                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 14a0751n.06

                                           No. 13-5600
                                                                                       FILED
                                                                                 Sep 30, 2014
                          UNITED STATES COURT OF APPEALS                     DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT

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



Before: DAUGHTREY and KETHLEDGE, Circuit Judges; ECONOMUS, District Judge.*


       PER CURIAM. Defendant Raymone Kelley pleaded guilty to being a felon in possession

of a firearm, based on a plea agreement with the government, and was sentenced to 92 months’

incarceration, to be served consecutively to an undischarged state court sentence. He now

appeals his sentence, contending: (1) that the district court erred in increasing his offense level

under USSG § 2K2.1(b)(6)(B) by four levels for possession of the firearm “in connection with

another felony” and (2) that the district court abused its discretion in ordering consecutive

sentencing. We find no reversible error and affirm.

       The charge in this case grew out of a report to Covington police of gunshots fired at a city

housing project. The police dispatcher told the responding officers that the shots came from a

       *
        The Honorable Peter C. Economus, United States District Judge for the Northern District
of Ohio, sitting by designation.
No. 13-5600
United States v. Kelley

particular residential building in the development. When the officers arrived, they discovered

discharged shotgun shells on the outside of the identified residential unit—both in front and in

back—and, looking through a window, observed a loaded round on the kitchen counter. The

police made contact with the individuals inside, Kelley and two others, but were denied entrance.

They then called in the SWAT team and obtained and executed a search warrant for the

residence. The search produced a Springfield 944 series shotgun with a sawed-off barrel and

numerous rounds of ammunition, both spent and unspent, in the house and on Kelley’s person.

The two other individuals in the residence gave written statements naming Kelley as the shooter.

       Kelley was arrested and charged by the state with felony wanton endangerment and being

a convicted felon in possession of a firearm. He was later charged in federal court in this case

with one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1),

and one count of possession of an unregistered sawed-off shotgun, in violation of 26 U.S.C.

§ 5861(d).   In light of the federal indictment, the Kentucky state charges were dropped.

However, Kelley’s parole status in connection with an earlier state conviction in Ohio for felony

robbery was revoked, and he was ordered to serve the remainder of an eight-year sentence.

       In federal court, Kelley pleaded guilty to being a felon in possession of a firearm and the

government dismissed the second charge as part of the plea agreement with Kelley. In the

presentence report, the Probation Department determined that Kelley’s range under the

Sentencing Guidelines was 92-115 months of incarceration. This calculation was based on a

base offense level of 22, a criminal history category of VI, a three-level reduction for acceptance

of responsibility under USSG § 3E1.1, and a four-level enhancement pursuant to USSG

§ 2K2.1(b)(6)(B), which applies when a defendant “used or possessed any firearm or




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No. 13-5600
United States v. Kelley

ammunition in connection with another felony offense.” In this case, the other felony offense

was the dismissed Kentucky state charge of felony wanton endangerment.

       Kelley lodged two objections to the presentence report.              The first was to the

recommendation of the four-level enhancement, on the ground that the evidence in the case

supported a charge of misdemeanor wanton endangerment only.               The second was to the

recommendation that his sentence should be served consecutively to his undischarged Ohio

sentence, on the ground that the result would be “double punishment.”

       In response to the first claim, the government introduced testimony from the arresting

officer, who said that the area where Kelley fired the gunshots was a densely populated housing

project with multiple residential units in close proximity to each other; that witnesses reported

that Kelley was involved in an argument before he fired the gun and that he appeared to be

“drinking and going crazy”; and that he had apparently fired the weapon in at least two different

locations, based on the location of the shotgun shells found by police. The officer testified that

he charged Kelley with felony wanton endangerment because there were a number of people

present at the time Kelley fired the shotgun, including “several groups of kids . . . within distance

[of the shots]” and because Kelley “could have caused harm or serious physical injury to anyone

in the area.” Indeed, one witness told the officer that Kelley “got the shotgun[,] . . . then came

out of the house [and] put the gun up in one of them rooms,” which could be taken to mean that

he shot into one of the housing units. The district court reviewed the Kentucky statutory

definitions of wanton endangerment and found that a preponderance of the evidence supported a

felony charge and, therefore, a four-level enhancement under § 2K2.1(b)(6)(B).

       “In the specific context of the § 2K2.1(b)(6)(B) firearm enhancement, we review the

district court’s factual findings for clear error and accord due deference to the district court’s


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No. 13-5600
United States v. Kelley

determination that the firearm was used or possessed in connection with the other felony, thus

warranting the application of the . . . enhancement.” United States v. Seymour, 739 F.3d 923,

929 (6th Cir. 2014) (citation and internal quotation marks omitted).

       “The application notes [to § 2K2.1] indicate that the enhancement should apply ‘if the

firearm or ammunition facilitated, or had the potential of facilitating, another felony offense.’”

United States v. Taylor, 648 F.3d 417, 432 (6th Cir. 2011) (quoting USSG § 2K2.1, comment.

(n.14(A)). “‘Another felony offense’, for purposes of subsection (b)(6)(B), means any Federal,

state, or local offense, other than the explosive or firearms possession or trafficking offense,

punishable by imprisonment for a term exceeding one year, regardless of whether a criminal

charge was brought, or a conviction obtained.” USSG § 2K2.1(b)(6), comment. (n.14(C)). It is

the government’s burden to establish the supporting factors by a preponderance of the evidence.

Seymour, 739 F.3d at 929.

       Under Kentucky law, a defendant is guilty of first-degree (felony) wanton endangerment

“when, under circumstances manifesting extreme indifference to the value of human life, he

wantonly engages in conduct which creates a substantial danger of death or serious physical

injury to another person.” Ky. Rev. Stat. § 508.060. A defendant is guilty of second-degree

(misdemeanor) wanton endangerment “when he wantonly engages in conduct which creates a

substantial danger of physical injury to another person.” Ky. Rev. Stat. § 508.070. The Supreme

Court of Kentucky recently discussed the differences between the offenses:

       The differences between first- and second-degree wanton endangerment are the
       mental state and degree of danger created. As to the mental state, both crimes
       require wanton behavior, but first-degree also requires “circumstances
       manifesting extreme indifference to the value of human life,” which has been
       described as “aggravated wantoness [sic].” E.g., Ramsey v. Commonwealth,
       157 S.W.3d 194, 197 (Ky. 2005). As to the danger created, first-degree requires a
       substantial danger of death or serious physical injury, whereas second-degree


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No. 13-5600
United States v. Kelley

       requires only a substantial danger of physical injury. The distinction between the
       two degrees of the crime was described in the commentary in part as follows:

               Creation of the two offenses is necessitated by the wide differences
               in dangerousness that exist with the various types of wanton
               conduct. For example, aimlessly firing a gun in public is not as
               wanton in degree as firing a gun into an occupied automobile and
               should not carry the same criminal sanction.

       KRS 508.060 Kentucky Crime Commission/LRC Commentary (1974). In the
       examples given, aimlessly firing a gun in public would be the second-degree
       crime and firing a gun into an occupied car would be the first-degree crime. Or,
       as described by Professors Lawson and Fortune, “Firing a weapon in the
       immediate vicinity of others is the prototype of first degree wanton endangerment.
       This would include the firing of weapons into occupied vehicles or buildings.”
       Robert G. Lawson & William H. Fortune, Kentucky Criminal Law § 9-4(b)(2),
       at 388 n. 142 (1998) (citations omitted).

Swan v. Commonwealth, 384 S.W.3d 77, 102–03 (Ky. 2012).

       Kelley argues that there is no evidence to support a charge of first-degree felony wanton

endangerment. He maintains that he merely shot a gun into the air and that such conduct meets

neither the heightened mental state nor the level of danger required for a first-degree charge.

Kelley also contrasts his actions with examples from case law that show the type of conduct that

warrants a felony charge. The district court determined otherwise. After hearing testimony from

the arresting police officer, reviewing the other evidence in the record, and examining both

statutes, the district court found that Kelley fired a gun multiple times “in the immediate

vicinity” of other individuals in a densely populated area while intoxicated and engaged in an

argument and concluded that Kelley’s conduct satisfied the statutory elements for a felony

charge. Thus, the district court properly applied USSG § 2K2.1(b)(6)(B).

       The district court also reviewed USSG § 5G1.3(c), which gives the court discretion to

order that a sentence run concurrently with, partially concurrently with, or consecutively to any

prior undischarged term of imprisonment.       Citing several relevant factors in support of its


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No. 13-5600
United States v. Kelley

determination, the district court ordered that the federal sentence here be served consecutively to

Kelley’s Ohio sentence. In this court, the government contends that Kelley waived his right to

appeal this issue in his plea agreement, in which he expressly waived “the right to appeal and the

right to attack collaterally the guilty plea, conviction, and sentence, as long as the sentence is

within the Guideline range as finally determined by the Court.” We disagree.

       The interpretation of Kelley’s appellate-rights waiver is controlled by this court’s

decision in United States v. Bowman, 634 F.3d 357 (6th Cir. 2011). Bowman stands for the

principle that when a plea agreement’s waiver clause allows appeal on some grounds, disallows

appeal on other grounds, and is silent regarding the appealability of a consecutive sentencing

decision, that silence is construed against the government and the defendant may appeal the

decision to impose a consecutive sentence. See id. at 361. As we observed in Bowman, if “[n]o

reference is made to either the state sentence or to [consecutive sentencing] in the plea

agreement . . . [the defendant] has a strong argument that the plea agreement is ambiguous on

this issue.” Id. Because it is well settled that any such ambiguity is to be construed against the

government, we concluded that such a waiver does not prevent a reviewing court from reaching

the merits of the defendant’s appeal. Id. at 360–61 (citing United States v. Harris, 473 F.3d 222,

225 (6th Cir. 2006), and United States v. Fitch, 282 F.3d 364, 367–68 (6th Cir. 2002)).

       For at least the three years since Bowman, the government has been on notice that general

appeal-waiver language will not be construed to preclude the appeal of a consecutive sentence.

The government has not “take[n] steps in drafting a plea agreement to avoid [this] imprecision,”

despite Bowman’s explicit invitation to do so. Id. As a result, there is no principled reason to

avoid applying Bowman here and thereby reach the merits of Kelley’s consecutive-sentencing




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United States v. Kelley

claim, which we review for abuse of discretion. United States v. Brown, 579 F.3d 672, 677 (6th

Cir. 2009).

        Consecutive sentencing is governed by USSG § 5G1.3(c), which provides that if a

defendant was on supervised release at the time of the offense and has had that status revoked,

“the sentence for the instant offense may be imposed to run concurrently, partially concurrently,

or consecutively to the prior undischarged term of imprisonment to achieve a reasonable

punishment for the instant offense.” Nevertheless, in its Application Note to subsection (c), “the

Commission recommends that the sentence for the instant offense be imposed consecutively to

the sentence imposed for the revocation.” USSG § 5G1.3, comment. (n.3(C)). In this case, the

district court recognized that it had discretion in the matter and carefully considered the relevant

individual factors under 18 U.S.C. § 3553(a), particularly the fact that Kelley had a substantial

criminal record for someone his age and that he previously had been convicted of being a felon

in possession of a firearm. The decision to impose consecutive sentencing was, therefore, not an

abuse of the district court's discretion.

        For the reasons set out above, we AFFIRM the judgment of the district court.




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