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McKinney v. United States

United States District Court, E.D. Michigan, Southern Division

October 8, 2019

ELIJAH McKINNEY, Petitioner,



         Petitioner Elijah McKinney was one of six conspirators who committed a series of “smash and grab” jewelry store robberies in 2014 in Detroit, Michigan and other states. Their modus operandi was to send one or two of the group to case the stores, and others would return later with sledge hammers, which were used to smash the display cases and steal expensive watches and other valuables. McKinney pleaded guilty to the single-count superseding indictment charging conspiracy to violate the Hobbs Act (interference with commerce by robbery), 18 U.S.C. § 1951(a), without a plea agreement. He was sentenced to 92 months in prison. He did not file a direct appeal.

         McKinney then filed a pro se motion under 28 U.S.C. § 2255 to vacate his sentence alleging that his attorney performed deficiently at the sentencing phase of the case. The Court appointed new counsel for McKinney, who then moved to amend the petition to add a claim under Brady v. Maryland, 373 U.S. 83 (1963). Counsel also moved for discovery. An evidentiary hearing was conducted at which McKinney's trial counsel testified. The parties filed supplemental briefs.

         The Brady claim has a direct bearing on the petitioner's sentencing issue and arose from some of the same facts. The Court will grant the motion to amend the petition to add that claim. The petitioner has not shown any likelihood that the material he seeks through discovery - recordings of “jail calls” involving the petitioner and other coconspirators - actually exists, or that there is good cause to order the discovery. That motion will be denied. Finally, McKinney was not prejudiced by the government's failure to disclose certain statements of a codefendant; and McKinney's trial attorney made reasonable strategic decisions when representing him during the sentencing phase of the case and performed well within established professional norms. Therefore, the motion to vacate the sentence will be denied.

         I. Background

         McKinney focuses his main argument on the application of the “dangerous weapon” enhancement found in section 2B3.1(b)(2) of the Sentencing Guideline Manual. That section calls for enhancements ranging from seven levels (if a firearm was discharged) to two levels (if a death threat was made). Relevant here, the section prescribes a three-level increase “if a dangerous weapon was brandished or possessed, ” U.S.S.G. § 2B3.1(b)(2)(E), and a four-level increase “if a dangerous weapon was otherwise used, ” U.S.S.G. § 2B3.1(b)(2)(D). At sentencing, the Court applied a four-level increase in the offense level, finding that a dangerous weapon - the sledge hammer - was “otherwise used” in committing the crime. McKinney says that because the sledge hammers only were “brandished, ” a three-level increase was all that was warranted, and his lawyer performed deficiently when he chose not to object or argue that point.

         The grand jury charged McKinney in a single-count indictment with conspiracy to interfere with commerce by robbery, contrary to 18 U.S.C. § 1951(a), in connection with a multi-state “smash and grab” robbery spree at jewelry stores in various states, including New York and Maryland. On January 29, 2015, a superseding indictment was filed, which charged McKinney and five co-defendants with involvement in the conspiracy. Besides McKinney, the superseding indictment also named Darius Ellis, Kordaryl Cross, Latrina Williams, Lorenzo Daniel Terry, and Anthony Jerome Browner. The sparse factual basis set forth in the indictment included an allegation that the defendants robbed the stores “by means of actual and threatened force, ” and “by use of hammers/sledgehammers.”

         McKinney pleaded guilty. During the plea colloquy, McKinney stated that he was “just the lookout guy for the guys who was going in, in the store.” He admitted that he and other persons had planned to rob some jewelry stores and had carried out that plan by committing actual robberies, including in Maryland and New York. Plea Hr'g at 13-14, ECF No. 156, PageID.779-80. McKinney stated that he had planned the robberies with a person he knew only as “Theo, ” that the plan was hatched by the conspirators in Michigan, that everyone involved in the plan had an assigned role, and that his role was to be the lookout. Id. at PageID.780-81. He asserted that he had participated in two robberies between June and August 2015, during which a number of Rolex watches were stolen. Id. PageID.781.

         At the sentencing hearing, the Court noted that there were no objections to the presentence report. The Court found that the base offense level, which was determined from the robbery guidelines, was 20, and a four-point enhancement was added under section 2B3.1(b)(2)(D) for use of a dangerous weapon. The Court applied a three-level enhancement for a loss amount exceeding $250, 000, and a two-level enhancement for the occurrence of multiple crimes, which consisted of the two robberies. Sent. Hr'g at 6, ECF No. 151, PageID.715. After a three-level deduction for acceptance of responsibility, the net offense level was 26. Ibid. That, combined a criminal history category of IV, yielded a guideline range of 92 to 115 months. After noting the Court's concern about the dangerousness of the conduct involved in carrying out the robberies, the Court sentenced McKinney to 92 months in prison and ordered him to pay $340, 935 in restitution to the owners of the jewelry stores that were robbed. When asked at the end of the hearing if the defendant had any objections to the sentence that were not stated on the record, the defendant's attorney stated, “No.” Id. PageID.731.

         In a declaration, confirmed by testimony at the motion hearing, Steven Scharg, the defendant's trial attorney, stated that he received the presentence report in June 2015, and he noted that the probation department had scored four points for the use of a dangerous weapon under guideline section 2B3.1(b)(2)(D). Scharg considered objecting to the scoring of a fourth point for the “otherwise use” of a dangerous weapon under that section, and he believed that, although the case law on the point was debatable, an argument could be made that only three points for simple possession or brandishing, rather than “otherwise use” should be assessed. Scharg discussed this objection during a conference with counsel for the government, who informed him that the government planned to object to the absence of any points for a leadership enhancement under guideline section 3B1.1. Scharg determined that, although he was not certain that the government would prevail, “given the uncertainty regarding the interpretation of ‘otherwise use' of a dangerous weapon, and the possibility that multiple leadership points could be assessed, [he] decided that, in [his] professional judgment, it was in Mr. McKinney's best interest to negotiate a pre-objection resolution to the potential PIR objections.” Steven Scharg decl. ¶ 8, ECF No. 155-2, PageID.765.

         As Scharg explained, in his view:

Both enhancements were certainly debatable. But, given the upside of reducing Mr. McKinney's net offense level by only 1-point and the downside of increasing Mr. McKinney's net offense level by a minimum of two points and up to four points, I felt that the resolution was clearly in Mr. McKinney's best interest, particularly given there was no mandatory minimum term of imprisonment and the Court could vary downward from the advisory guideline range based on the 3553 factors. I stand by my assessment, notwithstanding the fact that the Court ultimately ruled, in a later sentencing, that only 3-points should apply.

Id. ¶ 10 PageID.765.

         At the sentencing of the petitioner's co-defendant, Kordaryl Cross, the Court discussed that same issue: scoring for use of a weapon under guideline section 2B3.1(b)(2). As the Court noted, that section contains provisions calling for a three-point enhancement to the offense level if a dangerous weapon is “brandished or possessed, ” or a four-point enhancement if a dangerous weapon was “otherwise used” in the commission of the crime. Sent. Hr'g at 5-6, ECF No. 157, PageID.791-92. Cross conceded (as McKinney evidently does here as well), that the sledge hammers used in the robberies qualified as a “dangerous weapon” according to the pertinent definition of that term set forth in guideline section 1B1.1. The parties' dispute, therefore, centered on whether the hammers were merely “brandished or possessed, ” or whether they were “otherwise used.” Sent. Hr'g at PageID.792. The Court concluded, with particular emphasis on the interplay between the definition of “brandishing” and “otherwise used” in the associated application note, that the enhancement should be scored at three points, rather than four, principally because the phrase “otherwise used, ” read in the proper context, implied that the “use” must be “something more” than “brandishing, ” which itself required a use of the item for the purpose of intimidating or coercing a person in the course of the crime. The Court explained its reasoning as follows:

Based upon [the language of application note 1(C) to guideline section 1B1.1], I infer that to brandish or otherwise use - and because the otherwise use definition incorporates a reference to brandishing - that the purpose of the item, the dangerous weapon, must be to intimidate [an] individual.
I find that the sledge hammers in this case were not intended to be used to intimidate or to effectuate a threat in order to advise or convey the notion that the individuals must part with their property. Consequently, I'll sustain the objection. I find that the enhancement under 2B3.1(b)(2) should fall under category (E) and that would cause a three-level increase.

Id. at PageID.799-800. The same reasoning and three-point scoring were applied to the guideline calculations at the sentencings of each of McKinney's co-defendants, all of whom were sentenced after him.

         During the pretrial phase of the case, the government produced to Mr. Sharg a considerable amount of discovery, which included documents, video from at least one of the stores that was robbed, and recorded interviews with several of the co-defendants, including Browner and Cross. However, the government asserts that a recorded interview with co-defendant Lorenzo Terry was produced only to Terry's attorney and not to McKinney's counsel. The government asserts that, during the process of the litigation of McKinney's post-conviction motion to vacate his sentence, it re-produced to McKinney's current attorney all of the trial phase discovery, and, due to an oversight, also inadvertently produced the Terry interview, before realizing that the Terry audio was not part of the original trial phase production.

         McKinney now argues that Terry's recorded interview with the government's case agent suggests the following exculpatory facts, which were not available to McKinney's trial counsel: (1) that Cross gave Terry money for his participation in the Maryland robbery, and that this fact is supported by “jail calls” in the possession of the government's case agent; (2) that Terry was only acquainted with Browner prior to the conspiracy, Terry met Cross “through someone else”, and Terry did not know McKinney at all; and (3) that Terry had a limited role in the conspiracy, which consisted solely of buying hammers, and, as such, he had little or no contact with McKinney, “did not ever see” McKinney, and McKinney did not give him any direction.

         The recorded Terry interview and the transcript excerpts the government submitted do not confirm that any “jail calls” were recorded. Defense counsel points to statements by the government's agent in conversation with Terry that “people are stupid as in they never listen to the . . . thing when they make a jail call that say[s this] call is being recorded.” Govt. Resp., Lorenzo Terry Interview Tr. at 2-3, ECF No. 174-5, PageID.906-07. However, it is unclear from the context of the interview what exactly is meant by that statement; or how that comment can be construed to imply that any relevant “jail calls” actually exist; or who, if anyone, may have made them; or, if such calls do exist, what might be their subject or content.

         In one part of the transcript, Terry actually appears to deny that Cross ever paid him any money for the Maryland robbery, and he asserts that Cross told him that the group did not get anything from it.

         The government contends that other discovery materials, some of which it submitted as exhibits to its opposition to the discovery motion, back up its position that it was justified in seeking a leadership enhancement for McKinney. The government also asserts that statements made by Browner during his interview with the government - which was disclosed to McKinney's attorney during the trial phase - reflect similar comments suggesting that Browner interacted primarily with Cross and had limited interaction with McKinney. The government contends that this interview therefore supplied the same sort of information as the petitioner maintains was revealed in the Terry interview, consisting of suggestions that a co-defendant perceived Cross to be more a leader of the enterprise than McKinney.

         II. Motion to Amend

         McKinney did not include a Brady claim in his original section 2255 motion. He now contends that the government should have disclosed the Alonzo Terry interview, because it shows that McKinney played no leadership role in the conspiracy. And ...

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