently compelling to justify the sentence, this court must determine whether the
considerations based upon § 3553(a) are so compelling as to necessitate a shorter sentence.”
United States v. Kirchhof, 505 F.3d 409, 414–15 (6th Cir. 2007). And, “[a]lthough it is not
impossible to succeed on a substantive-reasonableness challenge to a below-guidelines sentence,
defendants who seek to do so bear a heavy burden.” United States v. Greco, 734 F.3d 441, 450
(6th Cir. 2013).
C.
Finally, Newby also brings an ineffective-assistance-of-counsel claim. Such “claims are
mixed questions of law and fact, which [we] review de novo.” United States v. Levenderis, 806
F.3d 390, 401 (6th Cir. 2015) (citation omitted).
III.
The main issue in this appeal is whether the district court imposed a procedurally
unreasonable sentence on defendants when it allegedly miscalculated their Guidelines ranges by—
according to defendants—erroneously applying § 2K2.1(b)(6)(B)’s possession-of-a-firearm-inconnection-with-another-felony-offense enhancement. For the reasons to follow, we conclude that
the district court correctly imposed the § 2K2.1(b)(6)(B) enhancement.
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A.
The parties disagree on the applicable framework for evaluating the district court’s
imposition of the § 2K2.1(b)(6)(B) enhancement. On the one hand, there is the framework favored
by defendants. It comes from United States v. Sanders, 162 F.3d 396 (6th Cir. 1998). According
to Sanders, the “another felony offense” component of the Guideline “require[s], as a condition
precedent to the application of . . . [the] enhancement, a finding of a separation of time between
the offense of conviction and the other felony offense, or a distinction of conduct between that
occurring in the offense of conviction and the other felony offense.” Id. at 400. And defendants
assert that in this case, there is no other offense that was separated temporally or involved different
conduct from the offense of conviction.
On the other hand, there is the framework preferred by the government. In 2006 (after
Sanders), the Sentencing Commission added commentary—Application Note 14(B)—to the
Guideline “to resolve a circuit split over the application of § 2K2.1(b)(6) when a defendant’s
conduct constituted another felony offense in the nature of burglary or a drug offense.”
1
United
States v. Krumwiede, 599 F.3d 785, 787 (7th Cir. 2010). The commentary states that
§ 2K2.1(b)(6)(B) “appl[ies] . . . in a case in which a defendant who, during the course of a
burglary, finds and takes a firearm, even if the defendant did not engage in any other conduct with
that firearm during the course of the burglary.” U.S.S.G. § 2K2.1 cmt. n.14(B).
We take care to remember that “[i]f it is not necessary to decide more, it is necessary not
to decide more[.]” BellSouth Telecomms., Inc. v. Farris, 542 F.3d 499, 505 (6th Cir. 2008)
1The commentary also postdates another one of our cases—United States v. McDonald—
that defendants cite to support their position on whether a contemporaneous burglary can satisfy
§ 2K2.1(b)(6)(B)’s “another felony offense” requirement. 165 F.3d 1032, 1037 (6th Cir. 1999),
abrogated by United States v. Jackson-Randolph, 282 F.3d 369 (6th Cir. 2002).
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(quoting PDK Labs. Inc. v. U.S. D.E.A., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J.,
concurring in part and concurring in the judgment)). And to decide this appeal, we need not resolve
which framework controls. As our subsequent analysis will show, the district court’s application
of the § 2K2.1(b)(6)(B) enhancement was correct under the Sanders framework.
B.
In Sanders, we held that the “term ‘another felony offense’ would at least require, as a
condition precedent to the application of . . . [the § 2K2.1(b)(6)(B)] enhancement, a finding of a
separation of time between the offense of conviction and the other felony offense, or a distinction
of conduct between that occurring in the offense of conviction and the other felony offense.”
162 F.3d at 400. Head and Newby pleaded guilty to multiple felony theft offenses. One of their
felonies of conviction occurred on July 2, 2017, when they stole firearms from a gun store in Ohio.
Six days later, on July 8, 2017, Head and Newby committed another felony offense, when they
burglarized a gun store in Kentucky, again stealing firearms. Neither party disputes that the
burglary in Kentucky qualifies as a felony offense. Thus, due to the substantial separation of time
between Head’s and Newby’s offense of conviction and their other felony offense, Head’s and
Newby’s conduct was eligible for the § 2K2.1(b)(6)(B) enhancement under the Sanders
framework.
Additionally, Head’s and Newby’s conduct satisfies § 2K2.1(b)(6)(B)’s requirement that
defendants must have “used or possessed any firearm . . . in connection with another felony
offense[.]” U.S.S.G. § 2K2.1(b)(6)(B) (emphasis added). Application Note 14(E) explains when
the relationship between the offense of conviction and the other felony offense satisfies
§ 2K2.1(b)(6)’s “in connection with” requirement. U.S.S.G. § 2K2.1 cmt. n.14(E)(ii). When two
“unlawful possession offenses” are “part of the same course of conduct or common scheme or
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Nos. 19-3730/3731, United States v. Head, et al.
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plan,” then § 2K2.1(b)(6)(B) applies. U.S.S.G. § 2K2.1 cmt. n.14(E)(ii) (citing U.S.S.G.
§ 1B1.3(a)(2) & cmt. n.5(B)). The district court correctly found that defendants’ conduct
constituted a “crime spree,” which establishes that the thefts and burglary were a part of the “same
course of conduct or common scheme or plan.” U.S.S.G. § 2K2.1 cmt. n.14(E)(ii).
Because defendants’ gun thefts and felony burglary were separated by time and were parts
of the same course of conduct, the district court’s application of the § 2K2.1(b)(6)(B) enhancement
was correct under Sanders.
2
We leave for a later day which framework—Sanders or Application
Note 14(B)—will determine whether a felony burglary that occurs contemporaneously with a
firearm possession constitutes “another felony offense” for the purposes of the § 2K2.1(b)(6)(B)
enhancement.
IV.
Defendants also argue that applying § 2K2.1(b)(6)(B) to them constituted impermissible
double counting, which rendered their sentences procedurally unreasonable. “[D]ouble counting
occurs when precisely the same aspect of the defendant’s conduct factors into his sentence in two
separate ways.” United States v. Battaglia, 624 F.3d 348, 351 (6th Cir. 2010) (alteration in
original) (citation omitted). “But no double counting occurs if the defendant is punished for
distinct aspects of his conduct.” Id. If double counting occurred, “we must determine if the double
counting [wa]s impermissible.” Id. Moreover, impermissible double counting renders a sentence
2Our review of Head’s preserved procedural-reasonableness challenge reveals that it was
not error for the district court to apply the § 2K2.1(b)(6)(B) sentence enhancement to defendants.
Accordingly, Newby’s unpreserved procedural-reasonableness challenge regarding
§ 2K2.1(b)(6)(B) does not survive plain-error review, which requires—among other things—
Newby to prove that the district court committed an error. United States v. Vonner, 516 F.3d 382,
386 (6th Cir. 2008) (en banc).
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procedurally unreasonable because it improperly calculates a defendant’s Guidelines range. See
id.
Newby argues that double counting occurred when the district court used the same
conduct—the thefts of the firearms—to trigger an enhancement under § 2K2.1(b)(4)(A) and an
enhancement under § 2K2.1(b)(6)(B). Head contends that double counting happened because the
district court used the same conduct—stealing the guns—to set his original base offense level and
as a basis for applying § 2K2.1(b)(6)(B)’s enhancement. Both defendants are wrong. The conduct
that the district court relied on to apply § 2K2.1(b)(6)(B) was defendants’ state-law felony burglary
of Mark’s Guns. Defendants were not charged with or convicted for burglarizing Mark’s Guns.
And the burglary conduct was not the same as the gun-theft conduct. Therefore, when the district
court applied § 2K2.1(b)(6)(B)’s enhancement, it did not engage in double counting (let alone
impermissible double counting).
V.
The penultimate issue in this appeal is whether Newby’s sentence was substantively
unreasonable. It was not.
The heart of Newby’s argument is that his sentence was substantively unreasonable
because he received the same sentence as his co-defendant despite supposedly material differences
between them. Newby identifies two groups of differences. First, Head was allegedly more
culpable than Newby. Head pleaded guilty to each count that Newby pleaded guilty to, but Head
also pleaded guilty to two additional counts. Moreover, Head “made overt acts to sell the stolen
firearms to third parties,” but Newby did not. Second, Head “greatly influenced and manipulated”
Newby during the crimes and Newby was “more susceptible to this offense than” Head.
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Although Newby identifies some differences between himself and his co-defendant, he
does not explain why those differences show that his sentence was arbitrary or based on at least
one impermissible factor. He also does not articulate how the district court failed to consider at
least one relevant factor or gave an unreasonable amount of weight to at least one relevant factor.
“[A]ppellate courts are rarely the time or the place to re-weigh the § 3553(a) factors.” United
States v. Patterson, 535 F. App’x 509, 510 (6th Cir. 2013). Contrary to Newby’s assertions, the
district court considered and accounted for Newby’s vulnerabilities: “I do appreciate the fact that
you probably, all else being equal, were more susceptible to this offense than your brother may
have been, based upon the facts and circumstances of your upbringing, the situation that you found
yourself in.” And the district court gave Newby a larger downward variance than the one it gave
Head.3
Regarding the culpability point, the district court imposed an enhancement on Head for
making overt acts to sell guns; Newby, however, did not receive that enhancement. “The district
court listened to . . . [Newby’s] arguments for a lower sentence” and it “found them convincing
but only to a point.” Patterson, 535 F. App’x at 510. Ultimately, Newby’s substantiveunreasonableness argument fails because nothing he has identified was “so compelling as to
necessitate a shorter sentence.” Kirchhof, 505 F.3d at 415 (emphasis added).
VI.
The last issue is Newby’s ineffective-assistance-of-counsel claim. He asserts that his trial
attorney rendered ineffective assistance by failing to object to § 2K2.1(b)(6)(B)’s enhancement.
“As a general rule, a defendant may not raise ineffective assistance of counsel claims for the first
time on direct appeal, since there has not been an opportunity to develop and include in the record
3Newby’s Guidelines range (121 months to 151 months) was slightly higher than Head’s
(120 months to 150 months).
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evidence bearing on the merits of the allegations.”4
Levenderis, 806 F.3d at 401 (citation omitted).
We have the option, however, to “grant an exception to this general rule where the parties have
adequately developed the record so as to enable us to reach the merits of the claim.” Id. To justify
a departure from the default rule, Newby asserts (1) that it “is clear from the lower court
record . . . that Mr. Newby’s co-defendant’s counsel felt strongly about the merits of raising this
objection prior to sentencing and spent most of his time at the sentencing hearing arguing this
objection,” and (2) “[i]t would have been very easy for Mr. Newby’s trial counsel to have joined
in with Mr. Head’s counsel in raising this objection, but he did not do so.” Newby, however,
points to nothing in the record that “provide[s] any information about why [his] lawyer[ ] chose to
take the action[ ] [he] took.” United States v. Williams, 753 F.3d 626, 637 (6th Cir. 2014). We
have, therefore, “no way of knowing whether a seemingly unusual or misguided action by counsel
had a sound strategic motive or was taken because the counsel’s alternatives were even worse.”
Id. (quoting Massaro v. United States, 538 U.S. 500, 505 (2003)). Accordingly, we decline to
address this claim.
Outcome: For the foregoing reasons, we affirm the district court’s judgments.
Plaintiff's Experts:
Defendant's Experts:
Comments: