NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 18a0481n.06
Case No. 17-4114
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Sep 24, 2018 UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE NORTHERN DEZAY MARTELL ELY, ) DISTRICT OF OHIO ) Defendant-Appellant. ) OPINION
BEFORE: SUTTON, McKEAGUE, and THAPAR, Circuit Judges.
McKEAGUE, Circuit Judge. Dezay Ely pleaded guilty to attempting murder with malice
aforethought, discharging a firearm during a crime of violence, and being a felon in possession of
ammunition. The district court sentenced him to life imprisonment. Unhappy with his fate, Ely
argues that his sentence was procedurally and substantively unreasonable. Finding no error, we
affirm.
I.
The shooting. In Spring 2016, Ayauna Edwards-Bush met Defendant Dezay Ely. The two
became romantically involved, and Ely brought Bush to spend time with his friends. On one outing,
Bush joined Ely and Raymond Moore on a road trip to a nearby town. Once the three reached their
destination, Ely planned to rob a barber; but he ultimately lost his nerve. Case No. 17-4114, United States v. Ely
A few mornings later, Ely woke Bush and told her they needed to prepare for another
robbery. This time, however, Ely said he wanted to test fire his gun first. So Moore again picked
up Bush and Ely, and the trio drove to a national park. When they arrived at the park, Moore
stopped the car in a secluded area. Ely got out and told Bush to do the same. She at first refused,
but Ely chided her until she relented. Ely and Bush then walked away from the car, and Ely pulled
out his gun. After firing some shots in the air, Ely pointed the gun at Bush and pulled the trigger
three times—hitting her in the head, face, and neck. Bush survived, but she sustained severe and
permanent injuries.
The sentencing. Without a plea agreement, Ely pleaded guilty to attempting murder with
malice aforethought, discharging a firearm during a crime of violence, and being a felon in
possession of ammunition. Next came sentencing. For this appeal, only two decisions matter. First,
the district court found, over Ely’s objection, that the offense would have constituted first-degree
murder. For the attempted murder and felon in possession charges,1 that decision increased Ely’s
base offense level by six points. See United States Sentencing Commission, Guidelines Manual,
§ 2A2.1(a) (Nov. 2016). Second, the district court varied upwards from a Guidelines range of
120 months2 and sentenced Ely to life imprisonment for discharging a firearm during a crime of
violence.
II.
We apply an abuse-of-discretion standard to sentencing challenges. Gall v. United States,
552 U.S. 38, 51 (2007). To obtain relief, an appellant must show that the sentence is either
1 The district court grouped the two charges for the Guidelines calculation. 2 Unlike the calculation for the attempted murder and felon in possession charges, Ely’s Guidelines range for discharging a firearm during a crime of violence was set according to the statutory minimum. See USSG § 2k2.4(b). -2- Case No. 17-4114, United States v. Ely
procedurally or substantively unreasonable. Id. Ely makes both arguments, and we address each
in turn.
Procedural reasonableness. Ely argues that his sentence is procedurally unsound because
the district court improperly calculated the Guidelines range. In support, Ely asserts that the district
court: (1) performed unconstitutional factfinding; (2) determined incorrectly that he premeditated
the attempted murder; and (3) drew erroneous factual conclusions. Although Ely is right that an
improperly calculated Guidelines range would render his sentence procedurally unreasonable, id.,
he is wrong that the district court erred.
First, the district court’s factfinding was not unconstitutional. To make his claim, Ely relies
on Alleyne v. United States, 570 U.S. 99 (2013). In Alleyne, the Supreme Court held that judicial
factfinding that increases the penalty for a crime is unconstitutional. See id. at 103. But the
Supreme Court clarified that its holding affected only factual findings that enhance mandatory
minimum sentences—not factual findings that influence judicial discretion. Id. at 116. Because the
Sentencing Guidelines are discretionary, judicial factfinding that affects the Guidelines range does
not implicate Alleyne. See United States v. Powell, 847 F.3d 760, 782 (6th Cir. 2017) (citations
omitted); Rogers v. United States, 561 F. App’x 440, 443–44 (6th Cir. 2014).
Next, the district court correctly determined that Ely’s offense would have constituted first-
degree murder. Under the relevant Guideline, courts look at 18 U.S.C. § 1111 to determine whether
the evidence shows that the offense would have constituted first-degree murder. USSG § 2A2.1,
comment. (n.1). Applying its understanding of the facts to the Sentencing Guidelines, the district
court found Ely’s offense would have satisfied § 1111 and thus set a higher base offense level. We
review the district court’s legal interpretation of the Guidelines de novo and its application of the
-3- Case No. 17-4114, United States v. Ely
facts to the Guidelines with due deference. United States v. Sexton, 894 F.3d 787, 793 (6th Cir.
2018) (citations omitted).
Although there are several elements for first-degree murder, only one is at issue here:
whether there was premeditation. A killing is premeditated when it results from planning and
deliberation. United States v. Al-Din, 631 F. App’x 313, 333 (6th Cir. 2015) (citing United States
v. Garcia-Meza, 403 F.3d 364, 371 (6th Cir. 2005)). There is no precise amount of time needed
for premeditation, but there must be enough “for the killer, after forming the intent to kill, to be
fully conscious of that intent.” Id. (quotation omitted).
At a bare minimum, Ely admits to taking Bush to a remote area, aiming a loaded gun at her
head, and shooting her three times. Even if Ely could explain why he took Bush to a remote area,
ordered her out of the car, and led her to a secluded field before shooting her—which we do not
think he can—there is no explanation for why he shot Bush three times except that he planned to
kill her. See, e.g., Al-Din, 631 F. App’x at 333–34 (finding sufficient time to premeditate between
firing of first shot in a house and firing of successive shots in a car outside the house); United
States v. Frost, 521 F. App’x 484, 492 (6th Cir. 2013) (finding premeditation when a defendant
retrieved his gun, pointed it at the victim, and fired). The district court therefore properly found
premeditation.
Finally, the district court’s factfinding was neither erroneous nor consequential. Ely
criticizes the district court’s determinations that: (1) Ely shot Bush in the face while she looked at
him; (2) the shooting was Bush’s last vision; (3) Ely proposed the test firing and pretended his gun
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 18a0481n.06
Case No. 17-4114
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Sep 24, 2018 UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE NORTHERN DEZAY MARTELL ELY, ) DISTRICT OF OHIO ) Defendant-Appellant. ) OPINION
BEFORE: SUTTON, McKEAGUE, and THAPAR, Circuit Judges.
McKEAGUE, Circuit Judge. Dezay Ely pleaded guilty to attempting murder with malice
aforethought, discharging a firearm during a crime of violence, and being a felon in possession of
ammunition. The district court sentenced him to life imprisonment. Unhappy with his fate, Ely
argues that his sentence was procedurally and substantively unreasonable. Finding no error, we
affirm.
I.
The shooting. In Spring 2016, Ayauna Edwards-Bush met Defendant Dezay Ely. The two
became romantically involved, and Ely brought Bush to spend time with his friends. On one outing,
Bush joined Ely and Raymond Moore on a road trip to a nearby town. Once the three reached their
destination, Ely planned to rob a barber; but he ultimately lost his nerve. Case No. 17-4114, United States v. Ely
A few mornings later, Ely woke Bush and told her they needed to prepare for another
robbery. This time, however, Ely said he wanted to test fire his gun first. So Moore again picked
up Bush and Ely, and the trio drove to a national park. When they arrived at the park, Moore
stopped the car in a secluded area. Ely got out and told Bush to do the same. She at first refused,
but Ely chided her until she relented. Ely and Bush then walked away from the car, and Ely pulled
out his gun. After firing some shots in the air, Ely pointed the gun at Bush and pulled the trigger
three times—hitting her in the head, face, and neck. Bush survived, but she sustained severe and
permanent injuries.
The sentencing. Without a plea agreement, Ely pleaded guilty to attempting murder with
malice aforethought, discharging a firearm during a crime of violence, and being a felon in
possession of ammunition. Next came sentencing. For this appeal, only two decisions matter. First,
the district court found, over Ely’s objection, that the offense would have constituted first-degree
murder. For the attempted murder and felon in possession charges,1 that decision increased Ely’s
base offense level by six points. See United States Sentencing Commission, Guidelines Manual,
§ 2A2.1(a) (Nov. 2016). Second, the district court varied upwards from a Guidelines range of
120 months2 and sentenced Ely to life imprisonment for discharging a firearm during a crime of
violence.
II.
We apply an abuse-of-discretion standard to sentencing challenges. Gall v. United States,
552 U.S. 38, 51 (2007). To obtain relief, an appellant must show that the sentence is either
1 The district court grouped the two charges for the Guidelines calculation. 2 Unlike the calculation for the attempted murder and felon in possession charges, Ely’s Guidelines range for discharging a firearm during a crime of violence was set according to the statutory minimum. See USSG § 2k2.4(b). -2- Case No. 17-4114, United States v. Ely
procedurally or substantively unreasonable. Id. Ely makes both arguments, and we address each
in turn.
Procedural reasonableness. Ely argues that his sentence is procedurally unsound because
the district court improperly calculated the Guidelines range. In support, Ely asserts that the district
court: (1) performed unconstitutional factfinding; (2) determined incorrectly that he premeditated
the attempted murder; and (3) drew erroneous factual conclusions. Although Ely is right that an
improperly calculated Guidelines range would render his sentence procedurally unreasonable, id.,
he is wrong that the district court erred.
First, the district court’s factfinding was not unconstitutional. To make his claim, Ely relies
on Alleyne v. United States, 570 U.S. 99 (2013). In Alleyne, the Supreme Court held that judicial
factfinding that increases the penalty for a crime is unconstitutional. See id. at 103. But the
Supreme Court clarified that its holding affected only factual findings that enhance mandatory
minimum sentences—not factual findings that influence judicial discretion. Id. at 116. Because the
Sentencing Guidelines are discretionary, judicial factfinding that affects the Guidelines range does
not implicate Alleyne. See United States v. Powell, 847 F.3d 760, 782 (6th Cir. 2017) (citations
omitted); Rogers v. United States, 561 F. App’x 440, 443–44 (6th Cir. 2014).
Next, the district court correctly determined that Ely’s offense would have constituted first-
degree murder. Under the relevant Guideline, courts look at 18 U.S.C. § 1111 to determine whether
the evidence shows that the offense would have constituted first-degree murder. USSG § 2A2.1,
comment. (n.1). Applying its understanding of the facts to the Sentencing Guidelines, the district
court found Ely’s offense would have satisfied § 1111 and thus set a higher base offense level. We
review the district court’s legal interpretation of the Guidelines de novo and its application of the
-3- Case No. 17-4114, United States v. Ely
facts to the Guidelines with due deference. United States v. Sexton, 894 F.3d 787, 793 (6th Cir.
2018) (citations omitted).
Although there are several elements for first-degree murder, only one is at issue here:
whether there was premeditation. A killing is premeditated when it results from planning and
deliberation. United States v. Al-Din, 631 F. App’x 313, 333 (6th Cir. 2015) (citing United States
v. Garcia-Meza, 403 F.3d 364, 371 (6th Cir. 2005)). There is no precise amount of time needed
for premeditation, but there must be enough “for the killer, after forming the intent to kill, to be
fully conscious of that intent.” Id. (quotation omitted).
At a bare minimum, Ely admits to taking Bush to a remote area, aiming a loaded gun at her
head, and shooting her three times. Even if Ely could explain why he took Bush to a remote area,
ordered her out of the car, and led her to a secluded field before shooting her—which we do not
think he can—there is no explanation for why he shot Bush three times except that he planned to
kill her. See, e.g., Al-Din, 631 F. App’x at 333–34 (finding sufficient time to premeditate between
firing of first shot in a house and firing of successive shots in a car outside the house); United
States v. Frost, 521 F. App’x 484, 492 (6th Cir. 2013) (finding premeditation when a defendant
retrieved his gun, pointed it at the victim, and fired). The district court therefore properly found
premeditation.
Finally, the district court’s factfinding was neither erroneous nor consequential. Ely
criticizes the district court’s determinations that: (1) Ely shot Bush in the face while she looked at
him; (2) the shooting was Bush’s last vision; (3) Ely proposed the test firing and pretended his gun
jammed as a ruse; and (4) Bush’s shooting occurred after unrelated shootings that affected her
family. To prevail on each challenge, Ely needs to show that the factual determinations were
clearly erroneous—meaning that the determinations were implausible in light of the entire record.
-4- Case No. 17-4114, United States v. Ely
Anderson v. City of Bessemer City, 470 U.S. 564, 573–74 (1985); United States v. Katzopoulos,
437 F.3d 569, 574 (6th Cir. 2006). We acknowledge that there are some inconsistences in the
record, but that is not enough to overcome the deference we give the district court’s factual
findings. Regardless, Ely raises only red herrings. As we have discussed, Ely admits to taking Bush
to a secluded area and to shooting her three times in the head and neck. That alone is enough to
show premeditation. So even if the district court erred when making additional factual
determinations in support of premeditation, those errors would be harmless.
In sum, the district court properly increased Ely’s base offense level after finding that his
offense would have constituted first-degree murder. Ely’s sentence is therefore procedurally
reasonable.
Substantive reasonableness. If a sentence is procedurally sound, we then examine whether
it was substantively reasonable. Gall, 552 U.S. at 51. When looking at substantive reasonableness,
we consider the totality of the circumstances including the extent of any variance from the
Guidelines range. Id. Our focus is whether the sentence is adequate, but not greater than necessary,
to accomplish the sentencing goals in 18 U.S.C. § 3553(a). United States v. Cochrane, 702 F.3d
334, 345 (6th Cir. 2012). A sentence is substantively unreasonable if the district court “selects a
sentence arbitrarily, bases the sentence on impermissible factors, fails to consider relevant factors,
or gives an unreasonable amount of weight to any pertinent factor.” Sexton, 894 F.3d at 797
(quoting United States v. Conatser, 514 F.3d 508, 520 (6th Cir. 2008)).
Ely again focuses on the district court’s alleged erroneous factfinding, but we have already
explained why those arguments are unpersuasive.3 His more pertinent argument is that the district
3 In his substantive challenge, Ely also attacks the district court’s consideration of his potential role as the shooter in a past crime. Again, the district court did not clearly err and any error would not change the greater finding that Ely had a violent history. -5- Case No. 17-4114, United States v. Ely
court’s concern about the heinousness of the crime led it to fixate on incapacitation at the expense
of reasoned consideration of the other § 3553(a) factors. To the extent that Ely asks us to rebalance
the factors, that exceeds our role. United States v. Sexton, 512 F.3d 326, 332 (6th Cir. 2008)
(quoting United States v. Ely, 468 F.3d 399, 404 (6th Cir. 2006)). And to the extent that Ely asks
us to find that the district court unreasonably weighed incapacitation, his argument falls short.
Although the district court emphasized incapacitation, it identified the § 3553(a) factors and often
explained in detail its reasoning under each factor. Under these circumstances, Ely bears a “much
greater burden in arguing that the court has given an unreasonable amount of weight to any
particular [factor].” United States v. Adkins, 729 F.3d 559, 571 (6th Cir. 2013) (quotation omitted).
Ely cannot discharge that great burden. Given his history of violence and willingness to kill in cold
blood, the district court acted within its discretion to protect society from Ely. His sentence was
therefore substantively reasonable.
III.
The district court properly calculated Ely’s Guidelines range and did not err when
balancing the § 3553(a) factors. Ely’s sentence is therefore procedurally and substantively
reasonable. We affirm.
-6-