United States v. Merritt

102 F.4th 375

UNITED STATES of America, Plaintiff-Appellee, v. Emmanuel Trencell MERRITT, Defendant-Appellant.

No. 23-1216

United States Court of Appeals, Sixth Circuit

Decided and Filed: May 21, 2024

Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 1:21-cr-00051-1—Jane M. Beckering, District Judge.

ON BRIEF: Paul L. Nelson, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Grand Rapids, Michigan, for Appellant. Erin K. Lane, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids, Michigan, for Appellee.

Before: BUSH, NALBANDIAN, and MURPHY, Circuit Judges.

OPINION

NALBANDIAN, Circuit Judge.

Emmanuel Merritt pleaded guilty to being a felon in possession of firearms and was sentenced to 120 months in prison. But two twists underlie this seemingly straightforward case. First, before Merritt pleaded guilty, he spent several months evading authorities. So the district court faulted him for not accepting responsibility and denied him a two-point reduction in his total offense level, which Merritt challenges as an error. Second, the district court gave Merritt a three-point increase in his criminal history score because one of his past state offenses included a total prison sentence of 870 days. But Merritt believes that his sentence was for only 330 days, because of credits he received, and the district court was thus wrong in calculating his score. Both claims fail, however, so we AFFIRM.

I.

A.

On January 12, 2021, Grand Rapids police were searching for Emmanuel Merritt, who had two outstanding arrest warrants, when they received information that he had checked into a hotel. Video surveillance showed Merritt arriving with a female in a white Kia Sportage the day before. When officers approached Merritt outside the hotel, he ran but was soon apprehended. A search revealed that Merritt was carrying $1,724 and a cell phone.

Officers spoke with the woman accompanying Merritt, and she told them she drove Merritt to the hotel the night before with Merritt riding in the front passenger seat. Because the Kia Sportage was her car, she permitted officers to search it, which revealed two handguns under the front passenger seat. The woman said she knew nothing about the guns and did not know they were there. Officers discovered evidence connecting Merritt to the guns on his cell phone, including photos and videos of him holding the guns recovered from the Kia Sportage and another firearm that police had recovered earlier from an abandoned vehicle. That abandoned vehicle contained two guns alongside AT&T store receipts bearing Merritt's name.

On March 10, 2021, a federal grand jury indicted Merritt on one count of being a felon in possession of firearms—the two pistols found in the Kia Sportage—in violation of 18 U.S.C. § 922(g)(1). Merritt was arrested on October 18, 2021, and released on bond a few days later.¹ But less than one month into his pretrial release, Merritt allegedly "threatened to shoot up the residence of [his girlfriend] and her family members." R.49, PSR, p.5 ¶9, PageID 193. Merritt later showed up to his girlfriend's workplace, which she reported to the police. He admitted to violating the conditions of his release but denied making threats.

As a result, Pretrial Services modified his bond conditions to allow Merritt to move out from living with his girlfriend. He gave authorities a new address, but when Pretrial Services conducted a home visit on November 17, 2021, Merritt was not there. The owner of the residence told them that she knew Merritt but he had never lived there. So "Pretrial Services was unaware of Mr. Merritt's current whereabouts." R.49, p.6 ¶9, PageID 194. Perhaps unsurprisingly, when it came time for Merritt's final pretrial conference two days later, Merritt was nowhere to be found. So the district court issued a warrant for Merritt's arrest.

Two days later, officers pulled Merritt over in a rental car in Sugarland, Texas. Once they discovered the federal warrant for Merritt's arrest, they asked him to exit the vehicle, but he sped off and evaded arrest. Eight months later, in July 2022, Ohio State Troopers arrested Merritt in northern Ohio.

B.

In August 2022, Merritt pleaded guilty to one count of felony possession of firearms. A probation officer prepared an initial presentence report (PSR) for the sentencing. This initial PSR did not include an adjustment for obstruction of justice, but it did include a three-level reduction for acceptance of responsibility. The government objected to both the inclusion of an acceptance-of-responsibility reduction and the exclusion of an obstruction-of-justice adjustment. For his part, Merritt objected to the scoring of a prior state offense in his criminal history calculation and argued that he should receive credit for accepting responsibility.

In response, the probation officer prepared a final PSR, this time adding a two-level enhancement for obstruction of justice and removing the previous acceptance-of-responsibility reduction. This put Merritt's total offense level at 28, and with a criminal history category IV, Merritt's imprisonment range was 110-137 months. Because the then-existing statutory maximum for his crime was 120 months, see 18 U.S.C. § 924(a)(2) (2018), his range was reduced to 110-120 months. Merritt again objected to the denial of the acceptance-of-responsibility reduction and to the calculation of his criminal history score.

At sentencing, the district court disagreed with both objections.² As for Merritt's argument that he accepted responsibility after he had been recaptured, the court found that "given the whole history of [Merritt's] conduct in this case," Merritt had "not clearly demonstrated acceptance of responsibility," so the district court did not grant the two-level reduction. R.65, Sent. Tr., p.30, PageID 347. And on Merritt's challenge to his criminal history score, the district court found that the PSR scored it "correctly." Id. at pp.40-41, PageID 357-58. The district court sentenced Merritt to a within-Guidelines sentence of 120 months in prison. Id. at p.58, PageID 375. Merritt timely appealed. He argues that the district court (1) erred in denying the acceptance-of-responsibility reduction and (2) did not properly calculate the criminal history score. We examine each in turn.

II.

A.

The Sentencing Guidelines tell district courts to "decrease the offense level by 2 levels" if "the defendant clearly demonstrates acceptance of responsibility for his offense." U.S.S.G. § 3E1.1(a). When a defendant has also obstructed justice, both adjustments may be warranted in "extraordinary cases,"³ but "courts have employed an exacting standard to determine whether a defendant has accepted responsibility after having obstructed justice." United States v. Williams, 940 F.2d 176, 183 (6th Cir. 1991).

Regarding our standard of review when considering these types of issues, our court pivoted from de novo to clear-error review nearly two decades ago. Before Buford v. United States, 532 U.S. 59, 121 S.Ct. 1276, 149 L.Ed.2d 197 (2001), we consistently reviewed district courts' application of an acceptance-of-responsibility enhancement to undisputed facts de novo. See United States v. Holland, 1 F. App'x 266, 267 (6th Cir. 2001); United States v. Whitman, 209 F.3d 619, 622 (6th Cir. 2000); United States v. Tilford, 224 F.3d 865, 867 (6th Cir. 2000); United States v. Jeter, 191 F.3d 637, 638 (6th Cir. 1999); United States v. Childers, 86 F.3d 562, 563 (6th Cir. 1996). But we changed in 2002, after Buford said that district courts were entitled to deference in their application of the career-offender enhancement to undisputed facts. See United States v. Miller, 45 F. App'x 359, 364 (6th Cir. 2002) (referencing Buford, 532 U.S. at 63-66, 121 S.Ct. 1276). Cases acknowledging that pivot have since applied clear-error review to district courts' application of the acceptance-of-responsibility enhancement to undisputed facts. See United States v. Searer, 636 F. App'x 258, 260 n.1 (6th Cir. 2016); United States v. Arzola, 528 F. App'x 487, 495 (6th Cir. 2013); United States v. Fortner, 491 F. App'x 692, 695 (6th Cir. 2012); United States v. Redmond, 475 F. App'x 603, 612 (6th Cir. 2012); United States v. Genschow, 645 F.3d 803, 813 (6th Cir. 2011); United States v. Balboa-Gallardo, 417 F. App'x 459, 460 (6th Cir. 2011) (per curiam); United States v. Clements, 142 F. App'x 223, 226 (6th Cir. 2005); United States v. Brown, 367 F.3d 549, 556 (6th Cir. 2004); United States v. Webb, 335 F.3d 534 (6th Cir. 2003). We've reflected this shift away from de novo review in recent cases emphasizing the "great deference" given to district courts on this question. United States v. Histed, 93 F.4th 948, 961 (6th Cir. 2024) (quoting United States v. McCloud, 730 F.3d 600, 605 (6th Cir. 2013)).

For example, we explained in Webb that we afford "great deference" or "due deference" to the district court's decision. 335 F.3d at 537-38 (first quoting U.S. Sentencing Guidelines Manual § 3E1.1 cmt. n.5 (2000); and then quoting 18 U.S.C. § 3742(e)). This tracks our general tendency to defer to a district court's application of Guidelines to facts, which arises because most of these application questions are fact-bound. See United States v. McCullough, No. 22-3984, 2023 WL 8717228, at *2 (6th Cir. Dec. 18, 2023) (citing United States v. Wallace, 51 F.4th 177, 183 (6th Cir. 2022)). Although that tendency does not apply across the board. See United States v. Thomas, 933 F.3d 605, 608-09 (6th Cir. 2019) (collecting cases). Moreover, as we note above, we have gone so far as to say that we review the acceptance-of-responsibility question for "clear error"—even though that standard is generally reserved for straight fact questions. Genschow, 645 F.3d at 813; Webb, 335 F.3d at 537.

All of this seems straightforward and would point indisputably to clear-error review of acceptance-of-responsibility questions. But we have not always been consistent on...