Opinion
Criminal No. 19-cr-20440
2023-08-08
UNITED STATES of America, Plaintiff, v. Marzell ANDERSON, Defendant.
Alyse Wu, Erin Lange Ramamurthy, U.S. Attorneys, United States Attorney's Office, Detroit, MI, for Plaintiff.
Alyse Wu, Erin Lange Ramamurthy, U.S. Attorneys, United States Attorney's Office, Detroit, MI, for Plaintiff. ORDER GRANTING IN PART AND DENYING IN PART ANDERSON'S AMENDED MOTION TO DETERMINE QUALIFICATION FOR ARMED CAREER CRIMINAL ACT SENTENCING ENHANCEMENT AND REVISE PRESENTENCE REPORT (ECF No. 73) Jonathan J.C. Grey, United States District Judge
On June 27, 2019, Marzell Anderson III, was indicted on two counts of illegal possession of a firearm with a prior felony conviction. (ECF No. 17.) Anderson entered a Rule 11(c)(1)(C) plea agreement on December 1, 2019. (ECF No. 32.) Anderson pleaded guilty to count one of the indictment. (Id.) The plea assumed that the guideline range was 180 months and that the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), applied to Anderson. (Id.)
On March 3, 2022, Anderson moved for the Court to find that the ACCA does not apply to his sentence based on intervening caselaw that changes how courts analyze prior convictions that trigger application of the ACCA. (ECF No. 44.) Anderson's then appointed attorney moved to withdraw due to irreconcilable differences. (ECF No. 59.) The motion was granted, and another attorney was appointed to replace Anderson's former counselors. (ECF Nos. 62, 63.) On April 25, 2023, Anderson filed an amended motion asking the court to determine if the ACCA applied to his sentencing and to revise the presentence investigation report (PSR). (ECF No. 73.) On May 8, 2023, the government responded. (ECF No. 75.) For the following reasons, the Court GRANTS IN PART AND DENIES IN PART Anderson's motion.
I. BACKGROUND
On June 27, 2019, a grand jury returned an indictment that charged Anderson with two counts of illegal possession of a firearm by a person previously convicted of a felony. (ECF No. 17.) In Count One, the indictment charged that on October 22, 2018, Anderson unlawfully possessed a Kel Tec, Model P-11, 9mm Luger semi-automatic pistol while knowing he had previously been convicted of a felony in violation of 18 U.S.C. § 922(g)(1). (Id.) In Count Two, the indictment also charged that on the same day, Anderson unlawfully possessed a MasterPiece Arms, Model MPA903T-GR "Grim Reaper", 9mm Luger semi-automatic pistol with an obliterated serial number. (Id.)
Anderson signed a plea agreement and stipulated to the following facts. On October 22, 2018, Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) agents found Anderson in a residence during execution of a search warrant along with a Kel Tec Model P-11 semi-automatic handgun in the second-floor bathroom. (ECF No. 32.) Anderson admitted to possessing the handgun. (Id.) At the time of possession, Anderson knew he had previously been convicted of a felony. (Id.)
In exchange for Anderson's guilty plea in December 2019, the government agreed to drop Count Two of the Indictment, for the MasterPiece Arms, "Grim Reaper" 9mm Luger. (ECF No. 32.) The parties stipulated that the guideline range was 180 months (15 years) with the assumption that the ACCA applied. (Id.) They further stipulated that Anderson would receive a sentence of 180 months in prison. (Id.)
Anderson made three main arguments in his motion attacking the application of the ACCA, and he continues to urge this Court to adopt his second and third arguments. (ECF No. 73.) Anderson's second argument is that none of his three prior state drug convictions qualify as "serious drug felon[ies]" because there is no categorical match between the state offenses and federal serious drug offenses. (ECF No. 73.) Third, Anderson argues that the government has not established that his two prior armed robbery convictions or his three drug convictions occurred on "different occasions" as required by Wooden v. United States, a Supreme Court case decided after Anderson entered into the plea agreement. (Id.) Wooden was decided in 2022, nearly three years after Anderson entered into the plea agreement. 595 U.S. 360, 142 S. Ct. 1063, 212 L.Ed.2d 187 (2022).
First, Anderson argued that the Court may not find any ACCA predicates because the Fifth and Sixth Amendments require all facts that increase the penalty for a crime beyond the statutory minimum be determined by a jury. (Id.) Anderson later conceded that the sentencing court can make findings on the ACCA predicates. (ECF. No. 76.)
Anderson also challenges the PSR because it relied on the MasterPiece Arms 9 mm Luger "Grim Reaper" with an obliterated serial number from dismissed Count Two of the Indictment, instead of the Kel Tec from Count One of the Indictment, which he pleaded guilty to unlawfully possessing. (ECF No. 32.) The PSR held Anderson responsible for also illegally possessing the second firearm when scoring the base offense level and adding a +4 enhancement for its obliterated serial number.
The government responds that due to internal United States Department of Justice (DOJ) policy changes and the lack of Anderson's admissions regarding whether ACCA predicates were committed on different occasions, the government no longer seeks to apply the ACCA to Anderson's sentencing. (ECF No. 75, PageID.507.) However, the government maintains that the MasterPiece Arms 9mm Luger "Grim Reaper" was the proper gun to use for determining the sentencing guideline range. (ECF No. 75.)
II. ANALYSIS
A. The Court cannot apply the ACCA to Anderson's sentence
If the ACCA does not apply, the maximum sentence for Anderson's illegal possession offense is 10 years, 18 U.S.C. § 924(a)(3) (Oct. 6, 2006); however, if the ACCA applies, it requires a minimum sentence of 15 years, 18 U.S.C. § 924(e). To qualify for the ACCA enhancement, Anderson must have three previous convictions for violent felonies or serious drug offenses committed on occasions different from one another. Id.
The maximum sentence was modified by Congress to 15 years on June 25, 2022, after Anderson's present offense. See 18 U.S.C. § 924(a)(8) (June 25, 2022).
After Anderson entered his guilty plea on December 9, 2019, the Supreme Court decided Wooden on March 7, 2022, which changed the law regarding how to determine when offenses were committed on different occasions as required by the ACCA. 142 S. Ct. 1063 (2022). Wooden explicitly overruled the Sixth Circuit's precedent on the application of the "occasions clause" of the ACCA. Id. at 1071. Instead of only requiring that the prior offenses take place at different moments in time, as the Sixth Circuit did at the time, the ACCA requires a holistic view of the circumstances. Id. Some factors that the Court should use are closeness in time between offenses, any intervening events, physical proximity, and the character and relationship of the offenses. Wooden, 142 S. Ct. at 1071. The government has the burden of establishing that the offenses occurred on separate occasions. See id.
When deciding questions of ACCA predicates, the Court may only rely on Shepard evidence. See United States v. King, 853 F.3d 267, 272 (6th Cir. 2017) (citing Shepard v. United States, 544 U.S. 13, 20-21, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) and Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). That evidence includes the plea-colloquy transcript, the written plea agreement, or a "record of comparable findings of fact adopted by the defendant upon entering the plea." Id. (quoting Shepard, 544 U.S. at 20, 125 S.Ct. 1254).
After Anderson entered his plea, the DOJ changed its policy for determining whether predicate offenses were committed on different occasions. (Gov't's Br., ECF No. 75, PageID.506.) The DOJ now requires that the determination of the "occasions" clause must be submitted to a jury or for the defendant to admit. (Id.)
However, the government has decided not to pursue the ACCA enhancements due to the change in DOJ policy. (ECF No. 75, PageID.507.) Further, the government has not provided the Court with sufficient Shepard documents. Without more, the Court cannot review the circumstances of Anderson's prior convictions as required by Wooden. See 142 S. Ct. at 1071. Accordingly, Anderson's motion to determine qualification for the ACCA is GRANTED IN PART — the ACCA does not apply to Anderson's sentencing.
B. The presentence investigation report's guideline range
The PSR set the base offense level at 26 for possession of a high-capacity magazine pursuant to United States Sentencing Guideline (USSG) § 2K2.1(a)(1)(A)(i) and (B). (PSR ¶ 20.) It based that finding on Anderson's possession of the MasterPiece Arms 9mm Luger. (Id.) It then applied a + 4 enhancement for the obliterated serial number on the MasterPiece Arms 9mm Luger pursuant to USSG § 2K2.1(b)(4)(B). (Id. ¶ 21.) However, under § 2K2.1, the enhancement for an obliterated serial number can only raise the level to a maximum of 29, so the adjusted offense level was set at 29. (Id. ¶¶ 21 and 25.) It further applied the ACCA and set the offense level to 33 pursuant to that provision. (Id. ¶ 26.) The PSR then decreased the offense level by 3 for Anderson's acceptance of responsibility for a total offense level of 30. (Id. ¶¶ 27, 28, and 29.)
Anderson initially argued that the Court should remove the + 4 enhancement and base the guideline range on the Kel Tec 9mm Luger without a high-capacity magazine and an intact serial number as that is the firearm that Anderson pleaded guilty to illegally possessing. The PSR guideline range was instead based on the MasterPiece Arms 9mm Luger, which had an obliterated serial number. (PSR ¶ 20.) However, in his reply, Anderson concedes (see ECF No. 76, PageID.937) that possession of the MasterPiece Arms 9mm Luger with an obliterated serial number is "relevant conduct," see United States v. Amerson, 886 F.3d 568, 573 (6th Cir. 2018), that allows for the + 4 enhancement. Anderson contends, however, that the "relevant conduct" may be used for enhancements but does not allow for the scoring of the base offense level. (See ECF No. 76, PageID.937.) This argument is unpersuasive since "relevant conduct" is used to determine both the base offense level and the specific offense characteristics. USSG § 1B1.3(a); United States v. Henry, 819 F.3d 856, 867 (6th Cir. 2016) (holding that the base offense level can be based on relevant conduct pursuant to § 1B1.3(a)).
The parties state that the base offense level is either 24 or 26 under USSG § 2K2.1(a)(1) or (a)(2). The government will have to show, by a preponderance of the evidence, what the base offense level is at the sentencing as this remains in dispute. See United States v. Small, 988 F.3d 241 (6th Cir. 2021). Therefore, Anderson's motion to score his guideline using a base offense level of 24 is DENIED.
III. CONCLUSION
For the forgoing reasons, Anderson's motion to determine whether the defendant qualifies for sentence enhancement under the ACCA and to revise the presentence investigation report is GRANTED IN PART AND DENIED IN PART.
The Presentence Investigation Report shall be revised to reflect the Court's finding that the ACCA shall not apply to Anderson's sentence.
SO ORDERED.