USA v. Booker Sander

Filing

OPINION filed : AFFIRMED the district court's judgment in part, : REVERSED and REMANDED in part for reconsideration of Sanders' sentence in light of Tapia v. United States, decision not for publication pursuant to local rule 206. Gilbert S. Merritt, AUTHORING Circuit Judge; Eric L. Clay, Circuit Judge and Jeffrey S. Sutton, Circuit Judge.

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NOT RECOMMENDED FOR PUBLICATION
File Name: 12a0342n.06
FILED

No. 10-5620

Mar 29, 2012

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

LEONARD GREEN, Clerk

United States of America,
Plaintiff-Appellee,
v.
Booker Sanders,
Defendant-Appellant.

BEFORE:

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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF TENNESSEE

MERRITT, CLAY, and SUTTON, Circuit Judges.

MERRITT, Circuit Judge. Defendant Booker T. Sanders appeals both his conviction and
sentence for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). The district
court applied an enhancement for attempted murder, U.S.S.G. § 2A2.1(a)(2), and sentenced Sanders
to 87 months in prison followed by three years of supervised release. Defendant presents five bases
for appeal. Four of the arguments in Sanders’ appellate brief do not merit relief. The fifth, however,
challenged the substantive reasonableness of Sanders’ sentence. After Sanders’ sentencing, the
Supreme Court held in another case that a sentencing court errs when it lengthens a defendant’s
sentence to ensure that he or she receives rehabilitative treatment. See Tapia v. United States, 131
S. Ct. 2382, 2391 (2011). At the sentencing hearing in this case, after noting Sanders’ problems with
substance abuse and mental illness, the district court declared that “a long period of incarceration

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will actually be beneficial and should effect, hopefully, the changes that need to be effected to protect
society.” Because the district court may have improperly lengthened Sanders’ sentence to promote
rehabilitation, we reverse and remand for re-sentencing in light of Tapia. We affirm the remainder
of Sanders’ conviction and sentence.
I. Background
On June 14, 2008, Sanders and another man, James Dickerson, had an argument on
Dickerson’s way home from work. Dickerson eventually walked away from the dispute and
approached Malcolm Grant to ask him for a cigarette. A few minutes later, Sanders returned, walked
up behind the two conversing men, and fired two bullets at Dickerson from ten to fifteen feet away.
Grant fled the street, and Dickerson, who uses a walking cane, moved behind a car for protection.
Neither bullet struck anyone. With four bullets still remaining, Defendant then turned and walked
off. After the police arrived, both Dickerson and Grant identified Sanders as the man who shot at
Dickerson. A search of Defendant produced a revolver with two spent rounds. The police arrested
Sanders, and the prosecution charged him with one count of being a felon in possession of a firearm.
At the scene, Defendant made no statements but continuously barked like a dog.
At trial, Agent Benny Allen of the Bureau of Alcohol, Tobacco, Firearms and Explosives
testified on direct that the firearm involved had traveled in interstate commerce. On crossexamination, Defense asked Agent Allen about his prior grand jury testimony in which he said that
an officer had told him that Sanders had confessed to firing at Dickerson. At trial, however, Agent
Allen said that he was not aware of any statement from Defendant. Agent Allen’s trial opinion was
based on a supplemental police report in which the drafting officer wrote that Sanders was “loud and
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belligerent, yelling [that] he didn’t have to say anything.” Defense then asked whether Agent Allen
would like to see the report to refresh his memory. After Agent Allen gave an affirmative answer,
the prosecution objected that Defense had not laid a proper foundation, the report was
undiscoverable, and it was hearsay. The court eventually sustained the objection and entered the
report under seal for purposes of appeal.
During its deliberations, the jury asked “should Miranda rights be considered in our decision
or lack thereof?” After a dispute between the parties, the court returned the answer: “No. There was
no Miranda violation. This is something you cannot consider in your decision.” The jury then
returned a guilty verdict.
At sentencing, over defense objections, the court found that the evidence adduced at trial and
the sentencing hearing was sufficient to establish by a preponderance of the evidence that Defendant
intended to kill Dickerson. The judge applied the attempted murder sentencing enhancement, which
brought the Base Level Offense up from 14 to 27. With Sanders’ Criminal History of I, the
recommended sentencing range was 70 to 87 months. The court decided that a sentence at the high
end of the range was appropriate to reflect the seriousness of the crime and the fact that, despite
having a Criminal History of only I, Sanders has had a lifelong exposure to the criminal system. The
court was also cognizant of Sanders’ past history of substance abuse and possible mental illness.
The judge thought that Sanders would benefit from a longer period of incarceration and that the
punishment “need[ed] to provide for the maximum period for recovery from a very addictive
situation.” Sanders eventually received a sentence of 87-months’ imprisonment followed by three

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years of supervised release. This appeal, in which Sanders raises five objections to his conviction
and sentence, followed.
II. Discussion
A. Brady Claim
First, Sanders argues on appeal that the prosecution should have turned over the supplemental
police report under Brady because he could have used it to impeach the testimony of Agent Allen.
We generally review the district court’s Brady determinations de novo. See United States v. Crayton,
357 F.3d 560, 568-69 (6th Cir. 2004). If, however, the defendant has not raised the claim at trial,
we review only for “plain error.” United States v. Delgado, 350 F.3d 520, 527 n. 10 (6th Cir. 2003).
In this case, Sanders never mentioned the word Brady or suggested that the prosecution should have
already given him the report. But the court did spend a substantial amount of time discussing
whether he should have access to it and ultimately entered the report under seal in order to preserve
appellate review of its admissibility. Ultimately we need not decide the proper standard of review
in this case because Sanders’ Brady claim fails under any standard.
To make out a successful Brady claim,1 the defendant must show that the withheld evidence
(1) was favorable to the defendant; (2) was suppressed by the government; and (3) resulted in
prejudice to the defendant. O’Hara v. Brigano, 499 F.3d 492, 502 (6th Cir. 2007) (citing Strickler
v. Greene, 527 U.S. 263, 281-82 (1999)). Since the sealed report contains no exculpatory evidence,

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W hile the prosecution is correct that the supplemental report is exempt from disclosure under both Federal Rule
of Criminal Procedure 16(a)(2) and 18 U.S.C. § 3500, Brady may still dictate that the prosecution turn it over to the
defense. See United States v. Presser, 844 F.2d 1275, 1283 (6th Cir. 1988).

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its only conceivable value to Sanders was for impeachment. See United States v. Bagley, 473 U.S.
667, 676 (1985). Sanders claims that the report was favorable because he could have used it to
highlight and impeach discrepancies between Agent Allen’s grand jury and trail testimony. At the
former, the witness said that an officer told him that Sanders had “uttered” a statement. At trial, in
contrast, the witness maintained that Sanders had refused to say anything. But because Agent Allen
did not write it and its contents only reinforced his testimony at trial, the sealed report would likely
have been of little value for impeaching Agent Allen. Inconsistencies in Agent Allen’s grand jury
testimony would have been more helpful for this purpose, and Sanders had those available to him
at trial. Moreover, assuming that the sealed report was favorable, its absence at trial did not result
in prejudice because there is no “reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.” Pennsylvania v. Ritchie, 480 U.S.
39, 57 (1987) (citations omitted). Even if Sanders could have completely undermined Agent Allen’s
credibility, two eyewitnesses, Grant and Dickerson, identified Sanders as the shooter, and the gun
recovered from Defendant corroborated their testimony. Because of the overwhelming evidence
against him, Sanders cannot establish that the failure to disclose the report prejudiced him.
B. Rule 16 violation
Second, Sanders argues that the prosecution violated Federal Rule of Criminal Procedure
16(a)(1)(A) by withholding a statement that he made.2 At trial, the district court found no violation

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The text of Federal Rule of Criminal Procedure 16(a)(1)(A) states: “Upon a defendant’s request, the
government must disclose to the defendant the substance of any relevant oral statement made by the defendant, before
or after arrest, in response to interrogation by a person the defendant knew was a government agent if the government
intends to use the statement at trial.”

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because the prosecution did not intend to use any statement at trial. We review lower court decisions
on this issue for abuse of discretion. See United States v. Muhammad, 948 F.2d 1449, 1454 (6th Cir.
1991). On appeal, Sanders points out that in some situations the government must turn over a
defendant’s statements in its possession regardless of whether it intends to use the statements at trial.
He is essentially claiming that there exists somewhere in the prosecution’s possession a written
record that contains a reference to an oral statement that Sanders made in response to custodial
interrogation.

See FED . R. CRIM . P. 16 advisory committee’s (1991 amend.) note (“[Rule

16(a)(1)(A)] now requires the prosecution, upon request, to disclose any written record which
contains reference to a relevant oral statement by the defendant which was in response to
interrogation, without regard to whether the prosecution intends to use the statement at trial.”). If
such a record exists, the prosecution should have turned it over.
Little evidence exists that Sanders made any oral statement or that there is a written record
making reference to it. To prove that he did make a statement, Sanders relies on Agent Allen’s grand
jury testimony in which he stated that Sanders admitted to firing at Dickerson “whenever they [the
officers] were kind of trying to fill out all the questions . . . .” Neither of the officers at the scene
remembered Sanders making a statement. Agent Allen subsequently testified at trial that, after
further investigation, Sanders did not make a statement. In addition, there is no evidence that any
written record referenced Sanders’ alleged statement. Unless it plans to use the statement at trial,
the prosecution does not have to disclose oral statements that are not referenced in a written record.
See FED . R. CRIM . P 16(a)(1)(A). The advisory committee note, however, explains that a defendant
has “some proprietary interest” in oral statements made during interrogations regardless of their
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future uses. FED . R. CRIM . P. 16 advisory committee’s (1991 amend.) note. But this proprietary
interest does not require the prosecution to disclose the substance of oral statements that are never
referenced in a writing and not intended for use at trial. See id. In this case, the only writing
mentioned in either brief is the supplemental police report which simply observes that Defendant
refused to make any statement. Because there is insufficient evidence to prove the existence of a
writing in the prosecution’s possession that referenced a statement made by Sanders, the district
court was correct in finding no Rule 16 violation.
C. Improper Jury Instruction
Sanders’ third argument claims that the district judge erred by instructing the jury in response
to its question that the police had committed no Miranda violations and that the jury could not
consider Miranda rights in its decision. See Miranda v. Arizona, 384 U.S. 436 (1966) We review
a supplemental jury instruction for abuse of discretion to determine whether it “fairly responds to
the jury’s inquiry without creating . . . prejudice.” United States v. Graham, 484 F.3d 413, 419-20
(6th Cir. 2007); United States v. Giacalone, 588 F.2d 1158, 1166 (6th Cir. 1978). Defendant claims
that there was sufficient evidence for the jury to find that a Miranda violation occurred and that the
instruction was confusing because it did not explain why the jury could not consider Miranda.
Regardless of whether there was sufficient evidence to infer the existence of a Miranda
violation, the district court’s supplemental instruction was proper because the existence of a Miranda
violation is a legal question and in the sole purview of the judge. The vehicle for a Miranda
challenge is the motion to suppress, which a defendant must make before trial. See FED . R. CRIM .
P. 12(b)(3)(C). In response to such a motion, the trial judge must determine the admissibility of all
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evidence. FED . R. EVID . 104(a). Sanders made no such motion, and the judge did not rule on the
admissibility of any statements. As a result, the lower court was entitled to instruct the jury that
there was no Miranda violation.
Even if the instruction were inappropriate, it did not result in prejudice to Defendant. The
remedy for a Miranda violation is to exclude the tainted statement. See Miranda, 384 U.S. at 492.
Here, however, the prosecution never attempted to introduce any statement from Defendant. It was
only during Defendant’s cross examination that Agent Allen mentioned the alleged statement. At
trial, had the court found a Miranda violation, Sanders’ sole remedy would have been to exclude a
statement that was never introduced. Defendant cannot hide the backwardness of what he is asking
for, and simultaneously broaden the remedies available to him, by pitching a Miranda violation
claim as one for an improper jury instruction.
D. Sufficiency of the Evidence Claim for the Attempted Murder Enhancement
Fourth, Sanders claims that the court should not have applied a cross reference for attempted
murder to him–raising his Base Offense Level from 14 to 27–because there was insufficient evidence
to find that he intended to kill Dickerson. We review factual findings for clear error and mixed
questions of fact and law that the district court resolves at the Sentencing Hearing de novo. See
United States v. May, 568 F.3d 597, 604 (6th Cir. 2009). To apply an enhancement, the trial judge
must find that the defendant’s conduct satisfied the definition of the cross-referenced offense by a
preponderance of the evidence. See United States v. Gates, 461 F.3d 703, 708 (6th Cir. 2006);
United States v. Milton, 27 F.3d 203, 206 (6th Cir. 1994). Federal law defines second degree murder
as killing with malice aforethought, a mental state that includes intent to kill. See United States v.
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Hicks, 389 F.3d 514, 530 (5th Cir. 2004). In this case, the court was correct to apply a Base Offense
Level of 27 because Sanders attempted a killing that would not have qualified as first degree murder.
See U.S.S.G. § 2A2.1(a)(2).
Sanders argues that, had he intended to kill Dickerson, he would have succeeded. Dickerson
walks with a cane and cannot move very quickly. Despite his alleged victim’s inability to escape,
Sanders did not shoot Dickerson point blank. Rather he stopped ten feet short, unloaded only two
of the six bullets in the gun, and did not pursue Dickerson to finish the job. Sanders swears that he
only intended to scare Dickerson. The trial court heard and dismissed this excuse, finding instead
“an absolute effort to shoot [Dickerson].” Dickerson testified that Sanders said “I’m going to blow
your ass off” and “I told you I was going to kill you.” Some evidence also suggests that the gun fell
apart after Defendant fired two shots, which would undermine Sanders’ theory. Finally, two
witnesses testified that Sanders shot at Dickerson rather than up into the air. Cumulatively, this is
ample evidence to find that Sanders attempted to kill Dickerson by a preponderance of the evidence.
E. Substantive Unreasonableness of the Sentence Claim
Sanders’ final claim is that his sentence of 87-months’ imprisonment, which is at the high
end of the applicable range, is substantively unreasonable because the district court failed to give
proper weight to mitigating factors. A sentence may be substantively unreasonable if a district judge
“select[ed] the sentence arbitrarily, bas[ed] the sentence on impermissible factors, fail[ed] to
consider pertinent § 3553(a) factors, or g[ave] an unreasonable amount of weight to any pertinent
factor.” United States v. Webb, 403 F.3d 373, 385 (6th Cir. 2005). We review the reasonableness
of a sentence for abuse of discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). If the
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sentence is within the guideline range, as it is here, then a reviewing court may presume it to be
reasonable. See id. at 51.
In this case, the trial judge cited § 3553 and extensively discussed the factors it requires. The
lower court’s analysis focuses on the seriousness of the crime, the danger it poses to public safety,
and the need to deter future perpetrators. Sanders also has an extensive criminal past that his
Criminal History Category of I underrepresents. These factors by themselves may justify the
sentence that the district court selected.
But the district court also concluded that, because of Sanders’ long history of substance abuse
and possible mental illness, he would benefit from a long period of incarceration and needed
maximum time to recover from an addictive situation. These statements suggest that the court below
may have imposed the 87-month sentence, in part, to ensure that Sanders had time to receive proper
rehabilitative treatment. Tapia v. United States denies a sentencing judge this option. See 131 S.Ct.
2382, 2391 (2011). While a sentencing judge may discuss a defendant’s need for treatment and even
recommend that the Bureau of Prisons prescribe a specific program, 18 U.S.C. § 3582(a)3 prohibits
either imposing a term of incarceration or lengthening its duration because of rehabilitative concerns.
See Tapia, 131 S.Ct. at 2392-93. It is not completely clear that the district court in this case
lengthened Sanders’ sentence to ensure his rehabilitation. The judgment, for example, only
recommends treatment when Sanders is under supervised release, after his incarceration has ended.
Nonetheless, the judge’s statements at sentencing suggest that he “may have calculated the length

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Specifically 18 U.S.C. § 3582(a) instructs a sentencing court to “recogniz[e] that imprisonment is not an
appropriate means of promoting correction and rehabilitation.”

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of [the] sentence to ensure that [the defendant] receive certain rehabilitative services.” Id. But see
United States v. Tolbert, No. 10–6467, 2012 WL 413806, at *5 (6th Cir. Feb. 10, 2012) (“While the
district court did allude to [the defendant’s] mental health issues and conclude that he would benefit
from treatment, we find that the district court did not impermissibly impose or lengthen [the
defendant’s] sentence to enable him to complete a treatment program or promote his
rehabilitation.”). In this case, a remand is warranted to reduce confusion and ensure correctness.
Accordingly, we affirm the district court’s judgment in part and reverse and remand it in part
for reconsideration of Sanders’ sentence in light of Tapia v. United States.

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