United States v. Marcus Franklin

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 22, 2021
• Docket: 19-6449
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 21a0044n.06

No. 19-6449

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jan 22, 2021 DEBORAH S. HUNT, Clerk UNITED STATES OF AMERICA, ) ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE WESTERN ) DISTRICT OF TENNESSEE MARCUS FRANKLIN, ) ) OPINION Defendant-Appellant. ) ) )

Before: CLAY, GILMAN and THAPAR, Circuit Judges.

CLAY, Circuit Judge. Defendant Marcus Franklin pleaded guilty to one count of being a

felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and received a 100-month

sentence. He appeals his conviction and sentence, challenging the district court’s resolution of an

evidentiary motion in limine, the sufficiency of his indictment, and the calculation of his base

offense level under the Sentencing Guidelines. Because Defendant’s arguments as to his

conviction were either forfeited by his plea or waived by subsequent agreement, and his challenge

to his sentence is foreclosed by precedent, we DISMISS Defendant’s appeal of his conviction and

AFFIRM his sentence.

Defendant forfeited any appeal of the district court’s adverse motion in limine

determinations. Under Federal Rule of Criminal Procedure 11(a)(2), “the right to have an adverse

determination on a pretrial motion preserved for appellate review [must] be reserved in writing.”

United States v. Ferguson, 669 F.3d 756, 764 (6th Cir. 2012). In this case, Defendant pleaded No. 19-6449, United States v. Franklin

guilty after the district court granted the government’s motion in limine to allow the prosecution

to introduce evidence of Defendant’s out-of-court admission. Defendant acknowledges that there

was no plea agreement nor any effort, whether written or oral, to preserve this issue for appellate

review. It is therefore undisputed that Defendant changed his plea without any plea agreement, let

alone one that “reserv[ed] in writing the right to have an appellate court review an adverse

determination of a specified pretrial motion.” Fed. R. Crim. P. 11(a)(2). Accordingly, he has

forfeited his right to appeal the district court’s evidentiary ruling. See United States v. Vasquez-

Martinez, 616 F.3d 600, 604–05 (6th Cir. 2010).

Defendant’s unconditional plea also forfeited his challenge to the sufficiency of his

indictment. On appeal, he argues that the indictment charging him with being a felon in possession

of a firearm was constitutionally deficient because it did not include as an essential element of the

offense his knowledge of felon status, as required under United States v. Rehaif, 139 S. Ct. 2191

(2019). Defendant explicitly disclaims any contention that this alleged defect deprived the district

court of subject matter jurisdiction. It is also clear that any such jurisdictional argument is squarely

foreclosed by this Court’s decision in United States v. Hobbs, 953 F.3d 853 (6th Cir. 2020). Since

this Court has long recognized that an unconditional plea forfeits a defendant’s non-jurisdictional

arguments as to his indictment, Defendant’s challenge to the sufficiency of his indictment on

Rehaif grounds has not been preserved for appellate review. See United States v. Pickett, 941 F.2d

411, 416–17 (6th Cir. 1991).

Review of Defendant’s challenge to his indictment on Rehaif grounds is not appropriate

for an additional reason—he explicitly waived any such argument in return for the government’s

2 No. 19-6449, United States v. Franklin

agreement to recommend a sentence at the low end of the guidelines range. “[W]aiver is the

intentional relinquishment or abandonment of a known right.” United States v. Olano, 507 U.S.

725, 733 (1993) (internal quotation marks and citations omitted). Before the district court,

Defendant explicitly averred that he could have withdrawn his plea based on Rehaif, but that he

had agreed not to in exchange for the government’s agreement to recommend a 100-month

sentence. At sentencing, the government did recommend a 100-month sentence, and the district

court determined that 100 months was the appropriate sentence. Defendant does not offer any

caselaw to support his argument that the prosecutor’s agreement to recommend a sentence at the

low end of the guidelines range was “illusory.” Accordingly, Defendant has forfeited and waived

any Rehaif challenge to his conviction.

Defendant concedes that his challenge to the calculation of his base offense level is

foreclosed by our decision in United States v. Garth, 965 F.3d 493 (6th Cir. 2020). In that decision,

we held that convictions, like Defendant’s, under Tenn. Code Ann. § 39-17-417 for possession

with intent to distribute a controlled substance constitute controlled substance offenses under the

Sentencing Guidelines.

For the reasons set forth above, we DISMISS the appeal of Defendant’s conviction and