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United States v. Hatcher

United States Court of Appeals, Sixth Circuit

January 13, 2020

United States of America, Plaintiff-Appellee,
v.
Andre D. Hatcher, Jr., Defendant-Appellant.

          Argued: December 4, 2019

          Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 1:17-cr-00287-1-John R. Adams, District Judge.

         ARGUED:

          CHRISTOPHER M. BRUNO, MCDERMOTT WILL & EMERY, LLP, WASHINGTON, D.C., FOR APPELLANT.

          JAMES A. EWING, UNITED STATES ATTORNEY'S OFFICE, CLEVELAND, OHIO, FOR APPELLEE.

         ON BRIEF:

          CHRISTOPHER M. BRUNO, PAUL M. SCHOENHARD, LE CHEN, MCDERMOTT WILL & EMERY, LLP, WASHINGTON, D.C., CHRISTOPHER M. BRUNO, TENSEGRITY LAW GROUP LLP, MCLEAN, VIRGINIA, FOR APPELLANT.

          RANYA ELZEIN, UNITED STATES ATTORNEY'S OFFICE, CLEVELAND, OHIO, FOR APPELLEE.

          Before: MOORE, CLAY, and SUTTON, Circuit Judges.

          MOORE, J., delivered the opinion of the court in which CLAY, J., joined. SUTTON, J. (pp. 16-20), delivered a separate dissenting opinion.

          OPINION

          KAREN NELSON MOORE, Circuit Judge

          Andre Hatcher, Jr. pleaded guilty to felon in possession of a firearm and escape, and the district court sentenced him to seventy-two months in prison, which was an upward variance of twenty-one months from the top of the Guidelines range. Hatcher now appeals this sentence on the grounds that it is procedurally and substantively unreasonable. For the reasons set forth in this opinion, we VACATE the sentence of the district court and REMAND for resentencing consistent with this opinion.

         I. BACKGROUND

         On March 16, 2017, Andre Hatcher, Jr. escaped from the Oriana House Residential Reentry Center (RCC), where he was confined by virtue of a forty-six-month sentence for felon in possession of a firearm. R. 17 (PSR ¶ 10) (Page ID #97). On April 13, 2017, law enforcement responded to a call regarding a shooting and found Hatcher lying on the ground with a gunshot wound to the head. Id. ¶ 8. While performing first aid on Hatcher, an officer observed a firearm tucked in Hatcher's waistband. Id. After Hatcher was taken to the hospital, he left and was not apprehended until May 2018, when he was found by law enforcement after being shot again. R. 26 (Sent'g Hr'g Tr. at 12) (Page ID #153).

         On July 19, 2017, Hatcher was named in a one-count indictment. R. 1 (Indictment) (Page ID #1). On May 30, 2018, after Hatcher's recapture, a two-count Superseding Indictment was filed, adding a count for his escape from the RCC. R. 11 (Superseding Indictment ¶ 2) (Page ID #31). On July 9, 2018, Hatcher pleaded guilty to both counts: Felon in Possession of a Firearm and Ammunition (Count 1), 18 U.S.C. § 922(g)(1), 18 U.S.C. § 924(a)(2); and Escape (Count 2), 18 U.S.C. § 751(a).

         On October 5, 2018, the district court gave notice of a possible upward variance in advance of Hatcher's sentencing hearing, based upon the following 18 U.S.C. § 3553(a) factors:

1. The nature and circumstances of the offense.
2. The history and characteristics of the defendant, including his criminal history.
3. The need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, to provide just punishment for the offense, to afford adequate deterrence to criminal conduct, and to protect the public from further crimes of the defendants.

R. 19-1 (Notice of Possible Upward Variance) (Page ID #125).

         The sentencing hearing took place on October 18, 2018. At the hearing, the parties agreed that the guidelines range was forty-one to fifty-one months, and the district court reiterated that it had given notice of a possible upward variance. R. 26 (Sent'g Hr'g Tr. at 5) (Page ID #146). Hatcher's counsel proceeded to provide background on the adversity that Hatcher had encountered throughout his life, including multiple stabbings and gunshot wounds, a physically abusive father, diagnoses for bipolar disorder and depression, attempted suicide, and a history of extensive substance abuse. Id. at 5-9. The government then stated it was seeking a sentence "at the high end of the guideline range." Id. at 11.[1]

         During its statement, the Assistant U.S. Attorney responded to Hatcher's assertion that he carried the firearm for protection as follows:

I would submit that the possession of the firearm was not solely for protection. The investigation revealed that shell casings discovered from a shooting three days prior to when the defendant was shot [on April 13, 2017] matched the firearm that he had on his person.
So while, of course, I don't know the specifics of what happened then, I think that certainly suggest[s] a possibility that the defendant was involved in a shooting three days prior and perhaps his victimization on the day of the offense was in retaliation for that. I don't know.

Id. at 11-12. The AUSA then confirmed with the district court that the government had shell casings that matched the firearm found on Hatcher, and stated: "He keeps going back to this very same difficult area, and he keeps being involved in these difficult situations and these violent situations." Id. at 12. An ATF special agent affirmed that the firearm was used three days prior to when Hatcher was shot on April 13; that in the course of the earlier shooting, two non-party victims were shot; and that one of the victims may have fired at the other. Id. at 15. Of the seven spent shell casings, four matched the firearm found on Hatcher three days later. Id.

         The district court and Hatcher's counsel then debated whether Hatcher was justified in escaping from the RCC. Id. at 15-18. The district court rejected Hatcher's argument and stated: "And that's why he's going off unfortunately to serve a very lengthy time, because the circumstances here and the history here, the possession of the gun, and obviously the gun, whether ...


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