United States v. Helton

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Helton No. 02-5536 ELECTRONIC CITATION: 2003 FED App. 0400P (6th Cir.) File Name: 03a0400p.06 Appellant. Kenneth R. Taylor, ASSISTANT UNITED STATES ATTORNEY, Lexington, Kentucky, for Appellee. ON BRIEF: Gerald D. DeRossett, PILLERSDORF, UNITED STATES COURT OF APPEALS DeROSSETT & LANE, Prestonsburg, Kentucky, for Appellant. Kenneth R. Taylor, Charles P. Wisdom, Jr., FOR THE SIXTH CIRCUIT ASSISTANT UNITED STATES ATTORNEYS, Lexington, _________________ Kentucky, for Appellee.

UNITED STATES OF AMERICA , X _________________ Plaintiff-Appellee, - - OPINION - No. 02-5536 _________________ v. - > SUTTON, Circuit Judge. In this, his second appeal from , the same conviction, Joe Douglas Helton challenges the JOE DOUGLA S HELTON, - Defendant-Appellant. - consecutive sentences he received for: (1) possession of ten grams of cocaine with intent to distribute in violation of N 21 U.S.C. § 841(a)(1); (2) use of a firearm during and in Appeal from the United States District Court relation to a drug-trafficking offense in violation of 18 U.S.C. for the Eastern District of Kentucky at Pikeville. § 924(c); and (3) possession of a firearm in violation of No. 99-00022—Joseph M. Hood, District Judge. 18 U.S.C. § 922(g)(1). For the reasons that follow, we AFFIRM. Argued: September 10, 2003 I. BACKGROUND Decided and Filed: November 12, 2003 In 1999, from June 2 to June 3, Helton and three others Before: GIBBONS and SUTTON, Circuit Judges; (Harold Dean McCarty (“McCarty”), Mildred Stanley Slusher TARNOW, District Judge.* (“Stanley”) and Molly Minix Shepherd (“Minix”)) used cocaine at Helton’s residence while Helton and McCarty _________________ prepared half-gram packages of cocaine for sale. Realizing that they needed to restock their supply of cocaine (in view of COUNSEL the amount they had consumed), Helton and McCarty decided to exchange Helton’s television for a half-gram of cocaine ARGUED: Gerald D. DeRossett, PILLERSDORF, and $400. Stanley drove McCarty to a prospective seller. On DeROSSETT & LANE, Prestonsburg, Kentucky, for the way, Stanley watched McCarty hide nineteen cocaine packages behind a traffic sign. After agreeing to terms with the cocaine seller and after * The Honorable Arthur J. Tarnow, United States District Judge for returning to Helton’s residence to load the television onto his the Eastern District of Michigan, sitting by designation.

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truck, McCarty left to make the exchange. While he was The United States District Court for the Eastern District of gone, Stanley retrieved five or six of the recently-hidden Kentucky severed the trials of McCarty and Helton. In packages for Helton, Minix and herself—all of whom were Helton’s trial, a jury found him guilty on all three counts in suffering from cocaine withdrawal—to consume. When the indictment: (1) possession of ten grams of cocaine with McCarty learned that no cocaine remained at the hiding place, intent to distribute in violation of 21 U.S.C. § 841(a)(1) he accused Stanley of stealing the packages. She denied any (Count I); (2) use of a firearm during and in relation to a drug- knowledge of their whereabouts, but McCarty did not believe trafficking offense in violation of 18 U.S.C. § 924(c) (Count her and proceeded to shoot her. The bullet passed through II); and (3) possession of a firearm in violation of 18 U.S.C. Stanley’s shoulder and exited out her lower back, but did not § 922(g)(1) (Count III). kill her. In sentencing Helton, the district court cross-referenced his At this point, Helton and McCarty drove Stanley to the § 922(g) conviction for possession of a firearm in accordance hiding place behind the traffic sign where McCarty threatened with U.S.S.G. § 2K2.1(c)(1)(A), concluding that he had used her with the gun, again demanding that she tell them where the firearm in connection with an attempt to commit another the cocaine was. She again disclaimed any knowledge about offense. Under U.S.S.G. § 2X1.1(c), the district court the location of the cocaine, and McCarty fired at her head, determined that the attempt was expressly covered by the missing her. Guidelines’ provision for attempted murder, see U.S.S.G. § 2A2.1(a)(1), which creates a base-offense level of twenty- Helton and McCarty then drove Stanley to a strip mine eight. With a three-point enhancement for Stanley’s “serious where they tied cement blocks to her body and threw her into bodily injury,” Helton’s base-offense level for Counts I and a nearby pond. In a fortuitous application of Murphy’s Law, III (grouped under U.S.S.G. § 3D1.2) became thirty-one. Past the pond turned out to be waist deep. Stanley did not drown. criminal convictions placed Helton in a level II criminal history category, giving him a sentencing range on Counts I In one last effort to “put her under,” Helton took aim at and III of 121–151 months. The district court sentenced him Stanley three times and tried to shoot her three times. Each to 131 months on both counts. The court also sentenced time, he missed the cement-laden Stanley. Apparently Helton to a sixty-month consecutive sentence under 18 U.S.C. stymied, Helton and McCarty dragged Stanley from the pond § 924(c)(1)(A)(ii) (use of a firearm during a drug-trafficking and moved her to a nearby woods. In a conversation that offense). All sentences considered, Helton received a total history regrettably does not fully record, Helton and McCarty sentence of 191 months. discussed what to do with Stanley next. Helton appealed his convictions and sentences on a number Happily for Stanley, they did not have a chance to follow of issues, including inappropriate cross-referencing. He through on their next plan. Helton left the scene and sleep claimed the district court should have used U.S.S.G. overcame McCarty, allowing Stanley to escape to a nearby § 2X1.1(a) as its cross-referencing guideline and should have residence where she was airlifted to the University of applied U.S.S.G. § 2A2.2 for aggravated assault (for a base- Kentucky Medical Center. There, she underwent surgery and offense level of fifteen), because (1) he did not have the eventually recovered. requisite intent for murder, and (2) he acted under duress in view of several threats by McCarty. The Government cross- appealed, seeking a four-point (rather than three-point) No. 02-5536 United States v. Helton 5 6 United States v. Helton No. 02-5536

enhancement of Helton’s base offense level, due to the extent been indicted and convicted by a jury, which would not of Stanley’s injury. include attempted murder. The district court disagreed. It instead sentenced Helton in accordance with the four-point We affirmed Helton’s convictions and agreed that the enhanced base-offense level for attempted murder and for a district court appropriately applied the attempted-murder “permanent or life-threatening bodily injury.” Helton thus cross reference. See United States v. Helton, 32 Fed. Appx. received 120 months on Count III, sixty months on Count II, 707 (6th Cir. 2002) (“Helton I”). At the same time, we agreed and an additional eighteen months on Count I, all to be served with the Government that Stanley had sustained a “permanent consecutively, for a total sentence of 198 months. The court or life-threatening bodily injury,” which warranted a four- entered judgment on April 16, 2002, and Helton filed this point rather than a three-point enhancement of Helton’s base appeal one week later. offense level. See id. at 716 (citing U.S.S.G. § 2A2.1(b)(1)(A)); U.S.S.G. § 1B1.1 cmt. n.1(h). In view of II. DISCUSSION this conclusion, we remanded the case for resentencing. See Helton I, 32 Fed. Appx. at 709. The legal issues raised in this case do not contain the same suspense as the facts. We review the district court’s legal In the same week that we ruled on Helton’s original appeal, conclusions de novo and its fact-findings for clear error. See we released United States v. Stubbs, 279 F.3d 402 (6th Cir. United States v. Griffis, 282 F.3d 443, 446 (6th Cir. 2002). 2002). In Stubbs, we reversed a mandatory sixty-month sentence—resulting from cross-referencing under U.S.S.G. A. The Scope of the Remand. § 2K2.1(c)(1)(A)—imposed on a defendant convicted of violating 18 U.S.C. § 924(o). We concluded that this The Government initially challenges our authority to reach increase in the minimum sentence of the defendant was “more Helton’s claim that Stubbs prohibits the attempted-murder fundamental [than sentencing in excess of the statutory cross referencing. In its view, this Court’s limited remand in maximum, prohibited by Apprendi v. New Jersey, 530 U.S. Helton I did not authorize the district court to do anything but 466 (2000)] because Defendant was indicted for one offense apply the four-point enhancement prompted by the fact that and sentenced under another simply by operation of a cross- Stanley suffered a “permanent or life-threatening bodily reference in the sentencing guidelines . . . .” Stubbs, 279 F.3d injury.” In one sense, the Government is correct. When we at 409. Unlike “relevant conduct” guidelines calling for a issue a remand order that is limited by its terms to a discrete determinate increase in a sentencing base-offense level, issue, the district court obtains jurisdiction to address only Stubbs reasoned, the cross-referencing provision “required the that issue. See United States v. Campbell, 168 F.3d 263, 265 district court to calculate [the defendant’s base-offense level] (6th Cir. 1999). Where, however, “an appellate court simply as if his offense of conviction had been murder,” a charge not vacates a sentence and remands to the district court for in the indictment. Id. at 408 (emphasis in original). Relying ‘resentencing,’ that order is considered a general one that on several post-Apprendi decisions, we concluded that cross- allows the district court to resentence the defendant de novo.” referencing under these circumstances violated the United States v. Moore, 131 F.3d 595, 598 (6th Cir. 1997); defendant’s Fifth and Sixth Amendment rights. see also United States v. Hebeka, 89 F.3d 279, 284–85 (6th Cir. 1996). Unless otherwise specified, a remand order is Invoking Stubbs (and Apprendi), Helton claimed on remand presumed to be general in nature. See Moore, 131 F.3d at that he could be sentenced only for offenses for which he had 598. No. 02-5536 United States v. Helton 7 8 United States v. Helton No. 02-5536

In this instance, Helton I remanded the case to the district the district court may sentence the defendant to the statutory court “for resentencing consistent with this opinion.” Helton minimum, the statutory maximum, or anything in between, I, 32 Fed. Appx. at 716. In view of this general language and based on its (proper) application of the Guidelines and based in view of the presumption in favor of a general remand, we on its (permissible) preponderance-of-the-evidence findings conclude that the district court had authority to review under the Guidelines. So long as the judge does not sentence Helton’s argument under Stubbs. So, accordingly, do we. the defendant beyond the maximum levels authorized by the statute under which the defendant was convicted, Harris B. The Cross-Referencing Challenge. makes clear that the district court does not run afoul of Apprendi or the constitutional rights that it protects. Like the defendant in Stubbs, Helton claims that the district court sentenced him as if he had committed a crime Recent precedent from this Court confirms this conclusion. (attempted murder) for which he was never charged and for As we recently have said, “a fact that merely activates or which no jury found him guilty beyond a reasonable doubt. increases a statutorily mandated minimum sentence may, at Like the defendant in Stubbs, he claims that the Guidelines the legislature’s discretion, be submitted to a judge and may not be applied to increase his mandatory minimum proved only by a preponderance of the evidence.” United sentence in this manner, unless a jury first finds beyond a States v. Chapman, 305 F.3d 530, 536 (6th Cir. 2002). See reasonable doubt that he engaged in the alleged conduct. And also United States v. Copeland, 321 F.3d 582, 603 (6th Cir. like the defendant in Stubbs, he claims that any such 2003) (holding that under Harris “a defendant cannot sentencing violates his Fifth and Sixth Amendment rights. demonstrate an Apprendi violation where he has been sentenced to a term of years encompassed by [the statute Stubbs, however, is no longer good law. Neither that under which he is charged]”) (emphasis in original); United decision nor the precedents upon which it relied, see United States v. Lawrence, 308 F.3d 623, 635 (6th Cir. 2002) (noting States v. Ramirez, 242 F.3d 348 (6th Cir. 2001) and United that while this Court had held in several opinions that States v. Flowal, 234 F.3d 932 (6th Cir. 2000), have survived Apprendi applied to statutory minimums, Harris overruled a recent Supreme Court decision delineating the scope of that conclusion). In the aftermath of Harris, we also have Apprendi. In Harris v. United States, 536 U.S. 545 (2002), specifically concluded that “Flowal, Ramirez . . . and all other decided after Stubbs, the Supreme Court held that the cases before this Circuit in which we have held that Apprendi constitutional mandates of Apprendi do not apply to the applies to mandatory minimum sentences, are overruled to the Sentencing Guidelines when the defendant’s sentence remains extent they conflict with Harris . . . .” United States v. below the maximum sentence authorized by statute. In that Leachman, 309 F.3d 377, 383 (6th Cir. 2002). The decisions setting, the Court concluded, the Constitution permits a judge upon which Stubbs relied did not survive Harris. It follows to make factual findings that increase a defendant’s that the same is true of Stubbs. mandatory minimum sentence under the preponderance-of- the-evidence standard. Id. at 568–69. “Within the range Applied here, Harris and our recent precedents establish authorized by the jury’s verdict,” the Court reasoned, “the that the district court’s sentence fell well within constitutional political system may channel judicial discretion—and rely limits. In this instance, the district court on remand sentenced upon judicial expertise—by requiring defendants to serve Helton to consecutive sentences totaling 198 months. As no minimum terms after judges make certain factual findings.” single sentence exceeded the maximum permitted by statute Id. at 567. Under Harris, once the jury has determined guilt, No. 02-5536 United States v. Helton 9

under any of the three counts on which the jury convicted him, Helton’s constitutional challenge cannot succeed. III. CONCLUSION For the foregoing reasons, we AFFIRM.