USA v. Fred Hall

Filing

OPINION filed: AFFIRMED; decision not for publication. Martha Craig Daughtrey, Circuit Judge (AUTHORING); John M. Rogers, Circuit Judge and Deborah L. Cook, Circuit Judge.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0605n.06
No. 15-2391

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FRED DENNIS HALL,
Defendant-Appellant.

BEFORE:

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FILED
Nov 16, 2016
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MICHIGAN

DAUGHTREY, ROGERS, COOK, Circuit Judges.

MARTHA CRAIG DAUGHTREY, Circuit Judge.

Following defendant Fred Hall’s

guilty plea to a charge of being a felon in possession of a firearm, the district court sentenced
Hall to 96 months in prison, a sentence that represented an upward departure from the advisory
Guidelines range of 51 to 63 months. Hall now challenges both the procedural and substantive
reasonableness of that sentence, contending that the district court erred in concluding that the
defendant had stolen the firearm later found in his possession, erred in denying Hall a reduction
in his sentence for his acceptance of criminal responsibility, and erred in departing upward from
the applicable Guidelines range. We find no merit to any of Hall’s allegations of error and
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In early August 2014, Brad Bench reported to law enforcement authorities that someone
had broken into his barn and had stolen some of his hunting equipment. Among the missing

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items were a Charles Daly pump-action shotgun, the case and shells for that firearm, a pair of
Barska binoculars, and three trail cameras. Approximately three months later, the authorities
learned that defendant Hall had approached Joshua Helenhouse and tried to sell him a shotgun
and three trail cameras. Although Helenhouse declined the offers, Hall loaned the gun to
Helenhouse so that Helenhouse’s son could use the weapon during deer-hunting season.
Examination of the shotgun revealed that its make, model, and serial number matched those of
the shotgun stolen from Brad Bench. Moreover, the gun case in which Hall transported the
shotgun to Helenhouse contained 18 yellow shotgun shells, the same type of shells Bench
claimed he had stored in the pocket of the case before the gun was taken from his barn.
As part of the investigation into Hall’s connection with the theft of Bench’s hunting
equipment, authorities received consent from Beverly Evans, Hall’s girlfriend, to search her
residence, where Hall stored some of his belongings.

During the search of the premises,

authorities found personal papers of Hall’s, cellular phones, three trail cameras, two pairs of
binoculars, and a tree stand. One of the recovered binoculars was manufactured by Barska and
matched the model and size of the binoculars that Bench had reported stolen. In fact, when
Bench was shown a photograph of the binoculars, he stated, “[T]hey look like mine.” However,
the other items found during the search, including the three trail cameras, were not Bench’s, but
later were identified as items stolen from other individuals who lived near Hall or near women
with whom Hall was romantically involved.
In light of the uncontroverted evidence that Hall was seen in possession of the stolen
shotgun and previously had been convicted of numerous felonies, he pleaded guilty to the felonin-possession charge. At his sentencing hearing, however, Hall objected to the recommendation
in the presentence report that his base offense level be increased four levels due to his alleged

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involvement in the theft of Bench’s shotgun. He also argued before the district court that he
should be given credit for his acceptance of responsibility for the offense with which he was
charged.
Despite those arguments, the district court concluded that the government had
established, by a preponderance of the evidence, that Hall had taken possession of Bench’s
shotgun during a burglary of Bench’s barn. In addition, the district court noted that Hall’s
continued denial of his role in obtaining the stolen property belied his claim that he was entitled
to a reduction in sentencing for acceptance of responsibility. Given Hall’s extensive criminal
record and his failure to conform his conduct to societal standards, the district court then
departed upward from the applicable Guidelines sentencing range and sentenced Hall to 96
months in prison—the same sentence Hall had received for an earlier, 2004 felon-in-possession
conviction. Hall now appeals the district court’s sentencing rulings.
DISCUSSION
Standard of Review
“We review a district court’s sentencing determination, under a deferential abuse-ofdiscretion standard, for reasonableness.” United States v. Pearce, 531 F.3d 374, 384 (6th Cir.
2008) (citation and internal quotation marks omitted). Reasonableness review of a sentence “has
both a procedural and a substantive component.” United States v. Erpenbeck, 532 F.3d 423, 430
(6th Cir. 2008) (citing Gall v. United States, 552 U.S. 38, 51 (2007)). Procedural errors include
“failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the chosen sentence—including an
explanation for any deviation from the Guidelines range.” Gall, 552 U.S. at 51. Appellate
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review of the substantive reasonableness of a sentence “will, of course, take into account the
totality of the circumstances, including the extent of any variance from the Guidelines range.”
Id. “A sentence is substantively unreasonable if the sentencing court arbitrarily selected the
sentence, based the sentence on impermissible factors, failed to consider pertinent [18 U.S.C.]
§ 3553(a) factors, or gave an unreasonable amount of weight to any pertinent factor.” United
States v. Cunningham, 669 F.3d 723, 733 (6th Cir. 2012) (citation omitted). Although we “may
apply a rebuttable presumption of reasonableness to sentences within the Guidelines,” Pearce,
531 F.3d at 384 (citing Gall, 552 U.S. at 51), the fact that a sentence imposed by a district court
is outside the Guidelines range does not mean that we may apply a presumption that the sentence
is unreasonable. Gall, 552 U.S. at 51.
Challenge to the § 2K2.1(b)(6)(B) Enhancement
Upon Hall’s conviction for being a felon in possession of a firearm, the United States
Probation Office recommended assigning the defendant a Guidelines base offense level of 14
and adding two additional levels because the firearm possessed during the offense had been
reported stolen. See USSG § 2K2.1(a)(6)(A); (b)(4)(A). The district court agreed not only with
those initial calculations, but also with the probation office’s recommendation that Hall’s offense
level be increased another four levels because the defendant “used or possessed any firearm or
ammunition in connection with another felony offense.” USSG § 2K2.1(b)(6)(B). Pursuant to
the provisions of the commentary to USSG § 2K2.1(b)(6)(B), the four-level increase
“appl[ies] . . . in a case in which a defendant who, during the course of a burglary, finds and
takes a firearm, even if the defendant did not engage in any other conduct with that firearm
during the course of the burglary.” USSG § 2K2.1, comment. (n.14(B)(i)). Although he readily
admits that he possessed a firearm and that he was a convicted felon, Hall objects to the
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application of the four additional levels in calculating his Guidelines sentencing range because,
he submits, there is insufficient evidence to conclude that he was involved in the burglary of
Brad Bench’s barn. In fact, Hall insists that the stolen shotgun was given to him by another
individual and that he merely was attempting to sell the gun as a favor to that friend.
In the district court, “[t]he burden is on the government to prove, by a preponderance of
the evidence, that a particular sentencing enhancement applies.”
323 F.3d 480, 491 (6th Cir. 2003).

United States v. Dupree,

We have held that proof by a “preponderance of the

evidence” may be defined as “such evidence as, when considered and compared with that
opposed to it, has more convincing force and produces in [the mind of the finder of fact] belief
that what is sought to be proved is more likely true than not true.” Williams v. Eau Claire Pub.
Sch., 397 F.3d 441, 446 (6th Cir. 2005). We then review the district court’s conclusion that the
preponderance-of-the-evidence standard has been met for clear error, according due deference to
the district court’s determinations. See, e.g., United States v. Taylor, 648 F.3d 417, 432 (6th Cir.
2011). “A finding is ‘clearly erroneous’ when although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite and firm conviction that a mistake
has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948).
It is true that no direct evidence ties Hall to the burglary of Bench’s barn and to the theft
of the Charles Daly pump-action shotgun. But Hall’s later possession of the stolen gun was
hardly his only tie to the burglary of the barn. However, other information before the district
court supports its conclusion that what the government sought to prove “is more likely true than
not true.” Williams, 397 F.3d at 446. In addition to Hall’s admitted possession of the stolen gun,
the district court was aware of the defendant’s record of prior thefts and of the fact that items of
hunting equipment stolen from other individuals who lived in close proximity to residences used

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by the defendant also were found in Hall’s constructive possession. Furthermore, the district
court heard testimony that a pair of Barska binoculars were found among Hall’s possessions, that
Brad Bench claimed that those binoculars appeared to be his, and that Barska binoculars were
not commonly used by hunters in that area.
Our review of the appellate record leads us to the inescapable conclusion that the district
court did not commit clear error in determining that the evidence made it more likely true than
not that Hall was involved in the theft of items from Bench’s barn. As a result, there is no merit
to the defendant’s challenge to the application of the § 2K2.1(b)(6)(B) enhancement to his
sentence calculation.
Challenge to the Denial of a Sentence Reduction for Acceptance of Responsibility
The district court also refused to grant Hall’s request for a reduction in his Guidelines
offense level for accepting responsibility and admitting his guilt of the felon-in-possession
charge. In doing so, the district court determined that such a reduction would be improper
because Hall continued to deny his involvement in the burglary of Bench’s barn and the theft of
the shotgun. “We review the district court’s determination that a defendant has not accepted
responsibility for the offense for clear error.” United States v. Kamper, 748 F.3d 728, 744 (6th
Cir.), cert. denied, 135 S. Ct. 882 (2014).
The commentary to § 3E1.1 of the Guidelines provides that “a defendant who falsely
denies, or frivolously contests, relevant conduct that the court determines to be true has acted in
a manner inconsistent with acceptance of responsibility.” USSG § 3E1.1, comment. (n.1(A))
(emphasis added). Because, as discussed above, the district court did not err in finding, by a
preponderance of the evidence, that Hall indeed was involved in the burglary that resulted in the
theft of Bench’s shotgun and binoculars, Hall’s continued denials of his involvement in that
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crime means that the district court did not commit clear error in denying the defendant a sentence
reduction for acceptance of responsibility.
Challenge to the Propriety of the Decision to Depart Upward in Sentencing
Even though Hall’s advisory Guidelines range called for a prison sentence between
51 and 63 months, the district court departed upward and imposed a 96-month sentence upon the
defendant. Hall contends that such a lengthy sentence was substantively unreasonable.
In its initial calculations, the probation office assigned Hall a criminal history category of
IV, based upon the defendant’s numerous prior criminal convictions.

The district court

recognized, however, that even criminal history category IV “substantially underrepresent[ed]
the seriousness of the defendant’s criminal history or the likelihood that . . . the defendant will
commit other crimes.” According to the district court, a number of Hall’s prior convictions no
longer were counted in calculating the total number of the defendant’s criminal history points
due to the age of those earlier crimes. However, those prior crimes were felonies, not “multiple
misdemeanors or something of lesser importance than the offenses, which are not being counted
here.” Moreover, as explained by the district court:
This defendant has four—count them—four prior convictions for felon in
possession of a firearm. Three in state court, and one in the Western District of
Michigan Federal Court, for which he received a 96 month sentence, from one of
my colleagues last decade. Criminal History Category IV does not adequately
score the seriousness of that criminal history.
When “reliable information indicates that the defendant’s criminal history category
substantially underrepresents the seriousness of the defendant’s criminal history or the likelihood
that the defendant will commit other crimes, an upward departure may be warranted.” USSG
§ 4A1.3(a)(1). Here, the district court did determine that criminal history category IV indeed
underrepresented the seriousness of Hall’s criminal history—if for no reason other than the fact
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that some of his prior convictions were not counted simply because they had “aged out” while
Hall served other prison sentences. The district court thus departed upward and placed the
defendant in criminal history category VI, the criminal history category in which Hall fell during
his sentencing for his earlier, 2004 felon-in-possession conviction. As a result, Hall was subject,
as a criminal-history-category-VI, level-20 offender, to a prison term of 70 to 87 months. Even
then, the district court did not feel that the available range of sentences would provide adequate
punishment for Hall. Thus, pursuant to the directives of USSG § 4A1.3(a)(4)(B), the district
court “structure[d] the departure by moving incrementally down the sentencing table to the next
higher offense level in Criminal History Category VI . . .,” to the 77-to-96-month range
appropriate for a criminal-history-category-VI, level-21 offender.
Having settled on a Guidelines range that it felt was appropriate, the district court stated:
And for protection [of] the public, because this defendant is a serial offender, and
he is a serial offender involving weapons, which in the Court’s judgment is
extremely serious.
And also for purposes of specific deterrence of Mr. Hall, it seems a non-starter to
give him a sentence which is lower than the 96 month sentence for purposes of
just punishment and for specific deterrence of Mr. Hall, it’s a non-starter to give
him a sentence less than he received by my colleague approximately ten years
ago. So for that reason, for specific deterrence and as well as general deterrence
of others who might contemplate similar activity after rolling up the criminal
history that Mr. Hall has [rolled] up, a further departure of one level down is
appropriate, the resulting advisory guideline range is 77 to 96 months.
Mr. Hall just doesn’t get it. He cannot conform his conduct to the requirements of
the law. He was on supervised release for a very short period of time and, of
course, [a] supervised release . . . violation is a violation of trust, which is separate
and apart from further violations of the federal or state criminal law. But the
Court gave Mr. Hall an opportunity to perform and measured a certain amount of
leniency for Mr. Hall, but for whatever reason Mr. Hall just couldn’t stay away
from violating the criminal law.
I think just punishment for this offense in light of all of the factors which are
attendant to the case calls for a sentence at the upper end of the guideline range as
I have found in in this particular case.
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Accordingly, it’s the judgment of the Court the defendant is committed to the
custody of the Bureau of Prisons to be imprisoned for a term of 96 months.
This sentence is not substantively unreasonable. First, there is no question that the 96month prison term was not selected arbitrarily. Rather, the district court recognized that Hall had
been given a 96-month sentence in 2004 for a prior conviction for being a felon in possession of
a firearm. It would make little logical sense to impose a more lenient sentence for a subsequent
violation of the same federal criminal law simply because the inexorable passage of time
rendered some prior convictions too remote to be considered in the Guidelines calculation of the
defendant’s criminal history category. Given the recidivist tendencies exhibited by Hall, the
district court’s sentence would not have been arbitrary even if it had been harsher than, rather
than merely equal to, the 2004 sentence imposed by another district judge for the same offense.
Second, the district court did not base its sentence on impermissible factors. Instead, the
district court considered Hall’s criminal history, the seriousness of the offense, the need to deter
Hall from future misconduct, the need to dissuade other individuals from similar criminal
conduct, and the need to protect the public from further crimes of the defendant. Thus, the court
did not fail to consider any of the relevant factors listed in 18 U.S.C. § 3553(a) and did not give
undue weight to any of those considerations. The above-Guidelines-range sentence imposed by
the district court was, therefore, both justified and reasonable.
The judgment of the district court is AFFIRMED.

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