               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 14a0492n.06

                                       Case No. 12-6499
                                                                                     FILED
                         UNITED STATES COURT OF APPEALS                          Jul 08, 2014
                              FOR THE SIXTH CIRCUIT                         DEBORAH S. HUNT, Clerk


UNITED STATES OF AMERICA,                          )
                                                   )
       Plaintiff-Appellee,                         )
                                                   )      ON APPEAL FROM THE UNITED
v.                                                 )      STATES DISTRICT COURT FOR
                                                   )      THE EASTERN DISTRICT OF
CALVIN R. MORGAN,                                  )      KENTUCKY
                                                   )
       Defendant-Appellant.                        )
                                                   )
                                                   )


Before: BOGGS, SILER, and GIBBONS, Circuit Judges.

       SILER, Circuit Judge. Calvin Morgan pleaded guilty to four charges arising out of his

possession of marijuana and the discharge of a firearm during the execution of a search warrant

at his apartment. He received a total sentence of 174 months’ imprisonment. Morgan’s appeal

focuses on his sentencing under § 924(c)(1)(A)(iii), which provides a ten-year mandatory

minimum term of imprisonment, from which the district court varied upward an additional

36 months. He challenges the reasonableness of the sentence, the interpretation of the statute,

and the sufficiency of the indictment. In the event of remand for resentencing, he requests that

the case be assigned to a different district court judge. For the following reasons, we AFFIRM.
Case No. 12-6499, United States v. Morgan


                                   FACTUAL BACKGROUND

         In 2012, this court issued an opinion in Morgan’s first appeal summarizing the relevant

facts, and remanding for resentencing. United States v. Morgan, 687 F.3d 688, 690-91 (6th Cir.

2012).

                               PROCEDURAL BACKGROUND

         In 2009, Morgan pleaded guilty to possessing marijuana with the intent to distribute, in

violation of 18 U.S.C. § 841(a)(1) (Count One, “the marijuana-possession count”); discharging a

firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)

(Count Two, “the § 924(c) conviction”); possessing a firearm by an unlawful user of a controlled

substance, in violation of 18 U.S.C. § 922(g)(3) (Count Three, “the prohibited-possession

count”); and a forfeiture count.

         Prior to the first sentencing hearing, the court “calculate[d] Morgan’s recommended

Guidelines range on the prohibited-possession count” by cross-referencing the attempted-murder

guideline provided in USSG § 2A2.1. Thus, the court sentenced Morgan to imprisonment for

57 months for the drug and felon-in-possession offenses, to be served concurrently, and to

144 consecutive months for the firearm offense, for a total term of imprisonment of 201 months.

We reversed the sentence and remanded, however, because the district court may have relied on

conduct to increase Morgan’s sentence under § 924(c) that was also accounted for in the

attempted-murder cross-reference and, in applying the cross-reference, may have failed to find

that Morgan had a specific intent to kill.

         On remand, the district court, accepting the parties’ recommendation, decided not to

apply the attempted-murder cross-reference to the prohibited-possession count and stated that it

would consider Morgan’s intent to kill only with respect to the § 924(c) offense. However, it



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Case No. 12-6499, United States v. Morgan


noted that it found that Morgan intended to kill the intruding police officers. It based this

determination on its “prior findings,” which credited the officer’s testimony about the shooting

and Morgan’s admissions that he “fired the two shots” into the hallway where individuals were

“maybe a foot away” while knowing that “just shooting in the general direction of someone

could result in their death . . . .” As the court summarized, Morgan “was aware that another

person similarly situated had his home broken into and that he shot the person, he shot a

handgun, and that it killed a person. And knowing that information, having that information, this

defendant was in his bedroom with others, police announced that they were police, he did not

respond.” The court determined that Morgan “was able to hear the officers, and having that

information when the officers came down the hallway to the bedroom where he was located, he

fired shots at head level and in my opinion attempting to kill − intending to kill the officers that

were coming down the hallway that he knew to be police.”

       Before imposing sentence, the court also noted that Morgan was statutorily subject to

imprisonment for “not less than ten [years] nor more than life” for the § 924(c) offense.

Accordingly, the court, after considering the relevant statutory factors and Morgan’s arguments

for the mandatory minimum sentence, sentenced Morgan to imprisonment for eighteen months

for the drug and felon-in-possession offenses, to be served concurrently, and—varying upward

from the 120-month mandatory minimum sentence—to 156 consecutive months for the firearm

offense, for “a total term of incarceration of 174 months.” The court noted that, even if it

accepted Morgan’s argument that he was firing warning shots, Morgan’s conduct—including the

fact that he endangered the lives of the officers and others who were present in his home—

merited the 156-month sentence imposed.         Morgan objected to the court’s finding that he




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Case No. 12-6499, United States v. Morgan


intended to kill the officers, to its “upper variance of 36 months on the 924(c) count” and to its

refusal to vary downward.

                                            DISCUSSION

1. Reasonableness of the Sentence

       We review the sentence imposed by the district court for reasonableness under a

deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 46 (2007); United

States v. Battaglia, 624 F.3d 348, 350 (6th Cir. 2010). “This inquiry has both a procedural and

substantive component.” United States v. Lapsins, 570 F.3d 758, 772 (6th Cir. 2009). We must

first ensure that the district court made no significant procedural errors and then consider the

sentence’s substantive reasonableness. Gall, 552 U.S. at 51.

       A. Procedural Reasonableness

       In conducting procedural-reasonableness review, we review the district court’s factual

findings for clear error. Battaglia, 624 F.3d at 351.

               i. Specific Intent to Kill

       Morgan first argues that the three-year upward variance on the § 924(c) conviction was

procedurally unreasonable because, contrary to the district court’s finding, he did not have a

specific intent to kill the officers when he discharged the firearm. Morgan had suggested at

resentencing that “the import of the Sixth Circuit opinion remanding [the case] . . . is that [the

district court] could reconsider the evidence and find that [Morgan] did not have the intent to kill

. . . .” Morgan misinterprets our remand. Our earlier opinion in no way urged or compelled the

district court to find that Morgan did not specifically intend to kill. In deciding Morgan’s

previous appeal, we commented that his challenge to the application of the attempted-murder

guideline “accurately highlights a deficiency in the sentencing record: the district court’s finding



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Case No. 12-6499, United States v. Morgan


that Morgan ‘had the ability to form the intent’ to kill is not the equivalent of finding that he

actually formed that intent.” Morgan, 687 F.3d at 697. On remand, the district court cured that

deficiency by specifically finding it was Morgan’s “intention to kill those individuals and that he

knew [ ] they were police officers, notwithstanding some testimony at the prior hearing to the

contrary.”

       This finding is supported by the factual record, to which the district court consistently

referred throughout the sentencing and resentencing proceedings. At resentencing, after making

clear that the cross-reference to the attempted-murder guideline would be excluded for purposes

of calculating the offense level for the prohibited-possession count, the district court apprised the

parties that the “information . . . previously considered . . . regarding [Morgan’s] intent to kill”

and his “placing other individuals at great risk” would be considered only with respect to the §

924(c) count. Morgan then conceded that he “st[ood] on the record as previously stated.” For

Morgan now to allege that the district court “did not undertake any new review of the evidence”

is at odds with his prior concession, in which he accepted the record as stated and declined to

present additional testimony or evidence. The factual record did not change after our remand for

resentencing.   Regardless, the district court reviewed the evidence again in reaching the

conclusion that Morgan had the specific intent to kill.         At resentencing, the district court

considered Morgan’s “conduct . . . very egregious” for the reasons provided at the original

sentencing hearing, but offered a “recap,” noting for the record that Morgan, “according to

testimony presented during the hearing, was aware that [a friend] similarly situated had his home

broken into and that [the friend] shot [at the intruder] . . . kill[ing] [him].” Despite “knowing that

information, . . . [Morgan] was in his bedroom with others[;] [when] police announced

[themselves], he did not respond.” The district court “determined that [Morgan] was able to hear



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Case No. 12-6499, United States v. Morgan


the officers, and having that information when the officers came down the hallway to the

bedroom where he was located, [ ] fired shots at head level . . . intending to kill the officers . . . .”

The district court further stated that Morgan’s conduct “presented a danger to those other

individuals” present in the bedroom with him. Lastly, the “fact that [Morgan] hid the gun after

he fired the shots, in [the district court’s] opinion, [did] not . . . lead[] to the conclusion that he

was only acting recklessly.” In the alternative, even accepting the argument that Morgan merely

was firing warning shots, the district court found the ten-year mandatory minimum sentence

would not be appropriate and that the circumstances would still warrant the 156-month sentence

imposed.

        At the original sentencing hearing, Officer Bridgman testified, in relevant part, as

follows: Morgan did not call the police despite indicating he was concerned about being robbed

the night the search warrant was executed; upon entering the front door to Morgan’s apartment,

the officers loudly announced “Police, search warrant”; these announcements persisted as the

officers passed through the living room and as they continued down the hallway toward the

bedroom in the back of the apartment; it was not reasonable for an occupant in the apartment to

have not heard the words “Police, search warrant”; and, based on his location near “the door

frame of the bedroom when the shots were fired,” it was not reasonable for occupants directly

inside the door frame not to know it was the police. Morgan’s wife, Beverly, testified that she

received a telephone call earlier in the evening on the night of the incident, alleging “two

gentlemen were going to bust into the house and mess my husband up.” In terms of the timing of

the shots fired by her husband, as well as the timing of when she heard the officers say “Police,”

Beverly indicated that Morgan discharged the firearm “[i]mmediately” after the front door to the




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Case No. 12-6499, United States v. Morgan


apartment was forced open and that she realized it was police who had entered only after Morgan

had fired the gun.

       Morgan testified, in relevant part, as follows: he was aware before the police arrived that

allegedly there were people who wanted to harm him and potentially his wife but that he did not

call the police or leave the residence for the night; he fired warning shots to scare off the

intruders, but those warning shots were not directed up toward the ceiling, but rather to the

hallway where the intruders were perhaps a foot away; firing toward the ceiling would have

made a very loud sound and let others in the vicinity know he had a gun; and he was aware

enough to make a conscious decision to conceal the gun under the mattress after firing at the wall

to avoid being shot by the police officers as they entered the bedroom. He further admitted being

aware that simply shooting in the general direction of someone could result in that person’s

death. Morgan also testified that he and his wife were in the bedroom smoking crack during the

night in question, contradicting her sworn testimony in which she denied use of the drug.

       Subsequently, the district court found Beverly’s testimony not credible, as she had a

motive in the case not to testify truthfully. Beverly did, however, indicate that any individuals

present in the hallway would have been visible to her when the shots were fired, which led the

district court to believe that she would have seen the officers prior to the time shots were fired.

The district court determined that the shots hit the wall or hit the area near the officer’s head, and

that a person attempting to scare or fire warning shots would not have taken such an action. It

also found Morgan was aware of the consequences of shooting in the general direction of another

person, given the similar situation confronted by Morgan’s friend in the preceding weeks. Based

on Morgan’s conduct and the surrounding circumstances, as established at the sentencing

hearing, the district court clarified at resentencing that Morgan possessed the specific intent to



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Case No. 12-6499, United States v. Morgan


kill the police officers who entered his apartment. Separately, the district court found Morgan

subjected every individual in the bedroom to potential harm from return fire by the police

officers. In short, the district court did not clearly err in finding that Morgan specifically

intended to kill.

                 ii. Statement of Reasons

        Morgan next argues that the three-year upward variance on the § 924(c) conviction was

procedurally unreasonable because the district court failed to comply with 18 U.S.C. §

3553(c)(2). For sentences within the Guidelines range, § 3553(c) mandates that the district court

“state in open court the reasons for its imposition of the particular sentence.” For sentences

outside the Guidelines range, § 3553(c)(2) additionally requires that the reason stated by the

district court be “specific” and that the reason “be stated with specificity in a statement of

reasons form.”

        As a preliminary matter, Morgan’s sentence on the § 924(c) conviction is subject to the

added requirements of § 3353(c)(2).         This is because the Guidelines provision relating to

§ 924(c) does not provide for sentencing ranges. Instead, USSG § 2K2.4 provides that, except

when an individual qualifies as a career offender under USSG § 4B1.1, “the guideline sentence

[for a § 924(c) violation] is the minimum term of imprisonment required by statute.” USSG

§ 2K2.4(b). However, the Supreme Court’s decision in United States v. Booker, 543 U.S. 220,

245 (2005), made the Guidelines effectively advisory. Thus, the advisory Guidelines sentence

for the § 924(c) conviction at issue here is ten years.

        At resentencing, after recognizing that a defendant’s sentence begins with the Guidelines

range (though “not binding . . . and the [c]ourt should and does consider all relevant factors of




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[§] 3553”), the district court provided specific reasons for imposing the 156-month sentence for

Morgan’s § 924(c) conviction. In explaining the sentence, the district court considered

       the need for the sentence to reflect the seriousness of the offense, the need to
       promote respect for the law and provide a just punishment for the offense. And . .
       . [there exists] the need to provide deterrence, . . . specifically for the individual
       defendant, as well as general deterrence of others that might be inclined to engage
       in similar conduct.

       [There is also] the need to protect the public from future crimes of this defendant.

       ...

       When the [c]ourt looks at this particular defendant’s egregious conduct, the need
       to deter him from future criminal conduct, as well as others that might be inclined
       to engage in similar conduct, the [c]ourt believes that the [government’s]
       recommendation falls short of what’s necessary, and the [c]ourt instead believes
       it’s necessary to impose a period of 36 months above the mandatory minimum to
       provide deterrence, as well as protection for the public.

The “egregious conduct” to which the district court referred was described in great detail during

the sentencing hearing and was summarized at resentencing. See supra. The reasons provided

by the district court were stated in open court and were specific. Also, it was not necessary for

the district court to cite every single § 3553(a) factor in formulating its reasons justifying the

sentence. See United States v. Kirchhof, 505 F.3d 409, 413 (6th Cir. 2007) (“If the record

demonstrates that the sentencing court addressed the relevant factors in reaching its conclusion,

the court need not explicitly consider each of the § 3553(a) factors or engage in a rote listing or

some other ritualistic incantation of the factors.”) (citing United States v. Dexta, 470 F.3d 612,

614-15 (6th Cir. 2006)).

       With respect to the district court’s alternative finding that the discharge of the firearm

amounted to warning shots that reflected Morgan’s recklessness rather than a specific intent to

kill, the court decided

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Case No. 12-6499, United States v. Morgan


       a sentence at the bottom of the range, [i.e.,] the mandatory minimum, would not
       be appropriate in a case such as this for that type of conduct [Morgan] engaged in.
       And it’s certainly not appropriate and it would be less than would be necessary to
       provide deterrence not only for this individual, but for others that might be
       inclined to commit a similar offense. And it essentially would not separate this
       case from the other cases that the [c]ourt typically sees that would not involve this
       type of egregious conduct.

We again view the reasoning provided by the district court on this alternative grounds for the

sentence imposed to be sufficiently specific.

       We next address the “statement of reasons” form. The district court failed to check the

correct box on the statement of reasons form indicating that the sentence was outside the

advisory Guidelines, but it explained in writing—in the portion of the form dedicated to

“Additional Facts Justifying the Sentence in This Case”—that a sentence “36 months above the

statutory minimum” is “necessary to provide proper punishment for the defendant’s conduct and

to deter future criminal conduct by the defendant as well as others that might be inclined to

engage in such behavior in the future.” It also noted it “would have imposed the same sentence

even if it had concluded that [Morgan’s] conduct was simply reckless as argued by his attorney.”

The court explained that Morgan had “endangered the lives of the officers as well as others in his

apartment.” In providing these reasons on the form as well as thoroughly communicating them

in open court, the district court “assure[d] that [it] . . . properly calculated the applicable

Guidelines range, . . . [enabling] meaningful appellate review and the perception of a fair

sentence.” United States v. Blackie, 548 F.3d 395, 401 (6th Cir. 2008). The failure to check the

correct box on the form amounts to nothing more than a clerical error that was insignificant in

light of the clear, explanatory language provided by the district court later in the form.

       Morgan relies on Blackie for the proposition that failing to provide a written statement as

required by § 3553(c)(2) is reversible error. See id. at 400. However, despite the written

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Case No. 12-6499, United States v. Morgan


statement given on the last page of the form, in a section dedicated to “Additional Facts

Justifying the Sentence in This Case,” Morgan mistakenly treats the district court’s failure to fill

in a different area of the form pertaining to “the facts justifying a sentence outside the advisory

guideline system” as equivalent to not providing a written statement at all. Regardless, “the

issue in Blackie was not the mere failure of the district court to put reasons for an upward

variance in writing; rather, it was the district court’s failure to provide any specific reasons for an

upward variance at all.” United States v. Williams, 396 F. App’x 212, 220 (6th Cir. 2010)

(emphasis in original). We explained in Blackie that the requirement of providing specific

reasons is important “for the public ‘to learn why the defendant received a particular sentence.’”

Blackie, 548 F.3d at 403.       Here, the district court provided a lengthy oral explanation at

resentencing for the above-Guidelines sentence, much of which was reiterated in the “statement

of reasons” form, albeit in the wrong area. Taken together, there can be no uncertainty as to the

reasons Morgan received his 156-month sentence on the § 924(c) conviction. We are also

mindful that we have “‘not vacated a sentence solely for failure to meet the statute’s written

order requirement . . . .’” United States v. Zobel, 696 F.3d 558, 567 (6th Cir. 2012) (quoting

Williams, 396 F. App’x at 220).

       B. Substantive Reasonableness

       We review substantive reasonableness for abuse of discretion. United States v. Richards,

659 F.3d 527, 549 (6th Cir. 2011). Sentences within the Guidelines are afforded a presumption

of reasonableness, though there is no “presumption of unreasonableness” for outside-Guidelines

sentences. United States v. Vonner, 516 F.3d 382, 389-90 (6th Cir. 2008) (en banc). Further,

when reviewing whether an above-Guidelines sentence is reasonable, appellate courts may “take

the degree of variance into account and consider the extent of a deviation from the Guidelines.”



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Gall, 552 U.S. at 47. In reviewing a sentence, we give “‘due deference’ to the district court’s

conclusion that the sentence imposed is warranted by the § 3553(a) factors.” United States v.

Bolds, 511 F.3d 568, 581 (6th Cir. 2007).

       Morgan argues that the sentence imposed was substantively unreasonable because the

district court imposed a three-year upward variance in a typical mine-run case, and in doing so,

ran afoul of § 3553(a)(6)’s mandate to avoid creating unwarranted sentencing disparities between

similarly situated offenders. On this record, the district court could reasonably conclude that a

sentence above the statutory minimum was necessary to signal the seriousness of the § 924(c)

conviction, promote respect for law, afford adequate deterrence both for Morgan and others who

might be inclined to engage in similar conduct, and protect the public from further crimes by

him. See 18 U.S.C. § 3553(a)(2)(A)-(C). Moreover, the district court distinguished this case

from the ordinary case of a warning shot directed upward. Here, Morgan—in the company of his

wife and two other individuals, one a juvenile—fired shots at the head-level of oncoming police

officers, conduct that not only could have seriously harmed or killed one or more officers, but

also could have resulted in return fire on the group in the bedroom.

       When reviewing whether an above-Guidelines sentence is reasonable, appellate courts

may “take the degree of variance into account and consider the extent of a deviation from the

Guidelines.” Gall, 552 U.S. at 47. Morgan received an upward variance of only 30 percent over

the 120-month mandatory minimum set forth in § 924(c)(1)(A)(iii). This variance is relatively

minor when compared to others that we have previously affirmed. See United States v. Stewart,

628 F.3d 246, 260-61 (6th Cir. 2010) (affirming 100 percent variance); United States v. Vowell,

516 F.3d 503, 511-13 (6th Cir. 2008) (affirming 242 percent variance). That Morgan’s variance

is relatively minor matters because, “[i]n general, ‘a major departure should be supported by a



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more significant justification than a minor one.’” Bolds, 511 F.3d at 580 (quoting Gall, 552 U.S.

at 50); see also United States v. Stall, 581 F.3d 276, 281-82 (6th Cir. 2009).

        Moreover, the district court expressly considered “the need to avoid unwarranted

disparities among defendants with similar records who have been found guilty of similar conduct

. . . .” § 3553(a)(6). In stating the advisory Guidelines sentence at the outset, the district court

complied with the requirement that it “should begin [the] sentencing proceeding[] by correctly

calculating the applicable Guidelines range[,]” which “should be the starting point and initial

benchmark” of the district court’s sentencing analysis. Gall, 552 U.S. at 49. By “initially and

correctly determining what [Morgan’s] advisory Guidelines range would be, the sentencing court

necessarily . . . took account of the national uniformity concern embodied in § 3553(a)(6).”

United States v. Houston, 529 F.3d 743, 752 (6th Cir. 2008). The court referred to “a couple of

cases from the Sixth Circuit, one case from this district” relied upon by the parties where the

“sentences [ ] were imposed above the mandatory minimum term.” It went on to note that “each

case is individual and must be handled individually.” Although § 3553(a)(6) is concerned with

national disparities, “the district court did consider disparities as one of the several factors it

balanced and there is no requirement that every factor be discussed at length.” Blackie, 548 F.3d

at 400 (citing United States v. Simmons, 501 F.3d 620, 623-24 (6th Cir. 2007), and Houston, 529

F.3d at 751-52).

        The court considered the need to avoid disparities among similarly situated defendants

and factored that need into its sentencing decision. A review of the record does not show that the

incarceration imposed was an unreasonable sentence, regardless of whether it is the sentence this

court might have imposed. United States v. Liou, 491 F.3d 334, 340 (6th Cir. 2007). We are

unable to find that the district court abused its discretion.



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2. Interpretation of § 924(c)(1)(A)

       As a matter of first impression, we consider whether § 924(c)(1)(A) only authorizes

fixed-term minimum sentences or whether it may also authorize a life sentence.                 Section

924(c)(1)(A) provides, in relevant part, that anyone who “uses or carries a firearm” in relation to

a “crime of violence or drug trafficking crime” shall:

       (i) be sentenced to a term of imprisonment of not less than 5 years;

       (ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less
       than 7 years; and

       (iii) if the firearm is discharged, be sentenced to a term of imprisonment of not
       less than 10 years.

Morgan argues, in essence, that the district court erred because the statutory maximum sentence

under § 924(c)(1)(A) is the mandatory minimum sentence; namely, five years if the firearm is

used or carried, seven years if the firearm is brandished, and ten years if the firearm is

discharged.

       The Supreme Court has noted on numerous occasions that “in all cases involving

statutory construction, ‘our starting point must be the language employed by Congress,’ . . . and

we assume ‘that the legislative purpose is expressed by the ordinary meaning of the words

used.’” American Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982) (quoting Reiter v. Sonotone

Corp., 442 U.S. 330, 337 (1979), and Richards v. United States, 369 U.S. 1, 9 (1962)). “The

words ‘not less than’ signify in the smallest or lowest degree, at the lowest estimate; at least.”

Black’s Law Dictionary 1063 (6th ed. 1990). In the context of § 924(c)(1)(A)(iii), we view the

language employed as establishing a floor of ten years’ imprisonment, leaving open sentences

above that floor. Our reading of the statute is supported by the legislative history. Prior to 1998,

§ 924(c) set forth mandatory sentences. See 18 U.S.C. § 924(c)(1) (1994) (stating that a person

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Case No. 12-6499, United States v. Morgan


shall “be sentenced to imprisonment for five years” for using or carrying a firearm during and in

relation to a crime of violence or drug trafficking crime). In 1998, Congress amended § 924(c),

“chang[ing] what were once mandatory sentences into mandatory minimum sentences.” United

States v. O’Brien, 560 U.S. 218, 232 (2010); see also Pub. L. No. 105-386, § 1, 112 Stat. 3469

(1998).     “The 1998 amendment signals Congress’s intent that the ten-year sentence in §

924(c)(1)(A)(iii) be ‘the minimum or the floor, not the floor and ceiling as the prior version of

the statute provided,’ and that it ‘left open the ceiling.’” United States v. Dorsey, 677 F.3d 944,

956 (9th Cir. 2012) (quoting United States v. Sias, 227 F.3d 244, 246 (5th Cir. 2000)).

          The statutory maximum permitted under § 924(c)(1)(A) is a life sentence. In arriving at

this conclusion, we are guided by the Supreme Court’s recent pronouncements on the matter. In

Alleyne v. United States, 133 S. Ct. 2151, 2160 (2013), the majority commented that “[b]ut for a

finding of brandishing, the penalty is five years to life in prison; with a finding of brandishing,

the penalty becomes seven years to life. Just as the maximum of life marks the outer boundary

of the range, so seven years marks its floor.” In another instance, the majority reiterated that “the

sentencing range supported by the jury’s verdict was five years’ imprisonment to life.” Id. at

2163. Morgan regards these pronouncements as “dicta because . . . the defendant[] received the

fixed-term sentence and the [district] court[] did not vary upward.” Morgan is correct in his

assertion. “Dicta is the ‘[o]pinion[] of a judge which do[es] not embody the resolution or

determination of the specific case before the court.’” Hinchman v. Moore, 312 F.3d 198, 203-04

(6th Cir. 2002) (quoting Black’s Law Dictionary 454 (6th ed. 1990)).

          In Alleyne, the Court considered whether judicial factfinding that increases the mandatory

minimum sentence for a crime is permissible under the Sixth Amendment. 133 S. Ct. at 2155.

The Supreme Court held that “any fact that increases the mandatory minimum is an ‘element’



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that must be submitted to the jury,” thus overruling Harris v. United States, 536 U.S. 545 (2002).

Id.

       Nonetheless, despite not resolving the statutory question at issue here, Alleyne is

controlling. Lower courts are “obligated to follow Supreme Court dicta, particularly where there

is not substantial reason for disregarding it, such as age or subsequent statements undermining its

rationale.” Am. Civil Liberties Union of Ky. v. McCreary Cnty., Ky., 607 F.3d 439, 447-48 (6th

Cir. 2010) (quoting United States v. Marlow, 278 F.3d 581, 588 n.7 (6th Cir. 2002)). See also

Gaylor v. United States, 74 F.3d 214, 217 (10th Cir. 1996) (“this court considers itself bound by

Supreme Court dicta almost as firmly as by the Court’s outright holdings, particularly when the

dicta is recent and not enfeebled by later statements”); McCoy v. Mass. Inst. of Tech., 950 F.2d

13, 19 (1st Cir. 1991) (“federal appellate courts are bound by the Supreme Court’s considered

dicta almost as firmly as by the Court’s outright holdings”).

       Moreover, each of our sister circuits to address this issue has similarly concluded that the

statutory maximum is life imprisonment. See United States v. Johnson, 507 F.3d 793, 798 (2d

Cir. 2007); United States v. Shabazz, 564 F.3d 280, 289 (3d Cir. 2009); United States v.

Cristobal, 293 F.3d 134, 147 (4th Cir. 2002); Sias, 227 F.3d at 246; United States v. Lucas, 670

F.3d 784, 795-96 (7th Cir. 2012); United States v. Gamboa, 439 F.3d 796, 811 (8th Cir. 2006);

Dorsey, 677 F.3d at 958; United States v. Avery, 295 F.3d 1158, 1170 (10th Cir. 2002); United

States v. Pounds, 230 F.3d 1317, 1319 (11th Cir. 2000) (per curiam).

       Last, Morgan argues that any doubts about the proper interpretation of the statute should

be resolved in his favor under the rule of lenity. As discussed above, the language of the statute

is clear and definite. “The simple existence of some statutory ambiguity, however, is not

sufficient to warrant application of that rule, for most statutes are ambiguous to some degree.”



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Case No. 12-6499, United States v. Morgan


Muscarello v. United States, 524 U.S. 125, 138 (1998). The rule of lenity only applies if, “after

considering text, structure, history, and purpose, there remains a grievous ambiguity or

uncertainty in the statute, such that [we] must simply guess as to what Congress intended.”

Barber v. Thomas, 560 U.S. 474, 488 (2010) (internal quotation marks and citations omitted). In

this case, the statutory text and its evolution from prior constructions convince us that the

mandatory minimum sentences set forth in § 924(c)(1)(A) do not represent the maximum

sentences authorized under the provision. Morgan’s arguments to the contrary are insufficient to

render the statute grievously ambiguous.

3. Sufficiency of the Indictment

       Morgan claims that because the indictment did not specifically charge a violation of

§ 924(c)(1)(A)(iii)—the statutory clause imposing “no[] less than 10 years” imprisonment for the

discharge of a firearm—but instead charged a generic violation of § 924(c)(1), the indictment

exposed him to the lowest mandatory sentence outlined in § 924(c)(1), i.e., five years. Morgan’s

argument fails on two grounds.

       Generally, a valid guilty plea “bars any subsequent non-jurisdictional attack on the

conviction.” United States v. Martin, 526 F.3d 926, 932 (6th Cir. 2008) (quoting United States v.

Pickett, 941 F.2d 411, 416 (6th Cir. 1991)). “[I]n the absence of a court-approved reservation of

issues for appeal, [a defendant pleading guilty] waives all challenges to the prosecution except

those going to the court’s jurisdiction.” Pickett, 941 F.2d at 416 (citing Hayle v. United States,

815 F.2d 879, 881 (2d Cir. 1987)). Because Morgan failed to enter a conditional guilty plea, his

challenge is waived.

       Even setting aside this failure to pursue what is his affirmative duty, Morgan’s claim that

the sentence was improper because of the charge listed in the indictment fails as a matter of law.



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Case No. 12-6499, United States v. Morgan


First, his attempt to recast his challenge as being distinct from one based on the sufficiency of the

indictment is disingenuous at best. There is no doubt Morgan’s argument goes directly to the

sufficiency of the indictment. See United States v. Kuehne, 547 F.3d 667, 695-96 (6th Cir. 2008)

(analyzing the sufficiency of the indictment where a defendant challenged three counts contained

therein for not specifying “which drug trafficking crimes were the predicate offenses for the

imposition of § 924(c)(1).     In short, the indictment failed to allege a requisite element of

§ 924(c)(1) itself, i.e., the commission of a drug trafficking crime.”). Ordinarily, we review

challenges to the sufficiency of an indictment de novo. United States v. Gatewood, 173 F.3d

983, 986 (6th Cir. 1999). However, where the sufficiency of an indictment is not challenged

until appeal, “the indictment must be construed liberally in favor of its sufficiency.” Id. “Under

such circumstances, a conviction must not be reversed unless the indictment cannot be

reasonably construed to charge a crime.” United States v. Lloyd, 462 F.3d 510, 513 (6th Cir.

2006).

         Here, despite not specifying the exact portion of § 924(c)(1) with which Morgan was

charged, the indictment tracked the statutory language of § 924(c)(1)(A)(iii) inasmuch as it

charged that “[o]n or about November 20, 2008, in Shelby County, in the Eastern District of

Kentucky, [Morgan], during and in relation to [a] drug trafficking crime . . . did knowingly use,

carry, and discharge a firearm . . . .” Thus, the indictment properly gave Morgan notice of the

charges he was facing. See Kuehne, 546 F.3d at 696. Moreover, the indictment was sufficiently

specific to provide protection against double jeopardy because the count identified the particular

date on which the offense occurred and the conduct involved (discharge of a firearm). See id.

Therefore, the indictment is sufficient.




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Case No. 12-6499, United States v. Morgan


       Furthermore, the plea agreement itself, which Morgan acknowledged to have been

“underst[ood],” “fully explained,” and “ent[ered] into . . . voluntar[ily],” detailed “the following

facts that establish the essential elements of the offense[] beyond a reasonable doubt,” namely,

that “Morgan admitted he had the firearm and fired it . . . .” It also stated that “[w]ith regard to

Count 2 [(the § 924(c) conviction)], the statutory punishment is not less than 10 years . . . .” At

rearraignment, counsel for the government was asked by the district court to review the essential

parts of the plea agreement; the government stated that Morgan “admits that he possessed a

quantity of marijuana with intent to distribute it, and admits that the use and discharge of his

firearm was related to his drug trafficking activity,” to which Morgan agreed was accurately

summarized. Later, after additional discussion by the district court of the counts covered in the

plea agreement, the court asked Morgan to describe “in [his] own words” what he had done “to

be guilty of those charges.”      Morgan responded that he “was selling marijuana, thought

somebody was breaking [into his] house, [and] so discharged the firearm.” In sum, Morgan—on

multiple occasions—recognized and admitted his conduct entailed the discharge of a firearm in

relation to a drug-trafficking crime, and that he was subject to a ten-year mandatory minimum

sentence.

4. Reassignment on Remand

       In light of our affirming the district court’s sentencing of Morgan, we need not reach the

issue of whether to reassign the case to a different judge on remand.

       AFFIRMED.




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