United States v. Regis Adkins

729 F.3d 559, 2013 U.S. App. LEXIS 18443, 2013 WL 4750786
CourtCourt of Appeals for the Sixth Circuit
DecidedSeptember 5, 2013
Docket12-3382
StatusPublished
Cited by94 cases

This text of 729 F.3d 559 (United States v. Regis Adkins) 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. Regis Adkins, 729 F.3d 559, 2013 U.S. App. LEXIS 18443, 2013 WL 4750786 (6th Cir. 2013).

Opinion

OPINION

ZATKOFF, District Judge.

On November 22, 2011, a grand jury in the Northern District of Ohio returned an indictment charging Appellant Regis Adkins (“Adkins”) with being a felon in possession of ammunition in violation of 18 U.S.C. § 922(g)(1). Adkins pleaded guilty to the charge on January 9, 2012.

On March 19, 2012, the district court sentenced Adkins to 46 months of incarceration and three years of supervised release. Adkins now appeals his sentence as procedurally and substantively unreasonable. For the following reasons, we affirm the district court’s sentence.

I. BACKGROUND

On October 18, 2011, the Cleveland Police Department and the Bureau of Aleo-hol, Tobacco, Firearms and Explosives responded to a report of gunshots being fired at a Cleveland gas station. When the officers arrived, the manager of the gas station provided them with a security video that had captured the shooting incident. The four-minute composite video of the gas station’s surveillance footage, which was admitted without objection at sentencing, shows a white sport utility vehicle (“SUV”) driving through the gas station’s parking lot as Adkins appears to recognize the SUV. 1 At approximately, 21:22:32 of the video, Adkins is shown pulling a handgun from the walking cast boot he was wearing on his right foot. Walking with the gun at his side and pointed to the ground, Adkins casually paced around and zipped up his hooded sweatshirt before raising the gun, pausing to take aim, and firing several rounds at the SUV as it drove away on an adjacent side street. On the left side of the screen, a bullet appears to strike the pavement in front of another vehicle parked near the SUV just as the SUV begins to drive away.

On November 22, 2011, the government filed a one-count Indictment against Adkins charging him as a felon in possession of ammunition under 18 U.S.C. § 922(g)(1). On January 5, 2012, Adkins *563 pleaded guilty without a plea agreement and issued a statement accepting responsibility for his actions.

On March 19, 2012, Adkins appeared in the district court for sentencing. The Pre-sentence Report (“PSR”) recommended a base offense level of 20 under U.S.S.G. § 2K2.1(a)(4)(A). Adkins did not challenge the PSR’s recommendation in his sentencing memorandum or orally at sentencing. Nor did he disagree with the government’s position in its sentencing memorandum that Adkins committed the instant offense after sustaining a felony conviction for a crime of violence—criminal gang activity involving aggravated robbery and kidnapping—which triggered § 2K2.1(a)(4)(A)’s base level enhancement.

At sentencing, the district court calculated a base offense level of 20, implicitly adopting the PSR’s finding that Adkins committed some part of the instant offense after sustaining a felony conviction of a crime of violence. The court then added four levels after finding that Adkins possessed ammunition in connection with another felony offense—aggravated assault. Because Adkins accepted responsibility, the court reduced the offense level by two, and subtracted an additional level at the government’s request. Thus, the district court calculated a total offense level of 21.

The district court assessed Adkins’s criminal history at four points, placing him in Category III. The court assigned three points for the attempted criminal gang activity conviction and added an additional point for a juvenile incident in which Adkins was charged with carrying a concealed weapon. In his sentencing memorandum, Adkins argued that he was neither found guilty nor placed on probation in connection with the juvenile incident. Though acknowledging that the records of the juvenile incident were less than ideal, the district court overruled the objection. Based on a total offense level of 21 and a criminal history category of III, the court calculated an advisory range of 46 to 57 months.

The district court then considered Adkins’s history and characteristics. The court made note of Adkins’s extremely troubled family circumstances, including his mother’s past drug use and his absentee father. The court balanced this against Adkins’s previous use of drugs, his lack of work history and education, and the fact that he had previous involvement in violent incidents, including several cases involving firearms. The court noted that the median sentence for firearm violations by a Category III offender is 37 months. Nevertheless, the court ultimately imposed a sentence of 46 months to be followed by three years of post-release control. This appeal followed.

II. LEGAL STANDARD

This Court reviews sentences for procedural and substantive reasonableness. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). First, the Court must “ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” Id. If no procedural error occurred, the Court must then “consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Id. “The sentence may be substantively unreasonable if the district court chooses the sentence arbitrarily, grounds the sentence on impermissible factors, or unreasonably weighs a pertinent factor.” United States v. Brooks, 628 F.3d 791, 796 *564 (6th Cir.2011). The Court affords a rebut-table presumption of substantive reasonableness to sentences falling within the applicable Guidelines range. Id.

III. ANALYSIS

On appeal, Adkins presents four issues for the Court’s consideration: first, whether the district court erred in applying a four-level enhancement for possession of a firearm in connection with another felony pursuant to U.S.S.G. § 2K2.1(b)(6); second, whether the district court miscalculated his base offense level; third, whether the district court improperly assigned a criminal history point for the alleged juvenile conviction; and fourth, whether the district court failed to adequately consider Adkins’s personal history when considering the relevant factors under 18 U.S.C. § 3553(a).

1. Four-Level Enhancement Under § 2K2.1(b)(6)

A four-level enhancement to a defendant’s base offense level applies if the defendant “used or possessed any firearm or ammunition in connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). The increase applies if the government “establish[es], by a preponderance of the evidence, a nexus between the firearm and an independent felony.”

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729 F.3d 559, 2013 U.S. App. LEXIS 18443, 2013 WL 4750786, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-regis-adkins-ca6-2013.