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Sixth Circuit Vacates Sentence Because Government Failed to Prove Sentencing Enhancements Apply

Richard Mukes never contested that he was caught with a firearm after previously being convicted of a felony. The issue in Mukes’ case was the sentencing enhancements the Government argued should apply and which the district court, in fact, applied. There was a four-point enhancement for possessing a firearm in connection with another felony offense and a two-point enhancement for reckless endangerment for allegedly fleeing from the police while holding the firearm.

The court then calculated Mukes’ Guidelines range at 121 to 151 months in prison without parole.

However, because his statute of conviction, 18 U.S.C. § 922(g), carries a 10-year maximum, Mukes was sentenced to the statutory maximum. Having properly objected to these issues in the district court, Mukes appealed.

Under U.S. Sentencing Guidelines (“USSG”) § 2K2.1(b)(6)(B), a four-point enhancement to the Guidelines range is allowed if the defendant “used or possessed any firearm or ammunition in connection with another felony offense.” This can be any other federal or state offense connected to the instant offense and doesn’t have to result in a conviction. Mukes was indicted in Tennessee state court for reckless endangerment, under Tenn. Code Ann. § 39-13-103, for reportedly firing the firearm in the air during an argument. Although this charge was dropped by the State, the district court said that the indictment was “sufficient in and of itself” to support the enhancement.

The Court noted that a sentencing court is permitted to consider all relevant evidence regardless of whether it would have been admissible at trial, but such evidence must have “sufficient indicia of reliability to support its probable accuracy.” USSG § 6A1.3(a). However, an indictment alone can’t be used “as evidence that all conduct charged in the indictment occurred.” United States v. Crowell, 997 F.2d 146 (6th Cir. 1993). Instead, the Court observed, “due process requires … some evidentiary basis beyond mere allegation in an indictment.” United States v. Smith, 887 F.2d 104 (6th Cir. 1989). Thus, the district court erred in relying solely on an indictment to establish Mukes used a firearm in the commission of “another felony” and consequently erred in imposing the sentencing enhancement, the Court ruled.

The next enhancement at issue was two points under USSG § 3C1.2, because Mukes allegedly “recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing” from the police. For this enhancement to apply, the Government is required to show that the defendant: “(1) recklessly, (2) created a substantial risk of death or serious bodily injury, (3) to another person, (4) in the course of fleeing from a law enforcement officer, (5) and that this conduct occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.” United States v. Dial, 524 F.3d 783 (6th Cir. 2008). The Court observed that the Government is required to “link a specific aspect of the flight … with a specific risk.” United States v. Brooks, 763 F. App’x 434 (6th Cir. 2019).

The Government submitted as evidence the arresting officer’s affidavit that Mukes dropped the gun before fleeing. But it also submitted an unsworn arrest record that he fled and then threw the gun. Mukes testified that he dropped the gun before he ran. The district court, without resolving this critical discrepancy, applied the two-point enhancement.

The Court ruled the district court also erred in applying this enhancement. “If Mukes dropped the firearm in response to police commands before fleeing, this enhancement likely would not be applicable,” the Court said. “To hold otherwise would present the defendant with an untenable choice: drop the firearm upon police order, resulting in additional prison time ... or refuse to drop the weapon, risk being shot, and still receive additional prison time.” The Court rejected the Government’s other theories supporting the application of the enhancement because the existing record was simply inadequate to support them.

As for the district court refusing to grant Mukes two-points reduction for acceptance of responsibility for his guilty plea on the basis that he contested the sentencing enhancements, the Court disagreed with this as well. If a defendant “falsely denies, or frivolously contests relevant conduct that the court determines to be true,” a court may refuse to grant an acceptance-of-responsibility reduction. “But a defendant’s unsuccessful challenge to ‘relevant conduct … does not necessarily establish that it was either a false denial or frivolous,’” the Court explained, citing USSG § 3E1.1(a), cmt. n.1(A). That is, a “mere determination that the government has met its burden of proof of the facts” is not itself sufficient to establish the defendant falsely denied or frivolously contested relevant conduct the court concludes to be true, according to the Court. 

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Related legal case

United States v. Mukes



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