NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0198n.06
Filed: March 24, 2006
No. 04-6119
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff - Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE WESTERN
) DISTRICT OF KENTUCKY
CHARLES A. PAYNE, )
)
Defendant - Appellant. )
Before: GIBBONS, GRIFFIN, and BRIGHT*, Circuit Judges.
PER CURIAM. A jury convicted Charles Payne of manufacturing and possessing with
intent to manufacture and distribute marijuana, possession of methamphetamine, and possession of
firearms in furtherance of a drug trafficking crime. Payne appeals his conviction and sentence,
arguing that (1) the district court erred in permitting the prosecution to recall a deputy sheriff to
testify that Payne did not have a hunting license after Payne had advanced the defense theory that
he possessed the firearms1 for hunting and target shooting; (2) the district court erred in light of
United States v. Booker, 543 U.S. 220 (2005), and United States v. Harris, 397 F.3d 404 (6th Cir.
2005), because Payne’s sentence was increased based on the judge’s determination of firearm type;
and, (3) the district court committed plain error by sentencing Payne under a now impermissible
*
The Honorable Myron H. Bright, Judge of the United States Court of Appeals for the
Eighth Circuit, sitting by designation.
1
The jury determined Payne possessed in furtherance of his drug activity two .38 caliber
revolvers, a .22 caliber rifle, and a .762 caliber assault rifle.
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Page 2
mandatory sentencing guidelines system. With respect to the first point on appeal, we affirm
because Payne has not shown plain error. The government concedes the second and third points on
appeal.
BACKGROUND
On December 10, 2002, the police went to Payne’s residence on suspicion of drug activity.
After obtaining Payne’s consent, the police searched his house and found methamphetamine,
products used in the manufacture of methamphetamine, 5.1 pounds of marijuana, and six guns.2 The
guns were found in the kitchen, about five feet from the marijuana, and some of the guns were
propped against the kitchen wall. Evidence presented at trial showed four of the six guns were
loaded.
At trial, Payne’s main defense to the weapons charge was that he owned the guns because
he was a hunter and gun collector. Payne’s girlfriend testified that Payne collected guns and
occasionally used them to target shoot or hunt game. Payne’s residence was situated on thirty-eight
acres of land. The government later recalled a deputy sheriff, Tracey Batey, to testify that Payne
did not have a hunting license. Batey’s recall testimony in its entirety is as follows:
BY [PROSECUTOR]:
Q. Good morning. At my request, have you checked to see whether the
defendant, Charles Anthony Payne, had a hunting license in December of 2002?
A. Yes, sir, I did. I checked with the Kentucky Fish and Wildlife.
Q. Did he have a license?
2
The police also found four additional “fake” guns in Payne’s house, but these did not
figure into the trial.
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A. No, sir, he did not.3
J.A. at 91.
Payne did not object to this testimony and did not cross-examine Batey. Payne did not testify
on his own behalf. Although neither side mentioned it at trial, Ky. Rev. Stat. § 150.170(3) allows
landowners and tenants to shoot game on their own property without first procuring a license.
The jury convicted Payne of manufacture and possession with intent to distribute marijuana,
as well as simple possession of methamphetamine. The jury also found that Payne possessed four
of the six charged guns, specifically those guns that were loaded, in furtherance of his drug
trafficking crime. The district court sentenced Payne to two concurrent six-month terms for the first
two counts and a consecutive 126-month term for the third count. Payne now appeals his conviction
and sentence.
DISCUSSION
a. The recall testimony of Tracey Batey
Payne maintains that the district court erred in allowing the recall testimony of deputy sheriff
Tracey Batey. He also argues that the government’s recalling of Batey rose to the level of
prosecutorial misconduct. As we have noted, Batey testified that he had checked with the Kentucky
Fish and Wildlife Department and had been told that Payne did not have a hunting license. Because
Payne did not object to this testimony at trial, the appellate court reviews it for plain error. Under
the plain error standard, a reviewing court will correct an error only if the error is (1) plain, (2)
3
The questioned testimony in this case was clearly hearsay and perhaps not relevant. We
shall assume that the trial judge would have excluded the testimony on proper objection.
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affects substantial rights, and (3) seriously affects the fairness, integrity, or public reputation of
judicial proceedings. United States v. Cotton, 535 U.S. 625, 632 (2002).
The admission of Batey’s testimony did not constitute plain error. This testimony did not
affect Payne’s substantial rights. Whether Payne used the guns for hunting appeared to be of lesser
importance to the jury than the fact that the guns were loaded and in close proximity to the drugs.
Moreover, some of the weapons, particularly an assault rifle and handguns, would not be used to
hunt. Finally, the claim of using the guns or any of them for target shooting is eroded by evidence
that both handguns were loaded. A target shooter is unlikely to keep his target guns loaded and
ready for use while the guns are in the home. If Payne’s lack of a hunting license were crucial to
the jury’s determination, the jury probably would have determined that all six guns were used in
association with the drug trafficking. We emphasize that only the loaded guns, close to the drugs,
were the offending weapons. In addition, the government points out that the circumstances could
indicate that Payne possessed the guns both for hunting and in furtherance of his drug trafficking
crimes, and thus the knowledge that the defendant could hunt on his own land without a hunting
license would not necessarily establish the defense.
In connection with the above argument, Payne asserts that the government’s action in
recalling Batey constituted prosecutorial misconduct. This claim fails as well. Batey was not
recalled to testify until just before the trial concluded, and the defense chose not to object to this
testimony. In addition, the evidence that Batey gave did not appear to be crucial to the jury’s
determination that four of Payne’s six guns were used in furtherance of drug trafficking. In order
for a prosecutorial misconduct claim to succeed, the prosecutor’s statements must have been
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improper, and they must have been flagrant and warrant reversal. United States v. Crayton, 357 F.3d
560, 572 (6th Cir. 2004). “To warrant a new trial, however, prosecutorial misconduct must be so
pronounced and persistent that it permeates the entire atmosphere of the trial.” United States v.
Krebs, 788 F.2d 1166, 1177 (6th Cir. 1986). Batey’s recall testimony did not rise to the level of
prosecutorial misconduct required for a new trial. Id.
b. Sentencing under 18 U.S.C. § 924(c)
Payne next maintains that his sentence under 18 U.S.C. § 924(c) violates United States v.
Booker, 543 U.S. 220 (2005), and United States v. Harris, 397 F.3d 404 (6th Cir. 2005). The district
court sentenced Payne to the section 924(c) ten-year mandatory minimum triggered by the use of
semiautomatic assault weapons, as opposed to the five-year mandatory minimum for non-
semiautomatic weapons. Weapon type, however, was neither charged in the indictment nor
presented to the jury. Under United States v. Harris, firearm type for section 924(c) purposes is an
element of the offense rather than a sentencing factor and therefore must be charged in the
indictment and proved beyond a reasonable doubt. 397 F.3d at 412. The government concedes and
we agree that, under Harris, this court should vacate the district court’s application of the 18 U.S.C.
§ 924(c)(1)(B)(i) penalty and remand for resentencing.
c. Sentencing under the mandatory sentencing guidelines system
Finally, Payne argues that this court should remand for resentencing on all three counts
because the district court sentenced him under a now impermissible mandatory sentencing
guidelines system. The government concedes this point as well. Under United States v. Barnett,
it is plain error for a defendant “to be sentenced under a mandatory Guidelines regime that has now
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become advisory.” 398 F.3d 516, 526 (6th Cir. 2005). Such cases should be remanded for
resentencing unless the record “contains clear and specific evidence that the district court would not
have, in any event, sentenced the defendant to a lower sentence under an advisory Guidelines
regime.” Id. at 529. The district court sentenced Payne at the low end of the guidelines range,
making this a “particularly strong” case for remand. United States v. Sanders, 404 F.3d 980, 988
(6th Cir. 2005).
We affirm the convictions but vacate the sentences and remand for resentencing.