United States v. Immanuel Bradley

• Court: Court of Appeals for the Sixth Circuit
• Decided: April 6, 2021
• Docket: 19-1894
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 21a0175n.06

Case No. 19-1894

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

FILED Apr 06, 2021 UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE WESTERN DISTRICT OF IMMANUEL BRADLEY, ) MICHIGAN Defendant-Appellant. ) )

BEFORE: BOGGS, DONALD, and THAPAR, Circuit Judges.

BERNICE BOUIE DONALD, Circuit Judge. Immanuel Bradley challenges the district

court’s application of an enhancement to his sentence for reckless endangerment during flight.

Bradley asserts that due to the enhancement, his sentence is both procedurally and substantively

unreasonable. We find that Bradley waived his challenge to the reckless-endangerment

enhancement. Thus, we DISMISS the appeal on that ground and AFFIRM the reasonableness of

the district court’s sentence.

I. BACKGROUND

On October 25, 2018, the Kalamazoo Department of Public Safety responded to a report

of a stolen automobile. When police recovered the car, it was parked in front of a house. Immanuel

Bradley, who was at the house, admitted to driving the vehicle but denied knowing that it was a

stolen vehicle. Police then obtained a search warrant for the house and found stolen mail, a loaded Case No. 19-1894, United States v. Bradley

rifle, pistol ammunition, passports, debit cards, social security cards, and other identification

documents.

On January 26, 2019, an individual named Dawn Yesner contacted the police to report that

her .40-caliber handgun had been stolen. She identified Bradley as the potential suspect, but stated

that, when she asked Bradley, he denied having the gun.

A week later, police officers drove to a supermarket to investigate a shoplifting complaint

after a store employee observed two suspects concealing items without paying. Surveillance

footage from the store revealed that Bradley and a female suspect, Amanda Herald, were at the

store at the time the police arrived. The officers saw Bradley remove a .40-caliber semiautomatic

pistol from his waistband and drop it in a basket near the checkout lane. While one officer

prevented Herald and a bystander from reaching the gun in the basket, the other officer tried to

handcuff Bradley. Bradley broke free and fled the store, smashing a wine display on his way out.

Police officers chased after him, leaving the unsecured gun behind.

Bradley ran on foot to a house nearby and offered the homeowner $1,000 if she would

allow him to hide from the police. She agreed to let Bradley in, but immediately ran outside,

alerted the police, and told them that Bradley did not have permission to be in the home. The

police obtained a search warrant, a SWAT team was called to the scene, and a two-hour standoff

ensued. Eventually, police found and arrested Bradley inside the house. Bradley had a prior felony

conviction for home invasion.

A grand jury in the Western District of Michigan returned an indictment charging Bradley

with (1) being a felon in possession of a firearm; (2) possession of a stolen firearm; (3) possession

of stolen mail; and (4) possession of .223-caliber ammunition. Bradley pleaded guilty to Counts

1 and 3.

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An initial presentence investigation report recommended a two-level enhancement under

U.S.S.G § 3C1.2 for reckless endangerment during flight. Bradley objected, stating that the

homeowner “allowed” him to stay there. Bradley subsequently dropped his objection to the

reckless-endangerment enhancement, instead objecting only to the lack of a recommendation for

acceptance of responsibility. U.S. Probation applied a two-level reckless endangerment

enhancement in the final PSR. Based on the total offense level of 18 and Bradley’s criminal history

category of V, the resulting guidelines range was 51 to 63 months.

At sentencing, Bradley’s only initial objection was the lack of a downward variance for his

acceptance of responsibility. The district court evaluated the fact that Bradley ran from the police

officer, left the gun unattended, entered a woman’s home, and did not come out until the SWAT

team intervened. The court stated that “[t]wo levels [enhancement recommended in the PSR under

§ 3C1.2] does not cover the reckless-endangerment here.” It determined that it would depart

pursuant to the Guidelines and justified this departure by analogizing it to an additional one-level

increase in the offense level. The district court then determined that, without reference to the

departure authorized under the Guidelines, it would vary upward by an additional amount

equivalent to adding another level, noting that it had determined to impose a variance as well

because Bradley was a danger to the community. The court then stated that it was considering the

sentence as though it was based on the equivalent Guidelines range justified by the PSR’s offense

level of 18, plus one additional level added as a departure, and an additional level added as a

variance—equaling, in its eyes, an offense level of 20. The court then issued its final sentence of

78 months, equivalent to the top of this constructed Guidelines range. Bradley was sentenced to

66 months’ imprisonment on the firearms charge and 12 months’ imprisonment on the stolen mail

charge. Bradley timely appealed.

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II. ANALYSIS

On appeal, Bradley couches his argument as challenging a three-level reckless-

endangerment enhancement to his sentence. Bradley asserts that the reckless-endangerment

enhancement makes the sentence both procedurally and substantively unreasonable. The

government asserts that Bradley waived his right to challenge the reckless-endangerment

enhancement when he first raised—and later withdrew—his objection to it.

Forfeiture occurs when the defendant “fails to make the timely assertion of a right.” United

States v. Olano, 507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).

Alternatively, waiver is the “intentional relinquishment or abandonment of a known right.” Id.

When a defendant has forfeited an argument, we review it for plain error. To succeed on

plain-error review, a party must show “(1) error, (2) that was obvious or clear, (3) that affected

defendant’s substantial rights, and (4) that affected the fairness, integrity, or public reputation of

the judicial proceedings.” Fed. R. Crim. P. 52(b), United States v. Vonner, 516 F.3d 382, 386 (6th

Cir. 2008) (en banc) (internal quotations omitted) (quoting United States v. Gardiner, 463 F.3d

445, 459 (6th Cir. 2006)). In contrast to forfeiture, this Court declines to review waived arguments

on appeal. United States v. Denkins, 367 F.3d 537, 543–44 (6th Cir. 2004).

Here, Bradley first objected to the two-level enhancement but subsequently withdrew his

objection. We deem it waived. Since the district court’s application of the reckless-endangerment

enhancement is the sole basis for Bradley’s challenge to the sentence being both procedurally and

substantively unreasonable, we decline to review it.

We have held that a party “must object with that reasonable degree of specificity which

would have adequately apprised the trial court of the true basis for his objection.” United States

v. LeBlanc, 612 F.2d 1012, 1014 (6th Cir. 1980) (internal quotations omitted).

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We find our caselaw on the issue of forfeiture and waiver instructive. In United States v.

Denkins, the defendant first filed a motion to withdraw his nolo contendere plea, then withdrew it.

Denkins, 367 F.3d at 542. He then challenged the district court’s denial of his motion to withdraw

the plea. Id. at 543. This Court found that Denkins waived his right to raise the issue on appeal.

Id. We explained that Denkins filed his motion to withdraw his plea and his motion for a

competency evaluation as a single document. Id. At the sentencing hearing, Denkins’ counsel

stated that he withdrew his objections to the PSR. Id. at 544. His counsel then raised other

objections, but none concerning his original motion. Id. This Court interpreted the failure to

continue to pursue the objection as waiver, even though Denkins did not explicitly abandon the

motion. Id. We concluded that his challenge is “forever foreclosed, and cannot be resurrected on

this appeal.” Id. (quoting United States v. Saucedo, 226 F.3d 782, 787 (6th Cir. 2000), cert. denied,

531 U.S. 1102 (2001)) (internal quotations omitted).

In United States v. Bennett, the defendant first filed an objection to the district court’s

application of a four-level enhancement to his sentence and to the amount of methamphetamine

attributable to him that affected the base offense level. 291 F.3d 888, 899 (6th Cir. 2002). At the

sentencing hearing, defendant’s counsel failed to raise the objection to the base level, only

objecting to the enhancement. Id. We found that “[b]y failing to reiterate his objection to the base

offense level when asked by the district court whether there was ‘anything else’ that needed to be

considered,” the defendant waived his right to object to the amount of methamphetamine

attributable to him. Id.

This Court further found that failure to renew an objection constituted waiver in Saucedo,

226 F.3d at 787. Initially, Saucedo objected, in writing, to the cocaine quantity in the PSR. Id.

Upon review, we found that Saucedo abandoned his challenge when his counsel made no further

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mention of it during sentencing proceedings. Id. n.7. Saucedo “knowingly waived his charged

error that the trial court had attributed an unsubstantiated amount of cocaine to his activity.” Id.

at 787.

In contrast, we found that the defendant in United States v. Holland merely forfeited his

objection to an enhancement. 799 F. App’x 380, 384 (6th Cir. 2020) (unpublished). Holland “did

not object to the enhancement for using a computer to carry out his offense.” Id. at 384. However,

he did object to a different enhancement on different grounds. Id. Because Holland neither agreed

to the computer enhancements nor explicitly withdrew his objection, we found that Holland’s

“failure to object [was] more akin to a forfeiture than a waiver,” and reviewed that claim for plain

error. Id.

Here, the initial PSR included a recommendation for a two-level enhancement under

U.S.S.G. § 3C1.2 for reckless endangerment during flight. On June 17, 2019, Bradley objected on

two grounds: (1) the application of the reckless endangerment enhancement, and (2) the refusal to

apply a downward variance for acceptance of responsibility. On the two-level reckless-

endangerment enhancement, Bradley stated that it should not apply because “[a]t no time were the

residents of the house in danger.” He raises the same issue on appeal.

On June 24, 2019, Bradley submitted an Amended Defendant’s Response to the Initial

PSR. The amended response no longer stated his objection to the two-level reckless-endangerment

enhancement. It only contained his objection to the lack of application of the acceptance of

responsibility. Without further objections, the reckless-endangerment enhancement was contained

in the final PSR.

At the beginning of the sentencing hearing, the district court again asked Bradley if he had

any further objections apart from the acceptance-of-responsibility objection. Bradley’s counsel

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answered that he did not. Bradley’s counsel objected on other grounds, but not on the reckless

endangerment enhancement.1 After the court imposed the sentence, it asked if the defendant had

any further objections to its actions and counsel for Bradley stated that he objected to a sentence

outside the Guidelines. He now argues that his sentence was substantively unreasonable as well

as procedurally unreasonable by the application of any reckless-endangerment enhancement.

Because Bradley’s counsel objected to a sentence “outside the guidelines range,” which certainly

includes the amount of the variance, and the amount of the departure (which was, after all a

departure from the Guidelines), he preserved his objection to the discretionary actions of the

district court judge leading, in his view, to a substantively unreasonable sentence. See United

States v. Vonner, 516 F.3d 382, 389 (6th Cir. 2008) (en banc) (stating that a defendant has no duty

to object to the reasonableness of a sentence to preserve a substantive-reasonableness argument on

appeal so long as he gives the district court grounds for leniency).

Based on the record, we find that Bradley abandoned his objection to the two-level

reckless-endangerment enhancement. Such abandonment constitutes waiver. Olano, 507 U.S. at

733. In light of Bradley’s waiver, we decline to review the application of the two-level

enhancement. Denkins, 367 F.3d at 544. However, because Bradley preserved his objection to

the three-level enhancement as a challenge to a sentence outside the Guidelines range, we will

review it under an abuse of discretion standard.

1 At the sentencing hearing, the following colloquy transpired between the district court judge and Bradley’s counsel: THE COURT: Any legal objection to the sentence imposed? MR. KACZOR: Your Honor, I don't know if it's necessary for me to object to him not receiving acceptance of responsibility, but I do. I also object to a sentence outside of the guideline range, and to the consecutive sentence. THE COURT: Thank you, sir. Those objections are noted for the record.

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In examining his challenge to the final sentence as substantively unreasonable, we look to

the reasons given that would support an authorized departure from the Guidelines (under § 5K2.0)

and the reasons that support a variance outside the Guidelines (under 18 U.S.C. § 3553(a)).

Departures and variances are reviewed for an abuse of discretion. Koon v. United States, 518 U.S.

81, 96-97 (1996) (departures); Gall v. United States, 552 U.S. 38, 56 (2007) (variances).

Bradley mistakenly states that “an upward departure is only available when there is a level

of culpability higher than recklessness.” His argument is that, even if a two-level enhancement

was appropriate, the three-level enhancement was not. The Application Notes to U.S.S.G. § 3C1.2

suggest that the enhancement has a broad application, applying to “conduct [that] occurs in the

course of resisting arrest.” U.S.S.G. § 3C1.2 app. n. 3. Furthermore, the Application Notes specify

that an upward departure may also be warranted “[i]f . . . the conduct posed a substantial risk of

death or bodily injury to more than one person.” U.S.S.G. § 3C1.2 app. n. 6 (emphasis added).

Given Bradley’s conduct in the store and subsequently at the house, which endangered more than

one person, the three-level departure was warranted.

In this case, the facts in the record and the court’s discussion of them amply justify either

a departure or a variance, or both. Bradley’s actions were indeed exceptionally reckless and

endangered multiple people. He left an unattended gun in the supermarket; he broke away from

the officers attempting to arrest him, smashing glass bottles and leading officers on a chase away

from the firearm; he then essentially forced his way into a nearby house without permission, based

on a promise to pay the occupant, and then stood off against an armed police SWAT team. These

actions reasonably support both the court’s departure from the Guidelines, as authorized by the

Guidelines themselves, and variance outside the Guidelines, as authorized by United States v.

Booker, 543 U.S. 220 (2005). The district court did not distinguish in its computations or statement

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of reasons between the amount by which the sentence was increased under each of these two

rubrics, but either one, or both, would justify the increased sentence of fifteen months above the

computed Guidelines range.

Bradley has failed to show that the district court “abdicated [its] decisional role by merely

rubber-stamping the recommendation of the probation officer . . . [or that the] improper actions of

[the] probation officer resulted in the [district court] making a reviewable sentencing error of a

type requiring reversal or remand.” United States v. Espalin, 350 F.3d 488, 489-90 (6th Cir. 2003).

We therefore find that the district court did not commit plain error in sentencing Bradley to 78

months in prison.

III. CONCLUSION

For the foregoing reasons, we DISMISS the appeal to the extent that it is taken from the

application of the § 3C1.2 enhancement for reckless endangerment, and AFFIRM the judgment

of the district court with respect to the final sentence and departure and variance leading to it.

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