United States v. Kevin Dennis

549 F. App'x 408
CourtCourt of Appeals for the Sixth Circuit
DecidedDecember 18, 2013
Docket13-3137
StatusUnpublished
Cited by2 cases

This text of 549 F. App'x 408 (United States v. Kevin Dennis) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Kevin Dennis, 549 F. App'x 408 (6th Cir. 2013).

Opinions

OPINION

JANE B. STRANCH, Circuit Judge.

Kevin Dennis appeals his conviction based on a guilty plea. Specifically, he alleges that the district court committed several violations of Federal Rule of Criminal Procedure 11 that amount to plain error and deprived him of a knowing and voluntary plea. Dennis also appeals the procedural reasonableness of his sentence. We AFFIRM Dennis’s conviction for the reasons below, but REMAND for resen-tencing in light of intervening precedent.

I. FACTS AND PROCEDURAL BACKGROUND

In 2006, Kevin Dennis entered into an agreement to plead guilty to four counts of a ten-count indictment. The four counts were Count 2 for health care fraud, Count 4 for money laundering, Count 7 for manufacturing cocaine base (or crack), and Count 9 for possession of firearms in furtherance of a drug trafficking crime. Two counts to which Dennis did not plead guilty play a role here: Count 8 for possession with intent to distribute, and Count 10 for possession of a firearm by an unlawful drug user.

At Dennis’s plea hearing, the excluded Count 8 resurfaced. As to Count 7, the court asked Dennis how he pleaded to “Count 7 ... possession with intent to [411]*411distribute,” which of course was not the offense in Count 7. But when explaining the elements of the offense, the court accurately listed the three elements for the offense in Count 7, manufacturing cocaine base: “manufactur[ing] in excess of five grams of a mixture containing a detectable amount of cocaine base, ... [doing] so knowingly and intentionally” and doing so within the Southern District of Ohio. See 21 U.S.C. § 841. As to Count 9, the court accurately named the offense, but then described the elements as follows:

First, that you committed the drug trafficking offense alleged in Count 7 which we have just reviewed, that is manufacturing a substance containing a detectable amount of cocaine base; second that you knowingly possessed a firearm; third, that the possession was in furtherance of the drug trafficking crime; and fourth, that these acts occurred in whole or in part within the Southern District of Ohio.

See 18 U.S.C. § 924(c)(1)(A). The indicted offense for Count 9 actually stated that Dennis possessed the firearm “in furtherance of a drug trafficking crime ... that is, manufacturing and possession with intent to distribute,” so it referred to the offenses in both Count 7 and Count 8.

The other relevant portion of the plea hearing contains the factual basis the Government provided to support the guilty plea. A special agent testified that the Government executed a search warrant at Dennis’s house after investigating him for healthcare fraud and found:

Dennis and an acquaintance were present at the execution of the warrant where Dennis possessed a loaded Browning HiPower 9 millimeter semiautomatic pistol. Also located between the box springs and a side rail of the bed where Dennis was sleeping was a loaded Smith & Wesson model 19 357 revolver.
Dennis was escorted out of the residence where he waived his rights and agreed to speak with officers. Dennis told Detective Aaron Byrd of the Columbus division of police that there was a fist size ball of crack cocaine inside the house. Dennis continued saying that he buys approximately five ounces of powder cocaine and rocks it up himself every couple of months. In the basement bathroom cabinet were two large glass containers with a white mixing bowl containing cocaine residue where the powder cocaine was manufactured to cocaine base.
Over 100 grams of cocaine base were recovered from the residence with the bulk of 87.8 grams recovered from inside a gun safe in the basement of the residence.

At the plea hearing, Dennis admitted to these facts and pleaded guilty to Count 7 and Count 9 as well as the other two counts.

Dennis was sentenced on February 1, 2007. Dennis asked to be sentenced to the 120-month statutory minimum associated with Counts 7 and 9, arguing that he was entitled to be sentenced below the 157 to 180 month Guidelines range because of the disparity created by the 100:1 powder-cocaine to crack-cocaine sentencing ratio. Without mentioning the powder-to-crack cocaine disparity specifically, the court said that “there was not much to consider” regarding the drug offenses, and, after considering the remaining sentencing factors under 18 U.S.C. § 3553(a), sentenced Dennis to 157 months imprisonment. The court also directed Dennis to pay $564,630 in restitution, the amount of which he defrauded the Government on the health care charges. There was no more detailed discussion of the amount set for restitution — not in the PSR, not in Dennis’s sen[412]*412tencing memorandum, and not in the sentencing transcript.

Dennis now challenges the validity of his guilty plea for Counts 7 and 9 as well as the procedural reasonableness of his sentence. Despite the fact that Dennis was originally sentenced almost seven years ago, his case is before us on direct appeal. This is because his judgment was vacated and re-entered on January 15, 2013 after Dennis successfully appealed a motion under 28 U.S.C. § 2255 on grounds that his original counsel was ineffective for failing to file a notice of appeal.

II. GUILTY PLEA

Dennis claims that his plea to Counts 7 and 9 were not knowing and voluntary because the district court failed to comply with Federal Rule of Criminal Procedure 11 before accepting his plea. Rule 11 is intended to ensure that a defendant’s plea is knowing, voluntary and intelligent by ensuring that he understands his rights, the nature of the crime charged, the consequences of a plea, and the factual basis for concluding that the defendant committed the crime charged. United, States v. Webb, 403 F.3d 373, 378-79 (6th Cir.2005). A violation of the rule can undermine the validity of a plea. Id. at 378.

Normally, we would review a Rule 11 violation for harmless error. Fed. R.Crim.P. 11(h); United States v. Martin, 668 F.3d 787, 791 (6th Cir.2012). But because Dennis did not object at the plea colloquy, we must instead evaluate this claim for plain error. United States v. Page, 520 F.3d 545, 546 (6th Cir.2008). To establish plain error, Dennis must show “(1) that an error occurred in the district court; (2) that the error was plain, i.e., obvious or clear; (3) that the error affected defendant’s substantial rights; and (4) that this adverse impact seriously affected the fairness, integrity or public reputation of the judicial proceedings.” Id. at 547 (quoting United States v.

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Related

Walker v. United States
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Dennis v. United States
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Cite This Page — Counsel Stack

Bluebook (online)
549 F. App'x 408, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-kevin-dennis-ca6-2013.