USA v. David Anderson

Filing

OPINION filed : AFFIRMED, decision not for publication. Martha Craig Daughtrey, Circuit Judge; Julia Smith Gibbons, Circuit Judge and Richard Allen Griffin, AUTHORING Circuit Judge.

Case: 14-1533

Document: 31-2

Filed: 05/06/2015

Page: 1

NOT RECOMMENDED FOR PUBLICATION
File Name: 15a0337n.06
No. 14-1533

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

May 06, 2015
DEBORAH S. HUNT, Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID LEWIS ANDERSON,
Defendant-Appellant.

)
)
)
)
)
)
)
)
)
)
)

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

BEFORE: DAUGHTREY, GIBBONS, and GRIFFIN, Circuit Judges.
GRIFFIN, Circuit Judge.
Defendant David Lewis Anderson appeals his within-Guidelines sentence of 108 months
of imprisonment imposed by the district court following his plea of guilty to one count of felon
in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and one count of possession of a
firearm with an obliterated serial number in violation of 18 U.S.C. § 922(k).
challenges the procedural reasonableness of the sentence:

Anderson

specifically, the district court’s

application of a base offense level enhancement, pursuant to U.S.S.G. §§ 2K2.1(c)(1)(A) and
2A4.1, for possession or use of a firearm in connection with the commission of another offense.
For the reasons that follow, we affirm.

Case: 14-1533

Document: 31-2

Filed: 05/06/2015

Page: 2

No. 14-1533
USA v. Anderson

I.
The question whether U.S.S.G. § 2A4.1 applies to Anderson’s case stems from events
that took place on the morning of July 22, 2013, in Detroit. Tawana Wilson, defendant’s
girlfriend (now his wife), was at a sister’s home when Anderson arrived in Wilson’s vehicle,
which he had taken and refused to return.

Anderson, whom witnesses believed had been

drinking, approached the home and asked if Wilson was there. Wilson refused to meet with
Anderson, who then picked up a brick and broke out the windows in her SUV and drove off.
Anderson went to Wilson’s house on Cadieux Street in Detroit and proceeded on a
rampage, damaging the house by ramming the garage door, breaking a door window, and
destroying several items inside. He then walked away. Shortly thereafter, Wilson’s friend,
Tamara Hollis, who was in the vicinity, notified Wilson that her dog was running loose. While
waiting for someone to retrieve the dog, Hollis and her sixteen-year-old daughter observed
Anderson approaching their vehicle from a side street. The daughter stated that “[h]e’s got
something in his hand.” Hollis observed a small black handgun in Anderson’s right hand. The
gun had fallen out of Anderson’s pocket; he picked it up and placed it back in his pocket.
According to Hollis, Anderson seemed “clumsy” and “scared,” so she approached him in an
apparent attempt to calm him down. In response, Anderson told her, “I’m not going to do
anything to you. I just need you to take me to the old neighborhood,” and “I swear I’m not going
to do anything to you.” Anderson and her daughter were about to run, but Anderson got into
Hollis’s vehicle and sat in the front passenger seat. Out of fear, Hollis and her daughter also
entered the car and began to drive. Anderson gave Hollis directions to his intended destination.
As Hollis drove away, the firearm fell out of Anderson’s pocket and landed on the floor under

-2-

Case: 14-1533

Document: 31-2

Filed: 05/06/2015

Page: 3

No. 14-1533
USA v. Anderson

the passenger seat. Hollis told Anderson to leave the gun where it was because her daughter was
in the back seat of the car; Anderson complied.
A third-party onlooker witnessed the entire event. Wilson’s sister, Mykal Wilson, drove
to the house on Cadieux Street to assist in securing Wilson’s dog. She watched as Anderson
approached Hollis and her daughter, saw Anderson’s gun, and decided to get in her car and
follow them as they drove away. Mykal called the Detroit Police Department and informed them
that Anderson was holding a woman and child hostage. When Mykal came upon a U.S. Border
Patrol vehicle, she flagged it down and reported to the agents that she had just seen Hollis and
her daughter being abducted by Anderson, who was armed with a handgun. The Border Patrol
agents pulled over Hollis’s car and asked to speak with her outside of the vehicle. Hollis told the
agents that she and her daughter were being held against their will and that Anderson had used a
small black handgun to abduct them. Hollis stated she was in fear for her life.1 Hollis’s daughter
later expressed her similar fear to the officers.
The agents ordered Anderson to get out of the car. They found a black Raven .25 caliber
pistol with an obliterated serial number on the passenger-seat floorboard, in the immediate area
where Anderson sat in the car. The authorities placed Anderson under arrest on suspicion of
carrying a concealed weapon and kidnapping of a minor and adult.
A federal grand jury indicted Anderson on one count of being a felon in possession of a
firearm in violation of U.S.C. § 922(g), and possession of a firearm with an obliterated serial

1

In a subsequent interview attempted by investigators, Hollis adamantly stated that she
and her daughter wanted to move forward and she no longer wanted any involvement pertaining
to Anderson’s prosecution. Hollis denied that she was forced, threatened, or kidnapped by
Anderson during the incident.
-3-

Case: 14-1533

Document: 31-2

Filed: 05/06/2015

Page: 4

No. 14-1533
USA v. Anderson

number, in violation of U.S.C. § 922(k). Anderson pled guilty without a Rule 11 plea agreement
to both charges in the indictment.
The applicable Guidelines section to determine the proper offense level for violations of
18 U.S.C. §§ 922(g) and 922(k) are found in U.S.S.G. § 2K2.1. Under § 2K2.1(c)(1)(A), “[i]f
the defendant used or possessed any firearm or ammunition in connection with the commission
or attempted commission of another offense . . . apply . . . § 2X1.1 (Attempt, Solicitation, or
Conspiracy) in respect to that other offense, if the resulting offense level is greater than that
determined above.” Section 2X1.1(a), in turn, indicates that a defendant’s base offense level
should be calculated by using the Guideline for the substantive offense, plus any adjustments
from such Guidelines for any intended offense conduct that can be established with reasonable
certainty. Because Anderson ostensibly used the firearm in connection with the substantive
offense of “kidnapping, abduction, unlawful restraint,” the presentence investigation report
(“PSR”) recommended that the Guidelines for kidnapping found in U.S.S.G. § 2A4.1 be used to
calculate Anderson’s base offense level. Section 2A4.1 provides for a base offense level of
thirty-two. Decreasing Anderson’s offense level by three points for acceptance of responsibility,
the PSR calculated the total offense level as twenty-nine. Combined with a criminal history
category of III, the advisory Guideline range was 108 months to 135 months of imprisonment.
Defense counsel challenged the base offense level enhancement both in a written sentencing
memorandum and verbally during the sentencing hearing.
At sentencing, the district court found that the government proved by a preponderance of
the evidence that Anderson used his firearm in connection with the substantive offense of

-4-

Case: 14-1533

Document: 31-2

Filed: 05/06/2015

Page: 5

No. 14-1533
USA v. Anderson
unlawful restraint under Michigan law (but not kidnapping, as the government also argued),2 and
therefore applied the enhanced base offense level set forth in § 2A4.1. The court determined that
Anderson’s advisory Guideline range was 108 to 135 months and sentenced him to 108 months
of imprisonment on Count 1 and 15 months on Count 2, to be served concurrently.
Anderson now appeals, arguing that the district court abused its discretion in applying the
§ 2A4.1 enhancement because the government failed to show by a preponderance of the
evidence that his actions violated Michigan’s unlawful restraint statute. Thus, Anderson asserts
that his sentence is procedurally unreasonable. He contends that without the increased penalties
of § 2A4.1, his base offense level would have started at twenty-four and been adjusted ultimately
to twenty-five after accounting for other relevant sentencing factors, yielding a much lower
Guideline range of seventy to eighty-seven months of imprisonment. Anderson argues that this
court should vacate his sentence and remand to the district court for resentencing, without
application of the § 2A4.1 enhancement.
II.
We review criminal sentences under a deferential abuse-of-discretion standard for
reasonableness, which consists of both a procedural and substantive component. Gall v. United
States, 552 U.S. 38, 51 (2007). Procedural reasonableness requires the district court to have
“properly calculated the applicable advisory Guidelines range.” United States v. Bolds, 511 F.3d
568, 581 (6th Cir. 2007). Anderson argues that the district court improperly calculated the
Guideline range when it applied the cross-reference Guideline under § 2K2.1 because there was
insufficient evidence that Anderson unlawfully restrained Hollis and her daughter. We review
the district court’s factual findings for clear error and its legal conclusions de novo. Id. at 579.
2

The government does not appeal this ruling.
-5-

Case: 14-1533

Document: 31-2

Filed: 05/06/2015

Page: 6

No. 14-1533
USA v. Anderson

The government bears the burden of establishing facts that would support an enhancement under
the Guidelines and must do so by a preponderance of the evidence. United States v. Seymour,
739 F.3d 923, 929 (6th Cir. 2014).
Before 2006, unlawful restraint was incorporated into Michigan’s kidnapping statute,
Mich. Comp. Laws (“MCL”) § 750.349, which encompassed six forms of conduct constituting
the crime of kidnapping. People v. Phillips, No. 311110, 2013 WL 6670847, at *3 (Mich. Ct.
App. Dec. 17, 2013) (citing People v. Jaffray, 445 Mich. 287, 296–97, 519 N.W.2d 108 (1994)).
But in 2006, the Michigan legislature amended the kidnapping statute and split it into two parts,
with the first part addressing “kidnapping” (MCL § 750.349) and the second “unlawful
imprisonment” (MCL § 750.349b). MCL § 750.349b provides in pertinent part:
(1) A person commits the crime of unlawful imprisonment if he or she knowingly
restrains another person under any of the following circumstances:
(a) The person is restrained by means of a weapon or dangerous instrument.
(b) The restrained person was secretly confined.
(c) The person was restrained to facilitate the commission of another felony or to
facilitate flight after commission of another felony.
***
(3) As used in this section:
(a) “Restrain” means to forcibly restrict a person’s movements or to forcibly
confine the person so as to interfere with that person’s liberty without that
person’s consent or without lawful authority. The restraint does not have to exist
for any particular length of time and may be related or incidental to the
commission of other criminal acts.
MCL 750.349b.
Thus, to prove unlawful restraint under MCL § 750.349b, “the facts must show beyond a
reasonable doubt that the accused either:

(1) forcibly restricted a person’s movements or

(2) forcibly confined a person so as to interfere with that person’s liberty.” Phillips, 2013 WL
-6-

Case: 14-1533

Document: 31-2

Filed: 05/06/2015

Page: 7

No. 14-1533
USA v. Anderson
311110 at *3. “In addition, the restraint must be done ‘without the person’s consent or without
lawful authority.’” Id. (quoting MCL § 750.349b). “[B]oth methods of restraint require proof of
some quantum of force—i.e., forcibly restrict or forcibly confine.” Id. “[F]or purposes of
unlawful imprisonment, sufficient ‘force’ can constitute any use of strength or power exerted
upon a person in order to restrict that person’s movements or to confine that person in a manner
that interferes with the person’s liberty.” Id. Finally, “[r]estraint by weapon [under subsection
(1)(a)] includes the use of a weapon to induce fear and discourage attempts to leave.” People v.
Washington, No. 304611, 2013 WL 2224084, at *2 (Mich. Ct. App. May 21, 2013).
In the present case, the government relied primarily upon subsection (1)(a) of MCL
§ 750.349b to establish unlawful restraint, but also argued that Anderson’s actions could qualify
under subsection (1)(c). Anderson argues that the district court erred in concluding that the
government showed by a preponderance of the evidence that Hollis and her daughter were
“restrained” at all. Further, he asserts that there was insufficient proof that he used a weapon to
accomplish any alleged restraint or to facilitate the commission of another felony; the evidence
showed that he never threatened Hollis and her daughter with his hand gun or implied that they
would deny him transportation at their own peril. The only time the gun was seen or mentioned
was when it twice fell from Anderson’s pocket; although he admittedly possessed the gun, he did
so awkwardly, did not point it at the passengers, and obeyed Hollis’s request to leave the gun on
the floor of the car because her daughter was in the back seat. Anderson therefore contends that
his actions are not tantamount to the use of a weapon to induce fear and discourage attempts to
leave.
We disagree.

The district court properly held that the government proved by a

preponderance of the evidence that Anderson unlawfully restrained his victims in these
-7-

Case: 14-1533

Document: 31-2

Filed: 05/06/2015

Page: 8

No. 14-1533
USA v. Anderson

circumstances.

Under MCL § 750.349b(1)(a), Anderson’s conduct fulfilled the requisite

elements of the statute. First, he knowingly restrained Hollis and her daughter by holding the
firearm in his hand and instructing Hollis that if she complied with his demand to drive her to
“the old neighborhood,” he would not hurt her. Following this implied threat, Anderson got into
Hollis’s car without her permission, still armed with the handgun. Hollis’s liberty was restrained
at that point. The record reflects that not only did she feel that if she ran, he might start shooting
at her, but her minor child was in the backseat of the car. Hollis had every reason to believe that
Anderson might make good on this threat because she knew that he had a violent temper.
Consequently, she complied with Anderson not out of free will but out of fear for herself, her
child, and Wilson. In light of Anderson’s statements while holding a firearm and directing the
victims to get in their car and drive him, it is clear that he intended to keep them in his custody
until they complied with his demand to drive them across town.
Anderson’s attempt to characterize the encounter as a cordial exchange falls flat. Both
Hollis and her daughter told authorities that they got into the car with Anderson because they
were scared and he had a gun. Moreover, after watching Anderson interact with Hollis and her
child, Mykal Wilson was so concerned about the situation that she called the police and followed
Hollis’s car, flagging down the Border Patrol and excitedly announcing that Anderson had taken
Hollis and her daughter hostage.
The present facts closely resemble People v. Johnson, Nos. 302505, 302506, 2012 WL
934720 (Mich. Ct. App. Mar. 20, 2012), in which the Michigan Court of Appeals affirmed a
conviction for unlawful imprisonment where the defendant, who had just committed an unarmed
robbery at a Walmart store, ran up to the victim’s car in the parking lot. Id. at *1. The defendant
got into her vehicle without permission, locked the doors, and told the victim to “go, go, go.” Id.
-8-

Case: 14-1533

Document: 31-2

Filed: 05/06/2015

Page: 9

No. 14-1533
USA v. Anderson

Fearful that he had a gun (although he did not), she drove him away from the store. In upholding
the conviction, the court explained:
He clearly intended to confine the victim to the car and to force her to drive.
While the victim could have unlocked the doors, by locking the doors defendant
impeded her ability to exit and forced her to remain in the driver’s seat. While
unlocking the doors would have taken only a moment, restraint does not require
any particular length of time [under MCL § 750.349b(3)(a)]. We also note that
while refraining from physical force, defendant exploited the situation to confine
the victim to her car. Particularly, the victim’s baby was in the backseat strapped
in a car seat, and exiting would have required the victim to leave her daughter in
the car. Also, while defendant did not have a weapon, based upon his placement
of his hands, the victim feared he might be armed. Finally, defendant told the
victim he was being chased by someone trying to kill him. In actuality, he was
being pursued by Wal-Mart security personnel. This lie led the victim to believe
there was a danger of violence outside the car and compelled her to follow
defendant’s orders. Considering the evidence in a light most favorable to the
prosecution we conclude the evidence was sufficient to establish defendant’s
restraint of the victim.
Id. (citation omitted). See also People v. Neal, No. 314788, 2014 WL 2795865, at *3 (Mich. Ct.
App. June 19, 2014) (“[T]o commit the offense [of unlawful imprisonment], defendant needed
only to confine the complainant for a brief moment, and could have done so, for example, by
simply locking all the doors, taking away her cellular telephone so she could not call for help, or
threatening her harm if she tried to escape. . . . Defendant’s conduct clearly went beyond the
minimum required to commit the offense.”).
Here, while the record does not indicate that Anderson locked the car doors, unlike in
Johnson, Anderson did have a gun and did threaten Hollis and her daughter. And, as in Johnson,
if Hollis tried to run away, she would have had to abandon her minor child in the backseat.
In sum, the district court properly applied the enhanced base offense level under
§§ 2K2.1(c)(1)(A) and 2A4.1 because the government provided sufficient evidence that
Anderson possessed his firearm “in connection with the commission or attempted commission of

-9-

Case: 14-1533

Document: 31-2

Filed: 05/06/2015

Page: 10

No. 14-1533
USA v. Anderson
another offense,” that is, the offense of unlawful imprisonment of Hollis and her daughter under
Michigan law, MCL § 750.349b(1)(a). The district court’s corresponding low-end Guideline
sentence of 108 months of imprisonment was procedurally reasonable.
III.
For these reasons, we affirm the judgment of the district court.

-10-