KAREN NELSON MOORE, Circuit Judge.
This consolidated appeal arises from the convictions and sentencing of Jordon Ford ("Ford"), Jasper Perdue ("Perdue"), Tyrone Nathan ("Nathan"), and Wilnell Henry ("Henry") for crimes arising from their involvement in a conspiracy to commit a series of armed robberies in the Lansing, Michigan area, between February 2009 and October 2009. We address each of their arguments in turn. For the reasons set forth below, we
The grand jury returned an indictment against Ford, Perdue, Nathan, and Henry on March 31, 2010. R. 1 (Indictment at 1) (Page ID #1). A superseding indictment was returned on June 30, 2010. Each defendant was charged with one count of conspiracy to commit robbery affecting commerce in violation of 18 U.S.C. § 1951;
The district court had jurisdiction pursuant to 18 U.S.C. § 3231. This court has jurisdiction over the appeals pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
Ford and Perdue both challenge the admission of evidence regarding their gang affiliation and the impact of the robbery on a witness to the crime.
Federal Rule of Evidence 401 provides that "[e]vidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Fed. R.Evid. 401. Federal Rule of Evidence 403 provides that "[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of... unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed.R.Evid. 403. "Unfair prejudice `does not mean the damage to a defendant's case that results from the legitimate probative force of the evidence; rather it refers to evidence which tends to suggest decision on an improper basis.'" United States v. Gibbs, 182 F.3d 408, 430 (6th Cir.1999) (quoting United States v. Bonds, 12 F.3d 540, 567 (6th Cir.1993)).
We review a district court's evidentiary rulings for an abuse of discretion. United States v. Fisher, 648 F.3d 442, 449 (6th Cir.2011). "[W]e will reverse a district court's evidentiary decisions only where the `abuse of discretion has caused more than harmless error.'" Id. (quoting United States v. Johnson, 440 F.3d 832, 847 (6th Cir.2006)). "Under harmless error analysis, reversal is warranted only if the instruction affected a substantial right of the defendants." Gibbs, 182 F.3d at 428 (citing Fed.R.Crim.P. 52(a)).
Ford and Perdue both argue that the district court abused its discretion by permitting the government to introduce evidence of their affiliation with the Vice Lords gang.
Ford and Perdue argue that the evidence of gang affiliation was irrelevant because the co-defendants' relationship was not at issue. Ford Appellant Br. at 44; Perdue Appellant Br. at 13. During the pre-trial hearing on the admissibility of the gang evidence, Perdue's counsel conceded the relationship amongst the defendants as "members of a rap group, and they all congregated often at the studio of Mr. Henry." R. 200 (Trial Tr. at 6) (Page ID #668). Ford and Perdue argue that the gang evidence was highly prejudicial and not probative because the co-conspirators were involved in different gangs, gang affiliation is not an element of robbery, and the leaders of the conspiracy indicated that the Vice Lords gang was not connected to the robberies.
Evidence of gang affiliation is relevant where it demonstrates the relationship between people and that relationship is an issue in the case, such as in a conspiracy case. See United States v. Williams, 158 Fed.Appx. 651, 653-54 (6th Cir.2005); Gibbs, 182 F.3d at 429-30. However, gang affiliation evidence "is inadmissible
Ford and Perdue argue that the district court abused its discretion by allowing a robbery witness to testify about how she was impacted by witnessing the Mario's Market robbery. At trial, when the Assistant United States Attorney asked the witness if the robbery had any effect on her, counsel for Ford objected on the basis of relevance;
Ford and Perdue were both charged with multiple counts of conspiracy to commit robbery affecting commerce in violation of 18 U.S.C. § 1951. An element of this offense is interference with interstate commerce. This element is satisfied by a showing of even a de minimis effect on interstate commerce. United States v. Baylor, 517 F.3d 899, 902 (6th Cir.2008) (holding that the interstate commerce element was satisfied through evidence that a restaurant that was robbed routinely purchased and used ingredients from other states). However, this witness did not testify that she altered her shopping practices as a result of the robbery — she testified only to her emotional state when entering stores. The government offers no authority to establish that a crime witness's feelings of nervousness when entering stores after witnessing a robbery in a store is relevant to the element of interstate commerce. Although most stores engage in
Nonetheless, even assuming that introduction of this evidence was in error, we conclude that any error was harmless. "`[A]n error which is not of constitutional dimension is harmless unless it is more probable than not that the error materially affected the verdict.'" United States v. Davis, 577 F.3d 660, 670 (6th Cir.2009) (quoting United States v. Childs, 539 F.3d 552, 559 (6th Cir.2008)). Because Ford and Perdue stipulated that the interference with interstate commerce element was satisfied and because the testimony was not substantially prejudicial or inflammatory, any error in admitting this evidence did not materially affect the verdict. Therefore, the district court did not abuse its discretion by allowing testimony of the effect of the robbery on a witness to that crime.
Perdue challenges the district court's limitation on his cross-examination of a government witness regarding his exculpatory out-of-court statements as a violation of the Confrontation Clause. Ford challenges the introduction of non-testifying codefendant Perdue's out-of-court statement.
Perdue argues that the district court abused its discretion by limiting his cross-examination of FBI Special Agent Plantz ("Plantz"), who testified to Perdue's inculpatory out-of-court statements. Plantz testified that Perdue admitted that he was involved in the Mount Hope robbery, but only as a lookout. R. 206 (Trial Tr. at 160 (Page ID # 2231)). We review for abuse of discretion a challenge to the district court's evidentiary rulings, even on Confrontation Clause grounds. United States v. Holden, 557 F.3d 698, 703 (6th Cir.2009). "It is an abuse of discretion for a district court to commit legal error or find clearly erroneous facts." Id.
On cross-examination, Perdue attempted to elicit testimony regarding his exculpatory out-of-court statements, but the district court sustained the government's objections to these questions on the basis of hearsay. Defense counsel asked Plantz if Perdue had identified an individual in a photo and admitted that it was him; the Assistant U.S. Attorney objected, and the court sustained the objection. R. 206 (Trial Tr. at 167-68 (Page ID # 2238-39)). Defense counsel later asked Plantz, "[Perdue] never admitted to you that he shot that clerk, did he?" The government objected, and the court again sustained the objection on hearsay grounds. Id. at 170-71 (Page ID # 2241-42). Perdue argues that he should have been allowed to introduce his statements under the Confrontation Clause and the rule of completeness. Because the statements that Perdue attempted to introduce were hearsay not within any exception, the district court did not abuse its discretion by limiting the scope of Perdue's cross-examination.
Out-of-court statements made by a party-opponent are an exception to the general hearsay rule. Fed.R.Evid. 801(d)(2). This exception reflects that
Nor was the district court's limitation on cross-examination an abuse of discretion under the rule of completeness. Perdue argues that once excerpts of his statement came into court, the entirety of the statement needed to be introduced to understand the statements in the proper context. He argues that "[t]he jury was left with the impression that Perdue had partially confessed, when in fact the tenor of the interview was the opposite." Perdue Appellant Br. at 21. "The `rule of completeness' allows a party to correct a misleading impression created by the introduction of part of a writing or conversation by introducing additional parts of it necessary to put the admitted portions in proper context." United States v. Holden, 557 F.3d 698, 705 (6th Cir.2009). This common-law principle "was codified for written statements in [Federal Rule of Evidence] 106, and ... extended to oral statements through interpretation of [Federal Rule of Evidence] 611(a)." Id. (footnotes omitted). However, the rule of completeness "is not designed to make something admissible that should be excluded." United States v. Costner, 684 F.2d 370, 373 (6th Cir.1982). "Right or wrong, this court has acknowledged that under Costner, `[e]xculpatory hearsay may not come in solely on the basis of completeness.'" United States v. Adams, 722 F.3d 788, 826 (6th Cir.2013) (quoting United States v. Shaver, 89 Fed. Appx. 529, 533 (6th Cir.2004)). Because the exculpatory statements were inadmissible hearsay, the district court did not abuse its discretion under the rule of completeness by limiting Perdue's cross-examination of Plantz.
Ford argues that introduction into evidence of the statements of his non-testifying co-defendant, Perdue, violated his Confrontation Clause rights under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). In Bruton, the Supreme Court held that the Confrontation Clause is violated by the introduction of an incriminating out-of-court statement by a non-testifying co-defendant, even if the court gives a limiting instruction that the jury may consider the statement only against the co-defendant. Id. at 136-37, 88 S.Ct. 1620.
Generally, we review de novo Confrontation Clause challenges. United States v. Vasilakos, 508 F.3d 401, 406 (6th Cir.2007). However, when a defendant fails to object on Confrontation Clause grounds at trial, we review the claim for plain error. United States v. Martinez, 588 F.3d 301, 313 (6th Cir.2009). "Plain
The general requirement that a defendant must contemporaneously object to the introduction of evidence or forfeit his or her claim "serves to induce the timely raising of claims and objections, which gives the district court the opportunity to consider and resolve them." Puckett v. United States, 556 U.S. 129, 134, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). A defendant who does not contemporaneously object may not raise the claim of trial error on appellate review unless it is "[a] plain error that affects substantial rights..." Fed.R.Crim.P. 52(b). In this circuit, we have recognized some exceptions to the requirement of a contemporaneous objection. A defendant need not make a contemporaneous objection if he or she raised an evidentiary challenge in a motion in limine and the trial court ruled against the defendant in an "an explicit and definitive ruling" that is not "conditioned upon any other circumstances or evidence." United States v. Brawner, 173 F.3d 966, 970 (6th Cir.1999). "However, if the court's ruling is in any way qualified or conditional, the burden is on counsel to raise objection to preserve error." Id. This rule recognizes that the efficiency goals of requiring contemporaneous objections are not furthered if the court has already definitively ruled on the evidence at issue.
Our circuit has not decided whether a motion to sever preserves a Bruton objection. The circuits to consider this question have split on the answer. See United States v. Nash, 482 F.3d 1209, 1218 n. 7 (10th Cir.2007) (holding that a pretrial motion to sever preserved the Bruton claim even though defendant did not object to the introduction of the evidence at trial); United States v. Vega Molina, 407 F.3d 511, 519-20 (1st Cir.2005) (holding that a motion to sever preserved the Bruton objection when the district court categorically denied the motion to sever because it concluded that the statement was not incriminating); but see United States v. Turner, 474 F.3d 1265, 1276 (11th Cir.2007) (reviewing Bruton claim for plain error when defense counsel did not contemporaneously object to testimony but did move for severance the next day); United States v. Jobe, 101 F.3d 1046, 1068 (5th Cir.1996) (reviewing Bruton claim for plain error where district court denied motion to sever but defendant did not contemporaneously
We hold that the introduction of the statement that Ford challenges on appeal does not violate the Bruton rule and so does not violate Ford's Confrontation Clause rights. Ford concedes that Perdue's statement, as it was introduced at trial, did not name Ford. Ford Appellant Br. at 37. Ford argues that the Bruton problem arose from the fact that Perdue's statement corroborated evidence previously introduced that did implicate Ford. Id. at 40. However, "Bruton does not bar the use of a redacted codefendant's confession `even if the codefendant's confession becomes incriminating when linked with other evidence adduced at trial.'" United States v. Cobleigh, 75 F.3d 242, 248 (6th Cir.1996) (quoting United States v. DiCarlantonio, 870 F.2d 1058, 1062 (6th Cir. 1989)). Any conclusion by the jury that Perdue's statement implicated Ford might be made only by linking the statement to other evidence. Introduction of the statement did not, therefore, violate the Bruton rule. The district court did not commit error by allowing the introduction of the statement.
Ford argues that the district court abused its discretion by failing to conduct individual Remmer hearings after one juror expressed concern about her safety. We review jury-misconduct claims for an abuse of discretion. United States v. Wheaton, 517 F.3d 350, 361 (6th Cir.2008).
After the jury left the courtroom on January 25, the district court informed counsel that it had received a note from a juror indicating safety concerns.
"The sixth amendment right to trial by jury is designed to ensure criminal defendants a fair trial by a `panel of impartial, indifferent' jurors.'" United States v. Shackelford, 777 F.2d 1141, 1145 (6th Cir. 1985) (quoting Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961)). In Remmer v. United States, the Supreme Court held that when a trial court learns of possible juror bias, the court must "determine the circumstances, the impact thereof upon the juror, and whether or not it was
Before trial, a stipulation was entered by Ford's and Perdue's attorneys that the robberies alleged in the superseding indictment satisfied the 18 U.S.C. § 1951 element of interference with interstate commerce.
R. 208 (Trial Tr. at 20-21) (Page ID # 2509-10) (emphasis added). Ford argues that the district court erred by denying his right to a jury trial without properly inquiring whether he waived that right knowingly, intelligently, and voluntarily.
Because Ford did not raise this argument in the district court, we review for plain error. United States v. Monghan, 409 Fed.Appx. 872, 875 (6th Cir. 2011). "[T]he burden of establishing entitlement to relief for plain error is on the defendant claiming it." United States v. Dominguez Benitez, 542 U.S. 74, 82, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004). Plain error requires (1) an "error or defect," (2) that is "clear or obvious," and (3) that
Ford and Perdue argue that the district court violated the Double Jeopardy Clause by improperly predicating multiple 18 U.S.C. § 924(c) counts on the single conspiracy count. Typically, the application of 18 U.S.C. § 924(c) is a question of law that we review de novo. United States v. Langan, 263 F.3d 613, 626-27 (6th Cir.2001). However, because neither Ford nor Perdue raised this objection at sentencing, we review for plain error. United States v. Yancy, 725 F.3d 596, 600 (6th Cir.2013).
Ford and Perdue were each convicted of a single act of conspiracy in violation of 18 U.S.C. § 1951; multiple counts of robbery in violation of 18 U.S.C. § 1951; and multiple counts of possession and brandishing or discharging a firearm in furtherance of crimes of violence in violation of 18 U.S.C. § 924(c). R. 77 (Superseding Indictment). Each § 924(c) count was charged in the indictment as being in furtherance of the crimes of violence alleged in Count 1 (conspiracy count) and a robbery count. For example, Count 3 charging Ford with a violation of § 924(c) stated:
R. 77 (Superseding Indictment at 4) (Page ID # 132). Count 1 charged Ford with conspiracy; Count 2 charged Ford with the February 11, 2009, robbery of Check Into Cash. Id. at 3 (Page ID # 131). The indictment thus predicated the § 924(c) charge on both the conspiracy charge and a single robbery charge. The other § 924(c) counts followed this format. The verdict form and special interrogatories clearly indicate that the jury found that each § 924(c) conviction was predicated on guilt of both the conspiracy count and a robbery count. R. 190 (Jury Verdict) (Page ID # 642).
"The Double Jeopardy Clause of the Fifth Amendment prohibits multiple punishments for the same criminal act or transaction." United States v. Graham, 275 F.3d 490, 519 (6th Cir.2001). Because of this prohibition, "a court may not impose more than one sentence upon a defendant for violations of section 924(c) which relate to but one predicate offense." United States v. Sims, 975 F.2d 1225, 1233 (6th Cir.1992). However, we do "uph[o]ld multiple convictions and sentences under 18 U.S.C. § 924(c)(1) so long as such convictions are based on separate predicate acts." Graham, 275 F.3d at 519-20. Although every § 924(c) count was based on the same conspiracy count, each was also
Perdue argues that the district court did not recognize its authority to disagree with the Sentencing Guidelines as a basis for a downward variance. He concedes that his claim is reviewed for plain error because he did not object to this procedural error during sentencing and the district court conducted an adequate Bostic inquiry.
The Presentence Investigation ("PSR") calculated Perdue's period of incarceration at a range of 1,494 to 1,546 months, largely due to lengthy mandatory minimum sentences for the multiple § 924(c) counts. Presentence Investigation Report at 39. Before the sentencing hearing, Perdue filed a motion for a downward departure or variance. R. 215 (Perdue Sent. Mot. at 1) (Page ID # 2723); R. 216 (Perdue Sent. Memo.) (Page ID # 2724). He argued that the imposition of what amounted to a life sentence violated the Eighth Amendment and 18 U.S.C. § 3553. R. 216 (Perdue Sent. Memo.) (Page ID # 2724). The government opposed the request for a downward departure or variance. R. 228 (Gov't Opp. to Perdue Sent. Memo.) (Page ID # 2789). Perdue was sentenced to 1,464 months of incarceration. R. 256 (Ford Sent. Tr. at 24) (Page ID # 2943).
On appeal to this court, Perdue argues that the district court committed procedural error by failing to recognize its authority to vary from the Sentencing Guidelines based on the effect of the § 924(c) sentences and Eighth Amendment concerns. Perdue Appellant Br. at 26-29. "A sentence is procedurally inadequate if the district court fails to calculate properly the Guidelines range, treats the Guidelines as mandatory, fails to consider the section 3553(a) factors, selects the sentence based upon clearly erroneous facts, or fails to adequately explain the chosen sentence." United States v. Harmon, 607 F.3d 233, 238 (6th Cir.2010) (citing Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)).
As evidence that the court did not recognize its discretion to vary from the Guidelines, Perdue points to a statement of the district court during the sentencing hearing: "And even though the same authority I've just talked about I think precludes me from any kind of a departure or variance on the robbery offenses because I think he's already getting enough time on the weapons offenses, I don't think I can do that." Perdue Appellant Br. at 28-29 (quoting R. 206 (Perdue Sentencing Tr. at 21-22) (Page ID # 2940-41)). This comment came after the district court discussed Sixth Circuit cases analyzing whether a district court may vary or depart below the statutory mandatory minimums in order to honor the mandate under § 3553(a) that the sentence be "sufficient but not greater than necessary, to comply with" the goals of
The district court's recognition of its lack of authority to sentence below the mandatory minimum for the § 924(c) counts through consideration of the § 3553(a) factors was correct under the law of this circuit. In United States v. Franklin, we held that "§ 3553(a) factors do not apply to congressionally mandated sentences." 499 F.3d 578, 585 (6th Cir. 2007). Even when a district court considers the mandatory minimum sentences to be "`draconian' and `inappropriate,'" nonetheless "[w]hen a court and a mandatory minimum are in conflict, the minimum wins." United States v. Cecil, 615 F.3d 678, 695 (6th Cir.2010). Although a sentence may be procedurally unreasonable if it "fails to consider the section 3553(a) factors," Harmon, 607 F.3d at 238, a sentence is not rendered procedurally unreasonable by the district court correctly acknowledging when it lacks discretion. Accordingly, the district court did not err and Perdue's sentence was not procedurally unreasonable.
Nathan argues that his sentence is procedurally unreasonable because the district court misapplied § 1B1.2(d) of the 2011 U.S. Sentencing Guidelines Manual ("U.S.S.G.") by considering robberies for which he was indicted but did not plead guilty as object offenses of the conspiracy, leading to a five-level sentencing enhancement. He argues that his sentence was substantively unreasonable because the enhancement based on the robberies violated his Sixth Amendment right to a jury trial. We review his claim for an abuse of discretion. United States v. Christman, 607 F.3d 1110, 1117 (6th Cir.2010). "An error of law in the application or interpretation of the Guidelines constitutes an abuse of discretion." United States v. Levy, 250 F.3d 1015, 1017 (6th Cir.2001).
Nathan argues that his sentence is procedurally unreasonable because the district court erroneously counted robberies as object offenses of the conspiracy to which he pleaded, even though neither the indictment nor his plea agreement specified which robberies were objects of the conspiracy.
Nathan pleaded guilty to Count 1 of the superseding indictment, conspiracy to commit robbery affecting interstate commerce. R. 129 (Nathan Plea at 1) (Page ID # 251). The indictment did not provide any specific information about the robberies that were the objects of the conspiracy; it merely stated that the conspiracy occurred "[f]rom in or about February 2009, to on or about October 9, 2009, in Ingham County, in the Southern Division of the Western District of Michigan ..." and that "[t]he object of the conspiracy was to obtain money by committing robberies of commercial businesses in the greater Lansing, Michigan, area." R. 77 (Superseding Indictment at 1-2) (Page ID # 129-30).
In determining the adjustments to Nathan's sentence under § 3D1.4, the PSR assigned units for thirteen robberies that it concluded were objects of the conspiracy and came to a combined adjusted offense level of thirty-six. PSR at 31-32. Because robbery offenses are not subject to the grouping rules, see §§ 3D1.2(d), 2B3.1, the PSR determined Nathan's offense level as if he had been convicted of conspiracy
Section 1B1.2(d) provides that "[a] conviction on a count charging a conspiracy to commit more than one offense shall be treated as if the defendant had been convicted on a separate count of conspiracy for each offense that the defendant conspired to commit." Application Note 3
Application Note 4 to § 1B1.2(d) urges:
U.S.S.G. § 1B1.2(d), cmt. n. 4 (emphasis added). Nathan argues that the thirteen robberies were not "alleged in the conspiracy count" by the indictment or the plea under Application Note 4, and therefore should not have been counted as object offenses.
We have not decided whether robberies may be counted as object offenses
Nathan argues that his sentence was substantively unreasonable because the district court made factual findings that Nathan committed the robberies; Nathan argues that the sentencing enhancement based on the findings of the district court violated his Sixth Amendment right to a jury trial, and therefore rendered his sentence substantively unreasonable. This claim is without merit. Application Note 4 to § 1B1.2(d) provides that when "the verdict or plea does not establish which offense(s) was the object of the conspiracy," an offense may be counted "with respect to an object offense alleged in the conspiracy count if the court, were it sitting as a trier of fact, would convict the defendant of conspiring to commit that object offense." After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), "a District Court may rely on extra-verdict facts or on those other than which the defendant has specifically admitted when it calculates his sentence." United States v. Cook, 453 F.3d 775, 777 (6th Cir.2006). "[U]nder the advisory Guidelines, [a] defendant may be sentenced up to the statutory maximum if such a sentence would comply with 18 U.S.C. § 3553(a)." United States v. Barton, 455 F.3d 649, 655-56 (6th Cir.2006). That Nathan's sentencing enhancement was based on findings by the district court, not the jury, did not violate his Sixth Amendment right to trial by jury, and accordingly, Nathan's sentence is not substantively unreasonable.
Henry argues that his sentence was procedurally unreasonable because the district court failed to articulate the applicable Sentencing Guidelines range after granting a § 5K1.1 departure and
The district court began Henry's sentencing hearing by stating the applicable Guidelines range; with an offense level of 29 and criminal history Category VI, the Guidelines range was 151 to 188 months of imprisonment. R. 291 (Henry Sent. Tr. at 10) (Page ID # 3181). The district court then discussed whether there were reasons for a variance based on the 18 U.S.C. § 3553(a) factors or a departure under § 5K1.1 based on Henry's substantial assistance to authorities. Id. at 19 (Page ID # 3190). The district court concluded that Henry had provided substantial assistance that warranted an adjustment, but proceeded to discuss his concerns that Henry was the leader of the robbery conspiracy, was the "least believable" of the co-conspirators who provided testimony at trial, had lied to law enforcement, and had a criminal history beginning at age twelve. Id. at 22-27 (Page ID # 3193-98). The district court mentioned coconspirator Nathan's sentence of 168 months and then sentenced Henry to 150 months of imprisonment. Id. at 29-30 (Page ID # 3200-01).
Henry argues that the district court was required to state the new Guidelines range that applied after granting the § 5K1.1 downward departure, and then to state specifically the amount of the upward variance from that new Guidelines range. However, we have held that "[t]here is no requirement that, after concluding that a departure is warranted, the court must specify a new, adjusted sentencing range." United States v. Herrera-Zuniga, 571 F.3d 568, 588 (6th Cir.2009). A sentence may be procedurally unreasonable when the district court fails to identify "any specific, numeric Guidelines range at any point during the hearing." United States v. Novales, 589 F.3d 310, 314 (6th Cir. 2009) (emphasis added); see also Gall, 552 U.S. at 49, 128 S.Ct. 586 (stating that "a district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range.... [T]he Guidelines should be the starting point and the initial benchmark."). Here, however, the district court stated the Guidelines range that applied prior to making any departures or variances. Accordingly, Henry has not demonstrated plain error, and we affirm his sentence.
Ford and Perdue filed pro se motions "to dismiss due to lack of jurisdiction." Ford Memo. at 1; Perdue Memo. at 1. They argue that "[t]he United States lacked subject-matter jurisdiction" "due to the government's failure to prove interference with interstate commerce." Id. Prior to trial, a stipulation was entered that stated that the robberies satisfied the element of interstate commerce. R. 188 (Stipulation at 1) (Page ID # 639). Ford's and Perdue's attorneys signed the stipulation. Id. However, in their motions to dismiss, Ford and Perdue assert for the first time that they were unaware of and did not agree to the stipulation and that
For the foregoing reasons, we
R. 206 (Trial Tr. at 121-22) (Page ID #2192-93).
R. 207 (Trial Tr. at 139) (Page ID #2410).
R. 190-1 (Juror Notes at 2) (Page ID # 652).
