In an unpublished,
per curiam opinion, a panel of the Sixth Circuit rejected the appellant’s Second
Amendment challenge to his § 922(g)(1) conviction, but reversed the sentence on
the grounds that the district court erred in applying the stolen-firearm
enhancement because it relied on quadruple hearsay in a police report. This
opinion is potentially helpful when challenging sentencing enhancements where the
government’s proof in support of the enhancement consists solely of police
reports, particularly reports containing hearsay statements.
Curtis
Euge-Darnell Black was charged with a single count of possessing a firearm as a
felon. He unsuccessfully moved to dismiss on the ground that 18 U.S.C. §
922(g)(1) violated the Second Amendment in all its applications and then
entered a conditional guilty plea preserving his right to appeal the denial of
the motion to dismiss. On appeal, Mr. Black argued that § 922(g)(1) violates
the Second Amendment as applied to him. He relied on the Sixth Circuit’s
decision in United
States v. Williams, 113 F.4th 637 (6th Cir. 2024), where the
court suggested that § 922(g)(1) might be susceptible to an as-applied
challenge where the defendant can demonstrate that he is not dangerous. The court
held that Mr. Black’s claim failed under plain-error review, citing his past
convictions for violent offenses.
The
Sixth Circuit held, however, that the government had failed to prove by a preponderance
of the evidence that the gun was stolen. At sentencing, the government
introduced a police report documenting an interview with the registered owner
of the gun at issue in Mr. Black’s case. The owner stated that, three years
earlier, he lent the gun to a friend. He later attempted to contact the friend
to ask for the gun back but received no response. The owner then contacted a
family member of the friend, who told the owner that the gun had been stolen.
This police report was the only evidence that the gun was stolen. Over Mr.
Black’s objection, the district court applied U.S.S.G. § 2K2.1(b)(4)(A)’s 2-level
stolen-firearm enhancement. This produced a guidelines range of 37 to 46 months’
imprisonment. The court imposed a 42-month sentence.
The
court held that, in applying the enhancement, the district court violated Sixth
Circuit precedents limiting the use of police reports at sentencing. It quoted United
States v. Jones, 815 F. App’x 870, 878 (6th Cir. 2020) (“We do not endorse
the regular use of police reports as evidence in sentencing determinations.”),
and its holding that a district court may rely on information in a police
report – including hearsay statements – only if the information has a “minimal
indicium of reliability.” The court held that “[t]he unreliable nature of this
police report is evident from its multiple layers of hearsay.”
Judge
Murphy filed a separate opinion concurring as to the Second Amendment issue but
dissenting as to the sentencing issue. He wrote that Mr. Black had forfeited the
issue because, despite arguing at sentencing and on appeal that the government had
presented insufficient evidence that the gun was stolen, he did not
specifically cite the government’s reliance on hearsay evidence as the basis
for challenging the enhancement.