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United States v. Hutchinson

United States District Court, M.D. Alabama, Eastern Division

March 12, 2019

UNITED STATES OF AMERICA
v.
JAMAL AIKEEM HUTCHINSON

          MEMORANDUM OPINION AND ORDER

          W. Keith Watkins United States District Judge

         Defendant 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 circumstances.

         The 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.

         I. LEGAL STANDARDS

         Though 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).

         The 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) (per curiam).

         II. PROCEDURAL HISTORY

         In 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.

         Before 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.

         The 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 into evidence.[1]

         III. FINDINGS OF FACT

         Four 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.[2]

         A. Hutchinson committed an armed robbery on September 1, 2014.

         On 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.)

         Hutchinson 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.

         1. Cordarious Wright implicated Hutchinson.

         In 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.)

         Wright 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.)

         Hutchinson 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 ...


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