                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0625n.06
                            Filed: October 16, 2008

                                            No. 07-5640


                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

v.                                                     ON APPEAL FROM THE UNITED
                                                       STATES DISTRICT COURT FOR THE
WILFORD H. NIECE,                                      EASTERN DISTRICT OF KENTUCKY

       Defendant-Appellant.

                                                /



BEFORE:        CLAY and COOK, Circuit Judges; and OLIVER, District Judge.*

       CLAY, Circuit Judge. Defendant Wilford H. Niece appeals his conviction under 21 U.S.C.

§ 843(b) and § 846 for multiple cocaine-related offenses. He argues that his conviction was

improper because newly discovered evidence that his wife, a key prosecution witness, was having

an affair undermines her testimony, and because the district court should have declared a mistrial

when a prosecution witness testified that Defendant had a prior conviction. Defendant also appeals

his life sentence, and asserts that the district court improperly applied a career offender enhancement

in calculating his Guidelines sentence. For the reasons that follow, we AFFIRM Defendant’s

conviction, but REVERSE and REMAND for re-sentencing.


       *
        The Honorable Solomon Oliver, Jr., United States District Judge for the Northern District
of Ohio, sitting by designation.
                                    STATEMENT OF FACTS

       Defendant Wilford Niece is incarcerated, and was incarcerated at all times relevant to this

case. During his incarceration, Defendant befriended fellow inmate William David Jones. As the

date of Jones’ release approached, a third inmate, Felipe Rojas, approached Jones to discuss the

possibility of Jones purchasing a large quantity of marijuana from one of Rojas’ associates shortly

after Jones’ release from prison. Because Jones and Defendant had previously discussed selling

drugs together, Jones told Defendant about his conversations with Rojas, and Defendant agreed to

help Jones purchase the drugs. Defendant also suggested that, in addition to marijuana, they

purchase and resell cocaine from Rojas’ contact.

       Under the plan that Jones and Defendant developed, Defendant agreed to provide Jones with

$45,000, which Jones would use to purchase three kilograms of cocaine and 100 pounds of

marijuana. Because Defendant did not have direct access to this amount of money while he was

incarcerated, Defendant delegated responsibility to obtain the funds to his unincarcerated wife, Missy

Niece. To coordinate the sale, Rojas gave Jones a phone number to call after Jones’ release from

prison. Rojas told Jones that the phone number belonged to his son, and instructed Jones to call his

son to arrange the drug sale, and to make the actual purchase of the drugs with the money Missy

provided.

       To frustrate attempts by law enforcement to discover their conspiracy, Defendant and his wife

developed a code to use when he called her from the prison phones to discuss the drug sale. Jones,

Defendant, and Missy all agreed that Jones would be called “Uncle Darryl” during any conversations

regarding the conspiracy. Defendant and Missy referred to potential customers for their soon-to-be-

obtained cocaine as “Bill” and “Neil.” They referred to the cocaine itself as “bricks.”


                                                 -2-
       Unbeknownst to Jones, Missy, and Defendant, however, Rojas was a federal informant, and

the phone number Rojas gave Jones did not belong to his son. Rather, the number Jones ultimately

called to arrange the drug sale belonged to Sami Ayyad, an officer with the Drug Enforcement

Agency (“DEA”). Acting as Rojas’ son, Ayyad instructed Jones to meet a drug dealer named

“Wally” at a Marriott hotel in Lexington, Kentucky, where Wally would sell him three kilos of

cocaine at $15,000 per kilo. Wally was not a drug dealer, but a DEA agent named Walter Martin.

       On July 27, 2006, Jones met Martin in the lobby of the Marriott hotel and showed Martin a

shaving kit bag stuffed with the $45,000 in cash that Missy had provided him. Martin told Jones to

follow him to the parking lot, where the drug sale would take place. As Jones exited the Marriott,

he was arrested, and he quickly agreed to assist the DEA’s investigation. In cooperation with law

enforcement, Jones called Missy, told her that he had successfully purchased the cocaine, and made

arrangements to meet Missy at a McDonald’s restaurant. Shortly thereafter, DEA agents found

Missy at a gas station across the street from the McDonald’s, and they arrested her. Because

Defendant was incarcerated, it was not necessary to take him into custody.

       Following their arrests, Jones and Missy pled guilty to various charges arising out of their

participation in the drug conspiracy. Defendant, however, pled not guilty. In a trial commencing

January 30, 2007, the prosecution presented considerable evidence against Defendant, including

testimony by Missy and Jones laying out the details of their plans to acquire and sell cocaine,

testimony by informant Rojas detailing his conversations with Jones and Defendant, taped phone

conversations in which Defendant and Missy discussed the drug conspiracy, and post-arrest

correspondence between Defendant and Missy in which Defendant advised Missy to plead guilty and

lamented that “I real[l]y got us screwed up,” and that “[w]e just about had it over with [and] I


                                               -3-
screwed us up again.” (J.A. 284.) On February 2, 2007, a jury convicted Defendant on multiple

counts arising from his participation in the drug conspiracy.

        On May 7, 2007, Defendant filed a motion for a new trial with the district court. He claimed

that a letter, allegedly handwritten by Missy Niece, revealed that she was having an affair with a man

named “Jamie,” and that this affair gave her a motive to lie to the jury regarding Defendant’s

involvement in the drug conspiracy. After conducting a hearing on whether this newly discovered

evidence warranted a new trial, the district court denied the motion.

        On May 14, 2007, the district court sentenced Defendant to life in prison. During the

sentencing hearing, the sentencing judge noted that Defendant had two prior convictions, one

involving drugs, and the second involving the transportation of a minor across state lines for the

purpose of engaging in illicit sexual activity. The district court concluded that Defendant’s two prior

convictions were sufficient to qualify Defendant as a career offender under the Sentencing

Guidelines, justifying life imprisonment. See United States v. Phinazee, 515 F.3d 511, 515 (6th Cir.

2008) (“Congress has indicated that career offenders . . . should be sentenced at or near the

maximum term of imprisonment . . . .”).

        Defendant now appeals his conviction and sentence, alleging that the district court’s improper

evidentiary ruling prejudiced his trial, that the district court should have granted his motion for a new

trial, and that the district court erred in treating him as a career offender under the Sentencing

Guidelines.

                                            DISCUSSION

I.      Denial of Motion for New Trial

                                         Standard of Review


                                                  -4-
         A district court’s disposition of a motion for a new trial on the basis of newly discovered

evidence is reviewed for abuse of discretion. United States v. Olender, 338 F.3d 629, 635 (6th Cir.

2003).

                                                  Analysis

         Courts generally disfavor motions for a new trial based on newly discovered evidence and,

as a result, such motions should only be granted with caution. United States v. Turns, 198 F.3d 584,

586 (6th Cir. 2000). Nevertheless, Federal Rule of Criminal Procedure 33 empowers a district court

to grant a new trial, upon a defendant’s motion, when the defendant demonstrates that “(1) the

evidence was discovered after trial, (2) it could not have been discovered earlier with due diligence,

(3) it is material and not merely cumulative or impeaching, and (4) it would likely produce an

acquittal if the case was retried.” Id. at 586-87. Defendant, however, has not met his burden under

Rule 33.

         Assuming that the letter Missy allegedly wrote to her lover, Jamie, constitutes new evidence

that could not have been discovered before trial,1 the letter is not “material.” Nothing in the letter

suggests that Defendant is not guilty of participating in a drug conspiracy. Instead, the letter is

“merely . . . impeaching.” The letter contains only Missy’s assertion that she will divorce Defendant,

several statements that she would like to marry Jamie, a request that Jamie “give” her a baby, and

multiple statements detailing how much she enjoys having sex with Jamie. (J.A. 76-78.) The letter

shows only that Defendant’s wife might want him to remain incarcerated.


         1
          It is also unclear whether the letter is admissible. A document such as the letter at issue may be
admitted into evidence upon a showing that the letter actually is what Defendant claims it is. Fed. R. Evid.
901(a). Defendant, however, has offered nothing to establish the authenticity of the letter, and the letter is
not self-authenticating. See Fed. R. Evid. 902. In fact, the letter does not provide Missy’s signature, as the
author of the letter signed it simply, “Love, Me.” (J.A. 78.)

                                                     -5-
       Further, any impeachment value the letter might have is outweighed by the substantial

evidence in the record corroborating Missy’s testimony implicating Defendant in the drug

conspiracy. At trial, Missy revealed what she knew of Jones’ and Defendant’s plans to acquire and

sell cocaine. Most of her testimony, however, involved the prosecutor playing taped telephone

conversations between her and Defendant, with the prosecutor pausing the tape occasionally to ask

Missy to interpret particular code words. Although Missy’s explanation of each code word likely

helped the prosecution in making a coherent presentation to the jury, Missy was not the jury’s only

source of knowledge regarding the meaning of many key code words. Jones, for example, testified

that his code name was “Uncle Darryl” during the drug conspiracy, and Agent Martin testified that

the term “bricks” referred to cocaine. Further, both Jones and informant Rojas testified to most of

the details Missy revealed in her testimony regarding the plans of Jones and Defendant to purchase

and resell cocaine. Thus, even if the letter Missy allegedly wrote justified excising her testimony

from the record, the prosecution’s remaining evidence provided the jury with overwhelming

evidence to support Defendant’s conviction. Accordingly, the newly discovered evidence Defendant

has offered would not “likely produce an acquittal if the case was retried.” Turns, 198 F.3d at 587.

As a result, we conclude that the district court did not abuse its discretion in denying Defendant’s

motion for a new trial.

II.    Evidentiary Ruling

                                       Standard of Review

       After prosecution witness Felipe Rojas mentioned in his testimony that Defendant had an

additional conviction besides the one which resulted in his present incarceration, Defendant moved

for a mistrial, and the district court denied the motion. “This Court reviews the denial of a motion


                                                -6-
for [a] mistrial for an abuse of discretion.” United States v. Layne, 192 F.3d 556, 573 (6th Cir.

1999).

                                              Analysis

         Under Rule 404(b), “[e]vidence of other crimes, wrongs, or acts is not admissible to prove

the character of a person in order to show action in conformity therewith,” although such evidence

might be relevant and admissible for other purposes, such as to show “motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.” Fed. R. Evid. 404(b).

Even if evidence of a past crime is revealed to the jury in violation of Rule 404(b), “the Federal

Rules of Criminal Procedure provide that an error ‘which does not affect substantial rights shall be

disregarded.’” Layne, 192 F.3d at 573 (quoting Fed. R. Crim. P. 52). “When the government

presents other convincing or overwhelming evidence, we may deem the admission of 404(b)

evidence mere harmless error.” Id.

         Defendant planned the crimes which serve as the basis for his current conviction while

serving a sentence that arose out of a similar drug-related conviction in 2000. Prior to his 2000

conviction, Defendant served seventy-two months based on a 1992 conviction for transportation of

a minor with the intent to engage in criminal sexual activity. At Defendant’s most recent trial, Rojas

mentioned that Defendant had “been in the penitentiary about—he said about ten years before,

somewhere.” (J.A. 116.) Thus, Rojas revealed to the jury that Defendant had a prior conviction,

even though such evidence should not have been placed before the jury under Rule 404(b).

         Despite the potential for prejudice inherent in revealing a criminal defendant’s irrelevant

prior convictions to the jury, we believe that Rojas’ isolated statement constitutes harmless error.

Over the course of Defendant’s trial, the prosecution presented testimony by Jones and Missy, two


                                                 -7-
of Defendant’s co-conspirators, who testified in great detail regarding their plans for buying and

reselling cocaine. Rojas, in discussing his efforts to learn information regarding their plans and then

pass this information on to Officer Ayyad, corroborated the testimony of Jones and Missy.

Moreover, the record contains transcripts of Defendant’s telephone conversations with his wife in

which they discuss the cocaine conspiracy, as well as post-arrest letters from Defendant to Missy in

which he confesses that “I real[l]y got us screwed up,” and that “[w]e just about had it over with

[and] I screwed us up again.” (J.A. 284.) Faced with this overwhelming evidence of Defendant’s

guilt, it is doubtful that Rojas’ brief mention of Defendant’s prior conviction played a role in the

jury’s decision to convict Defendant. Accordingly, we conclude that Rojas’ testimony constituted

harmless error, and that Defendant’s conviction should be affirmed.

III.   Career Offender Enhancement

                                        Standard of Review

       Questions involving the interpretation of the Federal Sentencing Guidelines are legal

questions which we review de novo. United States v. Hall, 531 F.3d 414, 416 (6th Cir. 2008).

                                              Analysis

       Defendant argues that the district court incorrectly calculated his Guidelines sentence by

applying a career offender enhancement. A defendant qualifies as a career offender if

       (1) the defendant was at least eighteen years old at the time the defendant committed
       the instant offense of conviction; (2) the instant offense of conviction is a felony that
       is either a crime of violence or a controlled substance offense; and (3) the defendant
       has at least two prior felony convictions of either a crime of violence or a controlled
       substance offense.

U.S. SENTENCING GUIDELINES MANUAL § 4B1.1. Because it is uncontested that his current

offense is a controlled substance offense, and that one of his two prior convictions was a controlled


                                                 -8-
substance offense, whether his conviction for transporting a minor across state lines with the intent

to engage in illicit sexual activity constitutes a crime of violence will determine whether Defendant

qualifies as a career offender.

        The term “crime of violence” for purposes of § 4B1.1

   means any offense under federal or state law, punishable by imprisonment for a term
   exceeding one year, that—(1) has as an element the use, attempted use, or threatened use of
   physical force against the person of another, or (2) is burglary of a dwelling, arson, or
   extortion, involves use of explosives, or otherwise involves conduct that presents a serious
   potential risk of physical injury to another.

Id. § 4B1.2(a) (formatting altered). In determining whether a prior conviction constitutes a “crime

of violence” under § 4B1.2(a), this Court has applied the categorical approach articulated in Taylor

v. United States, 495 U.S. 575, 601 (1990). United States v. Bartee, 529 F.3d 357, 359 (6th Cir.

2008) (noting that, although Taylor addressed whether a prior conviction constitutes a “violent

felony” under the Armed Career Criminal Act, this Court has applied Taylor’s categorical approach

to determine “whether a prior conviction constitutes a ‘crime of violence’ under USSG § 4B1.2(a)”).

Under the categorical approach, this Court looks “only to the fact of conviction and the statutory

definition—not the facts underlying the offense—to determine whether that definition supports a

conclusion that the conviction was for a crime of violence.” Id.; United States v. Champion,

248 F.3d 502, 505 (6th Cir. 2001). If, however, the conviction does not have as an element the use,

attempted use, or threatened use of force, a court must evaluate whether the crime falls within the

“otherwise” clause—whether the crime “otherwise involves conduct that presents a serious potential

risk of physical injury to another.” Champion, 248 F.3d at 505; USSG § 4B1.2(a).




                                                 -9-
        Defendant previously was convicted under 18 U.S.C. § 2423.2 Section 2423(a) prohibits

“knowingly transport[ing] an individual who has not attained the age of 18 years in interstate or

foreign commerce, . . . with intent that the individual engage in . . . any sexual activity for which any

person can be charged with a criminal offense.” 18 U.S.C. § 2423(a). The statute does not have as

an element the use, attempted use, or threatened use of force. Although the use of force is “one

conceivable means of accomplishing the offense,” that is insufficient to establish that force is an

element of the offense. Champion, 248 F.3d at 505. In addition to lacking the use of force as an

element of the offense, 18 U.S.C. § 2423 also is not one of the enumerated offenses specifically

defined as a crime of violence in USSG § 4B1.2, or one of the offenses listed in the commentary.

USSG § 4B1.2, cmt. n.1. Thus, whether Defendant’s prior conviction constitutes a crime of violence

depends on whether it “otherwise involves conduct that presents a serious potential risk of physical

injury to another.” USSG § 4B1.2(a)(2).3




        2
          It is somewhat unclear under which subsection of § 2423 Defendant was convicted. Petitioner
suggests he was convicted under subsection (b). Pet’r Br. 35. The conduct described in subsection (a),
however, most closely matches that described in the statutory language previously invoked by this Court in
affirming Defendant’s 1993 conviction. United States v. Niece, No. 93-5011, 1993 WL 424960, at *1 n.1
(6th Cir. Oct. 19, 1993). In any event, the analysis would be the same under both subsections.
        3
          Following the Supreme Court’s decision in Begay v. United States, 128 S. Ct. 1581 (2008), the
scope of the “otherwise” clause might be limited. In Begay, the Supreme Court considered whether a felony
conviction for a DUI came within the scope of the “otherwise” clause in the definition of a “violent felony”
under the Armed Career Criminal Act. 128 S. Ct. at 1583. The Court concluded it did not because a DUI
was “simply too unlike the provision’s listed examples.” Id. at 1584. Following the Supreme Court’s
decision, this Court concluded that the same limitation the Supreme Court imposed with respect to the
ACCA’s “otherwise” clause should also apply to the definition of “crime of violence” in USSG § 4B1.2.
United States v. Bartee, 529 F.3d 357, 363 (6th Cir. 2008). In addition, Bartee noted that prior
determinations of this Court “that at least some convictions involving sexual contact with minors present ‘a
serious potential risk of physical injury’ is not sufficient to establish that the conviction comes within the
scope of the ‘otherwise’ clause.” Id. at 362. Bartee, however, did not determine whether the prior conviction
at issue, criminal sexual conduct in the second degree, constituted a “crime of violence.”

                                                    -10-
        In sentencing proceedings, a district court “must articulate its reasoning in deciding to impose

a sentence in order to allow for reasonable appellate review.” United States v. Kirby, 418 F.3d 621,

626 (6th Cir. 2005). In considering the application of the Sentencing Guidelines, the district judge

in this case concluded that “the Chapter 4 enhancements . . . show that [D]efendant has a prior felony

controlled substance conviction . . . as well as a felony crime of violence . . . involving the minor that

[was] just discussed.” (J.A. 234.) The crime “just discussed” was “a crime involving intercourse

or other sexual contact with an underage child.” (J.A. 231.) In the exchange with Defendant’s

counsel, the district judge referred to similar cases involving a “juvenile” and “minors” which found

that “sexual offenses involving minors” create “a serious potential risk of injury to the minors under

Section 4B1.2,” and, as a result, are crimes of violence. (J.A. 231-33.)

        Although the district judge discussed several of the factors under 18 U.S.C. § 3553(a), we

conclude that the sentencing record does not allow for meaningful appellate review. See United

States v. Dexta, 470 F.3d 612, 614-15 (6th Cir. 2006). In determining whether a crime involving

sexual contact with a minor constitutes a “crime of violence,” prior decisions of this Court have

focused on “aggravating factors,” such as incest or a very young victim. In United States v.

Campbell, the court concluded that second-degree criminal sexual conduct with a thirteen to sixteen

year-old family member constituted a crime of violence. 256 F.3d 381, 396-97 (6th Cir. 2001). In

addition, this Court has recognized that “the likelihood of physical injury increases as the child’s age

decreases” because a “younger child is likely to have poorer judgment, less knowledge about sex,

and less money, all of which deficits will make it less likely that she will use or insist that her partner

use effective measures to prevent pregnancy and disease.” Champion, 248 F.3d at 506 (quoting

United States v. Shannon, 110 F.3d 382, 387 (7th Cir. 1997)); see also Shannon, 110 F.3d at 386-87


                                                   -11-
(concluding, after an extensive discussion, that statutory rape of a thirteen year old girl, absent any

threat of violence or incest, constituted a crime of violence due to her lack of knowledge of disease

risks, pregnancy, and motherhood).

        Thus, in order to determine whether the district court was correct to classify a sex offense

with a minor as a “crime of violence,” thus triggering the career offender enhancement,4 the age of

the minor involved is critical. Neither the sentencing transcript nor the pre-sentence report, however,

includes the age of the victim in the prior crime, noting only that the crime involved a “minor,” an

“individual under 18 years of age.” (J.A. 306.) As a result, the record does not allow for “reasonable

appellate review” as to whether the district judge arrived at his sentencing determination in a

procedurally reasonable way, and we must remand to the district court for re-sentencing. On remand,

the district court should make the appropriate findings regarding the victim’s age in determining

whether Defendant should be sentenced as a career offender under the Sentencing Guidelines.

                                              CONCLUSION

        For the reasons stated above, we AFFIRM Defendant’s conviction, and REVERSE and

REMAND for re-sentencing consistent with this opinion.




        4
         We also note that the district judge failed to specifically state that he was applying a career offender
enhancement; the judge instead referred only to “Chapter 4.” In addition, though it can be inferred from the
conversation with counsel to which the judge referred, the district judge failed to state exactly which prior
conviction he believed to be the “felony crime of violence” justifying enhancement under Chapter 4. (J.A.
234.)

                                                      -12-
