On the morning of June 26, 2018, Herbert Marsh and his companions, Hakeem Mannie, and James Horton, robbed a pawn shop in Nashville, Tennessee. At the time, Horton was armed with a black pistol with an extended magazine. The three men ultimately stole eleven firearms and more than $8,000 in cash.
In response, the Nashville Police Department issued a "be on the lookout" report for a grey sedan. The next day, officers encountered Marsh, who was a passenger in a grey BMW sedan he owned. Believing it matched the description in the NPD's report, officers tailed the vehicle, waiting for it to commit a traffic violation. They believed their moment arrived when they witnessed the vehicle turn left into the outside lane of Rosa Parks Boulevard, which has two lanes of traffic traveling in each direction. Believing this violated Tenn. Code Ann. § 55-8-140(2), they stopped Marsh's vehicle.
Upon stopping the vehicle, officers encountered the driver (Horton), Marsh, and two other individuals. They subsequently searched the vehicle and discovered marijuana and five firearms - four they identified as being stolen in the previous day's pawn shop robbery. One of the firearms, a Springfield XD .45 caliber, was the gun Horton brandished during the robbery.
A federal grand jury subsequently indicted Marsh for seven offenses, including conspiracy to commit Hobbs Act robbery. Marsh moved to suppress the evidence obtained from the search of his car, arguing the traffic stop was unlawful because he did not commit a traffic infraction in making a left turn on a green light. The District Court denied his motion, and Marsh proceeded to trial, where a jury convicted him of six of the seven charged listed in his Indictment.
Prior to his sentencing, Marsh objected to three enhancements in his PSR, which increased his based offense level by 10: (a) (1) a § 2K2.1(b)(1)(B) enhancement because the offense involved between eight and twenty-four firearms; (2) a § 2K2.1(b)(4)(A) enhancement because the offense involved stolen firearms; and (3) a § 2K2.1(b)(6)(B) enhancement because he used or possessed a firearm in connection with another felony offense. Marsh argued these enhancements impermissibly double counted his conduct and improperly relied on acquitted conduct. The District Court disagreed and sentenced to 210 months' imprisonment.
In a published opinion, the Sixth Circuit affirmed Marsh's sentence and the District Court's order denying his motion to suppress. In challenging the denial of his suppression motion, the parties did not dispute that the officers mistakenly stopped Marsh's vehicle because they misunderstood Tenn. Code Ann. § 55-8-140(2). However, the Court held that the officers' reading of the statute was not objectively unreasonable, and that their decision to stop Marsh was therefore not unlawful.
In challenging his sentence, Marsh asserted the District Court engaged in impermissible double counting by applying a base offense level of 20 pursuant to USSG § 2K2.1(a)(4)(B) because he was a convicted felon and the offense involved a semiautomatic firearm cable of accepting a large capacity magazine in addition to the two-level enhancement pursuant to § 2K2.1(b)(6)(B) for using or possessing "any firearm....in connection with another felony offense." The Court disagreed, holding that "distinct harms" triggered both enhancements -- USSG § 2K2.1(a)(4)(B) stemming from the firearm's characteristics (a semiautomatic capable of accepting a large capacity magazine) and § 2K2.1(b)(6)(B) stemming the firearm's use in furtherance of another felony offense.
The Court likewise held that the District Court did not impermissibly double count by applying the three firearms enhancements found in subsections (b)(1)(B), (b)(4)(A), and (b)(6)(B) of § 2K2.1 on top of his already enhanced base offense level. It held that subsection (b)(1)(b) applied because of the quantity of firearms involved, and it found that subsection (b)(4)(A) applied because the offense involved stolen firearms. The enhancements, the Court held, had distinct triggers from each other and from those that would trigger the base offense level set out in subsection (b)(6)(B). Finding no error, the Court affirmed both Marsh's conviction and sentence.
In his concurring opinion, Judge Murphy noted he would also have affirmed the District Court's order overruling Marsh's suppression motion. He would have, however, found that the Good Faith Exception to the Exclusionary Rule applied because, in his opinion, the officers did not recklessly or intentionally misconstrue the statute at issue.
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