Sixth Circuit Remands for Resentencing Based on Erroneous Application of Stolen-Firearm Enhancement

 

In an unpublished, per curiam opinion, a panel of the Sixth Circuit rejected the appellant’s Second Amendment challenge to his § 922(g)(1) conviction, but reversed the sentence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.4^th 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.