                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 07a0727n.06
                           Filed: October 10, 2007

                                           No. 05-1847

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                             )
                                                      )       ON APPEAL FROM THE
       Plaintiff-Appellant,                           )       UNITED STATES
                                                      )       DISTRICT COURT FOR
v.                                                    )       THE WESTERN DISTRICT
                                                      )       OF MICHIGAN
GERALD WILMER FOUSE,                                  )
                                                      )              OPINION
       Defendant-Appellee.                            )




BEFORE:        COLE and COOK, Circuit Judges; and FROST, District Judge.*

       GREGORY L. FROST, District Judge. Appellant, Gerald Wilmer Fouse, appeals from

a 92-month sentence imposed after he pleaded guilty to a single count of felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g)(1). Fouse argues on appeal that the trial judge

erroneously relied on conduct from a dismissed count as relevant conduct in determining his

sentence, that the trial judge impermissibly increased his criminal history category, that the

government violated his plea agreement, that the lack of a mens rea requirement in U.S.S.G. §

2K2.1(b)(4) is impermissible, and that the Sentencing Commission exceeded its authority in

creating the guideline. For following reasons, this Court AFFIRMS.

       *
          The Honorable Gregory L. Frost, United States District Judge for the Southern District of
Ohio, sitting by designation.

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                                       I. BACKGROUND

       On November 4, 2003, police officers went to Fouse’s home in order to investigate a tip

that he had a large amount of marijuana in a blue Ford Tempo or a silver Lincoln. Although

Fouse consented to a search of both the Lincoln and his home, he insisted that the Ford Tempo

was not his. The officers searched the Lincoln without finding marijuana, but before they entered

Fouse’s home, a police canine alerted to the presence of marajuana in the Ford Tempo.

       The officers found keys in Fouse’s bedroom, one of which unlocked the Ford Tempo’s

doors and started the ignition. After none of the keys unlocked the trunk, the officers opened the

trunk with a crowbar. Fouse continued to deny that he owned the Ford Tempo and asserted that

the keys belonged to a Ford van and fit both the van and the Ford Tempo. In the opened trunk,

the officers found a box containing two revolvers, one of which was later determined to be

stolen. The officers also found a 227.9-gram bag of marijuana and a scale.

       In a subsequent interview with Fouse’s housemate and son, officers then learned of two

rifles that Fouse kept in his housemate’s closet. Officers also retrieved these firearms.

       On June 29, 2004, a federal grand jury indicted Fouse on three counts: two counts under

18 U.S.C. § 922(g)(1), felon in possession of as firearm, and one count under 18 U.S.C. §

922(g)(3), unlawful user of a controlled substance in possession of a firearm. Fouse maintained

his innocence and argued that neither the Ford Tempo nor the revolvers in the trunk belonged to

him. Even when confronted with fingerprint and DNA evidence that he possessed the revolvers,

Fouse still maintained his innocence, insisting that he had only moved the box containing the

revolvers, that he did not know what was inside the box, and that he did not know a revolver was


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stolen. He further asserted that he was framed by another individual because of a child-custody

dispute. Fouse admitted the two rifles were his, but asserted that he used them only to teach his

children how to hunt. He did not admit guilt with respect to the marijuana.

       Fouse eventually entered into a plea agreement in which he pleaded to Count Two, felon

in possession of a firearm in violation of § 922(g)(1), for possession of the rifles, while the

government dismissed Counts One and Three. This plea agreement provided that “[t]he

Defendant understands that the Court is not a party to this agreement and is under no obligation

to accept any recommendation by the U.S. Attorney’s Office or the parties regarding the sentence

to be imposed.” (JA at 23.) Furthermore, Fouse was informed, and understood through the plea

agreement, that he would be unable to change his plea if the trial judge were to ignore the

sentencing guidelines. Fouse also understood pursuant to the plea agreement that no one was

capable of making a “binding prediction or promise” about what the sentence would be and that

as long as the sentence was within the statutory maximum, Fouse must serve the prescribed

sentence. (JA at 23-24.)

       Because Fouse is illiterate, the district judge at the change of plea hearing read each

paragraph of the plea agreement aloud to ensure that Fouse understood its terms. The district

judge also inquired as to whether Fouse understood what he was signing when Fouse signed the

plea agreement. The district judge read aloud the count to which Fouse pled guilty.

Additionally, the district judge stated the potential maximum sentence for Fouse’s crime: “ten

years in prison, a period of three years supervised release, . . . a fine of $250,000, and a

mandatory special assessment of $100.” (JA at 31.) Of import is that during this review, the

district judge stated that “[t]he U.S. Attorney makes the following agreements: First of all, it


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agrees that it will move to dismiss the Counts One and Three at the time of sentencing. And I

can make another promise to you, if I’m going to sentence you on Count Two, I will grant that

motion and have Counts One and Three put aside.” (JA at 39.)

       A presentence report was prepared and made available to Fouse and the government in

sufficient time to object. That report placed Fouse’s Total Offense Level at 21 with a Criminal

History Category (“CHC”) of III, resulting in a guideline range of 46-57 months. (JA at 52.)

Although the government initially indicated that it did not object to any portion of the report, the

government later objected via letter to any enhancement based on the two revolvers. Apparently,

the presentence report writer failed to forward this letter to the trial judge, who did not become

aware of that objection until sentencing.

       At sentencing–despite the government’s arguments to the contrary, which the government

acknowledged that the trial judge was free to ignore–the trial judge found that Fouse possessed

the two revolvers identified in the dismissed Count One. In making this finding, the district

judge rejected Fouse’s explanation of a frame-up and relied on Fouse’s fingerprints being on the

case containing the revolvers, as well as his DNA being on a revolver and his possession of the

keys to the Ford Tempo. The judge also noted that Fouse had a long history of acquiring

firearms that the police routinely confiscated and a long history of lying to officers. Additionally,

targeting the under-representation of the seriousness of Fouse’s criminal history and of his likely

recidivism, the trial judge disagreed with the report’s analysis of Fouse’s criminal history and

found that it failed to take into account sufficiently Fouse’s thirty-one criminal convictions and

the context in which they occurred. The trial judge therefore detailed Fouse’s extensive criminal

history and stated that Fouse “is an incorrigible person who continues to engage in criminal


                                                 4
behavior, including assaultive behaviors, gun crimes and drug crimes” (JA at 87), that Fouse had

continually “received exceptionally lenient treatment from the criminal justice system” (JA at

78), and that Fouse “is a person whose psychological overlay makes it very likely that he will

continue to offend, particularly through assaultive behaviors” (JA at 79).

        The trial judge ultimately enhanced for relevant conduct (for possessing 3-7 firearms,

one of which was stolen), deducted a level for substantial assistance (for Fouse’s work as a police

informant), and awarded no points for acceptance of responsibility (as a result of Fouse denying

possession of the revolvers and portraying himself as a father only teaching his sons to hunt

instead of as a felon in possession of firearms). The district judge also departed from Criminal

History Category III to VI and arrived at a recalculated guideline range of 92-115 months, rather

than the lesser range suggested by the presentence report.

       The district judge sentenced Fouse to 92 months incarceration and three years of

supervised release. Fouse timely appealed.

                                         II. ANALYSIS

       In his first argument on appeal, Fouse asserts that the district court erred in enhancing his

sentence because there was no evidence in the record to support the finding that he was guilty of

possessing a stolen gun. Fouse also contends that the district court erred in concluding that his

criminal history category was understated, and that all of the foregoing findings rendered his

guilty plea to be not knowingly and involuntary in violation of his due process rights. These

contentions are without merit.

       Count One, which was dismissed, targeted the possession of two revolvers recovered

from Fouse’s vehicle. As noted, the trial judge indicated during the plea hearing that he would


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put Counts One and Three “aside” and sentence Fouse on Count Two. (JA at 39.) Fouse argues

that the trial judge’s consideration of the conduct involved in Count One as relevant conduct did

not place that count “aside” and in fact deceived him into pleading guilty to Count Two in

connection with the plea agreement.

       Fouse’s argument fails to credit sufficiently that the district court did not sentence him on

Count One; rather, the trial judge ultimately considered the conduct involved in Count One as

relevant to sentencing on Count Two. The distinction is more than semantic. The trial judge did

not punish Fouse for being guilty of Count One, but for being guilty of Count Two with related

conduct of which the Sentencing Guidelines permit consideration. See United States v.

Partington, 21 F.3d 714, 717 (6th Cir. 1994) (“Conduct which forms the basis for counts

dismissed pursuant to a plea bargain may be considered in determining the base offense level

under the guidelines.”). The conduct involved in Count One falls within the commentary to

USSG § 1B1.4. As the government correctly notes in its briefing, the district judge’s actions

afforded Fouse a potential benefit in that the trial court did not inquire into the facts surrounding

Counts One and Three when taking the plea, which left the facts underlying the conduct involved

in these counts open to dispute by Fouse at sentencing. Fouse took partial advantage of the

opportunity, contesting at sentencing his possession of the revolvers.

       There was ample evidence to support the trial judge’s factual findings. This Court

reviews a district court’s factual findings at a sentencing proceeding for clear error and its

application of the Sentencing Guidelines to those facts de novo. United States v. Butler, 297 F.3d

505, 516 (6th Cir. 2002), cert. denied 538 U.S. 1032 (2003); see also United States v. Hunt, 487

F.3d 347, 350 (6th Cir. 2007). Here, the record indicates that the district judge did not believe


                                                  6
Fouse’s story that he had been framed and credited the presence of Fouse’s fingerprints on the

gun case, his DNA on one of the revolvers, and the presence of the two firearms in a vehicle to

which Fouse held the keys in his bedroom as circumstantial evidence of possession. This

supports the finding that two firearms were involved, and the stolen firearm enhancement does

not require knowledge that the Anaconda revolver was stolen. Fouse objected to the sufficiency

of these facts, not to their existence. Moreover, as discussed below, Circuit precedent teaches

that by not specifically objecting to these factual contentions, Fouse admitted the foregoing facts,

including the fact that the weapon was stolen, which moots his argument that there was

insufficient evidence from which the trial judge could conclude that the revolver was stolen.

       Fouse’s possession of four firearms (two revolvers and two rifles) thus properly invoked

the applicable three-to-seven firearm enhancement under U.S.S.G. § 2K2.1(b)(1)(A). The fact

that one of the revolvers was stolen rendered the enhancement under U.S.S.G. § 2K2.1(b)(4)

similarly applicable. That Fouse denies the sufficiency of the factfinding below provides support

for the district court denying him an acceptance of responsibility adjustment based on those facts.

See United States v. Webb, 335 F.3d 534, 538 (6th Cir. 2003) (“ ‘[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.’ ” (quoting U.S.S.G. § 3E1.1 cmt.

N.1(a))).

       Additionally, the district court pointed to Fouse’s long history of possessing guns and his

thirty-one prior convictions, as well as other unprosecuted charges and a history of what the trial

judge described as lenient treatment, before concluding that the lesser criminal history categories

the trial court considered did not sufficiently appreciate the noted danger to the public that the


                                                  7
trial judge specifically found Fouse posed. Although the trial judge could have conceivably

explained his analysis with more step-by-step detail, no magic words are required in such an

explanation, but at most only a reasoned statement from the bench. See United States v.

Kennedy, 893 F.2d 825, 828 (6th Cir. 1990). The record here supports that the trial judge

adequately considered and rejected intervening criminal history categories in arriving at the

criminal history departure. Unlike in Kennedy, 893 F.3d at 828, or in Wells, 878 F.2d 1232, 1233

(9th Cir. 1989), the district judge here identified specific criminal activity that justified a finding

that the guidelines under-represented Fouse’s criminal history and explicitly stated that the

guidelines indeed under-represented his criminal history.1 The trial judge did demonstrate that he

looked to the next higher criminal history category and did demonstrate that he found the

sentence imposed by the next higher criminal history category too lenient. See Kennedy, 893

F.3d at 829.

        By sufficiently identifying and explaining the 18 U.S.C. § 3553(a) factors involved, the

district court satisfied the requirement that the departure be procedurally reasonable. See United

States v. Smith, 474 F.3d 888, 894 (6th Cir. 2007). The district court’s explanation also satisfied

the requirement that the departure be substantively reasonable because there is no indication that

the district court selected the sentence arbitrarily, based the sentence on impermissible factors,



        1
          The government argues that Kennedy’s “stepwise” approach no longer applies because that
portion of U.S.S.G. § 4A1.3 cited in Kennedy as mandating such analysis is no longer a part of the
guidelines. See Kennedy, 893 F.2d at 829 n.6. The Court has, however, referred to Kennedy in the
departure context as recently as 2005 in United States v. Loggins, 136 F. App’x 789, 794 (6th Cir.
2005). This panel need not and ultimately does not opine on the government’s contention because
the trial judge’s explanation indicates that he engaged in a somewhat condensed but sufficient
analysis satisfying both the category-step Kennedy approach and the less-mechanistic reasonableness
approach of United States v. Smith, 474 F.3d 888, 894 (6th Cir. 2007).

                                                   8
failed to consider pertinent factors, or gave any pertinent factor an unreasonable amount of

weight. Id. The district court was therefore within its discretion to adjust Fouse’s criminal

history category as it did.

        Given that the trial court’s factual findings and sentencing conclusions were permissible,

as well as the exculpatory language of the plea agreement emphasizing the district court’s role as

the sole sentencing entity and that withdrawal of the plea for an undesirable sentence was not an

option, there is no basis for concluding that invalidation of Fouse’s plea is warranted. See United

States v. Benjamin, 188 F.3d 509, 1999 WL 685924, at *3 (6th Cir. 1999) (table decision)

(holding that warnings in plea agreement rendered failure to give Rule 11 warning harmless).

        In his second argument on appeal, Fouse asserts that the district court violated the plea

agreement either explicitly or in spirit by enhancing Fouse’s sentence based on the revolvers

without advising Fouse that he could not withdraw his guilty plea. Fouse further asserts that the

district court promised not to sentence Fouse on the behavior underlying Count One. This

argument ignores the fact that the plea agreement explicitly stated that the court was not bound

by the parties’ recommendations and that Fouse is bound even if the court ignored the

recommendations. (JA at 23.)

        The plea agreement restricted the court only to the statutory maximum sentence.

Paragraph 10 of the Plea Agreement states that the court is under “no obligation to accept any

recommendation by . . . the parties regarding the sentence to be imposed. The defendant further

understands that, even if the Court ignores such recommendation or imposes any sentence up to

the maximum established by statute, the Defendant cannot, for that reason, withdraw his guilty




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plea.” (JA at 23.) Because Fouse was illiterate, the district court meticulously summarized the

plea agreement to ensure Fouse understood the agreement.

       Fouse argues that the government breached the plea agreement because of the facts

described in the presentence report by the United States Probation Department and because the

prosecuting attorney recounted various facts on the record. Describing the United States

Attorney’s Office and the United States Probation Department as “all the same prosecutorial

agency” (Aplt. Br. at 33), Fouse reasons that a promise by the prosecuting attorney in the plea

agreement must bind the probation department. Because the probation department departed from

the plea agreement in its guideline calculations by citing the two revolvers, Fouse concludes, the

government failed to honor the contract into which it entered.

       This Court has previously distinguished between the United States Attorney’s Office and

the probation department in United States v. Garavaglia, 178 F.3d 1297, 1999 WL 220125 (6th

Cir. 1999) (table decision). See also United States v. Espalin, 350 F.3d 488, 490 (6th Cir. 2003)

(referencing with approval characterization of probation department set forth by concurrence).

The defendant in Garavaglia had appealed, arguing that the prosecuting attorney had breached

that defendant’s plea agreement because the presentence report and trial judge both calculated his

sentence by using a guideline not included in the plea agreement, which purported to set forth all

the applicable guidelines “that the parties will raise.” Id. at *3. The Court affirmed, reasoning in

part that the plea agreement stated that “this agreement does not bind or obligate governmental

entities other than the United States Attorney's Office for the Eastern District of Michigan” and

that “[i]t was the probation department that first raised [the disputed] guideline.” Id. Similarly,

Fouse’s plea agreement states that “[t]his agreement is limited to the U.S. Attorney’s Office for


                                                 10
the Western District of Michigan and cannot bind any other federal, state or local prosecuting,

administrative or regulatory authorities.” (JA at 24.) As in Garavaglia, then, the fact that the

probation department raised the disputed conduct and enhancement involved here does not equal

a breach of the plea agreement.

       Even assuming arguendo that Fouse’s characterization of the various government actors

as fungible is somehow correct, his argument nevertheless overlooks the import of the fact that

the prosecuting attorney did in fact object to the presentence report, that he explained the plea

agreement to the district court, and that he explicitly argued against the gun enhancement for the

two revolvers. Fouse appears to reject any notion that the presentence report could be “cured” by

arguing that prejudice was irreversible because the trial judge was determined to enhance his

sentence regardless of the plea agreement and the government’s attempted cure.

       This argument gives the trial judge too little credit and ignores the lengthy discussion that

took place at the sentencing hearing. After discussing the government’s objections and the

specifics of the plea agreement, the trial judge recessed and, upon resuming the hearing, cited

comments to sections 1B1.3 and 1B1.4 of the guidelines in specifically overruling the

government’s objection, which focused on paragraph 34 of the presentence report. The trial judge

also cited on the record United States v. Partington, 21 F.3d 714, 717 (6th Cir. 1994), which, as

noted above, permits consideration of conduct forming the basis for dismissed counts in

determining a defendant’s base offense level under the guidelines. Thus, the government worked

to meet its obligations, but was unsuccessful at persuading the trial judge to follow a plea

agreement that the law does not require him to follow. The trial judge was not bound by that

agreement and properly considered the information regarding Count One that the government


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sought to exclude. Although judicial consideration of this information may have effectively

nullified the effect of the plea agreement, this is a permissible course of conduct that resulted in a

permissible sentence. See United States v. Hill, 79 F.3d 1477, 1481 (6th Cir. 1996). The trial

court thus did not err in concluding that the nature and character of the revolvers Fouse

contemporaneously possessed with his rifles constituted relevant conduct under § 1B1.3(a)(4)

and Partington and informed the Count Two conviction for possession of two rifles.

Additionally, possession of the revolvers constituted a common scheme and were part of Fouse’s

course of conduct under §1B1.3(a)(2).

       The fact that the prosecuting attorney recited many of the damning facts does not, taken

in context, mean that the government breached the plea agreement because that attorney

continually urged the trial judge not to apply the facts. A neutral recitation of facts does not

breach a plea agreement. United States v. Allen, 434 F.3d 1166, 1175-76 (9th Cir. 2006). This

was not an attempt by the government to influence the district court to impose a harsher sentence

than the one to which the government agreed in the plea agreement. The government had already

lost that argument, and the prosecuting attorney expressed a desire simply to “support [the trial

judge’s] decision by evidence that the United States has in its possession” without “going over

[his] objection.” (JA at 80.) The account of the facts arguably supplied a neutral record

permitting adequate understanding of context. See id. at 1175.

       To the extent that protecting the record on appeal could be regarded as advocating a

sentence in the district court, such action must be viewed in light of the plea agreement. Here,

“the plea agreement makes clear that the trial judge is the one who determines and resolves all

sentencing issues and, consistent with this proposition, the government reserved the right to


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defend any and all sentencing determinations made by the judge.” United States v. Martinez, 16

F. App’x 410, 414 (6th Cir. 2001). The former proposition is explicit in the plea agreement,

while the latter proposition is a logical implication thereof. There was thus no breach of the plea

agreement resulting in an erroneous sentence.

       In his last two remaining arguments on appeal, Fouse attacks the role that his possession

of firearms played in his sentencing. He argues that there are insufficient public policy grounds

to support the Sentencing Commission’s decision to omit a mens rea requirement from §

2K2.1(b)(4) because 18 U.S.C. § 922(i) and (j), which include a mens rea component, already

reinforce the public’s interest in regulating firearms. The lack of a mens rea requirement, Fouse

reasons, constitutes a due process violation because the government obtained via sentencing a

penalty that it could have otherwise obtained only through a conviction under 18 U.S.C. § 922(i)

and (j). Fouse contends that § 2K2.1(b)(4) therefore provides the government with a “back door”

or way around the heightened burden of proof that a conviction would require. Additionally,

Fouse asserts that the Sentencing Commission exceeded its authority by enacting § 2K2.1(b)(4)

because the Commission is only authorized to impose incremental penalties for crimes of which

a defendant has been convicted.

       Fouse’s arguments fail to distinguish this Court’s prior decisions upholding the

constitutionality of § 2K2.1(b)(4), its lack of scienter, and the Sentencing Commission’s

interpretation of its enabling legislation. This Court has in fact specifically addressed and

rejected the exact same arguments Fouse presents on appeal. See United States v. Burns, 109 F.

App’x 52, 54-56 (6th Cir. 2004) (collecting cases supporting the proposition that “[t]his circuit

and every other circuit to have considered the issue have also concluded that the lack of a mens


                                                 13
rea requirement in § 2K2.1(b)(4) comports with constitutional requirements”); United States v.

Woods, 61 F.3d 904, 1995 WL 428334, at *3 (6th Cir. 1995) (table decision) (“Neither the

absence of a scienter requirement in the guidelines nor the presence of a scienter requirement in

18 U.S.C. § 922(i)–a statute under which the defendant was not charged–makes the sentencing

enhancement unconstitutional.”); United States v. Hendricks, 956 F.2d 1164, 1992 WL 44737, at

*6 (6th Cir. 1992) (table decision) (“The language of section 994[I](1) does not seem to restrict

the Commission's power to impose increased penalties for uncharged conduct”).

       Fouse offers no compelling reason to distinguish this precedent. Acknowledging Burns

in his brief, Fouse offers that, in contrast to his situation, the defendant in that case had admitted

that the firearm at issue was stolen. But this provides little contrast to the case sub judice, where

Fouse never contested below that one of the revolvers recovered from his car was stolen. Rather,

Fouse argued in the district court only that he did not possess the two firearms and that he did not

know that the Anaconda revolver was stolen. (JA at 58.) A failure to object to a factual

contention contained in a presentence report amounts to an admission of that fact. See United

States v. DeCarlo, 434 F.3d 447, 460 (6th Cir. 2006) (“The two-level enhancement for computer

use was admitted by DeCarlo because he did not object to that fact as reported in his presentence

report.”). Fouse therefore admitted the stolen nature of the Anaconda revolver.

       This admission negates the need for opining on plain error review here. The Court

recognizes that the government suggests that Fouse has waived all but plain error as to the trial

court’s determination that the Anaconda revolver was in fact stolen. See Fed. R. Crim. P. 52(b).

Under this argument, the government suggest that the Court need not engage in extended

discussion of plain error inquiry because any error below could not be said to have affected


                                                  14
Fouse’s substantial rights so as to warrant potential relief. This is because the 92-month sentence

he received with the disputed enhancement is within the guideline range in which Fouse would

have fallen without application of the enhancement (but still with the increased criminal history

category), which the government posits precludes finding plain error here. See United States v.

Mazyck, 178 F. App’x 321, 322 (4th Cir. 2006). There is potentially some qualified support

within this Circuit for following the Mazyck rationale. See United States v. Parks, 149 F.3d

1185, 1998 WL 384562, at *2 (6th Cir. 1998) (table decision) (holding that where the sentencing

judge indicated that a defendant would receive the same sentence under overlapping guideline

ranges regardless of whether an enhancement applied, the sentence imposed using the

enhancement did not affect a defendant’s substantial rights and therefore did not constitute plain

error). But given that Mazyck is a Fourth Circuit decision and that this Court’s own DeCarlo

characterizes the failure to object as an admission as opposed to a waiver, the Court declines the

government’s unnecessary invitation to engage in a plain-error analysis here. Fouse’s arguments

as to § 2K2.1(b)(4) are of no merit.

                                       III. CONCLUSION

       For the foregoing reasons, the Court AFFIRMS.




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