United States v. John Willis Alexander

• Court: Court of Appeals for the Sixth Circuit
• Decided: June 27, 2022
• Docket: 21-2928
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 22a0256n.06

Case No. 21-2928

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jun 27, 2022 ) UNITED STATES OF AMERICA, DEBORAH S. HUNT, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE WESTERN DISTRICT OF JOHN WILLIS ALEXANDER, ) MICHIGAN Defendant-Appellant. ) ) OPINION

Before: SUTTON, Chief Judge; KETHLEDGE and READLER, Circuit Judges.

CHAD A. READLER, Circuit Judge. John Alexander pleaded guilty to receiving a

firearm while under indictment in violation of 18 U.S.C. § 922(n) and was sentenced to 42 months’

imprisonment and three years’ supervised release. On appeal, Alexander says that the court erred

by finding that his offense involved a semiautomatic firearm capable of accepting a large capacity

magazine. He also asserts that the oral and written judgments mistakenly imposed different special

conditions on his term of supervised release. Because the district court’s finding was not clearly

erroneous and the judgments are substantially identical, we affirm.

BACKGROUND

Employees of Not Just Guns, a Michigan firearms retailer, reported suspicious purchases

by John Alexander to the Bureau of Alcohol, Tobacco, Firearms and Explosives. Following the

tip, ATF agents determined that Alexander, while released on bond for three state felony offenses, Case No. 21-2928, United States v. Alexander

purchased ammunition from Not Just Guns on multiple occasions. Agents also discovered that

Eric Hullett purchased a Glock Model 30 Gen 4 .45 caliber pistol at Alexander’s request and sold

the gun to Alexander. On the same day, Alexander purchased a 50 round box of ammunition and

a large capacity magazine capable of holding 26 rounds, both of which fit a .45 caliber gun, like

the Glock.

Following its investigation, the government indicted Alexander for two counts of receiving

ammunition and one count of receiving a firearm—the Glock Model 30 Gen 4 .45 caliber pistol—

while under indictment in violation of 18 U.S.C. § 922(n). When officers arrested Alexander, they

found a slide cover plate for a firearm, body armor, a firearm holster, an axe cover, a Polymer80

.40 caliber handgun, a round of 9mm ammunition, a spring for a firearm magazine, and two empty

rifle cases. But the officers did not find the Glock or the large capacity magazine.

Alexander agreed to plead guilty to receiving the Glock while indicted in exchange for the

government agreeing to dismiss the two remaining counts. At sentencing, the parties contested

the base offense level for calculating Alexander’s Guidelines range. The government invoked

U.S.S.G. § 2K2.1(a)(4)(B), which sets the base offense level at 20 if the offense involved a

semiautomatic firearm capable of accepting a large capacity magazine. Alexander, for his part,

relied upon U.S.S.G. § 2K2.1(a)(7), which sets the base offense level at 12 if the offense did not

involve such a weapon.

The district court sided with the government. Based in part on photographs depicting

Alexander posing with a Glock (taken two weeks after he purchased the Glock from Hullett), the

district court found that Alexander’s offense involved a semiautomatic firearm capable of

accepting a large capacity magazine, meaning the base offense level was 20. § 2K2.1(a)(4)(B).

From there, the court granted a two-level reduction for acceptance of responsibility and found

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Alexander’s criminal history category to be IV based on his prior state convictions, resulting in a

Guidelines range of 41 to 51 months’ imprisonment. Following its assessment of the 18 U.S.C.

§ 3553(a) factors, the court imposed a within-Guidelines sentence of 42 months’ imprisonment.

The district court added to that sentence a term of three years’ supervised release, for which

the court imposed a special condition. As the district court orally explained the condition,

Alexander would be required to submit to a probation officer’s “search of [his] person, property,

house, residence and the like.” The written judgment later specified that the special condition

required Alexander to submit to a probation officer’s search of his “person, property, house,

residence, vehicle, papers, computers . . . , other electronic communications or data storage devices

or media, or office.” Alexander timely appealed.

DISCUSSION

On appeal, Alexander challenges both the calculation of his Guidelines range as well as the

special condition imposed upon his term of supervised release.

A. We begin with Alexander’s Guidelines range. For purposes of determining a criminal

sentencing range, a defendant’s base offense level is 20 where (1) the offense involved a

semiautomatic firearm capable of accepting a large capacity magazine and (2) the defendant is a

prohibited person at the time he committed the offense of conviction. U.S.S.G. § 2K2.1(a)(4)(B).

Acknowledging that he was a prohibited person at the time he received the Glock from Hullett,

Alexander nonetheless contends that the district court erred by concluding that the Glock was

capable of accepting a large capacity magazine. On this front, we note that the commentary to the

Guidelines explains that a semiautomatic firearm capable of accepting a large capacity magazine

is one fitted with a magazine that can “accept more than 15 rounds of ammunition.” U.S.S.G.

3 Case No. 21-2928, United States v. Alexander

§ 2K2.1(a)(4)(B) cmt. n.2. Alexander does not question the commentary’s gloss on the Guideline

itself. He instead contests whether the firearm he received fell within the commentary’s reach.

Whether the district court correctly calculated Alexander’s Guidelines range is, at bottom,

a procedural reasonableness challenge to his sentence. See United States v. Johnson, 732 F.3d

577, 580–81 (6th Cir. 2013). In assessing that challenge, we ask whether the district court abused

its discretion in computing Alexander’s sentencing range. Id. at 580. As Alexander primarily

takes issue with the district court’s factual findings, the climb before him is steep. We review

those findings for clear error. United States v. Henry, 819 F.3d 856, 864 (6th Cir. 2016). And

clear error review, as its name suggests, is “highly deferential,” meaning we will affirm the district

court unless we are “left with the definite and firm conviction that a mistake has been committed.”

Taglieri v. Monasky, 907 F.3d 404, 408–09 (6th Cir. 2018) (en banc) (citation omitted), aff’d, 140

S. Ct. 719 (2020). The parties agree that the government had the burden to prove by a

preponderance of the evidence that U.S.S.G. § 2K2.1(a)(4)(B) applied here. United States v.

Pawlak, 822 F.3d 902, 911 (6th Cir. 2016), abrogated on other grounds by Beckles v. United

States, 137 S. Ct. 886 (2017). Among other ways, the government may do so with circumstantial

evidence. See id. at 912; see also United States v. Peterson, 840 F. App’x 844, 854 (6th Cir. 2021);

United States v. Mayle, 334 F.3d 552, 559–60 (6th Cir. 2003).

No mistake occurred in the district court. Consider first the district court’s finding that the

Glock in the photographs was the Glock that Alexander admitted he received. Supporting evidence

was more than ample. Officers found Hullett’s sales receipt for the Glock in Alexander’s car.

About two weeks after Alexander received the Glock from Hullett, he took pictures of himself

holding a firearm. Special Agent Mascorro, the lead investigator on Alexander’s case, testified

that, based on his experience and examination of the image, the weapon Alexander held in the

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photographs “looks like a Glock [M]odel 30 Gen 4,” the same make and model firearm as the

Glock Alexander admitted to receiving. Mascorro further noted several physical similarities

between images of the firearm on the Glock manufacturer’s website and the photographs of

Alexander’s gun. From this evidence, concluding that the guns were the same was not clearly

erroneous. See Cooper v. Harris, 137 S. Ct. 1455, 1465 (2017) (noting that a district court’s

finding is not clearly erroneous if it is plausible).

Nor was there clear error in the district court’s finding that the Glock in the photographs

was fitted with a large capacity magazine, one capable of holding 15 or more rounds. On the same

day Alexander received the Glock from Hullett, Alexander purchased a large capacity magazine

that fit the Glock. Mascorro testified that he believed the Glock in the photographs was fitted with

an extended magazine. Among other reasons, the length of the grip on the firearm in the

photographs, he explained, was “significantly” longer than what comes standard with the firearm,

a ten round magazine. The district court could reasonably infer that the large capacity magazine

Alexander purchased was the one that Mascorro identified on the Glock in the photographs. Here

too, the district court’s finding that the Glock was fitted with a large capacity magazine is based

on a reasonable construction of record evidence. See United States v. Sands, 4 F.4th 417, 420 (6th

Cir. 2021).

Alexander sees things differently. In essence, he argues that the evidence was “too

speculative” because the firearm in the photographs merely “appeared to be the same” as the Glock

he admitted receiving and “could have” been fitted with a large capacity magazine. But in this

deferential setting, we must affirm so long as the district court’s finding “is plausible in light of

the full record.” Cooper, 137 S. Ct. at 1465 (quotation marks omitted). And we see nothing

implausible about the conclusion that the Glock and the large capacity magazine that Alexander

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purchased were the same Glock and large capacity magazine depicted in the photographs taken

just two weeks later.

Alexander’s cited cases do not move the needle. Two of the cases are wholly irrelevant to

the issues in today’s appeal. See United States v. White, 842 F. App’x 894, 899–900 (5th Cir.

2021) (per curiam) (holding that a district court clearly erred in finding that a defendant had control

or dominion of a car); Craig ex rel. Craig v. Oakwood Hosp., 684 N.W.2d 296, 309 (Mich. 2004)

(discussing a civil plaintiff’s burden to prove but-for causation under Michigan tort law). And in

the third, Abrego, the Fifth Circuit reversed a district court’s finding that a firearm was capable of

accepting a large capacity magazine solely because the firearm manufacturer’s website said that a

large capacity magazine comes standard with the firearm. United States v. Abrego, 997 F.3d 309,

312–13 (5th Cir. 2021). But that is miles apart from today’s case, where the government

introduced evidence specific to the firearm Alexander received.

B. Alexander also believes that the written judgment’s special condition on his term of

supervised release “greatly expanded the scope of the condition” imposed orally at the sentencing

hearing. As the parties acknowledge, “[w]e review an alleged discrepancy between oral and

written sentences de novo.” United States v. Booker, 994 F.3d 591, 600 (6th Cir. 2021).

Generally speaking, “when there is a discrepancy” between the oral judgment and the

written judgment, “the oral sentence controls.” United States v. Bowens, 938 F.3d 790, 801 (6th

Cir. 2019) (citation omitted). And the remedy for such a discrepancy is a limited remand to correct

the written judgment. Id. That said, there is “no discrepancy” when the judgments’ supervision

conditions “use different language to impose substantially identical requirements.” Booker, 994

F.3d at 601. Take Booker as an example. In that case, the defendant argued that the oral and

written judgments conflicted because the oral judgment required that he provide the bill for any

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“cell phone or other electronic device” in his possession to his probation officer while the written

judgment, on the other hand, specified that he must provide his “monthly cellular and home

telephone bills.” Id. at 600–01. We rejected the argument that the written judgment swept beyond

the oral judgment by requiring the defendant to submit home telephone bills because an “electronic

device” includes a home phone. Id. at 601.

Much the same reasoning applies here. The oral judgment stated that the special condition

required Alexander to submit his “person, property, house, residence and the like” to search by a

probation officer. The written judgment, in turn, listed additional types of property that were

subject to search: “vehicle, papers, computers . . . , other electronic communications or data

storage devices or media, or office.” Fair enough, the words in the respective judgments are not

identical. Yet the written judgment merely added additional types of property that exemplify the

district court’s “and the like” catch-all phrase. In this instance, it follows, adding meat to the

earlier bone did not give rise to a discrepancy. See United States v. Buchanan, 820 F. App’x 401,

405 (6th Cir. 2020) (holding that oral and written judgments did not conflict because “[a]ll that the

written judgment did was explain what ‘cooperate with any removal or deportation’” meant in the

oral judgment by specifying the requirements for cooperation). In particular, doing so did not add

an additional supervised-release condition, like requiring the defendant to pay for mandatory drug

treatment, rendering Alexander’s cited cases inapposite. See United States v. Dean, 657 F. App’x

503, 507–08 (6th Cir. 2016); United States v. Hall, 669 F. App’x 297, 298 (6th Cir. 2016) (per

curiam).

* * * * *

We affirm.