United States v. Omari Jacques Sweat

• Court: Court of Appeals for the Sixth Circuit
• Decided: December 12, 2024
• Docket: 24-5009
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 24a0520n.06

No. 24-5009

UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Dec 12, 2024 KELLY L. STEPHENS, Clerk ) UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE EASTERN ) DISTRICT OF KENTUCKY ) OMARI JACQUES SWEAT, ) Defendant-Appellant. ) OPINION )

Before: KETHLEDGE, LARSEN, and MATHIS, Circuit Judges.

KETHLEDGE, Circuit Judge. Omari Sweat pled guilty to being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g)(1). He now appeals his sentence, arguing that the

district court erred when it applied a four-level enhancement for unlawfully possessing a firearm

in connection with another felony offense under U.S.S.G. § 2K2.1(b)(6)(B). We reject his

arguments and affirm.

On April 19, 2023, Lexington police were in a helicopter investigating an unrelated

shooting when they saw Sweat crash his car into another vehicle and drive away at a high speed.

Those officers then saw Sweat abandon his damaged car, place something under a nearby trailer,

jump a fence, and continue to flee on foot. Officers on the ground later caught Sweat, and he

surrendered. The officers found a loaded .40-caliber Glock pistol under the trailer; two witnesses

said they saw Sweat hide the pistol there.

A federal grand jury later indicted Sweat for being a felon in possession of a firearm, and

Sweat pled guilty. In his plea agreement, Sweat admitted the facts above and that he knew he had No. 24-5009, United States v. Sweat

a prior conviction for being a felon in possession of a firearm. His presentence report

recommended a four-level increase under U.S.S.G. § 2K2.1(b)(6)(B) for possessing a firearm “in

connection with another felony offense”—namely, the Kentucky felony offense of tampering with

physical evidence. See Ky. Rev. Stat. § 524.100(1)(a). Sweat objected to that enhancement,

arguing that his conduct of discarding the gun under the trailer did not amount to evidence

tampering and that he had not used the gun in connection with another felony.

At sentencing, the district court overruled Sweat’s objection, finding that Sweat had

intended to conceal the gun from the police—in violation of the Kentucky evidence-tampering

statute—and that the enhancement applied because Sweat had possessed the gun in connection

with the tampering felony. The court calculated Sweat’s resulting advisory guidelines range as

100 to 125 months’ imprisonment and imposed a sentence of 120 months’ imprisonment. This

appeal followed.

We review the district court’s factual findings for clear error and give “due deference” to

its “fact-bound” determination that the defendant possessed the firearm “in connection with” the

other felony. United States v. Taylor, 648 F.3d 417, 431–32 (6th Cir. 2011).

Sweat first argues that the district court erred when it applied U.S.S.G. § 2K2.1(b)(6)(B)

because, he says, the government did not prove he committed “another felony offense.” Under

Kentucky law, a person commits the felony offense of tampering with physical evidence when

(among other things) he conceals “physical evidence” with intent to impair its “availability in [an]

official proceeding.” Ky. Rev. Stat. § 524.100(1)(a). By contrast, when a defendant “merely

drops, throws down, or abandons” physical evidence “in the presence and view of the police, and

the officer can quickly and readily retrieve the evidence,” the defendant does not violate the

Kentucky statute. Commonwealth v. James, 586 S.W.3d 717, 731 (Ky. 2019).

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Sweat contends that he merely “abandoned” the gun under a trailer while being

“continuously watched and recorded by law enforcement”—that is, by the police helicopter

overhead. But Sweat admitted in the plea agreement that two witnesses saw him hide the gun

under the trailer and then flee the scene. Sweat thus concealed the gun rather than merely dropped

it. Moreover, as the district court observed, that makes this case “worlds different” from the

situation in James, where the defendant dropped a glass pipe in front of the arresting officer

without trying to hide it. 586 S.W.3d at 726. That Sweat happened to be in view of the officers

in the helicopter does not make this case like James. The district court was therefore right to find

that Sweat concealed the gun with the intent to impair an official proceeding—a felony in

Kentucky.

Sweat also argues that the tampering offense does not qualify as “another felony offense”

under § 2K2.1(b)(6)(B) because, he says, his possession of the gun was the “exact conduct” that

served as the basis for the tampering allegation. He is mistaken: Sweat’s possession of the firearm

was an act distinct from hiding it under a trailer while the police pursued him. See United States

v. Sweat, 688 F. App’x 352, 355–56 (6th Cir. 2017). The district court properly applied the

enhancement.

The district court’s judgment is affirmed.

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