USA v. Clarence Toney, III

Filing

OPINION filed : The judgment of the district court is AFFIRMED, decision not for publication. Gilbert S. Merritt, Helene N. White and Bernice Bouie Donald, Circuit Judges.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0846n.06
Case No. 13-6432

FILED
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CLARENCE TONEY, III,
Defendant-Appellant.

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Nov 12, 2014
DEBORAH S. HUNT, Clerk

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

OPINION

BEFORE: MERRITT, WHITE, and DONALD, Circuit Judges.
BERNICE BOUIE DONALD, Circuit Judge. Defendant-Appellant Clarence Toney,
III, appeals his 120-month sentence on seven counts of distribution of heroin. Toney argues
(1) that the district court erroneously considered conduct outside the jurisdiction of the Eastern
District of Kentucky in applying a two-level enhancement for possession of a firearm, pursuant
to § 2D1.1(b)(1) of the United States Sentencing Guidelines (“U.S.S.G.”); and (2) that the
district court violated his Sixth Amendment rights, as interpreted in Alleyne v. United States,
133 S. Ct. 2151 (2013), when it considered uncharged amounts of heroin in determining Toney’s
“relevant conduct” for purposes of sentencing. We AFFIRM the judgment of the district court.

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Case No. 13-6432
United States v. Toney
I.
On April 11, 2013, a grand jury in the Eastern District of Kentucky returned a sevencount indictment against Toney.1 All seven counts charged Toney with distribution of heroin, in
violation of 21 U.S.C. § 841(a)(1).

Toney pleaded not guilty at his initial arraignment on

May 14, 2013.
The indictment was the culmination of an investigation conducted by the Drug
Enforcement Administration and the Northern Kentucky Drug Strike Force, which employed a
confidential informant to make seven controlled purchases of heroin in Covington, Kentucky.
The informant made the following heroin purchases—totaling 13.831 grams—from Toney:
2.031 grams on February 11, 2013; 2.130 grams on February 12, 2013; 1.705 grams on
February 15, 2013; 1.955 grams on February 18, 2013; 3.148 grams on February 22, 2013;
1.515 grams on February 27, 2013; and 1.347 grams on March 7, 2013. Officers arrested Toney
following the controlled purchase on March 7, 2013.
Following Toney’s arrest, officers executed a search warrant at an apartment at which
Toney occasionally stayed with his girlfriend in Cincinnati, Ohio. Officers seized an additional
11.99 grams of heroin, a scale, a loaded Highpoint 9mm handgun, and $2,466 in cash from the
apartment. During a post-arrest interview, Toney admitted that he sold heroin to fifteen to
twenty people in Kentucky and that he purchased between an ounce and an ounce and a half of
heroin per week.
On July 3, 2013, Toney pleaded guilty to all seven counts in the indictment without
receiving a plea offer from the government. The district court accepted the plea.

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The indictment named “Daniel W. Bowler,” which is one of Toney’s aliases.

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The U.S. Probation Office submitted a final presentence investigation report (“PSR”) on
October 22, 2013. The PSR recommended a base offense level of 26 for “an offense involving
the distribution of more than 100 but less than 400 grams of heroin,” pursuant to U.S.S.G.
§ 2D1.1(c)(7). The PSR further recommended a two-level enhancement for possession of a
firearm, pursuant to U.S.S.G. § 2D1.1(b)(1), and a three-level reduction for acceptance of
responsibility, pursuant to U.S.S.G. § 3E1.1. With a total offense level of 25 and a criminal
history category of VI, the PSR’s suggested advisory Guidelines range was 110-137 months’
imprisonment. Toney objected to the PSR’s application of the two-level firearm enhancement,
as well as its calculation of the amount of heroin involved in his offense.
Toney’s sentencing hearing took place on October 30, 2013. At the hearing, Toney’s
counsel withdrew his objections to the PSR. The district court adopted the PSR’s calculations—
noting that they were “very conservative”—as well as its suggested advisory Guidelines range of
110-137 months. The court then imposed a “middle-of-the-range sentence” of 120 months and
entered judgment. This timely appeal followed.
II.
A.
Toney first argues that the district court erred in applying a two-level enhancement for
possession of a firearm, pursuant to U.S.S.G. § 2D1.1(b)(1), because the firearm was seized in
Cincinnati—beyond the district court’s jurisdiction.

The government responds that Toney

waived this argument during his sentencing hearing.
“A defendant challenging the application of the Sentencing Guidelines must first present
the claim in the district court before it can be entertained on appeal.” United States v. Ward,
506 F.3d 468, 477 (6th Cir. 2007) (citing United States v. Aparco-Centeno, 280 F.3d 1084, 1088

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(6th Cir. 2002)). Waived claims—i.e., those claims intentionally relinquished by a defendant—
are not reviewable. Id. Forfeited claims, those not raised at all, are reviewed for plain error.
United States v. Babcock, 753 F.3d 587, 590 (6th Cir. 2014). Here, Toney made the following
objection to the PSR’s suggestion of a two-level firearm enhancement under U.S.S.G.
§ 2D1.1(b)(1):
All of the small sales [Toney] made were to undercover informants
and on the day he was arrested he did not have a gun nor did he
ever display or indicate he had a gun during any of his other sales.
For that reason we believe the Court could ignore the upward
adjustment because the gun was found miles from where he was
arrested on March 7, 2013.
At the sentencing hearing, however, Toney expressly withdrew this objection to the firearm
enhancement. The district court thus did not consider the objection.
Because it is unclear whether the objection below challenged the requisite nexus between
the gun and the underlying drug offenses or the jurisdiction of the district court to enhance based
on a gun found outside its jurisdiction, it is unclear whether the latter argument, presented here,
was waived. We will thus apply plain-error review. The plain-error standard requires Toney “to
show (1) error, (2) that was obvious or clear, (3) that affected [his] substantial rights, and (4) that
affected the fairness, integrity, or public reputation of the judicial proceedings.” United States v.
Prater, 766 F.3d 501, 518 (6th Cir. 2014) (alteration in original) (quoting United States v.
Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc)) (internal quotation marks omitted). “No
limitation shall be placed on the information concerning the background, character, and conduct
of a person convicted of an offense which a court of the United States may receive and consider
for the purpose of imposing an appropriate sentence.” 18 U.S.C. § 3661; see also United States
v. Watts, 519 U.S. 148, 149-53 (1997) (per curiam) (holding that a court may consider any
conduct, even that which does not result in a conviction, in determining a sentence under
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U.S.S.G. § 1B1.3). We have explained that, in regard to sentencing, “[r]elevant conduct need
not be charged, nor must it otherwise even be within the jurisdiction of the sentencing court.”
United States v. Gill, 348 F.3d 147, 151 (6th Cir. 2003) (citing United States v. Hough, 276 F.3d
884, 898 (6th Cir. 2002) (“Sentencing Guidelines [§ 1B1.3(a)(2)] allows the court to consider all
acts that ‘were part of the same course of conduct or common scheme or plan as the offense of
conviction.’”)).
In Hough, the defendant argued that the district court could not consider his juvenilecriminal record because the court did not have “subject-matter jurisdiction” over such crimes.
276 F.3d at 897. We disagreed, describing this argument as “creative, but not particularly
compelling,” because as long as the district court had jurisdiction to review the adult crimes
charged, it “had subject matter jurisdiction to hear any conduct that may be relevant to sentence
[the defendant] appropriately for that behavior.” Id. at 897-98. In so holding, we expressly
endorsed our sister-circuit’s statement that “the relevant criminal conduct need not be conduct
with which the defendant was charged, nor conduct over which the federal court has
jurisdiction.” Id. at 898 (quoting United States v. Dickler, 64 F.3d 818, 831 (3d Cir. 1995))
(internal quotation marks omitted); see also United States v. Martin, 157 F.3d 46, 51 (2d Cir.
1998) (“In the context of U.S.S.G. § 1B1.3(a), jurisdictional considerations are not relevant to a
defendant’s criminal responsibility.”). Such is the case here.
Toney does not dispute—nor can he—that the district court had jurisdiction over the
drug-related offenses for which he was sentenced. Consequently, the district court had subjectmatter jurisdiction to consider any relevant conduct to impose an appropriate sentence on him.

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See Hough, 276 F.3d at 898; Gill, 348 F.3d at 151. This includes considering the firearm police
seized from the Cincinnati apartment. Thus, the district court did not err, plainly or otherwise.2
B.
Toney next argues that the district court violated his Sixth Amendment jury-trial right, as
recognized in Alleyne, 133 S. Ct. at 2162, when it adopted the PSR’s relevant-conduct estimate
of more than 100 but less than 400 grams of heroin rather than sending the question to a jury.3
The government responds that Alleyne is inapplicable in this case because the relevant-conduct
determination only increased Toney’s advisory Guidelines range, not a mandatory minimum
sentence under a statute. We agree with the government.
Where, as here, a sentencing judge asks whether a defendant has any objections to the
sentence that have not previously been raised and the defendant does not object, any unpreserved
objections are forfeited and “plain-error review applies on appeal to those arguments.” Vonner,
516 F.3d at 385. Again, the plain-error standard requires Toney “to show (1) error (2) that was
obvious or clear, (3) that affected [his] substantial rights and (4) that affected the fairness,
integrity, or public reputation of the judicial proceedings.” Prater, 766 F.3d at 518 (alteration in
original) (quoting Vonner, 516 F.3d at 386) (internal quotation marks omitted).
The district court did not commit plain error in adopting the PSR’s relevant-conduct
estimate of more than 100 grams but less than 400 grams of heroin without submitting the
2

To the extent Toney challenges his constructive possession of the firearm or its nexus to the drug offenses, the
argument is waived.
3
In a pro se supplemental brief, Toney also argues that the district court improperly aggregated the amount of
heroin involved in each of the seven counts of the indictment to arrive at his sentence, thereby violating United
States v. Winston, 37 F.3d 235, 240 (6th Cir. 1994). Winston, however, dealt with the mandatory minimum and
potential life sentences prescribed in 21 U.S.C. § 841(b)(1)(A). See id. at 240-41. The district court sentenced
Toney pursuant to the Guidelines, not pursuant to a statutory minimum sentence. His 120-month sentence was
below the statutory maximum set forth in 21 U.S.C. § 841(b)(1)(C). Winston is therefore inapposite and the district
court did not err in aggregating Toney’s drug amounts to determine his offense level. See United States v. King,
272 F.3d 366, 377-78 (6th Cir. 2001). To the extent Toney’s supplemental brief raises an ineffective-assistance-ofcounsel claim, we decline to consider it because such a claim is more appropriately raised in a proceeding under
28 U.S.C. § 2255. United States v. Lopez-Medina, 461 F.3d 724, 737 (6th Cir. 2006).

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question to a jury. In Alleyne, the Supreme Court held that facts that increase the mandatory
minimum sentence available under a statute must be submitted to and found by a jury. 133 S. Ct.
at 2162. In that case, “[b]ecause the finding of brandishing increased the penalty to which the
defendant was subjected, it was an element, which had to be found by the jury beyond a
reasonable doubt.” Id. at 2163. But “Alleyne dealt with judge-found facts that raised the
mandatory minimum sentence under a statute, not judge-found facts that trigger an increased
guidelines range, such as happened to [Toney].” United States v. Cooper, 739 F.3d 873, 884
(6th Cir. 2014). The Alleyne Court itself noted that its holding did “not mean that any fact that
influences judicial discretion must be found by a jury. [The Supreme Court has] long recognized
that broad sentencing discretion, informed by judicial factfinding, does not violate the Sixth
Amendment.” 133 S. Ct. at 2163. The drug quantity table in U.S.S.G. § 2D1.1(c) and its
corresponding base offense levels do not mandate a particular minimum or maximum sentence.
See Gall v. United States, 552 U.S. 38, 59 (2007) (“[T]he Guidelines are not mandatory.”).
Alleyne is therefore inapplicable to Toney’s case.
Moreover, the record belies Toney’s argument that the district court considered the
Guidelines mandatory rather than advisory. The district court noted that it could not deviate
from the advisory Guidelines range of 110-137 months “without a reasonable justification.” The
court at no point suggested that the Guidelines bound it to a particular sentencing decision.
Toney has not shown that the district court’s sentencing-decision was plain error.
III.
For the foregoing reasons, we AFFIRM the judgment of the district court.

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