United States v. Quentin Sherer

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 14a0261p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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UNITED STATES OF AMERICA, ┐

Plaintiff-Appellee, │

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│ Nos. 13-1821/2619

v. │

>

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QUENTIN SHERER (13-1821); MARTIN TUCKER (13- │

2619), │

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Defendants-Appellants. │

│

┘

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 2:11-cr-20706—Robert H. Cleland, District Judge.

Decided and Filed: October 22, 2014

Before: BOGGS, SUTTON, and STRANCH, Circuit Judges.

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COUNSEL

ON BRIEF: Paul M. Laufman, LAUFMAN & NAPOLITANO, LLC, Cincinnati, Ohio, for

Appellant in 13-1821. Kenneth P. Tableman, KENNETH P. TABLEMAN, P.C., Grand Rapids,

Michigan, for Appellant in 13-2619. Frances Lee Carlson, UNITED STATES ATTORNEY’S

OFFICE, Detroit, Michigan, for Appellee.

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OPINION

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SUTTON, Circuit Judge. Quentin Sherer had a habit of robbing banks. Martin Tucker

made a living as a semipro boxer. Together, they stole $6,000 dollars from a Michigan credit

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union. Separately, they challenge their sentences and convictions on six grounds. We affirm the

district court in all respects.

I.

In 2009, two masked men burst into the Monroe County Community Credit Union

waving guns. The taller man—a light-skinned African American wearing a black hooded

sweatshirt—forced bank teller Alice Norris to give him the money in her drawer. The shorter

man—fully masked and wearing a gray hooded sweatshirt—confronted Anthony Scorziello,

Norris’s coworker, who turned over the money in his drawer as well. Scorziello had the

presence of mind to include a “dye pack” with the bounty: four twenty-dollar bills wrapped

around a tear-gas grenade. The dye pack exploded as the robbers sped away in their Pontiac,

spewing gas and red smoke into the air.

John Kortas, a customer, witnessed the robbery through the bank’s drive-through

window. After dialing 911, he pulled out of the parking lot and pursued the fleeing car,

providing the police with its plate number in the process. Along the way, he saw the robbers

pitch a bag out the window, red dye “coming out [of it] like smoke.” Sherer R. 85 at 135.

Kortas chased the two across the Michigan-Ohio border to Toledo, where they eventually ditched

the car and managed to elude Kortas and the police.

The FBI and local authorities spent two years investigating the crime. In 2011, a federal

grand jury indicted Quentin Sherer on two offenses: bank robbery, see 18 U.S.C. § 2113(a), and

use of a firearm in relation to a crime of violence, see 18 U.S.C. § 924(c). Nine months later, it

added Martin Tucker to both counts of the indictment.

Several damning facts came to light during the trial. The getaway car had been stolen the

night before the robbery, and the FBI recovered Tucker’s DNA from its steering wheel.

Investigators discovered a pair of gloves, a t-shirt, and a knit cap near the abandoned Pontiac.

DNA on the first two items matched Sherer’s, while DNA on the third matched Sherer’s and

Tucker’s. Tucker stands 5'7'' without shoes and is a light-skinned African American, just like the

man in black. Sherer stands 5'3'' and has the word “southpaw”—a term for a left-handed

pitcher—tattooed on his body, the same height and handedness as the man in gray. Sherer and

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Tucker were known associates (as evinced by a photo from Sherer’s MySpace page dated

“summer ‘09”) and lived just blocks apart from each other—and from the home of the Pontiac’s

rightful owner. In the ten days before the robbery, they tried to call each other twenty-seven

times.

The jury also heard considerable testimony about the guns used in the crime. A customer

described how Tucker touched a gun to her hair, explaining that it “was kind of heavy . . . when

it hit. It wasn’t like [the gun] was plastic.” Sherer R. 85 at 72. Norris said she “thought

[Tucker’s gun] was real” because it resembled the handguns her husband kept at home. Id. at

94–95. Scorziello initially thought Sherer’s gun was fake but, after learning to shoot between the

time of the robbery and the trial, he changed his mind, citing the gun’s metallic appearance, its

apparent weight, and its layout. And FBI Agent George Nikolopoulos—competitive shooter,

two-decade SWAT veteran, and FBI- and NRA-certified gun instructor—identified both guns as

real based on enhanced photos from the bank’s surveillance tapes.

The jury found both defendants guilty. Tucker received a 147-month sentence; Sherer, a

540-month sentence. The defendants appeal, raising three claims apiece.

II.

The Speedy Trial Act. Sherer claims that his trial should never have happened. In his

view, the district court improperly denied his motion to dismiss under the Speedy Trial Act. The

Speedy Trial Act requires the Government to try a defendant within seventy days of his

indictment or first appearance, whichever is later, and lists a number of excusable delays that do

not subtract time from the clock. 18 U.S.C. § 3161(c)(1), (h). To benefit from the statute, a

defendant must first ask the district court to dismiss the charges against him. Id. § 3162(a)(2).

Sherer’s failure to comply with the Act’s instructions nips his claim in the bud. His

motion to dismiss did not allege a violation of the Act—a “simple matter of producing a calendar

and showing that more than seventy days have passed since the indictment (or first appearance)

and trial has yet to begin.” United States v. Jenkins, 92 F.3d 430, 438 (6th Cir. 1996). The

Government’s clock began ticking on November 10, 2011, the day his indictment came down.

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Sherer filed his motion on January 6, 2012, fifty-seven days later. A Speedy Trial Act violation

does not occur thirteen days before the Government’s time runs out.

Sherer’s head-scratching choice to file a premature motion may be explained by the fact

that, on January 4, 2012, the district court granted the government’s request to postpone the trial

until March 5, 2012. But even if this continuance was a problem (it was not as we explain

below), Sherer still could not prevail. As our sister circuits have held and as we agree, “a motion

for dismissal [under the Speedy Trial Act] is effective only for periods of time which antedate

[its] filing.” United States v. Connor, 926 F.2d 81, 84 (1st Cir. 1991). “[A] court need only

consider alleged delay which occurs prior to and including the date on which the motion is made.

The right to challenge any subsequent delay is waived” unless the defendant brings a new motion

to dismiss. United States v. Wirsing, 867 F.2d 1227, 1230 (9th Cir. 1989). This makes all the

more sense given the Supreme Court’s conclusion that any pretrial motion—even the defendant’s

motion to dismiss under the Speedy Trial Act—stops the statutory clock. See United States v.

Tinklenberg, 131 S. Ct. 2007, 2016 (2011). The proper course was to challenge the continuance

on day seventy-one (or later), a course Sherer never took. That failure waives his rights under

the statute. See 18 U.S.C. § 3162(a)(2).

Sherer’s claim lacks merit in any event. The Speedy Trial Act excludes delay caused by

a continuance “that [serves] the ends of justice” and “outweigh[s] the best interest of the public

and the defendant in a speedy trial.” Id. § 3161(h)(7)(A). The district court’s extension of the

trial date until March 5 explained why the continuance met this standard: The government

needed time to procure DNA evidence that could definitively establish Sherer’s guilt or

innocence. That decision does not amount to an abuse of discretion in light of DNA’s probative

value. See United States v. Beverly, 369 F.3d 516, 527–31 (6th Cir. 2004); United States v.

Bonds, 12 F.3d 540, 566–67 (6th Cir. 1993). And that is all the Speedy Trial Act demands.

Sufficiency of the evidence. Both defendants challenge the sufficiency of the evidence

supporting their convictions: Sherer once, Tucker twice. Because neither defendant moved for

acquittal at the end of the trial, we must reject all three challenges unless the convictions

represent a “manifest miscarriage of justice.” United States v. Tragas, 727 F.3d 610, 617 (6th

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Cir. 2013) (quotation omitted). That means the record must be “devoid of evidence pointing to

guilt.” Id. at 618 (quotation omitted).

Start with Sherer’s argument, which boils down to a claim of mistaken identity. Two

eyewitnesses, he points out, testified that the robber in the black sweatshirt had light-colored

skin—but Sherer does not. So how could he have robbed the bank? Simple: Sherer was the

robber wearing gray.

Tucker’s claims are more complex. He first argues that he could be tied to the robbery

only through the FBI’s DNA analysis, which allegedly was statistically insufficient to justify a

guilty verdict. We need not resolve the point because DNA was not the only arrow in the

Government’s quiver. Tucker was the same height as the robber in black, lived just blocks away

from where the getaway car was stolen, associated with Sherer at the time the robbery occurred,

and called Sherer’s phone twenty-seven times in the ten days before the robbery. Once we view

the evidence in the light most favorable to the Government, as we must, see Jackson v. Virginia,

443 U.S. 307, 319 (1979), it becomes clear that no “manifest miscarriage of justice” occurred.

Tucker separately argues that the gun used in the robbery was fake, not real. True, a

weapon must be capable of “expel[ling] a projectile by the action of an explosive” to qualify as a

firearm under the statute. 18 U.S.C. § 921(a)(3). But the government need not supply “scientific

certainty” to prove the point. United States v. Cobb, 397 F. App’x 128, 132 (6th Cir. 2010); see

United States v. Crowe, 291 F.3d 884, 887 (6th Cir. 2002). Not one but two eyewitnesses

testified that Tucker’s gun looked and felt like the genuine article, and the government

introduced surveillance photographs that reinforced those accounts. Tucker’s doubts cannot

overcome the force of the Government’s presentation, especially under this deferential standard

of review. See United States v. Conner, 306 F. App’x 978, 981–82 (6th Cir. 2009) (rejecting an

identical argument even when one witness testified that the gun looked like it was made of black

plastic).

Admissibility of Agent Nikolopoulos’s testimony. Tucker claims the district court erred

by allowing Agent Nikolopoulos to testify that Tucker’s gun was real. Because Tucker failed to

make this objection at trial, we must review the court’s decision for plain error, reversing only if

(among other requirements) the decision affected “substantial rights.” United States v. Johnson,

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488 F.3d 690, 697 (6th Cir. 2007). To meet this last requirement, Sherer must show that the trial

would have turned out differently but for the agent’s testimony. United States v. Jones, 108 F.3d

668, 672 (6th Cir. 1997) (en banc). In light of all the other evidence arrayed against him, Sherer

cannot climb that hill.

The sentence. Sherer claims that his forty-five-year sentence is, in legal parlance,

substantively unreasonable. A district court has wide latitude to select an adequate sentence, and

we reverse only if it abused its discretion when applying the relevant statutory factors. Gall v.

United States, 552 U.S. 38, 51 (2007); see 18 U.S.C. § 3553(a).

Sherer faults the district court for recognizing that, but for an “accounting twist,” Sherer

would have qualified as a career offender under the federal sentencing guidelines. Sherer R. 78

at 2. As it turns out, this ill-fated robbery wasn’t Sherer’s first: Between December 1999 and

January 2000, he robbed five Toledo banks. He pleaded guilty to two of those crimes—but

because he was sentenced for both on the same day, the two sentences merged into one under the

guidelines’ counting rules. See U.S.S.G. § 4A1.2(a)(2). The math made a difference, reducing

his recommended sentence from a forty-seven-year maximum to a range topping out at thirty.

After weighing all of the § 3553(a) factors, the court applied the longer range anyway. In its

words, “there is no justice in allowing [him] . . . to escape the impact and design of the career

offender sentencing range simply by . . . accident or happenstance.” R. 89 at 24. This, Sherer

says, shows that the district court placed too much emphasis on his criminal history.

We disagree. To start, Sherer ignores the district court’s careful consideration of the

statutory factors. It described his conduct as “menacing,” “mean,” and “threatening.” Id. at 22.

It noted that he robbed the credit union just “eight months” after spending ten years in jail for a

previous robbery spree. Id. at 21–22. And it concluded that his “risk of recidivism [wa]s higher

than in any case that [it] ha[d] ever reviewed.” Id. at 22. This is precisely what an independent

weighing of the § 3553(a) factors allows.

More, Sherer’s argument fails on its own terms. The guidelines are replete with “cliffs”

that can lengthen—or shorten—a sentence depending on which side of the line a defendant falls.

Take the embezzlement guideline, which increases a defendant’s base offense level by 8 points if

he stole more than $70,000 but less than $120,000. U.S.S.G. § 2B1.1(b)(1). If the defendant

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stole one dollar more ($120,001), his offense level goes up by 10 points, permitting a district

court to sentence him at the bottom of the range or to vary below the range on that ground,

among others. Indeed, our published and unpublished precedents have approved identical

variances before.

Sometimes courts have varied upward, in precisely the same manner as the district court

did here. In United States v. Hardy, Hardy would have qualified as a career offender had his

rape conviction not resulted in a suspended sentence. 643 F.3d 143, 158 (6th Cir. 2011). The

district court sentenced him as a career offender anyway, as “his history clearly demonstrated a

violent criminal pattern and future threat.” Id. We affirmed—just as we did in United States v.

Robinson, 357 F. App’x 677, 689–90 (6th Cir. 2009). Robinson too did not qualify as a career

offender under the guidelines; Robinson too had compiled a lengthy list of felony convictions;

Robinson too was sentenced to an above-guidelines sentence that we deemed reasonable on

appeal. Id.; see also United States v. Minch, 438 F. App’x 485, 490–92 (6th Cir. 2011)

(affirming an upward variance because the defendant’s criminal history category “substantially

underrepresented” his past criminal conduct and future likelihood of reoffending); United States

v. Lanning, 633 F.3d 469, 474–75 (6th Cir. 2011) (same); United States v. Matheny, 450 F.3d

633, 640–41 (6th Cir. 2006) (same).

Other times, courts have varied downward, in precisely the opposite manner as the

district court did here. Take United States v. Welch, 555 F. App’x 538 (6th Cir. 2014). The

guidelines classified Welch as a career offender with a criminal history category of VI. Id. at

543. Recognizing that Welch “technically score[d] as [a] career offender but d[id]n’t seem to

meet the profile,” the district court handed down a below-guidelines sentence. Id. Or take

United States v. Collington, 461 F.3d 805 (6th Cir. 2006). The guidelines placed Collington in

criminal history category IV. Id. at 808. But because their mechanistic calculations “did not

account for” the innocuous nature of his previous crimes, the district court reduced his sentence

from the minimum recommended time by 36%. Id. at 808 n.2. Or take United States v.

Grossman, 513 F.3d 592 (6th Cir. 2008). There, concerned that the guidelines unjustly

disaggregated “an offense into very tiny increments that almost repeat one another,” the district

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court reduced Grossman’s sentence to just over half of what the guidelines recommended. Id. at

594. Did the district court act unreasonably in any of these cases? Not at all, we said.

All of these cases apply the same principle to sentencing variances—up or down—and

make one thing clear: The district court in this instance did not abuse its considerable discretion

when it opted to give Sherer a sentence comparable to one that a career offender would have

received.

For these reasons, we affirm.