United States District Court, M.D. Alabama, Eastern Division
MEMORANDUM OPINION AND ORDER
Keith Watkins United States District Judge
Jamal Hutchinson pleaded guilty to being a felon in
possession of a firearm. He is now before the court for
sentencing. Hutchinson does not dispute that he has three
prior felony convictions. Nor does he dispute that on April
5, 2017, police officers found a loaded pistol in his
waistband. The question before the court is whether he
possessed any other firearms - and if so, under what
court finds that Hutchinson possessed three other firearms,
including two that he used to commit armed robbery. On
September 1, 2014, Hutchinson robbed a gas station at
gunpoint. During that robbery, he pistol-whipped the pregnant
store clerk. Sometime between March 1, 2017, and April 4,
2017, he possessed a rifle capable of accepting a
large-capacity magazine. And on April 17, 2017, he committed
another armed robbery, once again pistol-whipping the victim.
Based on these findings, the government's objection to
the Presentence Investigation Report is due to be sustained.
Hutchinson's objection is due to be overruled.
the government bears the burden of proof at sentencing, it
need not establish a fact beyond a reasonable doubt. Rather,
it is enough to prove a fact by a preponderance of the
evidence. United States v. Maddox, 803 F.3d 1215,
1220 (11th Cir. 2015) (per curiam). So if it is more likely
than not that Hutchinson committed a crime, the court may
take that crime into account. United States v.
Watts, 519 U.S. 148, 157 (1997) (per curiam).
Federal Rules of Evidence do not formally apply at
sentencing. Fed.R.Evid. 1101(d)(3). Rather, the court
“may consider any evidence, regardless of its
admissibility at trial, . . . provided that (1) the evidence
has sufficient indicia of reliability, (2) the court makes
explicit findings of fact as to credibility, and (3) the
defendant has an opportunity to rebut the evidence.”
United States v. Hernandez, 906 F.3d 1367, 1369
(11th Cir. 2018). This includes reliable hearsay. United
States v. Zlatogur, 271 F.3d 1025, 1031 (11th Cir. 2001)
November 2017, Hutchinson and three others were named in a
four-count indictment. (Doc. # 1.) Hutchinson, Marquavious
Howard, and Jamal Macon were all charged with robbery (Count
One) and with brandishing a firearm during a crime of
violence (Count Two). Hutchinson was charged with being a
felon in possession of a firearm (Count Three). And
Hutchinson and Malik Williams were both charged with
discharging a firearm during a crime of violence (Count
Four). The government later dismissed Counts One, Two, and
Four. (Docs. # 65, 135.) Hutchinson pleaded guilty to Count
Three. (Doc. # 128.) There is no plea agreement.
sentencing, a probation officer prepared a Presentence
Investigation Report (PSR). The government filed a sentencing
memorandum and exhibits. (Doc. # 153.) So did Hutchinson.
(Docs. # 154, 156.) Both parties object to the PSR. The
government objects that the PSR fails to hold Hutchinson
responsible for possessing three or more firearms. Hutchinson
objects that the PSR holds him responsible for using or
possessing a firearm in connection with another felony.
court held a hearing on January 17, 2019. (Docs. # 144, 157,
158.) The government called three witnesses at that hearing.
One was Investigator Mitchell Allen of the Lee County,
Alabama, Sheriff's Office. The other two were Detective
Dustin Holt and Sergeant Michael Creighton, both of the
Auburn, Alabama, Police Division. The government submitted
four videos, two audio recordings, and thirteen documents
(including photos) into evidence. Hutchinson called Orlando
Gonzalez, an investigator for the Federal Defenders Office,
as a fact witness. Hutchinson also submitted three documents
FINDINGS OF FACT
facts resolve the objections to the PSR. First, Hutchinson
used a pistol to commit armed robbery on September 1, 2014.
Second, sometime between March 1, 2017, and April 4, 2017, he
possessed a rifle that could accept a large-capacity
magazine. Third, he possessed a pistol on April 5, 2017. And
fourth, he used a pistol to commit armed robbery on April 17,
2017. The government has proven each of these facts by a
preponderance of the evidence.
Hutchinson committed an armed robbery on September 1,
September 1, 2014, two men robbed a gas station in Auburn,
Alabama, at gunpoint. Surveillance camera footage shows that
both robbers brandished pistols and wore cloth masks. One
robber wore a royal blue jacket; the other wore a navy blue
hoodie. The robber in the royal blue jacket jumped the
counter, pointed his gun at the store clerk's head,
shoved the clerk to her knees, and ordered her to open the
cash register. The clerk was six to eight months pregnant at
the time. The clerk complied with the robbers'
instructions, but the robber in the royal blue jacket still
hit her head with his pistol. That blow caused a deep gash
that sent the clerk to the hospital for either stitches or
staples. After emptying the cash register, the robbers fled
on foot. (Exhibit A-1; Doc. # 158, at 36-37, 47.)
was the robber in the royal blue jacket, and Marquavious
“Quay” Howard was the robber in the navy blue
hoodie. This finding is based on statements given to
Detective Holt and on a proffer interview.
Cordarious Wright implicated Hutchinson.
February 2015, Cordarious Wright, one of Hutchinson's
acquaintances, was under arrest in Auburn. Detective Holt
took the opportunity to ask Wright about the September 2014
robbery. Holt did not offer or promise Wright anything in
return for making a statement. (Doc. # 158, at 37-40, 62-65.)
gave a statement identifying Hutchinson as the robber in the
royal blue jacket and Quay Howard as the robber in the navy
blue hoodie. Wright also said he was with Hutchinson and
Howard when a television news station aired a surveillance
photo of the robbers. Implicitly admitting their guilt,
Hutchinson and Howard stated, “They can't tell who
we are.” (Doc. # 157-3.)
challenges Wright's statement. In an April 2015
affidavit, a man named Remus Menifield said that Wright
admitted to framing Hutchinson. (Doc. # 157-13.) And
according to a May 2015 affidavit by a man named Craig
Stinson, Wright “never [saw] Jamal Hutchinson . . .
commit any sort of crime.” (Doc. # 157-11.) Both
Menifield and Stinson claim that Wright implicated Hutchinson
to help his own chances of getting out of jail and to get
revenge on Hutchinson. These affidavits are not due much
weight, however. Though they appear to be notarized, there is
no evidence about why or how Menifield and Stinson signed
their affidavits (such as whether they were threatened with
or promised something). Menifield and Stinson did not deliver
their affidavits to anyone who testified at the hearing.
There is also no evidence ...