USA v. Corey Neal
Filing
OPINION filed: AFFIRMED, decision not for publication. Damon J. Keith, Circuit Judge; John M. Rogers, Circuit Judge; and Richard Allen Griffin, (authoring), Circuit Judge.
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NOT RECOMMENDED FOR PUBLICATION
File Name: 15a0681n.06
No. 14-6500
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA,
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Plaintiff-Appellee,
v.
COREY NEAL,
Defendant-Appellant.
Oct 07, 2015
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE WESTERN
DISTRICT OF TENNESSEE
BEFORE: KEITH, ROGERS, and GRIFFIN, Circuit Judges.
GRIFFIN, Circuit Judge.
Defendant Corey Neal pleaded guilty to possession of a firearm by a felon. Neal fled
before sentencing, which increased his advisory Guidelines range from 41−51 months to 70−87
months of incarceration. The district court sentenced him to 84 months. On appeal, Neal
challenges a four-level enhancement to his Guidelines calculation for possessing a firearm “in
connection with another felony offense,” U.S.S.G. § 2K2.1(b)(6)(B), and the substantive
reasonableness of his sentence. We affirm.
I.
On October 12, 2012, Memphis law enforcement received a call reporting that several
individuals were assaulting Trevor Whitmore.
As officers were traveling to Whitmore’s
residence, they observed a vehicle and passengers that matched the descriptions provided by the
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caller. In the car were Neal, his girlfriend, and three others, as well as a loaded handgun.
According to a statement Whitmore gave to the police, Whitmore had been fighting with Neal’s
sister when Neal arrived with several friends. Neal and Whitmore began fighting. Neal then
pulled a handgun from his pocket, pointed it at Whitmore, and said, “I’m going to kill you”
before leaving the scene.
Neal’s statement to the police was more detailed, but not entirely inconsistent with
Whitmore’s account. Neal was at a studio making music when he received a call from his
sister’s friend who said that Whitmore was assaulting Neal’s sister. Neal instructed the friend to
call the police. Neal called his mother who also said she would call the police. Later, Neal
received another call from his sister’s friend. This time, Neal could hear his sister screaming in
the background. He grabbed a gun and went with his girlfriend and three others to Whitmore’s
residence. When they arrived, Neal saw Whitmore on top of Neal’s sister “knocking the blood
out of her.”
Neal told Whitmore to stop but Whitmore struck Neal in the nose instead.
Whitmore also punched Neal’s friend. At that point, according to Neal, Whitmore’s father came
out of the house with a gun pointed at Neal and his friends. Neal admittedly pulled his gun
“partly out of [his] pocket” before Whitmore struck him again. Neal pushed the gun back into
his pocket and left with his friends. Soon after, they were stopped by the police.
A grand jury charged Neal with being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g). Neal pleaded guilty without a plea agreement. When Neal failed to appear
for sentencing, the court issued a warrant for his arrest. Neal was arrested several months later.
At sentencing, the district court applied a four-level enhancement for possessing a firearm “in
connection with another felony offense,” U.S.S.G. § 2K2.1(b)(6)(B), because Neal possessed the
firearm in connection with an aggravated assault on Whitmore, for which he was charged in state
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court. The court calculated the advisory Guidelines range as 70−87 months (total offense level
26, criminal history category II) and sentenced Neal to 84 months.
II.
On appeal, Neal argues two claims of error: (1) the § 2K2.1(b)(6)(B) enhancement was
inapplicable because there was no independent felony since Neal was acting in self-defense or in
defense of others, and (2) his sentence is substantively unreasonable because the district court
gave too much weight to his juvenile assault convictions.
III.
When considering a challenge to a § 2K2.1(b)(6) enhancement, we review the district
court’s factual findings for clear error, giving “due deference” to the district court’s
determination that the firearm was used or possessed “in connection with” another felony.
United States v. Adkins, 729 F.3d 559, 564 (6th Cir. 2013).
The U.S. Sentencing Guidelines provide a four-level enhancement to a defendant’s base
offense level 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). “For this section to apply, the government
must establish, by a preponderance of the evidence, a nexus between the firearm and an
independent felony.”
United States v. Burns, 498 F.3d 578, 580 (6th Cir. 2007) (internal
citations omitted). For purposes of § 2K2.1(b)(6)(B), the term “another felony offense” means
“any federal, state, or local offense, other than the explosive or firearms possession or trafficking
offense, punishable by imprisonment for a term exceeding one year, regardless of whether a
criminal charge was brought, or a conviction obtained.”
n.14(C).
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U.S.S.G. § 2K2.1(b)(6)(B) cmt.
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Neal advances two arguments with respect to the enhancement: first, the government
failed to establish by a preponderance of the evidence that Neal committed an aggravated assault
under Tennessee law, and, second, the government failed to disprove Neal’s theory of selfdefense or defense of others. Neither has merit.
A.
Under Tennessee law, a person commits assault when he “[i]ntentionally or knowingly
causes another to reasonably fear imminent bodily injury.” Tenn. Code Ann. § 39-13-101(a)(2).
The conduct constitutes aggravated assault if the assault “[i]nvolved the use or display of a
deadly weapon.” Tenn. Code Ann. § 39-13-102(a)(1)(A)(iii); see also id. § 39-13-102(e) (stating
that subdivision (a)(1)(A)(iii) is a Class C felony).
Neal maintains that the government failed to show that he intended to cause another
person to reasonably fear imminent bodily injury or that he intended to use or display the gun.
But Neal acknowledges that he never objected to Whitmore’s statement in the Presentence
Investigation Report (“PSR”) that Neal displayed the gun, pointed it at Whitmore, and threatened
to kill him. See, e.g., State v. Kinner, 701 S.W.2d 224, 226−27 (Tenn. Crim. App. 1985)
(waving a pistol in front of potential victims and ordering them on the floor was aggravated
assault). Moreover, regardless of Whitmore’s statement, Neal’s own statement to the police
supports by a preponderance of the evidence that Neal displayed the gun to Whitmore. A finder
of fact could readily conclude that Neal did so to put Whitmore in fear. Finally, to the extent that
Neal argues he had not decided at the time he departed for Whitmore’s residence whether he
would use or display the gun, when Neal arrived, he actually displayed the gun. Accordingly,
the district court did not clearly err in finding that the government had established by a
preponderance of the evidence that Neal violated the aggravated assault statute.
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B.
The next question is whether the district court clearly erred in finding that Neal was not
justified in using force. Neal maintains that because he went to Whitmore’s residence to defend
his sister, and displayed his gun only after Whitmore’s father pointed a gun at him, he had a
justification defense to prosecution for aggravated assault, rendering the enhancement
inapplicable.
We have recognized that a defendant may raise a justification defense under state law for
purposes of challenging the applicability of § 2K2.1(b)(6) at sentencing. See, e.g., Adkins, 729
F.3d at 564−65; United States v. Wagers, 438 F. App’x 428, 430−31 (6th Cir. 2011). In the
context of sentencing, we consider whether a state’s justification law bars application of the
enhancement even though the defendant possessed a firearm in connection with “another felony”
under the state statute. See Adkins, 729 F.3d at 564−65; United States v. Clark, 403 F. App’x 12,
15−16 (6th Cir. 2010).
In Tennessee, justification is a “defense to prosecution” for otherwise unlawful conduct.
Tenn. Code Ann. § 39-11-601. Regarding self-defense, Tennessee law provides:
(b)(1) . . . [A] person who is not engaged in unlawful activity and is in a place
where the person has a right to be has no duty to retreat before threatening or
using force against another person when and to the degree the person reasonably
believes the force is immediately necessary to protect against the other’s use or
attempted use of unlawful force.
(b)(2) . . . [A] person who is not engaged in unlawful activity and is in a place
where the person has a right to be has no duty to retreat before threatening or
using force intended or likely to cause death or serious bodily injury if:
(A) The person has a reasonable belief that there is an imminent danger of
death or serious bodily injury;
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(B) The danger creating the belief of imminent death or serious bodily injury
is real, or honestly believed to be real at the time; and
(C) The belief of danger is founded upon reasonable grounds.
Tenn. Code Ann. § 39-11-611(b).
The defense is unavailable if “the person using force
provoked the other individual’s use or attempted use of unlawful force,” unless the “person using
force abandons the encounter or clearly communicates to the other the intent to do so [and] [t]he
other person nevertheless continues or attempts to use unlawful force against the person.” Id.
§ 39-11-611(e). This defense “implies no license for the initiation of a confrontation or an
unreasonable escalation of a confrontation in progress.” State v. Renner, 912 S.W.2d 701, 704
(Tenn. 1995).
Defense of a third party is also a defense to prosecution:
A person is justified in threatening or using force against another to protect a third
person, if:
(1) Under the circumstances as the person reasonably believes them to be, the person
would be justified under § 39-11-611 [the self-defense statute] in threatening or
using force to protect against the use or attempted use of unlawful force
reasonably believed to be threatening the third person sought to be protected; and
(2) The person reasonably believes that the intervention is immediately necessary to
protect the third person.
Tenn. Code Ann. § 39-11-612. It is “well settled” that the existence of self-defense is a factual
determination under Tennessee law.
Clark, 403 F. App’x at 16 (citing State v. Goode,
956 S.W.2d 521, 527 (Tenn. Crim. App. 1997)). The prosecution bears the burden of proving
that the defendant did not act in self-defense. State v. Belser, 945 S.W.2d 776, 782 (Tenn. Crim.
App. 1996), rev’d on other grounds as recognized by State v. Upshaw, No. W1999-00777-CCAR3-CD, 2001 WL 29456, at *8 n.1 (Tenn. Crim. App. Jan. 11, 2001).
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We have previously examined a defendant’s actions under Tennessee’s self-defense
statute with respect to the same four-level sentencing enhancement. There, we observed that the
existence of self-defense was a fact question that “lengthens [the defendant’s] climb on [] appeal
and steepens it as well.” Clark, 403 F. App’x at 16. Where, as here, the defendant lost below,
our standard of review requires us to read the facts and inferences in favor of the district court’s
ruling. Id. at 17 (citing United States v. Panak, 552 F.3d 462, 465 (6th Cir. 2009)); United States
v. Dillard, 438 F.3d 675, 680 (6th Cir. 2006). “Where there are two permissible views of the
evidence, the district court’s conclusions cannot be clearly erroneous.” United States v. Worley,
193 F.3d 380, 384 (6th Cir. 1999).
In this case, to the extent that Neal’s statement to police was inconsistent with
Whitmore’s, the district court credited Whitmore’s statement. The district court was permitted to
credit the facts in the PSR based on Whitmore’s statement, especially considering that Neal did
not object to those facts. Cf. United States v. Hyler, 308 F. App’x 962, 967 (6th Cir. 2009)
(“the district court properly concluded that the undisputed facts set forth in the PSR establish
the occurrence of a second felony (aggravated assault and/or reckless endangerment) by
a preponderance of the evidence”).
But even without Whitmore’s statement―relying solely on Neal’s statement―the facts
establish that Neal armed himself, went to Whitmore’s residence, and instigated a confrontation
with Whitmore during which Neal reached for and partially displayed his gun. That evidence
sufficiently supports the district court’s factual finding that Neal’s actions were not justified.
A justification defense is not available when a defendant arms himself, initiates a confrontation,
and uses or attempts to use unlawful force without abandoning the encounter or clearly
communicating an intent to do so. See Tenn. Code Ann. § 39-11-611(e). The evidence as set
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forth in Neal’s statement supports the district court’s factual finding that Neal did not act in selfdefense under § 39-11-611(e) because (1) Neal provoked Whitmore’s father’s decision to point a
gun at Neal and his friends, and (2) Neal did not abandon the encounter or communicate to
Whitmore’s father that Neal intended to abandon the encounter before Neal pulled his gun from
his pocket. In short, there is sufficient evidence in the record to support the district court’s
factual finding that Neal was not acting in self-defense. The district court did not clearly err in
its ruling. Since Neal was not justified in using force under Tenn. Code Ann. § 39-11-611, he
was not justified in using force in defense of others, id. § 39-11-612(1), and he does not argue
otherwise.
Neal also asserts that the district court “ignored” his self-defense argument. But a careful
review of the sentencing record reveals that the district court necessarily considered not only
whether Neal’s actions constituted an aggravated assault but also whether the use of force was
justified. In overruling Neal’s objection, the district court expressly acknowledged Neal’s “self
defense” argument, but went on to explain that Neal’s “self-serving statement” on which he
relied was not as credible as Whitmore’s statement that Neal “pulled the handgun from his
pocket, pointed it at Whitmore and said I’m going to kill you.” Moreover, the district court
reasoned, Neal’s own statement supported that “the defendant wrongfully armed himself and
went to the scene.” Acknowledging Neal’s version of the story, in which Neal pulled out his gun
after Whitmore’s father pulled his first, the district court observed that it was still uncontroverted
that Neal “did arm himself [and] went to the scene.” Thus, the district court did not “ignore”
Neal’s self-defense argument.
Finally, Neal argues that the court’s credibility determination itself was clear error. But
we need not address that argument because Neal’s statements, viewed under the deferential
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standard of review, are sufficient to support the district court’s factual determination that Neal’s
use of force was not justified. For these reasons, the district court did not err in applying the
four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B).
IV.
Neal’s final claim of error is that his sentence is substantively unreasonable. We review
sentences for reasonableness under an abuse-of-discretion standard.
Gall v. United States,
552 U.S. 38, 51 (2007). “The essence of a substantive-reasonableness claim is whether the
length of the sentence is ‘greater than necessary’ to achieve the sentencing goals set forth in
18 U.S.C. § 3553(a).” United States v. Tristan-Madrigal, 601 F.3d 629, 632−33 (6th Cir. 2010).
“A sentence is substantively unreasonable if the district court selects the sentence arbitrarily,
bases the sentence on impermissible factors, fails to consider pertinent § 3553(a) factors or gives
an unreasonable amount of weight to any pertinent factor.” United States v. Walls, 546 F.3d 728,
736 (6th Cir. 2008) (alterations and citations omitted). In this circuit, we apply a rebuttable
presumption of reasonableness to sentences within a properly calculated Guidelines range. Id.
Neal’s position is that the district court gave an unreasonable amount of weight to his
juvenile assault convictions. In assessing the § 3553(a) factors, the district court considered
Neal’s juvenile convictions, as well as an assault at age 15, an adult aggravated assault
conviction from 2008 after Neal shot a man, and the aggravated assault in this case. Drawing
connections between these offenses, the court observed that Neal had “no respect for the law”
and is “a danger to the public” when he gets into heated situations. In light of the § 3553(a)
factors, the district court imposed a within-Guidelines sentence of 84 months.
The district court did not abuse its discretion when considering Neal’s juvenile
convictions. A “mere allegation that the sentence imposed is greater than necessary to achieve
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the goals of punishment outlined in § 3553(a) is insufficient to rebut the presumption of
reasonableness” of a within-Guidelines sentence. United States v. Dexta, 470 F.3d 612, 616
(6th Cir. 2006). “The fact that the district court did not give the defendant the exact sentence he
sought is not a cognizable basis to appeal, particularly where the district court followed the
mandate of § 3553(a) in all relevant aspects.” Id. (quoting United States v. Jackson, 466 F.3d
537, 540 (6th Cir. 2006)). Because the district court adequately considered the § 3553(a) factors,
Neal’s sentence is substantively reasonable.
V.
For these reasons, we affirm the judgment of the district court.
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