                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 10a0448n.06

                                                 No. 08-2598
                                                                                                       FILED
                              UNITED STATES COURT OF APPEALS                                       Jul 22, 2010
                                   FOR THE SIXTH CIRCUIT                                    LEONARD GREEN, Clerk

UNITED STATES OF AMERICA,

        Plaintiff-Appellee,

v.                                                            ON APPEAL FROM THE UNITED
                                                              STATES DISTRICT COURT FOR THE
RONNIE MELVIN FLOWERS,                                        WESTERN DISTRICT OF MICHIGAN

        Defendant-Appellant.
                                                                      OPINION
                                                      /



BEFORE:          SILER and CLAY, Circuit Judges; and GRAHAM, District Judge.*

        CLAY, Circuit Judge. Defendant, Ronnie Melvin Flowers, pled guilty to possession of a

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

and possession with intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C.

§ 841(a)(1). Defendant challenges the applicability of the ten-year mandatory minimum consecutive

sentence under 18 U.S.C. § 924(c)(1)(A)(iii) for discharging a firearm during and in relation to a

drug trafficking crime. He was sentenced to 120 months for the firearm charge and 60 months for

possession with intent to distribute, to run consecutively, and now appeals from that judgment. For

the reasons set forth below, the district court’s application of the ten-year mandatory consecutive

minimum is AFFIRMED.



        *
          The Honorable James L. Graham, United States District Judge for the Southern District of Ohio, sitting by
designation.
                                           No. 08-2598

                                         BACKGROUND

       Defendant was arrested during a lawful traffic stop in Kalamazoo, Michigan on October 17,

2007, at which time he was a passenger in the vehicle, which was driven by his girlfriend. Defendant

originally provided a false name, but when the police officers learned his real name, he was arrested

on an outstanding warrant. A search of Defendant yielded a small bag of marijuana, $473.00 in

small currency, three cigars, and two empty baggies. A search of the vehicle uncovered a bag of

marijuana and a .22 revolver with an obliterated serial number under the passenger seat where

Defendant had been sitting. Several bags of marijuana were found in the passenger side glove box.

More drugs and drug paraphernalia, including a plastic bag containing 11.42 grams of crack cocaine,

were found in the rear of the vehicle. Defendant’s girlfriend claimed the drugs, gun, and drug

paraphernalia belonged to her, but later admitted that the items belonged to Defendant and that she

had lied to protect him.

       After Defendant was arrested, both he and his girlfriend described a shooting that occurred

on October 12, 2007 at which Defendant used the firearm recovered at the stop. That shooting was

between Defendant and another drug dealer from whom Defendant admitted stealing ten pounds of

marijuana and jewelry on October 11, 2007. The other drug dealer allegedly fired the first shots at

Defendant’s girlfriend, and Defendant returned fire allegedly in defense of his girlfriend. Defendant

also admitted being in possession of the same firearm when he robbed the other drug dealer. Finally,

Defendant admitted that the marijuana recovered in the traffic stop was the stolen marijuana from

October 11, 2007.




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       Defendant was indicted by a federal grand jury on March 27, 2008 in a four-count indictment:

Count One – possession with intent to distribute marijuana from on or about October 11, 2007, to

on or about October 17, 2007, in violation of 21 U.S.C. § 841(a)(1); Count Two – possession of a

firearm during and in relation to the drug trafficking crime in Count One, in violation of 18 U.S.C.

§ 924(c)(1)(A); Count Three – possession with intent to distribute five grams or more of cocaine

base (“crack cocaine”), in violation of 21 U.S.C. § 841(a)(1); and Count Four – being a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

       On July 18, 2008, Defendant pled guilty to Counts Two and Three. Defendant filed a

sentencing memorandum, and the government filed a response addressing, in part, the applicability

of the ten-year mandatory minimum pursuant to § 924(c)(1)(A)(iii). The government also moved

to release the ten-year mandatory minimum for Count Three and for a two-level downward departure

for substantial assistance from the 120 months guidelines sentence regarding that count.

       At the November 19, 2008, sentencing hearing, Defendant argued that he should not be

subject to the ten-year mandatory minimum because the discharge of his firearm was in defense of

himself and his girlfriend. Defendant’s girlfriend testified about the armed robbery, during which

she claimed Defendant told her he fired into the other drug dealer’s vehicle, and about the shooting

the next day. She also testified that it was the same firearm used in the robbery and shooting that

was found during the traffic stop. Officer Karen Rivard testified that Defendant admitted the

shooting began as payback for the theft of the marijuana. Defendant also testified, denying that he

told his girlfriend that he had shot into the vehicle during the October 11, 2007 robbery, but

otherwise admitting that his girlfriend’s testimony was essentially correct.


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       The district court overruled Defendant’s objection to the ten-year mandatory minimum,

finding that Defendant discharged the firearm during and in relation to the crime of possession with

intent to distribute marijuana. While noting the possibility of mixed motives on the part of

Defendant at the shooting on October 12, 2007, the district court found that it “strains credulity to

say that it had nothing to do with the theft of the marijuana or that it had nothing to do with drug

trafficking.” (Dist. Ct. Doc. No. 54, Sen. Tr. at 65). The district court granted the government’s

motions, departed downward by four-levels, and sentenced Defendant to 120 months’ incarceration

for Count Two and 60 months’ for Court Three, to run consecutively. This timely appeal followed.

                                          DISCUSSION

I.     Standard of Review

       This Court reviews factual findings of the district court for clear error. United States v.

Hazelwood, 398 F.3d 792, 795 (6th Cir. 2005). A clear error has occurred when, after reviewing all

the evidence, “we are left with the definite and firm conviction that a mistake has been made.”

United States v. Jeross, 521 F.3d 562, 569 (6th Cir. 2008); United States v. Worley, 193 F.3d 380,

384 (6th Cir. 1999).

II.    Analysis

       Defendant appeals the application of a ten-year mandatory minimum rather than a five-year

mandatory minimum for Count Two of the indictment. The statute under which this dispute arises

reads, in relevant part, as follows:

       Except to the extent that a greater minimum sentence is otherwise provided by this
       subsection or by any other provision of law, any person who, during and in relation
       to any crime of violence or drug trafficking crime . . . uses or carries a firearm, or


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                                            No. 08-2598

       who, in furtherance of any such crime, possesses a firearm, shall, in addition to the
       punishment provided for such . . . drug trafficking crime--
              (i) be sentenced to a term of imprisonment of not less than 5 years;
              ...
              (iii) if the firearm is discharged, be sentenced to a term of imprisonment of
              not less than 10 years.

18 U.S.C. § 924(c)(1)(A). The discharge element is not an element of the offense that must be

proved beyond a reasonable doubt; rather it is a sentencing factor that may be found by a

preponderance of the evidence by the sentencing judge. See United States v. Harris, 397 F.3d 404,

414 n.5 (6th Cir. 2005).

       At the time of sentencing, there was a circuit split regarding whether the intent element of

the statute requires that the defendant also intend to discharge the firearm during the offense.

Compare United States v. Dean, 517 F.3d 1224, 1229 (11th Cir. 2008) (no intent requirement for

discharge sentencing factor), with United States v. Brown, 449 F.3d 154, 156 (D.C.Cir. 2006)

(general intent requirement for discharge sentencing factor). However, the Supreme Court has since

held that no such intent requirement is contained in the statute. Dean v. United States, --- U.S. ---,

129 S.Ct. 1849, 1853 (2009) (brandishing subsection, § 924(c)(1)(A)(ii), contains intent element

imbedded in definition of brandishing, but discharge provision does not). In Dean, the defendant

accidentally discharged his firearm during a bank robbery, and the Supreme Court found that the ten-

year mandatory minimum under § 924(c)(1)(A)(iii) was appropriately applied. Therefore, the only

requirement for applying the ten-year mandatory minimum under § 924(c)(1)(A)(iii) is that the

firearm be discharged at some point during the underlying offense. Id. at 1853-54.

       The question in the instant case then becomes whether it was a clear error for the sentencing

judge to find that the October 12, 2007 shooting was during and in relation to the drug trafficking

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crime. Defendant’s primary argument on appeal is that he only discharged his firearm in protection

of his girlfriend, which he frames as an issue of intent. That argument is foreclosed by Dean since

cases regarding criminal prosecutions decided by the Supreme Court are generally binding on cases

still pending in the lower courts. See Griffith v. Kentucky, 479 U.S. 314, 322-323 (1987) (“But after

we have decided a new rule in the case selected, the integrity of judicial review requires that we

apply that rule to all similar cases pending on direct review.”).

       The crux of the case is whether the shootout was during and in relation to the drug trafficking

crime. Defendant admitted that the shooting was at least in part motivated by his robbery of the

other drug dealer on the day before the shooting. The proceeds from that robbery included the

marijuana recovered in the traffic stop that supported the underlying offense of drug trafficking. He

also admitted to possessing the firearm during the entire period of the alleged drug trafficking crime

– from October 11, 2007 to October 17, 2007 – a period including the date of the shooting.

       Certainly not every discharge of the firearm that could conceivably happen during the

relevant time period could be construed as during and in relation to the underlying drug trafficking

crime. For example, if the firearm had accidentally discharged while Defendant was cleaning it at

home on October 13, 2007, without any other persons in the vicinity, we may not find that discharge

to be during and in relation to a drug trafficking crime. However, it seems readily apparent that a

shootout between the Defendant and the drug dealer from whom he stole marijuana from a day

before was during and in relation to the drug trafficking crime of possession with intent to distribute

that very same marijuana. Therefore, it was not clear error for the district court to determine that

Defendant discharged his firearm during and in relation to the crime of possession with intent to


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                                         No. 08-2598

distribute marijuana. Defendant was properly deemed to be subject to the ten-year mandatory

minimum consecutive sentence.

                                       CONCLUSION

       For the reasons set forth above, we uphold the district court’s finding that Defendant is

subject to the mandatory minimum under 18 U.S.C. § 924(c)(1)(A)(iii) and AFFIRM the sentence

imposed.




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