United States v. Anthony Michael Harris

• Court: Court of Appeals for the Sixth Circuit
• Decided: November 2, 2023
• Docket: 22-5951
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 23a0459n.06

Case No. 22-5951

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Nov 02, 2023 ) KELLY L. STEPHENS, Clerk UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE EASTERN ANTHONY HARRIS, ) DISTRICT OF KENTUCKY Defendant-Appellant. ) ) OPINION

Before: McKEAGUE, READLER and DAVIS, Circuit Judges.

STEPHANIE DAWKINS DAVIS, Circuit Judge. Anthony Harris discharged a firearm

inside a hotel room where he and two other people were present. His conduct led to a guilty plea

to a felon-in-possession charge and a 66-month sentence. He now appeals the sentence,

challenging the district court’s inclusion of a sentencing enhancement for possessing a firearm in

connection with another felony offense. The presentence investigation report (“PSR”)

recommended a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for wanton

endangerment under Kentucky law. Over Harris’s objection, the district court applied the

enhancement and sentenced Harris within the resulting advisory guideline range of 57 to 71

months’ imprisonment. Harris argues that the district court made erroneous factual findings and

misconstrued the law in determining that Harris’s conduct amounted to wanton endangerment

under Kentucky law. We conclude that the district court did not clearly err in its factual findings Case No. 22-5951, United States v. Harris

and properly applied the Sentencing Guidelines. We therefore AFFIRM the district court’s

judgment.

I.

Background. On August 23, 2021, Lexington Police dispatched officers to the Red Roof

Inn after receiving a 911 call reporting that a gunshot was fired by someone in Room 328. Officers

arrived and determined that an occupant in Room 328, later revealed to be Harris, was in

possession of a firearm. For over 20 minutes, officers attempted to coax Harris out of the hotel

room, but he refused to surrender and continued to drink alcohol. During this standoff, officers

observed Harris acting erratically in the window—brandishing a gun and sometimes pointing it to

his head. Due to Harris’s behavior, officers took measures to evacuate the rooms close to Room

328. They were unable, however, to evacuate a family from the room immediately next to Harris’s

and instead required the group to shelter in place. After speaking with the commanding SWAT

team officer, Harris finally exited the hotel room with his hands visible, only to quickly return to

his room. Shortly after that, Harris left the room a second time—showing his hands; officers

quickly discharged their tasers to temporarily immobilize and apprehend him. Harris continued to

behave erratically with the officers and medical staff until he was eventually sedated.

Harris was charged in a two-count indictment with being a felon in possession of a firearm

in violation of 18 U.S.C. § 922(g)(1) and being a prohibited person in possession of a firearm in

violation of 18 U.S.C. § 922(g)(9), based on prior domestic violence convictions. He pleaded

guilty to the felon-in-possession charge pursuant to a plea agreement under Federal Rule of

Criminal Procedure 11(c)(1)(B), and the court dismissed the prohibited-person count. The plea

agreement (“the Agreement”) included recommended Guidelines calculations that were not

binding on the district court. Relevant here, the Agreement included a government

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recommendation to apply an enhancement under § 2K2.1(b)(6)(B) and a provision permitting

Harris to reserve his right to challenge the enhancement.

To support application of the § 2K2.1(b)(6)(B) enhancement, the government presented

the testimony of two witnesses at sentencing. Sergeant Tim Graul of the Lexington Police

Department and Special Agent Megan Knotts of the Bureau of Alcohol, Tobacco, Firearms and

Explosives both interviewed Sandra Toomey, the hotel housekeeper who was present in Room 328

when the weapon discharged. Toomey also witnessed some of Harris’s conduct leading up to law

enforcement officers’ arrival on the scene. Both Graul and Knotts testified that Toomey told them

that prior to the 911 call, she and Melissa Wiley, Harris’s fiancée, were in the room having a

discussion while Harris was either cleaning or clearing a green 9-millimeter Taurus handgun.

Wiley corroborated this portion of the account during an interview with Sergeant Graul shortly

after Harris’s arrest and during her testimony at sentencing. Apparently influenced by the alcohol

or disturbed by the stress of a court appearance earlier that day, Harris had become agitated by

something Toomey said and discharged the firearm into the ceiling. According to Toomey (as

recounted by Knotts), Harris began “waving the gun around the room, at times pointing the gun in

her … and Ms. Wiley’s direction, as well as in the direction of other hotel rooms.” (R. 45, PageID

181–82; see also id. at 190). Though Wiley disputed that Harris was waving the gun, it is

undisputed that it eventually discharged. Neither Toomey nor Wiley stated that they believed the

discharge was intentional, but Toomey was concerned enough that she reported the incident to

hotel management, and they called 911.

Like the government’s recommendation in the plea agreement, the PSR also recommended

a four-level enhancement pursuant to U.S.S.G. § 2K2.1(b)(6)(B) for possessing the firearm in

connection with another felony offense—specifically wanton endangerment in the first degree, a

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Class D felony offense under Kentucky law. See Ky. Rev. Stat. § 508.060. Harris objected to the

enhancement, claiming that the gun discharged accidentally while he was trying to unload it;

therefore, his actions did not meet the definition of wanton endangerment. However, citing the

evidence of Harris’s behavior before and during his arrest, the district court overruled the

objection, applied the enhancement, and found that regardless of whether he intentionally fired the

shot, Harris “wantonly engaged in conduct which created a substantial danger of death or serious

physical injury to others.” See id. On appeal, Harris challenges the district court’s factual findings

supporting the enhancement and denies that his conduct amounted to wanton endangerment.

Harris also argues that the district court’s reliance on Toomey’s witness account as relayed by

Graul and Knotts violated his due process rights because her statements were “unsworn” and

“uncorroborated.” (Dkt. 29, Page 24).

II.

Standard of Review. A challenge to a district court’s calculation of a defendant’s

Guidelines range is a question of procedural reasonableness. United States v. Seymour, 739 F.3d

923, 929 (6th Cir. 2014). There is debate in our case law regarding the standard for reviewing a

district court’s application of the § 2K2.1(b)(6)(B) enhancement. See United States v. Taylor, 648

F.3d 417, 430–31 (6th Cir. 2011). Although we generally review a district court’s Guidelines

calculations factual findings for clear error and its legal conclusions de novo, the discussion in

United States v. Shanklin guides us that “in the specific context of the § 2K2.1(b)(6)(B) firearm

enhancement, we review the district court’s factual findings for clear error and accord due

deference to the district court’s determination that the firearm was used or possessed in connection

with the other felony, thus warranting the application of the enhancement.” 924 F.3d 905, 919

(6th Cir. 2019) (cleaned up); see also United States v. Ennenga, 263 F.3d 499, 502 (6th Cir. 2001)

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(citing Buford v. United States, 532 U.S. 59, 66 (2001)) (clarifying that such fact-specific inquiries

require a more deferential standard of review). Cases applying this standard tend to involve

challenges to whether the nexus requirement of § 2K2.1(b)(6)(B) has been met. Shanklin, 924

F.3d at 919 (quoting Taylor, 648 F.3d at 431) (“[W]hen a defendant ‘challenges the district court’s

determination that the firearm was used or possessed “in connection with” the [other felony

offense]—i.e., that there was a nexus between the firearm and the felony—,’ that inquiry is

necessarily ‘fact-specific’ and thus better examined by the district court.”). Nexus is not at issue

here. Harris instead challenges whether his conduct constitutes the “[other] felony offense” of

first-degree wanton endangerment under Kentucky law. § 2K2.1(b)(6)(B), cmt. n.14(A).

Regardless, the resolution of this standard of review question in this instance need not be

determined here because Harris’s claims fail under any appropriate standard of review.

III.

Wanton Endangerment. Harris argues that because the firearm’s discharge was

“accidental” and he only “fired a single shot,” the district court erred by enhancing his sentence

for wanton endangerment. (Dkt. 29, Pages 21, 25). Under Kentucky law:

A person is guilty of wanton endangerment in the first degree when, under circumstances manifesting extreme indifference to the value of human life, he wantonly engages in conduct which creates a substantial danger of death or serious physical injury to another person.

Ky. Rev. Stat. § 508.060(1). Further, wanton conduct occurs when a person is “aware of and

consciously disregards a substantial and unjustifiable risk that the result will occur or that the

circumstance exists,” and disregarding the risk constitutes a “gross deviation from the standard of

conduct” of a reasonable person in the same situation. Ky. Rev. Stat. § 501.020(3); see also United

States v. Clark, 458 F. App’x 512, 516 (6th Cir. 2012). To show that the firearm has a connection

with the other felony offense under wanton endangerment, reviewing courts consider not only the

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defendant’s behavior, but the proximity of others when a gun is discharged. See United States v.

Kelley, 585 F. App’x 310, 312–13 (6th Cir. 2014) (per curiam) (Statutory elements were satisfied

when a defendant fired a gun multiple times in the air “in the immediate vicinity” of others while

intoxicated and engaged in an argument). This court in Kelley explored the contours of first degree

wanton endangerment involving firearms by looking to the Kentucky Supreme Court’s decision

on wanton endangerment in Swan v. Commonwealth, 384 S.W.3d 77 (Ky. 2012). Id. at 313. Swan

recognized that “[f]iring a weapon in the immediate vicinity of others is the prototype of first-

degree wanton endangerment. This would include the firing of weapons into occupied vehicles or

buildings.” Swan, 384 S.W.3d at 102–03 (quoting Robert G. Lawson & William H. Fortune,

Kentucky Criminal Law § 9–4(b)(2), at 388 n.142 (1998)).

Here, the district court relied on information contained in the PSR and presented at

sentencing to support its finding of wanton endangerment: (1) Harris had been drinking and was

exhibiting erratic behavior before the shot was fired; (2) the firearm Harris was handling was both

loaded and chambered; (3) Toomey and Wiley were inside the room with him when he discharged

the gun; (4) both women described Harris’s mood as disgruntled while he was handling a green

firearm; and (5) this same weapon fired a round into the ceiling. Harris continued his erratic

behavior even after he fired the gun by refusing to surrender to law enforcement, brandishing the

gun in the window, and pointing it to his head. Finally, when officers searched Room 328 they

recovered a loaded green and black Taurus 9-millimeter handgun as well as a spent shell casing

on the floor, and they observed a bullet hole in the ceiling. Assessing the totality of the evidence,

the court concluded that regardless of his level of intoxication, Harris discharged the firearm

without regard for human life. The district court explained that Harris “might not have been

intending to kill anybody, [but] he was handling that gun in a way that he could have killed

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someone given the kinds of behavior that he was exhibiting.” (R. 45, PageID 219). Reviewing

the district court’s conclusion and application of the four-level enhancement, we agree.

Harris does not dispute the fact that he was acting erratically. And he cannot dispute that

two other people were nearby inside the same room when the shot was fired. On top of that, the

room next door was occupied by a family that was forced to shelter in place. The district court did

not clearly err in crediting these facts and Harris cannot reconcile these facts with case law that

supports a finding of wanton endangerment when a firearm is discharged “in close proximity” to

others. See United States v. Sweat, 688 F. App’x 352, 354–55 (6th Cir. 2017) (sentencing

enhancement for wanton endangerment upheld where a firearm discharged in the vicinity of an

adult and a child, noting “it was irrelevant that the defendant did not target those he endangered”);

Combs v. Commonwealth, 652 S.W.2d 859, 860–61 (Ky. 1983) (where a firearm discharged near

two employees but did not hit either of them); Smith v. Commonwealth, 410 S.W.3d 160, 166–66

(Ky. 2013) (where a firearm discharged in the direction of a husband and child only a few feet

away); Kelley, 585 F. App’x at 312 (where a firearm discharged in a densely populated housing

project with several residential units “in close proximity to each other”).

While Harris argues that he “was not threatening anyone nor was he aiming at anyone” and

that the firearm’s discharge into the ceiling ultimately did not endanger the other people in the

room, (Dkt. 29, Page 28), wanton endangerment under Kentucky law does not require as much.

Rather, wanton conduct occurs where the defendant’s actions create a “substantial danger of death

or serious physical injury to another person.” Ky. Rev. Stat. § 508.060 (emphasis added); see

Clark, 458 F. App’x at 516. Regardless of whether Harris accidentally discharged the firearm, the

circumstances surrounding the discharge—his behavior while handling the gun in the presence of

Toomey and Wiley—sufficiently demonstrate the danger of death or serious physical injury to

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others to qualify as wanton. Harris’s recourse to Swan to argue that first-degree wanton

endangerment is inappropriate here because the family sheltering in place during his arrest was

not sufficiently nearby is unavailing. Regardless of whether the family sheltering in place is taken

into consideration for Harris’s wantonness, it is undisputed that the lives of Toomey and Wiley

were endangered by their proximity to him when the gun fired.

Lastly, Harris claims that the government did not meet its burden to show wanton

endangerment by a preponderance of the evidence because the discharge of the firearm was

“likely” accidental given the design of the manual safety mechanism. (Dkt. 29, Page 21).

However, during sentencing, Sergeant Graul and Special Agent Knotts both testified that firearms

do not accidentally discharge and that the trigger must be pulled for the firearm to fire. The district

court credited the officers’ testimonies, and we are loath to second-guess its decision in that regard.

See Shanklin, 924 F.3d at 919–20. Again, Harris’s purported lack of intent to pull the trigger with

gun in hand is insufficient to overcome his erratic behavior and discharge of the firearm in the

presence of others. Accordingly, we discern no reason to disturb the district court’s application of

the U.S.S.G. § 2K2.1(b)(6)(B) enhancement given these circumstances.

Due Process. As a concluding matter, Harris claims that the district court violated his due

process rights because Toomey’s “testimony” contained “inconsistent,” “unsworn, uncorroborated

statements” that served as the “entire basis” for the district court’s application of the enhancement.

(Dkt. 29, Page 24). “A sentencing court may consider all relevant evidence, whether or not such

evidence would be admissible at trial, as long as it has ‘sufficient indicia of reliability to support

its probable accuracy.’” United States v. Rice, 844 F. App’x 844, 846 (6th Cir. 2021) (quoting

United States v. Mukes, 980 F.3d 526, 534 (6th Cir. 2020)). The indicia-of-reliability standard is

a “relatively low hurdle.” United States v. Moncivais, 492 F.3d 652, 659 (6th Cir. 2007). As such,

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courts may consider “[a]ny information” that may be reliable, Rice, 844 F. App’x at 846, as long

as they “assure themselves of sufficient corroborative evidence.” United States v. Santana, 723 F.

App’x 331, 342 (6th Cir. 2018); see also U.S.S.G. § 6A1.3 cmt. (2016).

Though the district court heavily referenced Toomey’s statements as relayed through the

testimony of Graul and Knotts, Toomey’s statements are consistent with other evidence in the

record and are corroborated, at least in part, by Wiley’s testimony. True, the level of detail varies

slightly between accounts, but the accounts are consistent regarding Harris’s erratic behavior, the

gun in the room, the gun being loaded, and the gun being discharged. See Rice, 844 F. App’x at

846 (quoting Santana, 723 F. App’x at 340 (citing United States v. Hunt, 487 F.3d 347, 353 (6th

Cir. 2007))) (for the proposition that “sufficient indicia of reliability” exists where “statements

given at different times included at least some corroborative relevant details that matched

defendant’s conduct”). That Toomey did not testify, and that law enforcement witnesses’

testimony about her statements presented slightly different accounts of Harris’s “waving” of the

gun in the room are not dispositive facts. Id. Graul provided testimony consistent with the PSR

that Harris waved the gun in the window after discharge—which Wiley’s testimony does not

dispute. Knotts’s testimony described Harris waving the firearm to the “beat of the music” and

later, due to his agitation, before the discharge. (R. 45, PageID 181). Even with these purported

‘differences,’ the accounts align to weave a consistent narrative of events demonstrating that

Harris’s behavior was erratic. And the district court reasonably found that Harris’s carelessness

with the firearm was not likely to have changed “between the time that the police were called and

[when] the gun [was] discharged.” (Id. at 218). To the extent that Wiley’s testimony disputed that

Harris was waving the gun before it was discharged, the district court was permitted to weigh that

testimony against the facts that Harris was not entirely in her line of sight (as compared to Toomey)

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and she did not observe the gun discharge. In sum, the testimony of the government’s witnesses

about Toomey’s statements “included at least some corroborative relevant details” concerning

Harris’s conduct with the firearm. See Rice, 844 F. App’x at 846 (quoting Santana, 723 F. App’x

at 340 (discussing Hunt, 487 F.3d at 353)). The evidence in the record, including the witness

accounts, corroborate that Harris was in a heightened emotional state and was drinking; together,

they paint a picture of a man behaving erratically both before and after the gun was fired.

Accordingly, the consistency of the witness testimony coupled with “other record evidence is

sufficient to meet the low reliability threshold” and we discern no clear error. Id.; see also United

States v. Stout, 599 F.3d 549, 558 (6th Cir. 2010) (out-of-court statements met the low, “sufficient

indicia of reliability” threshold, where they were “generally consistent”).

Additionally, the government correctly notes that Harris did not object to the incorporation

in the PSR of Toomey’s statements—many of which Graul and Knotts expounded on in their

testimonies. As a result, by declining to object to the PSR’s inclusion of these statements, Harris

is deemed to have admitted those facts, and the district court did not clearly err in relying on them.

See United States v. Adkins, 429 F.3d 631, 632–33 (6th Cir. 2005) (citing United States v. Stafford,

258 F.3d 465, 476 (6th Cir. 2001)).

VI.

For the reasons set forth above, we AFFIRM the judgment of the district court.

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