United States v. Newman

13 F. App'x 250
CourtCourt of Appeals for the Sixth Circuit
DecidedApril 4, 2001
DocketNo. 98-2433
StatusPublished

This text of 13 F. App'x 250 (United States v. Newman) 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. Newman, 13 F. App'x 250 (6th Cir. 2001).

Opinion

PER CURIAM.

The Appellant, Roy G. Newman, seeks review of his sentence after his conviction on two counts of possession of a firearm under disability. The questions presented are whether the district court erred by not creating a separate record regarding Newman’s claimed defense of entrapment by estoppel, and whether the district court properly considered the nature of Newman’s prior offenses in sentencing. Finding no plain error, we affirm the judgment of the district court.

I.

Defendant Roy G. Newman was arrested on November 13, 1996, by Michigan DNR officers for “shining deer.”1 The officers recovered a weapon that they had observed Newman throw from his truck. Newman was indicted on the charge of possession of a firearm under disability, pursuant to 18 U.S.C. § 922(g)(1). While free on bond, Newman was again arrested by Michigan DNR officials for “shining-deer” while in possession of a firearm. He was charged in a superceding indictment with an additional count of violating § 922(g)(1), with an enhancement under 18 U.S.C. § 1347 for committing a crime while on federal bond.

Newman entered into a Rule 11(e)(1)(c) plea agreement which provided that the sentence would not exceed the middle of whatever guideline range the court found was applicable. During the plea colloquy, Newman claimed that he had been entrapped because “every police agency in the state of Michigan at one time or another in the last 30 years gave me these guns.” He further claimed that the law enforcement officers involved knew he was a convicted felon. Newman did not claim that any federal officers were involved in giving or returning firearms to him.

The district court acknowledged that Newman was suggesting a defense of entrapment and informed him of his right to present such evidence at trial. However, he cautioned the defendant that the alleged actions of state officers were not relevant in Newman’s federal prosecution. When Newman exhibited confusion at the state-federal distinction, Judge Cleland repeated his explanation. As the conversation continued, Newman insisted that “the police officers, the state, county DNR, every level there has [sic] given me guns.”

Judge Cleland again asked whether Newman understood his right to go to trial. Newman conferred with his attorney who told the court that he had discussed the potential risks and benefits of raising an entrapment defense with his client. Following further discussion on other aspects of the plea, both attorneys stated that they were satisfied with the Rule 11 colloquy. The defendant entered pleas of “guilty” on both counts.

After reviewing the defendant’s record, the court rejected the sentence cap component of the Rule 11 agreement, and permitted the defendant to withdraw his guilty pleas. The court recited an abbreviated history of the defendant’s prior encounters with the law and concluded that the sentence cap did “not in any way appear to [the court] to be proportionate to the crime of conviction against the criminal background of this offender.” The court [253]*253added, “[t]his is just an egregious criminal history.”

In preparation for trial, the court held a final status conference. At that conference, Newman again raised the issue of entrapment by state law enforcement officers. Again, the court stated that the actions of state officials were not relevant in a federal prosecution. The government moved in limine to exclude, on relevance grounds, any claim of entrapment by estoppel. Defense counsel stipulated to the motion.

At trial, the defense did not call any witnesses but proffered testimony from Newman that he had had firearms given or returned to him by state law enforcement officers. In the interest of saving time, defense counsel indicated that he would offer the transcript of the prior colloquy as the proffer. The government objected to the proposed testimony as irrelevant, and the judge sustained the objection. The jury found Newman guilty on both counts.

At the sentencing, the court took up the government’s objections to the scoring of the presentence report, sustaining one objection which resulted in the increase of Newman’s Criminal History Category by one level (the change moved Newman from level IV to level V on the criminal history rubric). In sentencing Newman, the court departed upward one additional level (from level V to VI), citing his voluminous criminal record and likely recidivism. The judge commented: “I have seen hundreds and hundreds of individuals before me for sentencing, I do not think that I have ever seen a lengthier criminal history than this one.”

The court continued: “Does Mr. Newman’s history tell me that his criminal behavior is likely to be repeated? It does. I am convinced that Mr. Newman has no respect for the law, that he’ll do whatever he wants to do, he will — he has already proven himself to be a recidivist. He pays almost no attention to the obligations imposed on him by a court.” The court sentenced the defendant to six years in prison, plus three years’ supervised release and fined him $2,000.

Newman appealed his sentence, alleging that the trial judge erred by refusing to create a “separate record” on the issue of entrapment by estoppel that might have weighed on the issue of mitigation; and that the trial judge did not consider the nature of all aspects of the defendant’s prior offenses when departing from the sentencing guidelines.

II.

A defendant who does not object to an error at sentencing forfeits his or her right to assert the issue on appeal. See United States v. Tosca, 18 F.3d 1352 (6th Cir.1994). When an issue has been forfeited, we review the prior proceedings merely for “plain error.” United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), FED R. CRIM. P. 52(b).

The gist of Newman’s claim is that by fading to create a separate record regarding his proposed defense of entrapment by estoppel, the court precluded defendant from using that evidence to argue for mitigation at his sentencing hearing. The defendant believes that if this evidence had been available, it would “mitigate the seriousness of the criminal history ... and offset the ‘shock’ of the trial judge.” App. Br. 9.

The doctrine of “entrapment by estoppel” prohibits the government from prosecuting a defendant when the defendant reasonably relied on the representation of a government official that the defendant’s conduct was legal. Raley v. [254]*254Ohio, 360 U.S. 423, 437-38, 79 S.Ct. 1257, 3 L.Ed.2d 1344 (1959); United States v. Lowenstein, 108 F.3d 80 (6th Cir.1997). We have held that this defense may not be invoked to shield a defendant from federal prosecution when the representations of legality came from state officers. United States v. Hurst, 951 F.2d 1490, 1499 (6th Cir.1991).

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Related

Raley v. Ohio
360 U.S. 423 (Supreme Court, 1959)
Williams v. United States
503 U.S. 193 (Supreme Court, 1992)
United States v. Olano
507 U.S. 725 (Supreme Court, 1993)
United States v. Felino Rodriguez
882 F.2d 1059 (Sixth Circuit, 1989)
United States v. Bobby L. Kennedy
893 F.2d 825 (Sixth Circuit, 1990)
United States v. Jose Enrique Tosca
18 F.3d 1352 (Sixth Circuit, 1994)
United States v. Joseph Everett Thomas
24 F.3d 829 (Sixth Circuit, 1994)
United States v. Timothy L. Little
61 F.3d 450 (Sixth Circuit, 1995)
United States v. Leonard Lowenstein
108 F.3d 80 (Sixth Circuit, 1997)

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Bluebook (online)
13 F. App'x 250, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-newman-ca6-2001.