United States v. Christopher Farrow

• Court: Court of Appeals for the Sixth Circuit
• Decided: December 26, 2018
• Docket: 17-5919
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 18a0642n.06

No. 17-5919

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

FILED UNITED STATES OF AMERICA, ) Dec 26, 2018 ) DEBORAH S. HUNT, Clerk Plaintiff-Appellee, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE WESTERN CHRISTOPHER FARROW, ) DISTRICT OF TENNESSEE ) Defendant-Appellant. ) )

BEFORE: CLAY and GRIFFIN, Circuit Judges; ZOUHARY, District Judge.*

PER CURIAM. In 2013, a jury found Defendant-Appellant Christopher Farrow guilty of

a single count of being a felon in possession of a firearm. Farrow was originally sentenced to

240 months under the Armed Career Criminal Act. Later Supreme Court decisions interpreting

that Act rendered Farrow’s sentence invalid. The district court resentenced Farrow to 120 months

in 2017. Farrow now appeals this new sentence, arguing it is both procedurally and substantively

unreasonable. In terms of procedure, he argues the district court improperly applied an

enhancement for reckless endangerment during flight. In terms of substance, he argues the district

court ignored his history and characteristics at resentencing.

For the reasons below, we AFFIRM.

* The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio, sitting by designation. No. 17-5919, United States v. Farrow

BACKGROUND

Arrest and Trial

One April afternoon in Memphis, Tennessee, Christopher Farrow was among a group of

men loitering outside an apartment building. A security guard saw the men trespassing and flagged

down nearby police. When officers approached the group, Farrow ran and officers pursued. As

Farrow started to run, two officers and one civilian eyewitness saw him toss a black handgun to

the ground. Another individual in the group, Kenny Lockhart, then tried to pick up the gun, but

an officer tackled him and wrestled the gun away. The officers who chased Farrow quickly caught

and arrested him.

Farrow was tried before a jury on one count -- felon in possession of a firearm. Farrow

introduced an audio recording from the scene with an officer saying, “I’ve got one with a gun,”

and then saying, “[P]ut the gun down!” The jury found Farrow guilty.

First Sentencing Hearing

At Farrow’s first sentencing in March 2013, he raised two objections relevant to this

appeal. First, he objected to the application of a sentence enhancement under USSG § 3C1.2 for

reckless endangerment during flight. Section 3C1.2 provides for two additional offense points

where a defendant “recklessly created a substantial risk of death or serious bodily injury to another

person in the course of fleeing from a law enforcement officer.” Farrow argued he discarded the

gun in compliance with a police command, so he could not have created a substantial risk of serious

injury or death.

The court denied the objection, finding, “on the actual facts [and] the testimony of the

officers and the lay witness,” that Farrow “dropped the pistol and ran.” The court explained that

“[h]ad the defendant not . . . dropped the pistol and run, we wouldn’t have had that dangerous

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situation, everything would have been contained right there.” The district court found that Farrow,

by dropping the gun and running away, created a risk to both officers and bystanders.

Defense counsel’s second objection concerned Farrow’s educable mental retardation

diagnosis, a condition that made him less culpable and more deserving of a downward variance.

Farrow’s “mental condition” was “talked about . . . at length” during this hearing, and the court

factored “the mental aspect of the defendant” into its consideration of the § 3553 sentencing

factors. The court based its sentence on “everything that [was] in front of [it],” stating, “I am

taking into account all of it, the difficult childhood, maintaining his innocence up to this point,

[and] the mental evaluations.” But the court concluded that “the public needs to be protected from

Mr. Farrow,” and denied the request for a downward variance.

The district court ultimately applied two enhancements to Farrow’s sentence. The first was

under § 3C1.2 for reckless endangerment. But as the court applied the enhancement, it omitted

the word “substantial.” Neither party objected to this omission. The court also applied

§ 2K2.1(a)(2) because Farrow had at least two serious prior felony convictions, rendering him an

armed career criminal under the Armed Career Criminal Act. Farrow’s final Guidelines range was

235 to 293 months. The court imposed a sentence of 240 months.

First Appeal

Farrow appealed his initial sentence. Among his several arguments was that the § 3C1.2

enhancement should not have applied because he dropped the gun in compliance with a police

command. United States v. Farrow, 574 F. App’x 723, 732 (6th Cir. 2014). This Court affirmed

his sentence on other grounds, choosing not to reach this issue. Id. Subsequently, the Supreme

Court decided Johnson v. United States, 135 S. Ct. 2551 (2015), and Welch v. United States, 136

S. Ct. 1257 (2016). Farrow no longer had the requisite prior convictions to qualify as an armed

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career criminal. He was entitled to a resentencing, which was held in July 2017. The same judge

who presided over the first sentencing also presided over the resentencing.

Resentencing

At the resentencing hearing, the district court, following a supplemental Presentence

Report (PSR), calculated Farrow’s Guidelines range as 120–150 months -- offense level 26 and

criminal history category VI. But the statutory maximum now capped the sentence at 120 months.

Neither party objected to the Guidelines calculation. There was no discussion of Farrow’s mental

condition and no objection to the application of the § 3C1.2 enhancement. The only substantive

argument defense counsel made was for a downward variance based upon the less-serious nature

of Farrow’s offense and his good behavior in prison. The court responded by recognizing Farrow’s

accomplishments in prison, but also noting Farrow had several prison disciplinary infractions.

Then the judge recited the § 3C1.2 standard, as he did at the original sentencing. He stated

that Farrow “recklessly creat[ed] the risk to others,” again omitting the word “substantial.” The

court did recite the standard with the word “substantial” once during resentencing, but replaced

the word “risk” with “fear.” Again, neither party objected.

The district court denied Farrow’s request for a downward variance. The court “took into

account everything” from the original sentencing, weighed “the positives and the negatives,” and

found that “[t]he negatives just continue to outweigh the positives.” Accordingly, the court

sentenced Farrow to 120 months. The court asked if there were any objections; there were none.

This appeal followed.

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DISCUSSION

Procedural Reasonableness

Farrow alleges his sentence is procedurally unreasonable because the district court

erroneously applied the § 3C1.2 sentence enhancement for reckless endangerment. Farrow

challenges its application, arguing the district court applied an incorrect legal standard because the

court omitted the word “substantial” from its recitation. Farrow also argues the evidence does not

warrant the enhancement because he discarded the gun in front of police officers in response to an

officer’s command. In other words, Farrow argues, although he may have created a risk by

discarding his gun, the way he discarded it did not create a substantial risk.

Farrow raises this argument for the first time on this appeal. He did not object to the

omission at either sentencing hearing, even after the district court asked if there were any other

objections. Where the sentencing court asks for any further objections and “the relevant party does

not object,” then the argument is “not preserved” and “plain-error review applies.” United States

v. Vonner, 516 F.3d 382, 385 (6th Cir. 2008) (en banc).

“In reviewing for plain error, we consider whether (1) there was an error, (2) which was

plain, (3) that affected the defendant’s substantial rights, and (4) that, in our discretionary view,

seriously affects the fundamental fairness, integrity, or public reputation of judicial proceedings.”

United States v. Trammel, 404 F.3d 397, 401 (6th Cir. 2005). The third prong “requires the

defendant to show that the error was ‘prejudicial,’” or that it “affected the outcome of the district

court proceedings.” Id. (quoting United States v. Olano, 507 U.S. 725, 734 (1993)). Because

Farrow cannot make this showing, we need not examine the other plain error prongs.

The district court rejected Farrow’s argument that he dropped his gun to comply with a

police command, finding instead that “[Farrow] had the pistol, police came, [and he] dropped it

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and ran.” Further, it found that another suspect tried to pick up the gun and police needed to tackle

that suspect to disarm him.

This Court reviews these findings of fact for clear error, giving significant deference to the

district court. United States v. Dial, 524 F.3d 783, 785 (6th Cir. 2008). When this Court reviews

factual findings for clear error, it asks only whether the district court adopted a reasonable view of

the evidence. Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985). “Where there are two

permissible views of the evidence, the factfinder’s choice between them cannot be clearly

erroneous.” Id. So long as the factual findings are “plausible in light of the record viewed in its

entirety,” there is no clear error. Id. Here, the district court’s view of the evidence was reasonable.

“[T]he lay witness confirms what [the] police officers have said, the defendant dropped the pistol

and ran.”

With that decided, this Court must next determine de novo whether Farrow, by dropping a

loaded pistol in front of other suspects and pursuing officers, recklessly created a substantial risk

of death or serious bodily injury to another person. This Court addressed a similar question in

United States v. May, 430 F. App’x 520, 525–27 (6th Cir. 2011), where it affirmed the application

of the § 3C1.2 enhancement. There, the defendant discarded a loaded gun in a public-housing

complex while fleeing on foot from police, and officers quickly recovered the gun. Id. at 526.

This Court found that the risk created by discarding “a loaded gun near other people” is substantial,

even when it is done “in front of police officers,” because the “weapon could be found or otherwise

utilized by another individual.” Id. at 526–27 (quoting United States v. Howard, 301 F. App’x

446, 449 (6th Cir. 2008)).

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Other circuits, too, recognize that discarding a loaded weapon in a public place can warrant

the § 3C1.2 enhancement. See, e.g., United States v. Rogers, 423 F. App’x 636, 640 (7th Cir.

2011) (“[H]e discarded a loaded revolver in a residential neighborhood at night, creating a

substantial risk that someone would find it and get hurt.”); United States v. Lard, 327 F.3d 551,

553 (7th Cir. 2003) (noting that “simply leaving a weapon in a public place can amount to reckless

endangerment”); United States v. Brown, 314 F.3d 1216, 1221 (10th Cir. 2003) (holding that

discarding a loaded gun in an area with children and other bystanders constituted reckless

endangerment); United States v. Jefferson, 58 F. App’x 8, 10 (4th Cir. 2003) (noting that discarding

a loaded gun could constitute a substantial risk of injury to the community).

Similarly, here, the risk Farrow created was substantial, as evidenced by officers needing

to tackle and disarm the suspect who attempted to pick up the gun. In short, the district court’s

incomplete recitation of the § 3C1.2 standard did not affect the outcome of the proceedings; it was

not plain error.

Substantive Reasonableness

Next, Farrow argues that his sentence is substantively unreasonable because the district

court failed to consider the impact of his mental retardation and limited intellectual capacity at

resentencing. This Court reviews sentences for substantive reasonableness under the abuse-of-

discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007).

To be substantively reasonable, a sentence “must be 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. Vowell, 516 F.3d 503, 512 (6th Cir. 2008)

(internal quotation marks and citation omitted). “A sentence may be considered substantively

unreasonable when the district court selects a sentence arbitrarily, bases the sentence on

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impermissible factors, fails to consider relevant sentencing factors, or gives an unreasonable

amount of weight to any pertinent factor.” United States v. Webb, 616 F.3d 605, 610 (6th Cir.

2010) (citation omitted). The sentencing judge needs to give enough explanation “to satisfy the

appellate court that he has considered the parties’ arguments and has a reasoned basis for

exercising his own legal decisionmaking authority.” Chavez-Meza v. United States, 138 S. Ct.

1959, 1964 (2018) (citation omitted). The amount of explanation required depends, in part, “upon

the legal arguments raised at sentencing.” Id. at 1965. Further, where a sentence is within the

calculated Guidelines range, as it is here, that sentence is entitled to a presumption of

reasonableness. See Vonner, 516 F.3d at 389. Accordingly, Farrow bears the burden of rebutting

that presumption.

Farrow’s primary argument is that “the record is absent any discussion by the district court

at resentencing relative to [his] mental retardation and limited intellectual capacity” -- part of

Farrow’s personal history and characteristics. But Farrow ignores that the district court considered

the “full record,” including the trial and the original sentencing hearing.

At the original sentencing, defense counsel discussed Farrow’s mental retardation

extensively, and the district court acknowledged the argument, stating that Farrow’s mental

retardation “bears out in the grades that [Farrow] was getting” in school and in his time “with the

Tennessee Department of Corrections.” The district court took “the mental evaluations” into

account, but also noted that “every time [Farrow] is out he gets into trouble.” The court ultimately

denied a variance on this ground, finding that public safety concerns trumped any mitigating

evidence of mental retardation.

At resentencing, the court opened by saying, “[W]e’ve been through a sentencing before,

I’m very much familiar with Mr. Farrow’s background, the positive information as well as the

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negative information.” It noted the court was again “taking into account and factoring in the

positives and the negatives,” concluding “[t]he negatives just continue to outweigh the positives.”

CONCLUSION

We AFFIRM the Guidelines sentence of 120 months.

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