United States District Court, N.D. Indiana, Fort Wayne Division
SENTENCING OPINION
HOLLY
A. BRADY JUDGE
The
Defendant, Camari Stinson, has pled guilty to unlawful
possession of a firearm by a felon (18 U.S.C. §
922(g)(1)), distributing a controlled substance (21 U.S.C.
§ 841(a)(1)), and possession of a firearm in furtherance
of the trafficking crime (18 U.S.C. § 924(c)). He is
awaiting sentence. Several issues impacting the calculation
of the Guidelines remain outstanding. This Sentencing Opinion
resolves those issues.
ACCEPTANCE
OF RESPONSIBILITY
Defendant
entered a plea of guilty on December 4, 2017, the day before
his trial was scheduled to begin. Over three months later, on
March 29, 2018, the Court was prepared to conduct an
evidentiary hearing on Defendant's objection to the PSR
when Defendant notified the Court of his intent to withdraw
his guilty plea. In his Verified Petition to Withdraw Guilty
Pleas [ECF No. 109], Defendant asserted that his cousin's
death plunged him into depression at a time when he was
attempting to wean himself from prescribed anti-depressant
medication. He further asserted that this caused “an
inability in my mind to be properly prepared for trial in
this case” and feeling “pressured to plead guilty
. . . as my only remaining option.” (Verified Pet. 1.)
Defendant maintained that he “did not commit these
offenses, such that all required elements could be proven
beyond a reasonable doubt.” (Id. at 2.)
The
Court took the motion under advisement and conducted an
evidentiary hearing. The Government presented the testimony
of Agent Wayne Lessner from the Bureau of Alcohol, Tobacco,
Firearms, and Explosives (ATF) to address Defendant's
claim that he was innocent of the charges to which he pled
guilty. Defendant did not present evidence. Upon
consideration of the evidence, and its review of the
parties' written submissions and the transcript of the
change of plea hearing, the Court denied Defendant's
request to withdraw his pleas of guilty to Counts I, II, and
III of the Indictment charging him with being a felon in
possession of a firearm, in violation of 18 U.S.C. §
922(g)(1), distributing a controlled substance, in violation
of 21 U.S.C. § 841(a)(1), and possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c).
The
Government's objection is based on Defendant's
attempt to withdraw his guilty pleas. The Government argues
that Defendant's conduct is inconsistent with acceptance
of responsibility and, therefore, he is not entitled to a
two-level reduction under Guideline § 3E1.1.
Ordinarily,
a defendant who enters a plea of guilty receives a two-level
reduction in his offense level for clearly demonstrating
acceptance of responsibility for his offense under U.S.S.G.
§ 3E1.1(a). Application Note 1 states that an
appropriate consideration in determining if a person clearly
accepted responsibility includes truthfully admitting the
conduct comprising the offenses of conviction, and truthfully
admitting or not falsely denying any additional relevant
conduct for which the defendant is accountable under §
1B1.3 (Relevant Conduct). However, Note 3 further says that
this may be outweighed by conduct of the defendant that is
inconsistent with acceptance of responsibility. U.S.S.G.
§ 3E1.1 cmt. n.3; United States v. Sellers, 595
F.3d 791, 793 (7th Cir. 2010) (“Evidence pointing
toward acceptance of responsibility may be outweighed by
other incompatible acts or statements.”).
Defendant
bears the burden of proving that he is entitled to the
reduction. United States v. Fuller, 15 F.3d 646, 650
(7th Cir. 1994). Entering a plea of guilty is not automatic
grounds for applying the reduction, United States v.
Dachman, 743 F.3d 254, 259 (7th Cir. 2014), and the
Seventh Circuit has noted that, where a defendant has made
belated or ill-fated attempts to withdraw his plea,
“[l]ongstanding precedent permits district judges to
withhold the adjustment for that reason alone, ”
United States v. Collins, 796 F.3d 829, 836 (7th
Cir. 2015) (citing as examples United States v.
Price, 988 F.2d 712, 733 (7th Cir. 1993); United
States v. Trussel, 961 F.2d 685, 691 (7th Cir. 1992);
Fuller, 15 F.3d at 650-51).
Here,
when moving to withdraw his pleas, Defendant did not point to
any deficiency in the Court's colloquy during the change
of plea hearing. Neither did his submission convince the
Court that the statements he made under oath when he entered
his guilty pleas were false, or that he was unable to
comprehend what he was doing when he entered those pleas.
Despite the Court's identification of numerous questions
that remained unanswered in Defendant's Verified
Petition, and the opportunity to develop the record during an
evidentiary hearing, Defendant did not attempt to answer any
of those lingering questions. Rather, the circumstances
suggested quite clearly that Defendant's denial of guilt,
and claim of actual innocence, was a direct response to
receiving a PSR that included relevant conduct that exposed
him to a higher Guideline range. Specifically, Defendant was
implicated in an attempted murder during the period of time
that he was charged with unlawfully possessing a firearm. The
Court has since sustained his objection. Defendant maintains
that he is still entitled to the reduction for acceptance of
responsibility. He correctly notes that the basis for a
second motion to withdraw his
guilty plea was directed at the application of the Guidelines
as it related to the attempted murder, and that he admitted
possessing a firearm as a convicted felon between December
29, 2014, to February 5, 2015. In the second motion he was
only denying his involvement in the shooting incident of
December 29, 2014, not that he was in possession of a firearm
on the other three dates, times, and locations set forth in
the PSR.
The
Court has agreed with Defendant with respect to the December
2014 shooting, at least for purposes of applying the
Guidelines. Therefore, the motion to withdraw that was
specifically directed at that conduct and its sentencing
implications would not be a basis to conclude that he did not
accept responsibility. However, his argument ignores the
first Verified Petition to Withdraw Guilty Pleas. The Court
concludes that Defendant has not clearly demonstrated that he
accepted responsibility for his criminal conduct. In fact,
because Defendant denied the essential factual elements of
guilt, the Government was required to present proof of those
elements at an evidentiary hearing. The Government offered
the testimony of Agent Lessner, the undercover agent who was
with a confidential informant and Defendant when Defendant
procured cocaine for the informant and showed them the
firearm. The Government also introduced exhibits to counter
Defendant's claim that he was innocent.
For
these reasons, the Court sustains the Government's
objection and finds that the PSR should be revised to
eliminate the reduction for acceptance of responsibility
under § 3E1.1(a).
OFFENSE
CONDUCT
Defendant
objects to any reference in the PSR to him being a
“shooter” during the December 2014 shooting
incident. (Objection, ECF No. 169.) He asserts that, based
upon the Court's April 22, 2019, Order sustaining his
objection to the offense calculation related to his role in
an attempted murder, he should not be referred to as the
shooter.
The PSR
was revised after the Court issued an Opinion and Order
sustaining Defendant's objections to the Final
Presentence Investigation Report. The Revised Report does not
identify Defendant as the shooter. Rather, is sets forth
background facts that give context to the offense conduct.
For example, in Paragraph 5, it is noted that the ATF
targeted Defendant for investigation after a confidential
informant advised that Defendant was talking about his
involvement in the December 2014 shooting. Although Defendant
had further conversation with the CI about the shooting that
are recounted in the PSR, the PSR also notes Defendant's
position that he was only claiming ...