USA v. Alfred Ford

Filing

OPINION filed : Ford's sentence is VACATED, and the case is REMANDED to the district court for resentencing. Decision not for publication. Danny J. Boggs (AUTHORING) and Eric L. Clay, Circuit Judges; Avern Cohn, U.S. District Judge for the Eastern District of Michigan, sitting by designation.

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NOT RECOMMENDED FOR PUBLICATION
File Name: 14a0480n.06
No. 13-5768
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.

ALFRED FORD,
Defendant-Appellant.

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FILED
Jul 03, 2014
DEBORAH S. HUNT, Clerk

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

Before: BOGGS and CLAY, Circuit Judges, and COHN, District Judge.*

BOGGS, Circuit Judge. Alfred Ford pleaded guilty to one count of possessing a firearm
and ammunition as a convicted felon, in violation of 18 U.S.C. § 922(g). The district court
sentenced him to 120 months of imprisonment. Ford appeals his sentence, arguing that the
district court erred in applying a four-level enhancement under § 2K2.1(b)(6)(B) of the
Guidelines for using or possessing a firearm in connection with another felony offense—the
offense of felonious assault. In particular, Ford argues that “no testimony or evidence was
introduced to support the enhancement by demonstrating that Ford knowingly caused” his
supposed victim, Cheryl Billups, “reasonably to fear imminent bodily injury.” Appellant’s Br. at
13.

*

The Honorable Avern Cohn, United States District Court for the Eastern District of Michigan, sitting by
designation.

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When Ford argued below that the elements of felonious assault had not been proven, it
became incumbent upon the district court to rule on the matter. But the district court never made
an express finding on the record that Ford “intentionally or knowingly” caused Billups to
“reasonably fear imminent bodily injury,” Tenn. Code Ann. § 39-13-101(a)(2), nor is such a
conclusion obvious from the record. Accordingly, we vacate Ford’s sentence and remand to the
district court to make any necessary determinations, explain its rationale, and resentence the
defendant accordingly.
I
In his plea agreement, Ford agreed and stipulated to the following facts, excerpted
verbatim: Late on July 4, 2012, the defendant allegedly threatened a victim with a firearm. The
police were called, but the defendant left the scene before the Chattanooga Police Department
(“CPD”) arrived. A few hours later, in the early morning of July 5, 2012, CPD Officer Roth
observed the defendant walking down the street. The defendant matched the description of the
man who had threatened the previously referenced victim. Officer Roth tried to talk with the
defendant, but the defendant kept walking away from him even after being ordered to stop. The
defendant walked around a car and eventually complied with Roth’s orders. The defendant was
drunk. Officer Roth believed he could be the person he was looking for so he re-traced the
defendant’s path and found a loaded Hi-Point semi-automatic pistol near where Roth first saw
the defendant. There was no one else in the area. On July 6, 2012, a CPD Detective and ATF
Special Agent Warren Smith interviewed the defendant, who waived his Miranda rights. The
defendant denied threatening the victim, but he admitted the gun was his. He said he bought it
from a “crack head” for $75 and expected to sell it for $150. He admitted he was drunk and had
taken an “X Pill” the night that he was arrested. The defendant admits that he possessed the

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aforementioned firearm and ammunition. The defendant possessed the firearm and ammunition,
which were manufactured outside the state of Tennessee and did travel in and affect interstate
commerce, after sustaining at least the following felony convictions: Aggravated Assault,
Violation of Habitual Traffic Offender. All of these events occurred in the Eastern District of
Tennessee.
At Ford’s sentencing, the district court applied a four-level enhancement under the
Guidelines after concluding that Ford had committed felonious assault earlier that night using the
same gun that Roth had recovered.1 The application of the enhancement was consistent with the
recommendation of the probation officer in the pre-sentencing report (“PSR”) that was prepared
for Ford’s sentencing pursuant to Rule 32. Ford disputed the application of the enhancement in
part on the ground that he had “never been charged with the alleged felonious assault” and that
he had “denied threatening the victim with the weapon.” Addendum to PSR at 4 or PSR at 25,
Not on docket, Document No. 006111728702. Ford also argued that “one of the elements that
must be elicited is that there was fear on behalf of the victim,” and that “that element has not
been elicited as part of this proof.” Ford does not appeal the district court’s determination that
the same weapon was used in both incidents; rather, he argues, as mentioned earlier, that “no
testimony or evidence was introduced to support the enhancement by demonstrating that Ford
knowingly caused Billups reasonably to fear imminent bodily injury.” Appellant’s Br. at 13.
At the sentencing hearing, the government presented testimony from Phillip Narramore, a
Chattanooga police officer and ATF task-force officer. Narramore was the ATF agent assigned

1

As the government notes, Appellee’s Br. at 6, because § 2K2.1(b)(6)(B) of the Guidelines provides for an
enhancement if “any firearm” is used or possessed in connection with another felony offense, the recovered firearm
need not be the same as the one used for the assault. Under United States v. Settle, 414 F.3d 629, 632–34 (6th Cir.
2005), however, we held that if the firearm is not the same, the government must prove a “clear connection”
between the two firearms. Here, the district court found that the recovered firearm was the same as the one used for
the assault.

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to Ford’s case. Although he was not the investigating officer involved with either the call to the
police about the alleged assault or the discovery of the defendant and gun in the area a few hours
later, Narramore testified that he had spoken to the police officers involved in the arrest and
investigation and had reviewed their reports. He testified that on July 4, 2012, around 10:45 PM,
Officer Huckaby of the CPD responded to a “threats call” from Cheryl Billups. According to
Narramore, “Billups stated that she was at home, and Frado, which would be Alfred Ford, came
to her residence and pulled a black pistol on her and asked her where her son was several times,
and she said he wasn’t here, and that he said that he knew—or her son Joshua would know what
this was about.” Two and a half hours later, around 1:15 AM, CPD Officer Roth found Ford
drunk about one and a half blocks from Billups’s home. Roth ordered Ford to come to him.
Although Ford initially walked away, behind a car, he eventually acceded to Roth’s orders and
was “detained.” Roth returned to where he had initially seen Ford and recovered a black pistol.
Narramore also testified, in response to questioning from the district court, that, in his
experience, people retain possession of their firearms continuously unless they have reason to
dispose of them, such as “using a firearm to kill somebody.” He further confirmed that, because
Ford was a convicted felon, he could not purchase a gun legally, so the “pool of potential
suppliers of guns to someone in the defendant’s category would be pretty small.” As a result,
someone like Ford would be particularly unlikely to discard his gun for no reason.
Based on this evidence, and after a discussion of “a series of possibilities” both with
regard to a) whether Ford had, in fact, threatened Billups with the gun and b) whether the gun
used for the threat was the same as the gun retrieved later that night, the district court concluded
as follows:
Based upon the evidence that the Court has heard, the Court will deny the
[defendant’s] objection [to the application of the four-point enhancement]. The
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Court will credit the opinion testimony given by Detective Narramore, who has a
wealth of experience in law enforcement with firearms. And based upon his
testimony, the Court finds that the gun that the defendant used to threaten the
victim was the same gun that he was found with two and a half hours later, 1.5
blocks away from the location where the threat took place. The gun was a pistol in
both instances. It was black in both instances. The short time period that’s
involved here makes it extremely unlikely that the defendant could have acquired
another gun. If the defendant had acquired a second gun, the issue comes up what
did he do with the first gun. As Detective Narramore testified, convicted felons
have a difficult time acquiring guns, and only dispose of guns for some reason.
And there has been no reason at all offered at all to explain why this defendant
would dispose of the gun. And there is no evidence that the gun had ever been
disposed of. It’s also extremely unlikely that the defendant would have been able
to acquire a second gun within the short time frame that we’re talking about, two
and a half hours, and within the short distance that we’re talking about
The Court also credits the testimony and the information in the presentence report
that the defendant was seeking the victim’s son because of the thought that the
victim’s son might be testifying in a case where someone apparently, according to
Mr. Poole, had been murdered. So it strikes the Court that under those
circumstances it is likely that the defendant was still on the lookout for the son,
and would want to be able to persuade the son to not testify and cooperate with
law enforcement if he encountered the son. The son’s mother was there, the
defendant was still in the location, so if the son had come back or come around
the house, the defendant would have been in a position to confront the son and
persuade the son that he not cooperate. And the best way of persuasion would be a
gun. Therefore the Court concludes that the presentence report is correct on this
point, and the Court will deny the defendant’s motion on this point.

II
“Federal Rule of Criminal Procedure 32(i)(3)(B) requires the district court at sentencing
to rule on ‘any disputed portion of the presentence report or other controverted matter.’” United
States v. White, 492 F.3d 380, 415 (6th Cir. 2007). “Once the defendant calls the matter to the
court’s attention, the court may not merely summarily adopt the factual findings in the
presentence report or simply declare that the facts are supported by a preponderance of the
evidence.” Ibid. (quotation marks omitted). “Rather, the district court must affirmatively rule on
a controverted matter where it could potentially impact the defendant’s sentence.” Ibid. “[W]e

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require literal compliance with this Rule for a variety of reasons, such as enhancing the accuracy
of the sentence and the clarity of the record.” Ibid. (quotation marks omitted). In making its
factual determinations for sentencing purposes, the district court “may consider relevant
information without regard to its admissibility under the rules of evidence applicable at trial,
provided that the information has sufficient indicia of reliability to support its probable
accuracy.” U.S.S.G. § 6A1.3(a). Provided the district court has made the requisite factual
findings in compliance with Rule 32(i)(3)(B), we will review those factual findings for clear
error. United States v. Kosinski, 480 F.3d 769, 774 (6th Cir. 2007).
Here, the district court does not appear to have affirmatively and expressly found, based
on its review of the evidence, that Ford “intentionally or knowingly caused” the victim to
“reasonably fear imminent bodily injury”—required elements of felonious assault under
Tennessee law. Tenn. Code Ann. § 39-13-101(a)(2). As mentioned, during the sentencing
hearing, Ford’s attorney noted that “one of the elements that must be elicited is that there was
fear on behalf of the victim. And the testimony has been, from the detective and the other
materials, that that element has not been elicited as part of this proof as well.” At that point, it
became incumbent upon the court to “affirmatively rule” on the “controverted matter,” i.e.
whether there was sufficient evidence in the record from which to conclude that Ford had
assaulted Billups. But the court appears to have continued along its previous line of inquiry
concerning the intimidation of witnesses. To Ford’s objection that proof of the assault on Billups
was lacking, the court responded: “And I don’t know if this is true, Mr. von Kessler [Ford’s
attorney], since we do things very differently in federal court, but I think I’ve seen in the
newspapers and perhaps on television that in some communities there is a very, very serious
problem with witnesses to crimes not cooperating with the authorities . . . .”

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Some evidence in the record may support the court’s determination that Ford had
committed felonious assault. For example, Narramore testified that in Billups’s call to the
police, she allegedly stated that Ford “came to her residence and pulled a black pistol on her and
asked her where her son was several times.” Such testimony may support, though it does not
compel, the inference that a reasonable person in Billups’s position would have feared imminent
bodily harm, and that therefore Billups likely feared the same. See Appellee’s Br. at 14 (arguing
that “any rational person in Ms. Billups’s situation would have been afraid for her life, as
reflected by her prompt report to the police”). It may also support the inference that, in showing
up at the door with his gun drawn and demanding to see Billups’s son, Ford knowingly caused
such fear.
On the other hand, in his account of the call to the police, Narramore makes no reference
to any expression of fear on Billups’s part. The focus of the district court’s discussion of the
assault was a) whether Ford approached Billups with the same weapon that he admitted to
possessing later that night and b) whether it was likely that Ford intended to intimidate Billups’s
son so as to dissuade him from testifying as a witness. The court stated: “Well, let’s assume that
the presentence report is correct, then, in that statement, that the motivation behind the defendant
approaching the victim and sticking a gun in her face was so that he could locate the victim’s son
and use whatever persuasive powers he had to convince the victim’s son to not testify against
someone.” The court went on to emphasize “that in some communities there is a very, very
serious problem with witnesses to crimes not cooperating with the authorities.” And in its ruling
on the issue, the court observed, “if the son had come back or come around the house, the
defendant would have been in a position to confront the son and persuade the son that he not
cooperate. And the best way of persuasion would be a gun.” But there is no discussion of

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whether Ford intentionally or knowingly intimidated Billups (the purported victim of the alleged
assault); whether she in fact feared bodily harm; or whether, if so, she feared that such harm was
“imminent.” Nor can we say that such a conclusion, though plausible, is obvious under the
circumstances, given that Ford denied threatening Billups, that he apparently left her residence
(though remained in the area) after he was unable to locate Billups’s son, and that the
government did not introduce any testimony from Billups or anyone else directly involved in the
incident to support the inference that she feared imminent bodily harm.2
To be sure, the government is correct that “a victim’s unavailability does not bar the
imposition of a § 2K2.1(b)(6)(B) enhancement so long as reliable evidence, such as a 911 call or
police report, supplies the requisite facts.” Appellee’s Br. at 14 (citing United States v. Johnson,
495 F. App’x 573 (6th Cir. 2012) (per curiam). But here, such other evidence appears to be
lacking. Whether the district court could infer that Ford was guilty of felonious assault would
likely depend on the nature of the threat. For example, if the evidence revealed that Ford had
said, “Tell me where your son is or I’ll kill you,” the court might infer that Billups reasonably
feared imminent bodily injury. On the other hand, had Ford merely demanded to see Billups’s
son, or had he merely told her to pass the threat along, such an inference might not be warranted.
The sentencing transcript, however, gives little indication as to which of these scenarios was
more likely. And while the court’s focus was on Ford’s alleged attempt to threaten Billups’s son,
such a threat, too, would appear to lack the element of imminence required for the crime of
assault.3

2

Narramore testified that he “call[ed] Ms. Billups several times” on the day before sentencing but “was not able to
get in touch with her.”
3
To conclude that Ford committed attempted assault against Billups’s son, the court would have to find that
Billups’s son would have feared imminent bodily harm, as opposed to future harm had he chosen to testify.

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It is worth noting that Ford’s conduct might more appropriately be characterized as
attempting to influence a witness to withhold truthful testimony, in violation of Tennessee Code
Annotated § 39-16-507.

Although the facts might not support the conclusion that Ford

intentionally or knowingly caused Billups to reasonably fear imminent bodily harm, they might
support the alternative finding that Ford attempted to use physical force to induce Billups’s son
to withhold testimony. Such a finding would seem to warrant the application of the enhancement
for use of a firearm in connection with “another felony offense.” See U.S.S.G. 2K2.1(b)(6)(B) &
Application Note 14(C) (defining “another felony offense,” in relevant part, as “any federal,
state, or local offense . . . punishable by imprisonment for a term exceeding one year, regardless
of whether a criminal charge was brought, or a conviction obtained”); see also Tenn. Code Ann.
§ 39-16-507 (classifying “[a] violation of this section” as “a Class D felony”) and Tenn. Code
Ann. § 40-35-112 (indicating that a Class D felony is punishable by not less than two nor more
than twelve years in prison).
In any event, the district court should not have applied the enhancement for felonious
assault—at least not without expressly finding that all of the elements of the offense were met.
Because the district court did not expressly determine that Ford knowingly or intentionally
caused Billups to fear imminent bodily harm, we vacate Ford’s sentence and remand to the
district court for resentencing.

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