Petition for Writ of Certiorari — Penney v. United States

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Supreme

p lp (Court, U.S.

09-752 DE 22 2099

OFFICE OF THE CLERK

Bn The

Supreme Court of the Anited States

TERRY EUGENE PENNEY,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

BRYAN H. Hoss

Davis & Hoss, P.C.

508 East 5th Street

Chattanooga, TN 37403

(423) 266-0605

(423) 266-0687 — FAX

Counsel of Record

Counsel for Petitioner

December 23, 2009

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED FOR REVIEW

1. Whether in light of Georgia v. Randolph, 547

U.S. 103 (2008) an intermittent girlfriend has

authority to consent to a warrantless search of a

residence when the true owner of the property has

told law enforcement before the search that he had

removed her from his residence, that he did not want

her staying on the property any longer and that she

be kept off his property.

2. Whether the Due Process Clause forbids

Penney’s 1976 state court judgment to be used as a

predicate conviction for 18 U.S.C. § 922(g) because:

(A) the Defendant’s due process rights pursuant to

Boykin v. Alabama were violated; (B) the 1976 judg-

ment was never signed by the trial court in violation

of Tennessee law; and (C) the obvious errors and in-

consistencies in the paperwork that indicate different

criminal offenses and different sentences.

3. Whether Penney lost his Second Amendment

right to possess a firearm as a result of his 1976 state

court conviction because Tennessee law still granted

him his Second Amendment right to bear arms.

4. Whether any law subsequently passed by the

Tennessee legislature prohibiting Penney from own-

ing or possessing a firearm amounts to an unconsti-

tutional Ex Post Facto law in violation of the United

States Constitution.

5. Whether the Fourth Amendment requires

that the triggering event in an anticipatory search

warrant be expressly contingent that the contraband

be on a “sure and irreversible course” to the place to

be searched.

TABLE OF CONTENTS

Page

Questions Presented for Review .................secesseeee i

Table of Commie cnceene a taleindtnsssnesencscecsccccsccccees li

Table oF AncGRi re scehiedatadniieeattescscccsscccccccsccccces ili

Citations of the Opinions and Orders.................... 1

Basis for Fare ite aesscasecncesesccscccccees

Constitutional Provisions & Statutes Involved..... 2

Statement Of Gaim Gaia mar ireiieatatesnctescss vecsccssscccccscsees

APRUMOAL o:cccscrressssais NERA ea ea terecesscescsccecses 17

Con Ch aS 00h .cixccassesseeRnaabeasapenssrenecossceces 31

Appendix

A. United States v. Penney, 576 F.3d 297 (6th

Cin, DOB cccnccsn EGTA Cebapacsescesasccccese App. 1

B. Order denying rehearing and rehearing en

banc, CD vices etkessneeiaccneseeees. App. 132

C. Memorandum and Order, 3/25/04.............. App. 74

D. Memorandum and Order, 5/14/04.............. App. 44

E. Report and Recommendation, 9/15/04....... App. 92

F. Memorandum and Order, 11/9/04.............. App. 77

ill

TABLE OF AUTHORITIES

Page

CASES

Boykin v. Alabama, 395 U.S. 238, 89 S.Ct.

1709, 23 L.Ed.2d 274 (1969).............cccccsceceeees passim

Calder v. Bull, 3 U.S. 386 (1798) ...........ccccseseccsscsscseee 29

Frazier v. Scroggy, 833 F.2d 1012, 1987 WL

38964 (6th Cir. (Ry. 1987))......sccccrssscccrssssvccccecesccoees 22

Gaskin v. Collins, 661 S.W.2d 865 (Tenn. 1983)........ 26

Georgia v. Randolph, 547 U.S. 103, 126 S.Ct.

1515, 164 L.Ed.2d 208 (2008)..................06 17, 18, 19

In re Estate of Hall, 328 F.Supp. 1305 (D.D.C.

SIF 2) cacsrsnitcnnsiacssccensaian cata aaa 23

Logan v. United States, 552 U.S. 23, 128 S.Ct.

475, 169 L.Ed.2d 432 (2007)...............cccsssccsceees 26, 28

McConnel v. Carlton, 2009 WL 1392544

(Tenn.Crim.App. May 19, 2009) ................ceeeeeeeeeee 23

Parke v. Raley, 506 U.S. 20, 113 S.Ct. 517, 121

FAUNA SE 1 I cc xcdieencecpencascinusancacavacanessemmeiaxestas 22

Penny uv. State, 2005 WL 3262929

(Tenn.Crim.App. Dec. 2, 2005), appeal denied

(Mar. 27, 2006) (cert. denied by Penney v.

Tennessee, 127 S.Ct. 350, 166 L.Ed.2d 44

CEE, nt CO Fe i diciiesncoccecndesnunasaueaseseens 13. Zi

Roddy v. Black, 516 F.2d 1380 (6th Cir. 1975).......... 22

Rudolph v. Parke, 856 F.2d 738 (6th Cir. 1988)......... 22

TABLE OF AUTHORITIES — Continued

Page

State v. Mackey, 553 S.W.2d 337 (Tenn.

SET Fisksissariaciarsscknatpaccnataacacddenesabasibaniisieuciel 13, 20, 21

State v. Moore, 814 S.W.2d 381 (Tenn.Crim.App.

SN cancednccscussintbenssienesbaceninenisvanaaimenmcueunieiad 21, 23

State v. Thomas, 1995 WL 676396 (Tenn.Crim.App.

MITE vecasisinscenbiciitisa sanuahebeaianensasdeganseaneseeudenounencsmaieiicesins 23

United States v. Cassidy, 899 F.2d 543 (C.A.6

a cacaa anche lie le aces recat aa cd 27

United States v. Gallaher, 275 F.3d 784 (C.A.9

SII sols sku haccnréastcanGubibc Waionmandde WGdabianacaniiciaadcanudstawadsbaniulide 27

United States v. Penney, 576 F.3d 297 (6th Cir.

SIE <sdiiniubdsconsusaicksmbieasnivtacusdinibebebisinmnsaaidacin passim

United States v. Ricciardelli, 998 F.2d 8 (1st

i: SII cas ccicddancessthesisaneonenscatuasdentdecernadmaumians 29, 30

United States v. Roses Incorporated, 706 F.2d

Re IE wisi cesicasinensscincstsusinninsiesovinaaieien 23

STATUTES

es ee Nisin cisceininesdinievceciewesienaieiesiatateicaccanes 15

Be Bree BS ea vvnvsnvevenscconescccccecccnnes 2, 20, 26, 27

ey Oe ao ncccccouniicsesrcsnsaveseveseusaouaninn passim

Be re ID iikvtvesioncs concinsinerssayncsseceses 14, 15, 22, 31

ee nh te IE ai. ci-dacracanvounsssssinsmaarcnneesswieaseicmenanectae 14

i ee oe I ai cecticecncacasvaciossncxcnssscecbacndsugunmiateccupices 14

Bee Es OS Be iiss cieiascsavceiessndotaceaieainasescanian 15

TABLE OF AUTHORITIES — Continued

Page

28 U.S.C. 5 | RESERIEEN Se een. CoE NP RRR MET ER Fy 1

Tenn. Code Ann. § 39-17-1307(b)(1)(B).................. 3, 27

Tenn. Code Ann. § 39-17-1351....................0000s oe

Temn. Code Ann. § 40-20-113.........cccscscccccccccesscsssevcesces 26

CONSTITUTIONAL PROVISIONS

Bs Ss MII BW cocvcccncsccccvccecsenascuences 2, 18, 29, 30

RULES

Ss I IE NER, cicvsvnssensdiensenunssenscssessuehuaesaninanns 1

nt I IED. su casaccubavsninisendsnsaboonseeeaoassinabaleneeale 1

TT ME ca vsscaseecchéanciesscsvensnbecene 4, 12, 21, 23, 24

MISCELLANEOUS

Tenn.Op.Atty.Gen. No. 97-169, 1997 WL

ES CIGNA. D siccouscsoocsacksanaskaraciiassansatanieverebeanl 26

CITATIONS OF THE OFFICIAL

AND UNOFFICIAL REPORTS OF

THE OPINIONS AND ORDERS ENTERED

IN THIS CASE BY THE COURTS

1. United States v. Penney,’ 576 F.3d 297 (6th

Cir. 2009), rehearing and rehearing en banc denied

(Sept. 24, 2009);

2. United States v. Penney, 2005 WL 1668292

(E.D. Tenn. July 18, 2005):

3. All other district court opinions were unpub-

lished.

BASIS FOR JURISDICTION

The Petitioner is seeking review of a final Judg-

ment entered by the Sixth Circuit Court of Appeals on

August 7, 2009. The Petitioner timely filed a Petition

for Rehearing En Banc which was denied on

September 24, 2009. This Court has jurisdiction

pursuant to 28 U.S.C. § 1254(1) and Sup. Ct. R. 10(b)

& (c). Pursuant to Sup. Ct. R. 29.4(b), notice of this

Petition has been served upon the Solicitor General of

the United States.

' The correct spelling of Petitioner's name is Penney,

however, it was misspelled on the lower court’s docketing sheet

as Penny.

CONSTITUTIONAL PROVISIONS &

STATUTES INVOLVED IN THIS CASE

U.S. Const. Amend. IV provides:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirma-

tion, and particularly describing the place to be

searched, and the persons or things to be seized.

18 U.S.C. § 921(aX20) provides:

The term “crime punishable by imprisonment for

a term exceeding one year” does not include. — (A)

any Federal or State offenses pertaining to anti-

trust violations, unfair trade practices, restraints

of trade, or other similar offenses relating to the

regulation of business practices, or (B) any State

offense classified by the laws of the State as a

misdemeanor and punishable by a term of

imprisonment of two years or less.

What constitutes a conviction of such a crime

shall be determined in accordance with the law of

the jurisdiction in which the proceedings were

held. Any conviction which has been expunged,

or set aside or for which a person has been

pardoned or has had civil rights restored shall

not be considered a conviction for purposes of this

chapter, unless such pardon, expungement, or

restoration of civil rights expressly provides that

the person may not ship, transport, possess, or

receive firearms.

18 U.S.C. § 922(g\1) provides:

(g) It shall be unlawful for any person — (1) who

has been convicted in any court of a crime

punishable by imprisonment for a term exceeding

one year ... to ship or transport in interstate or

foreign commerce, or possess in or affecting com-

merce, any firearm or ammunition; or to receive

any firearm or ammunition which has been

shipped or transported in interstate or foreign

commerce.

Tenn. Code Ann. § 39-17-1307(b)(1)(B) provides

“(b)1) A person commits an offense who possesses a

firearm, as defined in § 39-11-106, and (B) has been

convicted of a felony drug offense.”

Tenn. Code Ann. § 39-17-1351(j)(3) provides:

(j) The department shall not deny a permit

application if: (3) The applicant, who was ren-

dered infamous or deprived of the rights of

citizenship by judgment of any state or federal

court, has had the applicant’s full rights of

citizenship duly restored pursuant to procedures

set forth within title 40, chapter 29, or other

federal or state law; provided, however, that the

provisions of this subdivision (j3) shall not

apply to any person who has been convicted of

burglary, any felony offense involving violence or

use of a- firearm or any felony drug offense

involving a Schedule I, II, III, [V or V controlled

substance. If the applicant has been convicted of

a felony drug offense involving a Schedule VI

controlled substance, the provisions of this

subdivision (j)(3) shall not apply if the offense

occurred within ten (10) years of the date of

application or renewal.

6. Tenn.R.Civ.P. 58 provides:

Entry of a judgment or an order of final dispo-

sition is effective when a judgment containing

one of the following is marked on the face by

the clerk as filed for entry: (1) the signatures of

the judge and all parties or counsel, or (2) the

signatures of the judge and one party or counsel

with a certificate of counsel that a copy of the

proposed order has been served on all other

parties or counsel, or (3) the signature of the

judge and a certificate of the clerk that a copy

has been served on all other parties or counsel.

Following entry of judgment the clerk shall make

appropriate docket notations and shall copy the

judgment on the minutes, but failure to do so will

not affect validity of the entry of judgment. When

requested by counsel or pro se parties, the clerk

shall forthwith mail or deliver a copy of the

entered judgment to all parties or counsel. If the

clerk fails to forthwith mail or deliver, a party

prejudiced by that failure may seek relief under

Rule 60.

STATEMENT OF THE CASE

On August 19, 2003, a barefoot Davota Bowman

(“Bowman”) walked into the Soddy Daisy Police

Department at 8:15 a.m. claiming that she had been

assaulted by her intermittent boyfriend, Terry

Penney (“Penney”). United States v. Penney, 576 F.3d

297, 301 (6th Cir. 2009).

Penney was a life-long resident of Soddy Daisy.

(Trial Transcript, 8/2/05, p. 730). He owned his own

residence located at 10609 Dayton Pike, Soddy Daisy,

Tennessee. Penney, 576 F.3d at 301. The residence

was 3 miles from the Soddy Daisy Police Department

on the same road, Highway 27. Jd. Penney’s family

had owned a business called Penney’s Place since

1948 which was located directly across the street

from his residence. Jd.

According to Detective Mike Sneed (“Sneed”),

Bowman advised that she had “ran out of the house

and flagged someone down to bring her to the police

department.” (Transcript of Motion to Suppress,

7/26/04 p. 8). After being at the station for 30-40

minutes, Bowman told Sneed that she saw in a trash

can a “smoking device.” Jd. Sneed asked her “about

narcotics specifically” and she replied, “I am sure if

you go look that you'll find exactly what you are

looking for.” Jd. at 8-9.

At the same time, Penney walked into the Soddy

Daisy Police Department. Penney, 576 F.3d at 301. He

advised officers that he wanted Bowman immediately

removed from the residence. Jd. He objected to her

going back and wanted her off his property. The

officers arrested Penney for assaulting Bowman and

transported him to the local jail. Jd.

The police had been called earlier that month to

Penney’s residence after Penney and Bowman had

gotten into an argument. /d. The report dated August

2, 2003 stated that Penney “had pushed her out of the

front door of the residence and she had left.” Jd.

On August 19, Bowman did not have a key or any

other means to gain entry. (Transcript of Motion to

Suppress, 7/27/04, p. 41-42). Bowman gave the police

her home address in Graysville, Tennessee and a

separate home telephone number. /d. at 35. Her only

belongings at the house were a bag full of clothes

indicative of an overnight guest. Jd. at 45.

Sneed further testified that Bowman told him

that “in the last several months they had broken up,

and they were getting back together and she had

been there since Sunday [two days prior] . . . and they

were trying to work things out.” Jd. at 9. Bowman

also told another officer that she was called the day

before by Penney “asking her to come to his house.”

Id. at 43.

Over Penney’s objection, the officers and Bowman

proceeded to Penney’s residence. When they arrived,

Bowman went to the front door, but it was locked. /d.

at 56. She did not know how to open it. Jd. She then

proceeded to a side door and used “some type of trick”

to open it. Jd. at 56.

Special Agent Josh Melton testified that Bowman

“assisted in the search of the house.” (Transcript of

Motion to Suppress, 7/26/04, p. 160). He stated that

she showed them guns that were in the house and a

can used as smoking paraphernalia. Jd. Agent Melton

described Bowman’s demeanor as “very aggressive.”

Id. at 171.

While in the residence, the officers searched the

entire house including all closed containers. Id. at 14-

16. They found a green plastic tote which contained

102 grams of marijuana. (Trial Testimony, 7/26/05, p.

34-35). They also found approximately 20 guns,

$1,300 in cash and numerous types of scales. Jd. at

34-36. Sneed admitted that there was no evidence to

suggest that the $1,300 was anything than other

lawful proceeds from Penney’s Place. (Trial Tran-

script, p. 207-208).

Bowman testified at the suppression hearing.

(Transcript of Motion to Suppress, 9/27/04, p. 4). She

testified that her address on August 19, 2003 was the

Graysville address. As to any other question, she pled

the Fifth. Jd. at 7. Defense counsel introduced several

exhibits such as a telephone bill, life insurance

documents, and letters from her attorney which were

all addressed to Bowman at her Graysville address.

Id. at 15-20.

Attorney Larry Roddy testified. He represented

Penney following his domestic assault arrest on

August 19 and prepared an Affidavit that Bowman

had executed. (Transcript of Motion to Suppress,

9/13/04, p. 6). Bowman stated in her affidavit that she

did not live at Penney’s residence when the domestic

assault occurred. Jd. at 7-42. The affidavit was ad-

mitted as evidence.

After August 19, 2003, law enforcement con-

tinued to monitor Penney off and on until early

January, 2004. In early January, 2004, law enforce-

ment began using a CI to arrange a drug transaction

with Penney wherein the CI would bring marijuana

and Penney would locate a purchaser. Id. at 63.

On January 12, 2004, the CI called Penney, told

him that he would be in the next day, and that he had

marijuana. Id. at 64. On the same day, Sneed

obtained an anticipatory search warrant from the

Soddy Daisy Municipal Court Judge. The triggering

event to the anticipatory search warrant stated:

“Penney meets with the CI to examine and attempts

to purchase the narcotics by obtaining funds or

promising to obtain funds in the near future in order

to complete the transaction.”

On January 13, 2004, at approximately 12:20

p.m., the CI went to Penney’s residence but the

purchaser was not there. While the CI was present,

the purchaser called and told Penney that he was on

his way. Id. at 64. The CI left, and made several calls

to Penney later that day to see if the purchaser had

arrived.

The purchaser, “Cotton,” testified at trial that he

arrived at Penney’s residence at 5:35 p.m. (Transcript

of trial, 7-28-05, p. 399). He saw Penney, the two men

talked and they went inside. Jd. He recalled Penney

fixing a large bowl of watermelon and sitting in his

recliner. Jd. He was inside for ten minutes when the

phone rang and heard Penney say, “yeah, come on up

here, like that, you know.” Jd. A few minutes later,

somebody knocked and came inside. Jd. at 399-400.

The CI said he wanted to see the money first. Jd. at

400. Cotton and the CI went outside. Jd. They went to

the passenger side of Cotton’s vehicle, unlocked it,

reached into the back seat, and Cotton had the money

“in two black garbage bags.” Jd. The CI told Cotton

that the drugs were down the road and that he would

go and get them. Jd.

Law enforcement immediately came _ onto

Penney’s property. Cotton testified that the officers

were wearing either blue or black jackets with decals

and they were “hollerin’ police department... ” Id. at

402. Cotton recalled hearing “something hit the front

door” but remembered that Penney had a large

dresser pushed up against the front door. Id. at 402.

He recalled hearing a shotgun blast go off. Jd. at 403.

Cotton remembered hearing an officer yell, “Terry,

put the gun down” and then he heard Terry say, “Is

that you, Sneed?” He recalled hearing the officer say,

“yeah, Terry, put the gun down.”

Cotton testified that neither the money nor the

drugs ever were inside Penney’s residence and stayed

locked in his truck. Jd. at 412-414. He described

Penney’s demeanor as “his normal self” and that he

was just “sitting over there eating watermelon cut up

in a bowl on the recliner.” Jd. at 415-416. Cotton

further explained that he never saw a gun that night

nor during any of his prior transactions with Penney.

Id. at 416-417.

Penney testified that at all times, the blinds

across the front windows of his house were closed. Jd.

at 749-750. He stated, “all I could think about was I

thought I was getting robbed. And I didn’t want to go

through that again, put in the floor, put guns to my

head. I was scared.” Id. at 756.

After Sneed secured the scene and determined

that there was nobody else present in Penney’s house,

he noticed that ATF officer, Paris Gillette, had been

shot through the front window. (Transcript of Motion

to Suppress, 9/13/04, p. 79-80). Agents began giving

him first aid. Jd.

According to Detective Sneed, the agents did not

find any drugs inside the house. They found five (5)

weapons and approximately $6009 in cash. Id. at 82-

83, 194. Detective Sneed testified that he found

Cotton’s money, $35,005, in the truck that was parked

out back. Jd. at 195. There were no drugs on Penney

or inside his residence. Jd. at 203.

Penney was arrested that night and indicted for

various drug and weapon offenses on February 11,

2004. He entered not-guilty pleas.

Penney filed various pre-trial motions that are

the subject of this Writ of Certiorari. They included

the following: (1) a motion to suppress the search of

Penney’s residence on August 19, 2003 arguing his

intermittent girlfriend, Bowman, lacked authority to

give consent to search his residence; (2) a motion to

dismiss the § 922(g) counts and a motion to recon-

sider arguing that (a) he was not a convicted felon;

(b) that his plea was not knowing, voluntary and

intelligent in light of Boykin v. Alabama, 395 U.S.

238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); (c) that

there were substantial errors in the paperwork

showing that he was convicted of a misdemeanor; (d)

that the judgment was unsigned and not entitled to a

presumption of regularity; and (e) in the alternative,

that should this offense be classified as a felony, given

Tennessee’s law at the time, that he never lost his

right to possess a gun and that any restriction on

Penney’s constitutional right to bear arms would be

an unconstitutional Ex Post Facto Law; and (3) a

motion to suppress the anticipatory search warrant

on January 13, 2004 arguing that the triggering

event never occurred and that it violated the “sure

and irreversible course” rule.

The government filed two responses and Penney

filed his reply.

Penneys 1976 unsigned Tennessee state court

judgment has been the source of much debate.

Penney was indicted on April 1, 1975 in the Hamilton

County Criminal Court for feloniously selling a con-

trolled substance.

On May 19, 1976, he allegedly appeared in

Hamilton County Criminal Court before the Honor-

able Judge Campbell Carden. The courtroom minutes

state that Penney pled guilty to “selling a controlled

substance” and that he received a sentence of eleven

(11) months, twenty-nine (29) days which is typically

a misdemeanor sentence. The Court continued

Penney’s case until June 28, 1976 for Penney to file a

Petition for Probation.

On June 16, 1976, Penney filed a sworn Petition

for Probation. The Petition for Probation, signed by

both Penney and his attorney before a Notary, states

that Penney pled guilty to “simple possession of mari-

juana” which is a misdemeanor and received a

sentence of eleven (11) months, twenty-nine (29) days.

On June 28, 1976, Penney allegedly appeared

back before Judge Carden. The June 28, 1976

minutes state that Penney’s Petition for Probation

was sustained. They further state that Penney was

placed on probation for a period of five (5) years.

Although the Judgment is dated June 28, 1976, it

was never signed by Judge Carden in violation of

Tenn.R.Civ.P. 58. The Judgment reflects that Penney

pled guilty to “Attempt to Commit a Felony” not

“selling a controlled substance” as listed in the

courtroom minutes or “simple possession” as listed in

Penney’s sworn Petition.

Penney introduced an Affidavit from the Official

Court Reporter for Hamilton County Criminal Court

who reviewed the official audiotapes from May 19,

1976 and June 28, 1976. There were recordings on

both dates but of other criminal defendants. Ms.

Abigail Pearce listened to them but there was nothing

in those recordings to suggest that the trial court

talked to, acknowledged or ever conducted any voir

dire with Penny.

The Tennessee Supreme Court did not adopt the

necessary voir dire procedures to ensure knowing,

voluntary and intelligent pleas mandated by Boykin

v. Alabama, 395 U.S. 238 (1969) until one year after

Penney pled guilty in State v. Mackey, 553 S.W.2d 337

(Tenn. 1977). Mackey involved the exact same state

court (Hamilton County Criminal Court) in which

Penney pled guilty in May/June 1976.

After Penney was indicted in February, 2004, he

sought state court remedies to attack his 1976 con-

viction. He filed a Motion to Correct Judgment in the

Criminal Court of Hamilton County, Tennessee as

well as a Petition for Post-Conviction relief. Penney’s

state law claims were dismissed. Penney appealed

but the Tennessee Court of Criminal Appeals af-

firmed. See Penny v. State of Tennessee, 2005 WL

3262929 (Tenn.Crim.App., December 2, 2005), cert.

denied March 27, 2006). Both the Tennessee Supreme

Court and the United States Supreme Court denied

Penney’s writ of certiorari. Id.

The District Court denied Penney’s Motions to

dismiss and to reconsider the 922(g) counts in Orders

dated March 25, 2004 and May 14, 2004 without a

hearing. (Memorandum and Order, 3/25/04, Appen-

dix, p. 74) (Memorandum and Order, 5/14/04, Appen-

dix, p. 45). The Court did set an evidentiary hearing

on Penney’s motions to suppress related to the two

searches.

A magistrate conducted a hearing on July 26,

July 27 and September 13, 2004. The magistrate

entered a Report and Recommendation denying the

motions. (R & R, Appendix, p. 92). Penney timely filed

an objection and the District Court entered a

Memorandum & Order adopting the R & R. (Memo-

randum & Order, 11/9/04, Appendix, p. 77).

Penney was subsequently indicted in a second

superseding indictment charging Penney as follows.

Count 1: Conspiracy to distribute 5 kg or

more of cocaine hydrochloride;

Count 2: Conspiracy to distribute 100 kg or

more of marijuana;

Count 4: On August 19, 2003, having been

previously convicted in a court of a crime

punishable by imprisonment for a term ex-

ceeding one year, possessing a firearm and

ammunition (lists 31 different firearms and

ammunition) in violation of 18 U.S.C.

§ 922(g);

Count 5: On August 19, 2003, possess with

the intent to distribute marijuana;

Count 6: On August 19, 2003, possess a

firearm in furtherance of a drug trafficking

crime in violation of 18 U.S.C. § 924(c);

Count 7: On August 19, 2003, possessing a

stolen firearm in violation of 18 U.S.C.

§ 922(j);

Count 8: On August 19, 2003, possessing a

firearm with the manufacturer’s serial num-

ber removed, obliterated and altered in

violation of 18 U.S.C. § 922(k);

Count 10: On October 7, 2003, attempted to

possess with intent to distribute 5 kg of more

of cocaine hydrochloride;

Count 11: On October 7, 2003, attempted to

possess with the intent to distribute mari-

juana;

Count 12: On October 14, 2003, attempted to

possess with the intent to distribute 5 kg or

more of cocaine hydrochloride;

Count 20: On January 13, 2004, attempt to

kill an officer of the United States, Paris

Gillette, while such officer was engaged in

the performance of his official duties in

violation of 18 U.S.C. § 1114;

Count 21: On January 13, 2004, discharging

a firearm during and in relation to a crime of

violence, i.e. attempt murder, in violation of

18 U.S.C. § 924(c)( 1 A)iii);

Count 22: On January 13, 2004, possession

with the intent to distribute marijuana;

Count 23: On January 13, 2004, possessed

firearms in furtherance of a drug trafficking

offense in violation of 18 U.S.C. § 924(c);

Count 24: On January 13, 2004, in further-

ance of a major drug offense, with the intent

to intimidate, harass, and injure, did fire a

weapon into a group of two or more persons

in violation of 18 U.S.C. § 36(b)(1);

Count 25: On January 13, 2004, having been

previously convicted in a court of a crime

punishable by imprisonment for a term ex-

ceeding one year, possessing a firearm and

ammunition (lists 7 different firearms and

ammunition) in violation of 18 U.S.C.

§ 922(g).

The jury trial began on July 26, 2005 and

continued for six (6) days. Penney timely reserved his

objection to his status as a convicted felon. (Trial

Transcript, 8/2/05, p. 867-868).

On August 3, 2005, the jury returned verdicts of

guilty as to Counts 1, 2, 4, 5, 6, 8, 10, 11, 12, 20, 21,

22, 23, 24, & 25. The jury found Penney not guilty of

Count 7.

Penney filed several objections to the PSR. On

November 28, 2005, Penney was sentenced to 895

months in the BOP, 5 years supervised release, fined

$25,000 and ordered to pay a special assessment of

$1,500. Penney timely filed a notice of appeal.

The Sixth Circuit entered its opinion affirming

the Judgment on August 7, 2009. United States v.

Penney, 576 F.3d 297 (6th Cir. 2009). Judge Merritt

dissented. Jd. at 317-18. Penney timely petitioned for

a rehearing en banc which the Sixth Circuit denied on

September 24, 2009. (Order denying rehearing and

rehearing en banc, 9/24/09, Appendix, p. 132).

ARGUMENT

1. Whether in light of Georgia v. Randolph,

547 U.S. 103 (2008) an intermittent girl-

friend has authority to consent to a war-

rantless search of a residence when the

true owner of the property has told law

enforcement before the search that he had

removed her from his residence, that he

did not want her staying on the property

any longer and that she be kept off his

property.

As Justice Merritt noted in his dissent, the Sixth

Circuit does not deny, nor point to any factual

disputes. Penney, 576 F.3d at 317-18. The facts are

clear in the record. Jd. at 317.

On the morning of August 19, 2003, Penney

threw Bowman, his on-again, off-again girlfriend, out

of his house. She told the police that she was thrown

out. The best evidence of this fact was that the police

observed her barefoot. Penney followed her to the

police station and told the officers that he kicked her

out and did not want her staying there any longer or

coming back. He specifically asked the police to keep

her off his property. As Justice Merritt noted, this is

clear and unambiguous in the record. Penney, 576

F.3d at 317. Therefore, the police had actual notice

before conducting any search that whatever authority

Bowman had in the premises had ended; that

Bowman was not welcome back; and that Penney, the

true owner, specifically objected to allowing Bowman

back to his house.

As Justice Merritt stated, “it is beyond me to

understand how the girlfriend could have any kind of

authority, actual or apparent, from Penney to consent

to a search of his home.” Jd. Merritt accused the

majority of “not perform[ing] its judicial duties in an

impartial manner” and stated that the Fourth

Amendment in this case has been “openly abridged.” Jd.

at 317-18. He concluded, “what should be an open and

shut Fourth Amendment violation is spun as a close

case and decided in favor of the police.” Jd. at 318.

In Georgia v. Randolph, 547 U.S. 103, 115, 126

S.Ct. 1515, 164 L.Ed.2d 208 (2008), the United States

Supreme Court held one co-tenant wishing to grant

authority to search is not authorized to grant consent

over a present and objecting co-tenant. Randolph, 547

at 114.

In Penney, the Majority acknowledged that

Penney’s demand to police that Bowman be removed

“deserves greater consideration.” Penney, 576 F.3d at

309. The Majority recognized that “if an occupant

with formal authority over the premises takes af-

firmative and unambiguous action to break relations

with a live-in lover and to exclude the latter from the

formerly shared dwelling, it may not be reasonable to

believe that the latter retains common authority to

consent to a search.” However, the Majority, somehow,

sidesteps the issue claiming that because Soddy

Daisy officers knew “about this particular couple” and

knew that they had reconciled in the past, that

therefore, their argument on August 19 was not any

different. This rule is unreasonable and illogical.

First, the police do not make these same assump-

tions in domestic violence situations when they

remove persons from homes, put them in jail, and

commonly enter no contact conditions of bond.

Second, this rule would require local police offi-

cers to be fortune tellers or relationship therapists. Is

it more reasonable to assume that the two would get

back together or that Penney did not want Bowman

at his house?

A better rule is one that is clear and unam-

biguous which states that when the owner of the

premises unequivocally informs law enforcement

prior to a search that he objects to another co-tenant

going back to his property, that such notice to the

police constitutes an unambiguous revocation of

whatever authority the co-tenant possessed. To hold

otherwise, would cause police to speculate as what

spark may be lit in the future between quarreling

couples.

Whether Penney objects at his residence or at the

police station is immaterial. Penney objected to the

actual officers who conducted the search. What more

could he do? To hold otherwise places too much of a

burden on a home owner, places too little of a burden

on police and ignores the intentions of the true owner

who has gone out of his way to voice his objection.

Respectfully, the Sixth Circuit’s holding and

interpretation of Georgia v. Randolph, 547 U.S. 103

(2008) is in direct conflict and should be settled by

this Court.

2. Whether the Due Process Clause forbids

Penney’s 1976 state court judgment to be

used as a predicate conviction for 18 U.S.C.

§ 922(g) because: (A) the Defendant’s due

process rights pursuant to Boykin v. Ala-

bama were violated; (B) the 1976 judgment

was never signed by the trial court in

violation of Tennessee law; and (C) the

obvious errors and inconsistencies in the

paperwork that indicate different criminal

offenses and different sentences.

Penney was charged in two counts with violating

18 U.S.C. § 922(g)(1) which prohibits “a person con-

victed in any court of a crime punishable by

imprisonment for a term exceeding one year” from

possessing a firearm. The term “punishable by im-

prisonment for a term exceeding one year” is defined

in 18 U.S.C. § 921(a\(20) which directs courts to look

to state law in determining what constitutes a

conviction of a crime. The Sixth Circuit refused to

look at Tennessee law.

A. Boykin violations.

In Boykin v. Alabama, 395 U.S. 238, 89 S.Ct.

1709, 23 L.Ed.2d 274 (1969), the United States

Supreme Court held that it was impermissible to

presume from a silent record that a guilty plea was

entered intelligently and voluntarily. Boykin was not

adopted in Tennessee until 1977. State v. Mackey, 553

S.W.2d 337 (Tenn. 1977).

While Boykin involved the direct appeal of a

guilty plea, it’s been over 30 years since Penney pled

guilty. Once Penney first realized that the Govern-

ment was attempting to characterize his 1976

conviction as a felony, he sought a state-court remedy,

a petition for post-conviction relief in the state courts

of Tennessee. Presently, Penney has exhausted his

state remedies as his case is procedurally barred by a

one year statute of limitations. Penny v. State, 2005

WL 3262929 (Tenn.Crim.App. Dec. 2, 2005).

The Sixth Circuit ignored Tennessee law which

states that it is the transcript that controls, not

the judgment. State v. Moore, 814 S.W.2d 381, 383

(Tenn.Crim.App. 1991). In this case, the transcript is

truly silent because Penney was never brought before

any court. The affidavit from the Official Court

Reporter who listened to the tape recording reveals

that other defendants appeared before Judge Carden,

but not Penney. Notably, Tennessee did not adopt

Boykin until 1977, one year after Penney pled guilty.

State v. Mackey, 553 S.W.2d 337 (Tenn. 1977).

Even more alarming, the judgment, courtroom

minutes, and petition for probation all indicate that

Penney pled guilty to different criminal offenses. And,

the judgment, which is required to be signed by the

presiding Judge pursuant to Tenn.R.Civ.P. 58, is not

signed by any Judge.

There is authority that restricts the government’s

ability to use a conviction as a predicate offense in the

event there are Boykin violations. Frazier v. Scroggy,

833 F.2d 1012, 1987 WL 38964 (6th Cir. (Ky. 1987));

Roddy v. Black, 516 F.2d 1380, 1384 (6th Cir. 1975);

Rudolph v. Parke, 856 F.2d 738, 740 (6th Cir. 1988).

The Due Process Clause requires more.

It is a violation of Penney’s due process rights for

the government to use such a tainted “conviction.”

Moreover, 660 months of Penney’s 895 month sen-

tence is due to his 924(c) convictions which if Penney

could lawfully possess a gun, would be a critical

element and argument for which Penney was de-

prived. In other words, if Penney could legally have

possessed the numerous firearms, the jury could have

considered this factor in determining whether he was

guilty of the numerous 924(c) counts of conviction.

In light of the Boykin violations, the other errors

in the record, and the unsigned judgment, Penney

submits that this Court should find as a matter of law

that the Due Process Clause bars use of this 1976

conviction. This Court should dismiss these counts

and remand this matter back to the Court for a new

trial.

B. Irregular Judgment.

The Sixth Circuit found that Penney’s 1976

judgment was entitled to a presumption of regularity

because it was signed by the clerk of the criminal

court. Penney, 576 F.3d at 305; Parke v. Raley, 506

U.S. 20, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992).

Penney petitioned for a rehearing en banc and cited

to Tenn.R.Civ.P. 58, but the Sixth Circuit refused to

address this requirement. Again, they ignored Ten-

nessee law.

In Tennessee, Tennessee Rules of Civil Procedure

58, which also applies in criminal proceedings,

requires judges not clerks to sign judgments.

Tenn.R.Civ.P. 58 does not allow a clerk of any court to

sign a judgment under any scenario. Tenn.R.Civ.P. 58.

Penney’s 1976 judgment was not signed. The

presumption of regularity states that the presump-

tion does not attach if a document is not regular on

its face and an unsigned judgment is just that,

irregular on its face. United States v. Roses Incor-

porated, 706 F.2d 1563, 1567 (Fed.Cir. 1983); In re

Estate of Hall, 328 F.Supp. 1305, 1308 (D.D.C. 1971).

This Court should find that Penney’s 1976 judg-

ment is not entitled to any presumption of regularity.

C. Obvious errors in the Paperwork.

Again, the Sixth Circuit ignored Tennessee law

finding that it is the judgment that controls. Penney,

576 F.3d at 304-305. In Tennessee, it is the transcript.

McConnel v. Cariton, 2009 WL 1392544 (Tenn.Crim.App.

May 19, 2009); State v. Thomas, 1995 WL 676396, 1

(Tenn.Crim.App. 1995); State v. Moore, 814 S.W.2d

381, 383 (Tenn.Crim.App. 1991). The Sixth Circuit

also ignored Tenn.R.Civ.P. 58 that requires judges,

not clerks, sign judgments. Penney, 576 F.3d at 305.

There are a number of inconsistencies and errors

in Penney’s record which violate the Due Process

provisions of the United States Constitution. The

unsigned judgment states that Penney was convicted

of “attempt to commit a felony.” The courtroom

minutes from May 19, 1976 indicate that he was

convicted of “selling a controlled substance.” And the

only thing signed to and sworn to in the file, i.e. a

Petition for Probation, in which Penney signed before

a notary, indicates that he pled guilty to “simple

possession of marijuana.” Moreover, the records indi-

cate different sentences. The courtroom minutes and

Petition for Probation indicate a sentence of 11

months 29 days while the Judgment reflects 5 years

suspended on good behavior.

The Sixth Circuit found that these incon-

sistencies does not put in doubt the “fact” of Penney’s

felony conviction for the purposes of 922(g). Penney,

576 F.3d at 304. But, they do. There’s no doubt that

he was charged with a crime. There’s also no doubt

that he was released from custody. Obviously some-

thing happened. However, to conclude that factually

there was a conviction ignores the most significant

piece of the puzzle, the transcript. The fact that

Penney was never brought before any judge, asked

any question, put under oath or subject to voir dire

does raise the issue of what the Due Process Clause

requires in order to be a valid conviction.

Given the significant errors in the records, the

unsigned judgment, the Boykin violation, and the

multiple references to 11 months 29 days which is

the standard demarcation line for a misdemeanor,

Penney submits that this Court should find that

Penney was convicted of a misdemeanor. All ambi-

guities should be strictly construed against the State

and resolved in favor of Penney.

3. Whether Penney lost his Second Amend-

ment right to possess a firearm as a result

of his 1976 state court conviction because

Tennessee law still granted him his Second

Amendment right to bear arms.

In Tennessee, prior to May 18, 1981, there were

three (3) categories of offenses: misdemeanors, fel-

onies and “infamous” felonies. Infamous crimes did

not include the three (3) possible Penney scenarios:

simple possession of marijuana, selling a controlled

substance or attempting to commit a felony.

Under Tennessee law, there were different pun-

ishments for felony offenders and infamous felony

offenders. Specifically, at the time of Penney’s plea,

there were no statutes that prohibited someone

convicted of simple possession of marijuana, selling

Schedule IV controlled substances or attempting to

commit a felony from possessing a firearm. Therefore,

as a result of his 1976 conviction, Penney never lost

his Second Amendment right to own or possess a

firearm.

On May 18, 1981, the Tennessee Legislature

passed T.C.A. § 40-20-112 which rendered all felonies

infamous. Since May 18, 1981, the Tennessee Su-

preme Court has held that the expansion of the term

“infamous” cannot be expanded and applied retro-

actively to cases such as Penney’s 1976 conviction.

Gaskin v. Collins, 661 S.W.2d 865 (Tenn. 1983). The

Tennessee Attorney General agrees with Penney. It

issued a written opinion stating that there is a

certain class of felons who were convicted prior to

May 18, 1981, who still may possess a firearm.

Tenn.Op.Atty.Gen. No. 97-169, 1997 WL 834292, p. 4

(Tenn.A.G.).

Prior to trial, the government conceded this point

stating “in the case at bar, the defendant correctly

points out that prior to May 18, 1981, only certain

felonies rendered a convict infamous. The defendant’s

conviction for Attempt to Commit a Felony ... was

not an infamous crime at the time he was convicted

in 1976.” The District Court acknowledged this in its

Memorandum and Opinion dated 5/14/04. (Appendix,

p. 45).

The Sixth Circuit found it unnecessary to decide

if Penney lost his rights to possess a gun after

his 1976 conviction citing to Logan v. United States,

552 U.S. 23, 128 S.Ct. 475, 169 L.Ed.2d 432 (2007)

which held that “the 921(a)(20) exemption provision

does not cover the case of an offender who retained

civil rights at all times, and whose legal status,

postconviction, remained in all respects unaltered by

any state dispensation.” Penney, 576 F.3d at 306.

The Sixth Circuit also sidestepped the District

Court’s reasoning that T.C.A. § 39-17-1307(b)(1)

which was passed in 1989 was somehow a state law

restriction on Penney’s right to possess a firearm.

Further, the Sixth Circuit sidestepped Penney’s Ex

Post Facto argument as well. Penney, 576 F.3d at 306.

The Logan court recognized Penney’s situation

stating:

Courts have divided on the question whether

§ 921(a)(20)’s “unless” clause is triggered

whenever state law provides for the continu-

ation of firearm proscriptions, or only when

the State provides individual notice to the

offender of the firearms disabilities. Com-

pare, e.g., United States v. Cassidy, 899 F.2d

543, 549 (C.A.6 1990) (courts must look to

“the whole of state law”), with United States

v. Gallaher, 275 F.3d 784, 791, and n. 3

(C.A.9 2001) (Gndividualized notice is re-

quired). We express no opinion on this issue.

Penney’s Second Amendment rights were intact at all

times. Penney was left in a position where he could

lawfully walk out of the courthouse and possess a gun

under the laws of the State of Tennessee. He was

never advised in open court or given any meaningful

Due Process notice that he could not lawfully possess

a gun. The Due Process Clause requires more.

Respectfully, this Court should find that the

Defendant did not lose his right to a gun following his

plea to a non-infamous felony at all relevant times in

this case.

4. Whether any law subsequently passed by

the Tennessee legislature prohibiting Penney

from owning or possessing a firearm

amounts to an unconstitutional Ex Post

Facto law in violation of the United States

Constitution.

First, the Sixth Circuit did not address the issue

by finding that Logan v. United States, 552 U.S. 23,

128 S.Ct. 475, 479 (2007) barred Penney from pos-

sessing a gun. The District Court however found that

T.C.A. § 39-17-1351(j)(3) was a state court restriction

on Penney’s right to possess a gun even though it was

passed in 1996, some 20 years after Penney pled

guilty. This Court should find that this statute is an

unconstitutional Ex Post Facto law as applied to

Penney. U.S. Const. Art. 1, § 9, cl. 3.

The District Court found that T.C.A. § 39-17-

1351(j)(3) did not amount to further punishment, but:

was “instead an effort to protect the public.” (Memo-

randum and Order, 5/14/04, p. 18, Appendix, p. 45).

The District Court ignored the Second Amendment.

First and foremost, T.C.A. § 39-17-1351 does not

apply to Mr. Penney. He was not “rendered infamous”

nor was he “deprived of the rights of citizenship by

judgment of any state... court.” Second, this statute

is clearly increasing the Defendant’s punishment

from his 1976 conviction by depriving Penney of his

Second Amendment constitutional right without

notice or an opportunity to be heard. Calder v. Bull, 3

U.S. 386 (1798). This is clearly punishment. Possessing

a gun is not just a privilege such as driving one’s car.

This is a constitutional right.

The fundamental principal is fairness. States

cannot charge defendants with crimes, punish them

accordingly based upon one set of laws, then be

allowed to wait 20 years and strip more rights away

under the guise of protecting the public. Respectfully,

this Court should find that any law after Penney’s

plea that affects his ability to own or possess a gun is

an unconstitutional Ex Post Facto law.

5. Whether the Fourth Amendment requires

that the triggering event in an anticipatory

search warrant be expressly contingent

that the contraband be on a “sure and

irreversible course” to the place to be

searched.

In United States v. Ricciardelli, 998 F.2d 8, 12

(1st Cir. 1993), the First Circuit discussed anticipa-

tory search warrants and held that triggering events

must be expressly contingent on a contraband’s

arrival at the place to be searched stating:

... the contraband must be on a sure and

irreversible course to its destination, and a

future search of the destination must be made

expressly contingent upon the contraband’s

arrival there. Under such circumstances, a

number of courts have found anticipatory

search warrants to be valid. Jd. at 12-13.

This sure and irreversible course standard requires

law enforcement to draft ciear and concise triggering

events which require that contraband which is often

times in travel to make it to the place to be searched.

If the contraband does not arrive at the place to be

searched, the triggering event does not occur and

there is no probable cause to search.

The Ricciardelli court also explained that there

must be a “tri-cornered nexus” between the criminal

offense, the evidence to be seized and the place to be

searched. Id. The Court stated that the event must be

the delivery of the contraband to the place to be

searched leaving as little discretion to the investi-

gating agents as possible. Jd.

This Court should hold that the Fourth

Amendment requires such a nexus. This link is

imperative and strikes at the heart of anticipatory

search warrants. Merely linking Penney, as an

individual, with the contraband is insufficient to

search his residence. This is a clear violation of the

“sure and irreversible course” standard and this

Court should find that the Fourth Amendment

requires a “sure and irreversible course” standard for

anticipatory search warrants.

CONCLUSION

Penney was sentenced to 895 months in large

part because of his status as a convicted felon from

the 1976 conviction. Whether Penney could lawfully

possess guns during his trial was a critical fact that

the Government successfully used to convict Penney

of three (3) 924(c) convictions which constituted 660

months of his sentence. Both Penney and the

Government agreed in the District Court that under

Tennessee law, when Penney walked out of the

courthouse in 1976, he could legally own and possess

a gun. Respectfully, the Due Process Clause and the

concept of fundamental fairness should preclude the

Government from using a conviction which is so

constitutionally deficient. Penney respectfully asks

this Court to grant his Petition for Writ of Certiorari.

Respectfully submitted,

Davis & Hoss, P.C.

BRYAN EF Hoss

Davis & Hoss, P.C.

508 East 5th Street

Chattanooga, TN 37403

(423) 266-0605

(423) 266-0687 — FAX

Counsel of Record

Counsel for Petitioner

App. 1

576 F.3d 297

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0276p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 05-6821

TERRY EUGENE PENNEY,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Tennessee of Chattanooga

No. 04-00036 — R. Allan Edgar, District Judge.

Argued: October 24, 2008

Decided and Filed: August 7, 2009

Before: BOGGS, Chief Judge; and

MERRITT and GRIFFIN, Circuit Judges.

COUNSEL

ARGUED: Bryan H. Hoss, DAVIS & HOSS,

Chattanooga, Tennessee, for Appellant. Steven S.

Neff, ASSISTANT UNITED STATES ATTORNEY,

Chattanooga, Tennessee, for Appellee. ON BRIEF:

Bryan H. Hoss, C. Leland Davis, DAVIS & HOSS,

App. 2

Chattanooga, Tennessee, for Appellant. Steven S.

Neff, ASSISTANT UNITED STATES ATTORNEY,

Chattanooga, Tennessee, for Appellee.

BOGGS, C.J., delivered the opinion of the court,

in which GRIFFIN, J., joined. MERRITT, J. (p. 27),

delivered a separate dissenting opinion.

OPINION

BOGGS, Chief Judge. After a jury trial, Defendant-

Appellant Terry Eugene Penney (“Penney”) was

convicted of fifteen violations of federal drug and gun

laws and an attempt to kill a federal agent, and

sentenced to 895 months of imprisonment. Penney

now appeals the district court’s denial of his motions

to dismiss some of the charges and to suppress evi-

dence, the district court’s evidentiary rulings, and the

reasonableness of his sentence. Penney also argues

that the evidence was insufficient to support the jury

verdicts or that some counts should have been

merged. We hold that the district court committed no

reversible errors and, therefore, affirm.

Terry Eugene Penney lived at 10609 Dayton

Pike, in Soddy-Daisy, Tennessee, less than three

miles away from the Soddy-Daisy Police Department.

Penney raised roosters and ran a bar called Penney’s

Place, both familial activities that Penney has carried

App. 3

on. For about six years, Penney was in a tempestuous

relationship with Devota Bowman, during which

Bowman lived with Penney “off and on.” Soddy-Daisy

police officers were no strangers to Penney’s resi-

dence, where they were called on the “numerous

occasions” when the relationship between Penney and

Bowman turned violent. The last of such visits took

place on August 2, 2003, when, according to the police

report, Penney had “pushed [Bowman] out,” and she

had left the residence. By August 18, 2003, Bowman

had again moved back in with Penney.

On the morning of August 19, 2003, following

another quarrel with Penney, a barefoot Bowman

hitch-hiked to the Soddy-Daisy police station to file a

complaint for assault against Penney. While Bowman

was at the station, Penney arrived and demanded

that police remove Bowman from his residence. The

police arrested Penney for assault and transported

him to the Hamilton County Jail. As the police

officers worked on Bowman’s report, she offered infor-

mation about narcotics in Penney’s house. Detective

Mike Sneed requested her consent to search the resi-

dence; Bowman agreed and signed a consent form.

Soddy-Daisy officers then accompanied Bowman

to the Dayton Pike residence. Bowman led the

officers, including Sneed, to the front door, which was

locked. Because she did not have a key, Bowman went

around to the back door, which she opened without a

key. Sneed later learned that only a special “trick”

opened the back door. Bowman led the officers around

the house, pointing to various items of contraband

App. 4

and picking up her own clothing and personal items

as they walked. Officers uncovered numerous guns,

cash, scales, and narcotics, removing some of these

items from unlabeled, unlocked containers. Police

officers then took their search outside the house,

discovering a .22-caliber rifle in a pick-up truck and a

shotgun in the chicken house.

The next day, Penney, having been released, went

to the Soddy-Daisy police station to inquire about his

guns. Sneed explained that the guns were confiscatad

as a result of a search, to which Bowman consented.

Penney informed the police that Bowman did not live

with him and had no authority to consent to the

search.

Following the search on August 19, 2003, the

Soddy-Daisy Police and the Bureau of Alcohol, Tobac-

co, Firearms and Explosives (“ATF”) opened an

investigation of Penney. During the course of the

investigation, police recorded several conversations

between Penney and Leonard (a.k.a. Sonny) Stewart,

a confidential informant (“CI”). A conversation re-

corded four months later, on January 3, 2004,

revealed that the CI would travel to California to pick

up approximately 200 pounds of marijuana, for which

Penney would provide two buyers, “Midget” and

“Cotton” (a.k.a. William North). On January 12, 2004,

in a recorded phone conversation, the CI told Penney

that he had returned from his trip and instructed

Penney to arrange a meeting with Cotton at Penney’s

Dayton Pike residence the next day at noon.

App. 5

Prompted by this conversation, Detective Sneed

obtained an anticipatory search warrant for Penney’s

residence, business, vehicles, and person. The war-

rant was executable only after Penney met with the

CI “to examine and attempt to purchase the narcotics

by o»taining funds or promising to obtain funds in

the near future in order to complete the transaction.”

On January 13, 2004, at approximately 12:20 pm, the

CI went to Penney’s residence, where he found

Penney alone without Cotton. In the course of a

recorded conversation between the CI and Penney,

Cotton telephoned Penney, indicating that he was on

his way. The CI left, and made at least three recorded

phone calls to Penney to determine whether Cotton

had arrived. Wnen Penney finally told the CI to

return to the residence, the CI arrived, wired, at

approximately 6:15 pm. The CI went inside the

residence, met Cotton and Penney, and told Cotton he

wanted to see the money. Cotton agreed, stating that

he had $35,000 for fifty pounds of marijuana, at $700

per pound; Penney was to receive $100 per pound as

the middle-man. Penney remained inside, as the Cl

and Cotton stepped outside. Cotton showed the CI the

money inside Cotton’s vehicle. The CI stated that he

could see the money, a predetermined statement to

indicate to the police that they should execute the

warrant.

Soddy-Daisy police, Hamilton County Sheriff’s

Department, and ATF officers moved to execute the

search warrant. All of the officers were wearing dark

bulletproof vests with appropriate official insignia on

App. 6

front and back, identifying them as law enforcement.

Some of the officers (the “entry team”) knocked on the

front door, yelling “Sheriff’s Department! Search

warrant! Get on the ground!” Other officers, including

Sneed, Hamilton County Detective Marty Dunn, and

ATF Special Agent Paris Gillette, circled around to

the back of the residence, where the vehicle with the

money was parked. Sneed testified that as he ap-

proached, he saw Cotton and the CI being taken into

custody by other officers, and heard activity inside

the residence. As Sneed went toward the residence,

he heard gunshots. When Sneed approached the back

porch, Detective Dunn, who was standing at the back

door, told Sneed that Penney had shot him. Penney

yelled that he wanted to see a badge, and Dunn threw

his badge through the open back door. Sneed also

called out to Penney identifying himself, and Penney

recognized his voice. Sneed entered the residence

with his gun drawn and saw Penney holding a

shotgun. Sneed ordered Penney to put down the gun

several times, and Penney eventually complied and

surrendered the weapon. Detective Dunn and another

Hamilton County officer, Mark King, then piaced

Penney in handcuffs. As a result of the operation,

Agent Gillette sustained a serious head wound; Dunn

and King were also injured.

The subsequent search turned up $35,000 in

Cotton’s truck and five weapons inside Penney’s

residence. No narcotics were found inside Penney’s

residence.

App. 7

On February 11, 2004, Penney was indicted for

various federal drug and firearm offenses, as well as

an attempt to kill a federal agent. A jury convicted

Penney of seven counts of drug-related offenses

(including possession with intent to distribute, con-

spiracy and attempt to distribute various large

quantities of marijuana and cocaine hydrochloride),

two counts of being a felon in possession of firearms,

two counts of possession of firearms in furtherance of

drug trafficking, one count of possession of a firearm

with an obliterated serial number, two counts related

to discharging a firearm and an attempt to kill an

officer of the United States. The district court sen-

tenced Penney to 895 months in prison. Penney

timely appealed.

Penney was charged with two counts of being

a felon in possession of a firearm, in violation of

18 U.S.C. § 922(g)(1), on the basis of his 1976 guilty

plea in a Tennessee state court. The district court

denied Penney’s motion to dismiss the charges and to

reconsider, and Penney was convicted of both counts.

Penney rests his appeal to these convictions on two

alternative theories. First, he claims that his 1976

conviction does not qualify as a predicate offense for

§ 922(g)(1), for three reasons: his guilty plea was not

knowing, voluntary, or intelligent; “obvious errors in

the paperwork” indicate that Penney was convicted of

App. 8

a misdemeanor rather than a felony; and the 1976

judgment is not entitled to a presumption of regu-

larity because it was never signed by the trial court.

Alternatively, Penney argues that even if he were

convicted of a felony, he cannot be convicted of a

violation of § 922(g)(1) because he did not lose his

right to possess a firearm under Tennessee law in

1976, and that any law that stripped him of that right

after the conviction violates the ex post facto clause.

We review de novo a district court’s denial of a

motion to dismiss an indictment on legal grounds.

United States v. Crayton, 357 F.3d 560, 564 (6th Cir.

2004). 18 U.S.C. §922(g)(1) criminalizes the pos-

session of firearms by any person “who has been

convicted in any court of a crime punishable by

imprisonment for a term exceeding one year.” Federal

courts must look to “the law of the state in which a

defendant was tried in order to determine whether

the defendant was convicted” of such a crime. United

States v. Cassidy, 899 F.2d 543, 545 (6th Cir. 1990);

18 U.S.C. § 921(a)(20). A “crime punishable by im-

prisonment for a term exceeding one year” does not

include convictions of “any State offense classified by

the laws of the State as a misdemeanor and punish-

able by a term of imprisonment of two years or less,”

or convictions that were “expunged, or set aside or for

which a person has been pardoned or has had civil

rights restored ... unless such pardon, expungement,

or restoration of civil rights expressly provides that the

person may not... possess ... firearms.” 18 U.S.C.

App. 9

§ 921(a)(20); see also United States v. Robinson, 390

F.3d 853, 879 (6th Cir. 2004).

Penney argues that his 1976 state conviction

cannot form the basis for charging § 922(g)(1) viola-

tions because it was unconstitutionally obtained as a

result of a guilty plea that was ne* kaowing, intelli-

gent, or voluntary. Because the state court record is

silent with regard to his guilty plea, Penney urges

that his plea cannot be presumed intelligent or volun-

tary under Boykin v. Alabama, 395 U.S. 238 (1969).

The possibility that the 1976 conviction was constitu-

tionally deficient, however, is immaterial. See Parke

v. Raley, 506 U.S. 20, 29 (1992) (holding that the

Boykin “presumption of invalidity” was decided on

direct review and cannot be “importied]” into the

“very different context” of a collateral attack, occur-

ring years after the challenged convictions became

final). Addressing a statute analogous to § 922(g)(1),

the Supreme Court explained that “federal gun laws

... focus not on reliability, but on the mere fact of

conviction ... in order to keep firearms away from

potentially dangerous persons.” Lewis v. United States,

445 U.S. 55, 67 (1980) (emphasis added). Accordingly,

we have held that “proof of a defendant’s prior felony

convictions is admissible for purposes of proving a

§ 922(g\1) violation, even if the prior convictions are

constitutionally deficient.” United States v. Steverson,

230 F.3d 221, 224 (uth Cir. 2000).

App. 10

Penney contends further that he was convicted of

a misdemeanor, not a felony, and that the district

court did not adequately account for the numerous

errors and inconsistencies in the paperwork in con-

cluding that he was convicted of a felony. Penney was

indicted on April 1, 1975 for “feloniously selling a

comtrolled substance.” The courtroom minutes for

May 19, 1976, indicate that upon Penney’s plea, he is

found “guilty of Selling A Controlled Substance

Schedule IV,” and is to serve “a term of 11 months

and 29 days at the Hamilton County Penal Farm.”

The judgment, dated May 19, 1976, states that Pen-

ney was charged with feloniously selling a controlled

substance, but upon his plea, is adjudged guilty of an

“attempt to commit a felony.” Penney filed a petition

for a suspended sentence, in which he asserted that

he pled guilty to “possession of marijuana, a mis-

demeanor, and was sentenced to the workhouse for a

period of Eleven (11) months Twenty-Nine (29) days.”

Penney’s petition was sustained at a June 28, 1976

hearing, and his sentence was reduced to five years of

probation. An additional notation was added to the

May 19, 1976 judgment form, stating: “6/28/76 Judg-

ment ordered into execution — petition for suspended

sentence sustained... .”

Penney points to the inconsistency with regard to

the nature of the crime to which he pleaded guilty in

the May 19, 1976 courtroom minutes (“selling a con-

trolled substance schedule IV”) and in the judgment

(“attempt to commit a felony”). That inconsistency,

App. 11

Penney argues, should lead this court to give greater

weight to his petition for probation, the only docu-

ment Penney signed, in determining the nature of his

conviction. We find this proposition unconvincing.

The inconsistency does not put in doubt the

fact of Penney’s felony conviction for the purposes of

§ 922(g)\1) because, first and foremost, “[t]he Court

speaks through its judgment,” Chapman v. United

States, 247 F.2d 879, 881 (6th Cir. 1957); see also

United States v. Holloway, 142 F.3d 437, No. 96-6344,

1998 U.S. App. LEXIS 3939, at *6 n.1 (6th Cir. Mar.

4, 1998) (“[A] court speaks through its judgment, not

its minute entries”); Williams v. Brown, 921 F.2d 277,

No. 90-1034, 1990 U.S. App. LEXIS 21171, at *3 (6th

Cir. Dec. 4, 1990) (“Since a court speaks through its

orders and judgments, the language in the judgment

is controlling.”). The judgment states that Penney was

convicted of an “attempt to commit a felony,” which is

a felony under Tennessee law, Rafferty v. State, 91

Tenn. 655, 658 (Tenn. 1891), and which was punish-

able by up to five years’ imprisonment under the

then-applicable Tennessee law, Penny v. State, 2005

WL 3262929, at *4 (Tenn. Crim. App. Dec. 2, 2005)

(quoting Tenn. Code Ann. § 39-603 (transferred, § 39-

1-501, 1982, repealed 1989)); see also United States v.

Beazley, 780 F.2d 1023, No. 84-5905, 1985 U.S. App.

LEXIS 13896, at *4-5 (6th Cir. 1985) (unpublished

table decision) (quoting Tenn. Code Ann. § 39-1-501

and citing Rafferty, 91 Tenn. 655). The punishment

for an attempt to commit a felony — imprisonment in

the penitentiary for not more than five years or in the

App. 12

workhouse or jail for not more than one year, Tenn.

Code Ann. § 39-603 (1975) (repealed 1982) — is also

consistent with Penney’s original sentence of 11

months and 29 days in a county penal farm.’ Penney’s

argument that the judgment is not entitled to a

presumption of regularity because the judgment form

is not signed by the judge is also misplaced: the form

is properly signed by the clerk of the criminal court.

Second, the inconsistency between the judgment

and the May 19, 1976 courtroom minutes (identifying

“Selling A Controlled Substance Schedule IV” as the

crime of conviction) does not erode the determina-

tion that Penney was in fact convicted of a felony.

Selling a Schedule IV controlled substance was also a

felony under then-Tennessee law. Tenn. Code Ann.

§ 52-1432(a)1(D) (1975). Since that felony was

punishable by no less than two years’ imprisonment,

ibid., it is unlikely that Penney was convicted of this

offense, in view of his original sentence. The most this

inconsistency implies is that an attempt to commit a

felony was indeed the crime of conviction. In no way

does it imply that Penney was actually convicted

of possession of marijuana, as stated in his petition

for a suspended sentence. The petition is not a

* That Penney’s sentence was ultimately probated is of no

consequence: state law at the time permitted judges to suspend

and probate sentences for felonies if the maximum sentence

imposed is ten years or less. See State v. King, 603 S.W.2d 721,

725 (Tenn. 1980) (discussing Tenn. Code Ann. § 40-2901 et seg.

(1975)).

App. 13

court-generated document and has no independent

probative value.’

Finally, the alleged inaccuracy or clerical error on

the judgment form does not vitiate the “fact” of con-

viction that is necessary and sufficient to support a

conviction under § 922(g)(1). See Lewis, 445 U.S. at

67. Indeed, Penney has unsuccessfully attempted to

amend the 1976 judgment on grounds of clerical error

before a Tennessee appellate court, which rejected the

claim, thereby confirming the fact of Penney’s felony

conviction.”® Penny, 2005 WL 3262929, at *4.

* The petition for probation is of dubious probative value for

yet another reason: there is no reference to marijuana as the

drug at issue in any court-generated documents, and marijuana

could not have been the Schedule [V drug charged in the

indictment because it was classified in Schedule VI at the time.

See United States v. Penney, No. 1:04-cr-036 (memorandum op.)

(citing Smithson v. State, 509 S.W.2d 526 (Tenn. Crim. App.

1974)).

* That court explained:

The petition for probation is the only document that

purports to show the petitioner pled guilty to a mis-

demeanor, while the other two court documents, the

judgment and the minutes, both show he pled guilty

to a felony. Under these circumstances, we cannot

agree with the petitioner’s claim that his petition for

probation, drafted by his trial counsel, is the most

reliable indicator that a clerical error in the judgment

may have existed. In addition, regardless of whether

we decide the clerical error existed in either of the

remaining two court documents, the judgment or the

court minutes, the result is the same, the petitioner is

a convicted felon.

(Continued on following page)

App. 14

In the alternative, Penney argues that he cannot

be deemed convicted of a crime punishable by at least

one year because he never lost his right to own, carry,

or possess a gun under Tennessee law. It is undis-

puted that Penney did not lose his right to possess

firearms at the time of his 1976 conviction. However,

the district court determined, and the government

now argues, that Penney was prohibited from pos-

sessing a handgun under Tenn. Code Ann. 37-13-

1307(b)(1)(B) as of 1989, and became ineligible to

obtain a handgun permit under Tenn. Code. Ann. 39-

17-1351 as of 1996. Penney offers a number of argu-

ments as to why the 1989 and 1996 state statutes do

not apply to him, and maintains that in any case,

these statutes cannot deprive him of the right to

possess firearms without violating the ex post facto

clause of the Constitution.

We find it unnecessary to decide whether Penney

has lost his right to possess firearms under Tennessee

laws enacted after he has served his sentence for the

1976 offense. 18 U.S.C. § 921(a)(20) excludes convic-

tions “for which a person has been pardoned or

has had civil rights restored,” from the category of

predicate offenses under § 922(g)(1), “unless such ...

restoration of civil rights expressly provides that

the person may not ... possess ... firearms.” The

Penny v. State, 2005 WL 3262929, at *4 (Tenn. Crim. App. Dec.

2, 2005).

App. 15

“unless” clause — and the question of whether a

defendant is prohibited from possessing firearms

under state law — is only relevant if a defendant’s

civil rights were restored. Logan v. United States, 128

S.Ct. 475, 479 (2007) (holding “that the § 921(a)(20)

exemption provision does not cover the case of an

offender who retained civil rights at all times, and

whose legal status, postconviction, remained in all

respects unaltered by any state dispensation”).

Penney does not argue that his civil rights were

restored. On the contrary, he is emphatic that he

never lost his civil rights and therefore had no need

to seek restoration of these rights. Appellant’s Br. at

30-33. Because the Supreme Court has rejected the

argument that “[rlights retained ... are functionally

equivalent to rights revoked but later restored,”

Logan, 128 S.Ct. at 481, even if Penney retained a

right to possess firearms under Tennessee law as he

argues, he would still not be exempt from conviction

under § 922(g)(1).

Prior to trial, Penney moved to suppress the fruits

of the August 19, 2003 search pursuant to Bowman’s

consent, as well as the fruits of the January 13, 2004

search pursuant to an anticipatory search warrant.

The magistrate judge, to whom the motions were

App. 16

referred, recommended denying both motions;* the

district court adopted the magistrate judge’s recom-

mendations over Penney’s objections.

“In reviewing a district court’s denial of a motion

to suppress, this court defers to the district court’s

findings of fact unless they are clearly erroneous and

reviews the district court’s legal conclusions de novo.”

United States v. Smith, 510 F.3d 641, 647 (6th Cir.

2007) (citation omitted). We view the evidence “in a

light most likely to support the decision of the district

court.” Ibid. (citation omitted). Insofar as the district

court relied on the factual findings and legal con-

clusions of the magistrate judge, the same standard

applies to the report and recommendations.

“The Fourth Amendment recognizes a valid war-

rantless entry and search of premises when police

obtain the voluntary consent of an occupant who

shares, or is reasonably believed to share, authority

over the area in common with a co-occupant who later

objects to the use of evidence so obtained.” Georgia v.

Randolph, 547 U.S. 103, 106 (2006) (citing I/linois v.

Rodriguez, 497 U.S. 177 (1990)). A co-occupant’s

“common authority” depends not on property rights,

* Magistrate Judge Carter recommended the denial of the

motions to suppress with the exception of the firearm found in

Penney’s pick-up truck, over which the magistrate judge deter-

mined Bowman had no actual or apparent authority.

App. 17

but “on mutual use of the property by persons

generally having joint access or control for most

purposes.” Rodriguez, 497 U.S. at 181 (citing United

States v. Matlock, 415 U.S. 164, 171 n.7 (1974)). Even

if a co-occupant in fact lacks common authority over

the premises, a search conducted pursuant to his or

her consent will not violate Fourth Amendment

guarantees if the police reasonably believed that the

co-occupant had such authority. Rodriguez, 497 U.S.

at 186.

Penney argues that Bowman did not have actual

or apparent common authority to consent to the

search. He argues that Bowman did not have actual

coramon authority over the searched premises be-

cause she was at most an overnight guest, who was

stripped even of that status prior to the search, and

she did not own or have control over the chicken

house or the closed containers that were opened

during the search. Moreover, Penney claims, police

officers could not reasonably believe Bowman had

authority to consent because they received “actual

notice” that she did not officially reside with Penney

and that her co-occupancy of Penney’s residence was

terminated either on August 2nd or August 19th, and

because she did not have a key to the premises.

We need not decide whether Bowman had actual

authority to consent to the search because we find

that the district court did not err in its determination

App. 18

that she had apparent authority to do so.’ The

magistrate judge and the district judge found that the

Soddy-Daisy police officers knew the following facts.

Bowman and Penney had been involved in an off-and-

on relationship for approximately six years. When the

relationship was on, Bowman lived with Penney,

which the police officers knew from their numerous

visits to the Dayton Pike residence on domestic vio-

lence calls. When the relationship was off, Bowman

would leave Penney’s place. During these periods she

resided with her mother, whose address she listed on

her August 19, 2003 complaint against Penney. The

officers’ most recent visit to Penney’s residence con-

nected to the couple’s turbulent relations occurred on

August 2, 2003, as a result of which Penney had

kicked Bowman out. Detective Sneed testified that he

did not think Bowman was staying at Penney’s at the

conclusion of the August 2, 2003 incident.

On August 19, however, when Bowman arrived at

the Soddy-Daisy police station, Bowman told Sneed

that although the couple has broken up six months

ago, they had now reconciled and that she had moved

back in the day before. That morning, in the heat of

argument, Penney kicked Bowman out without giving

her a chance to collect shoes or her car keys. Bowman

then hitched a ride with a passing motorist to the

police station.

* The district court did not unambiguously specify on what

basis it found Bowman's consent to be valid, stating that she had

“actual and/or apparent authority to consent.”

App. 19

Once at the residence with Bowman, officers

observed further evidence that she was not a mere

overnight guest at Penney’s house. Bowman’s car was

parked outside the residence, consistent with her

account of that morning’s events. She led officers

through the residence and picked up her belongings

from drawers, a laundry basket, and the washing

machine, which she gathered into “several bags.” She

showed police officers firearms, most of which were in

plain view, and identified particular unlocked, un-

labelled containers that she knew held narcotics.

Bowman told the police that she fed and took care of

the chickens when Penney was not there, that she

took care of “things around the house,” and that she

wrote Penney’s checks.

The magistrate judge and the district court deter-

mined that, given what Soddy-Daisy officers learned

on the morning of August 19 and what they knew

about Penney’s and Bowman’s relationship, it was

reasonable for them to believe that Bowman was

Penney’s girlfriend and co-occupant with common

authority over the residence. The magistrate judge

also noted that it was reasonable for the police not to

investigate whether Bowman’s name was on the lease

“as it is a reality in today’s world that consenting

adults often co-habitat [sic] together without benefit

of legal formalities — including those formalities re-

lating to the establishment of property interests.”

The factual findings relied on by the district

court and the magistrate judge are well-supported

by the record. We agree that the facts known to

App. 20

Detective Sneed and other Soddy-Daisy officers war-

ranted men “of reasonable caution in the belief that

the consenting party had authority over the premises,”

Rodriguez, 497 U.S. at 188 (internal quotation marks

and citation omitted). We have confirmed a number of

times that a live-in girlfriend has common authority

over the premises wherein she cohabits with a boy-

friend. See, e.g., United States v. Grayer, 232 F. App’x

446, 449 (6th Cir. 2007); United States v. Hudson, 405

F.3d 425, 442 (6th Cir. 2005); United States v. Gillis,

358 F.3d 386, 391 (6th Cir. 2004); United States v.

Moore, 917 F.2d 215, 223 (6th Cir. 1990).

As may be inferred from the facts we confronted

in Gillis, cohabitation need not be uninterrupted to

support a reasonable belief in common authority. 358

F.3d 386. In that case, we held that police reasonably

believed a girlfriend had authority to consent to a

search of a residence where defendant lived, although

she told officers that she had left that residence sev-

eral months earlier as a result of defendant’s physical

abuse, did not have all the keys necessary to unlock

the residence, and was also staying at another ad-

dress at the time of the search. Jd. at 388, 391. We

explained that the officers’ belief was reasonable

because the girlfriend stated that “she continued to

reside at both” residences, id. at 388, “that she had

been at the residence earlier that same morning,” and

“provided them with detailed information about the

premises, including the locations where [defendant]

had drugs hidden on the property,” id. at 391. We

conclude that in this case, it was likewise reasonable

App. 21

for Soddy-Daisy officers to believe that Bowman was

a live-in girlfriend, who enjoyed access to the premises

for most purposes, even if the relationship was known

to be turbulent and the couple did not cohabit

uninterruptedly.

The factors emphasized by Penney on appeal do

not undermine the district court’s determination that

police officers reasonably believed in Bowman’s au-

thority to consent. Penney argues that police officers

received “actual notice” that Bowman had no actual

authority because she listed a different address on

her complaint form, and that any authority she had

was terminated when Penney arrived at the station

and demanded that she be removed from his house.

The bare fact that Bowman listed her mother’s

address on her complaint form is not dispositive: the

absence of formalized property rights does not auto-

matically translate into the absence of common

authority. See Matlock, 415 U.S. at 172 n.7. That the

police officers did not perceive this fact as “actual

notice” that Bowman has no common authority over

Penney’s residence is understandable, especially in

view of their knowledge that Bowman occasionally

stayed elsewhere (i.e. her mother’s residence).

The second fact — Penney’s demand that Bowman

be removed from his residence — deserves greater

consideration. We recognize that in the abstract, if an

occupant with formal authority over the premises

takes affirmative and unambiguous action to break

relations with a live-in lover and to exclude the latter

from the formerly shared dwelling, it may not be

App. 22

reasonable to believe that the latter retains common

authority to consent to a search. However, the

reasonableness of police officers’ beliefs is evaluated

in light of all particular facts known to the officers,

not by abstracting from the particulars. And in this

situation, the particular facts Soddy-Daisy officers

knew about this particular couple supported their

belief that Bowman had common authority over the

residence. The officers knew of numerous occasions

when the couple has quarreled violently and recon-

ciled, and had no reason to think that the quarrel of

August 19 was any different. Lovers’ quarrels and

reconciliations are as much of a “reality in today’s

world” as is cohabitation without “legal formalities,”

and the police cannot be faulted for not presuming

that a particular quarrel put an end to the couple’s

relationship and living arrangements.

Penney further points out that Bowman did not

have a key to the residence, which should have

indicated that she had no access or control over the

residence. As the magistrate judge and the district

court reasoned, this is hardly surprising in view of

the circumstances: Bowman did not have a chance to

even collect her shoes, let alone pick up a key.

Finally, Penney argues that the rule formulated

in Georgia v. Randolph “should be extended” to his

case. Appellant’s Br. at 48. In Randolph, the Supreme

Court held that “[t]he co-tenant wishing to open the

door to a third party has no recognized authority in

law or social practice to prevail over a present and

objecting co-tenant, [and] his disputed invitation,

App. 23

without more, gives a police officer no better claim to

reasonableness in entering than the officer would

have in the absence of any consent at all.” 547 U.S. at

114 (emphasis added). Penney argues that because he

was in custody at the same police station when and

where Bowman consented to the search, he was

effectively “present,” and that because the situation

was ambiguous, police were required to ask Penney’s

permission for the search. Appellant’s Br. at 48-49.

This is not a viable extension of the Randolph rule.

As we have explained, the Randolph court held that

when “a potential defendant with self interest in

objecting to the search is present and actually objects,

then a third party’s permission does not suffice for a

reasonable search,” but when “that potential objector

is ‘nearby but not invited to take part in the threshold

colloquy,’ ... that potential objector ‘loses out,’ and

the search will be deemed valid.” United States uv.

Ayoub, 498 F.3d 532, 537 (6th Cir. 2007) (quoting

Randolph, 547 U.S. at 121).

We also think that Bowman had apparent au-

thority to consent to the search of closed, but un-

locked and unmarked containers inside the residence.

Police officers reasonably believed that Bowman had

access to the containers wherein narcotics were

stored: they could not fail to surmise this from her

knowledge of where drugs were located, as well as a

note they found in the residence, indicating her

assistance in Penney’s drug deals. The note, written

by Bowman to Penney stated: “Howie came by Fri.

evening, I gave him enough out of that I found to

App. 24

make 3 or 4. You can settle up with him.” Similarly,

Bowman’s apparent authority extended to the chicken

house, in view of her statement to the police that she

helped Penney care for the chickens. In the absence of

any indication that Penney expected the containers

and the chicken house to be inaccessible to Bowman

or sought to make them so, we agree that it was

reasonable for the officers to conclude that she had

such access for most purposes. Thus, we affirm the

district court’s denial to suppress the fruits of the Au-

gust 19, 2003 search executed pursuant to Bowman’s

consent.

With regard to the search conducted on January

13, 2004, Penney argues that the evidence should

have been suppressed because first, the triggering

event identified in the anticipatory warrant never

occurred, and second, there was an insufficient nexus

between Penney’s residence and the contraband to

support probable cause required for an anticipatory

warrant.

“An anticipatory search warrant is a search war-

rant that ‘by its terms [takes] effect not upon

issuance but at a specified future time.’” United

States v. Miggins, 302 F.3d 384, 395 (6th Cir. 2002)

(quoting United States v. Jackson, 55 F.3d 1219, 1223

(6th Cir. 1995)). We have required that “conditions

triggering the anticipatory search warrant be ‘expli-

cit, clear, and narrowly drawn.’” [bid. (quoting United

App. 25

Siates v. Ricciardelli, 998 F.2d 8, 12 (1st Cir. 1993)).

This requirement notwithstanding, an anticipatory

search warrant and its supporting affidavit are not to

be read “hypertechnically, but in a commonsense

fashion.” Jbid. (internal quotation marks and citation

omitted); see also United States v. Ventresca, 380 U.S.

102, 109 (1965).

The search warrant obtained by Detective Sneed

authorized the search of Penney’s residence, locked

containers therein, outhouses and vehicles once “Pen-

ney meets with the C.I. to examine and attempts to

purchase narcotics by obtaining funds or promising to

obtain funds in the near future in order to complete

the transaction.” Penney argues that this event never

occurred because he never “examined” the drugs and

never obtained or possessed any of the funds himself.

Instead, it was Cotton who obtained the money, which

remained inside Cotton’s vehicle at all times, the CI

(Stewart) who was expected to produce the drugs, and

neither the money nor the drugs ever touched Pen-

ney’s hands or crossed the threshold of his residence.

As the magistrate judge and the district court

concluded, Penney advances the kind of hypertech-

nical interpretation of the search warrant’s language

that our case law disavows. See e.g., Miggins, 302

F.3d at 395-96 (holding that a triggering event

requiring “the delivery and acceptance of the package

by someone inside the residence” was met when “the

package was taken by someone who had been inside

the residence just prior to its delivery”). As the police

knew from their months-long investigation, Penney’s

App. 26

role in the upcoming transaction was that of a

middlie-man, who might not be the one actually hand-

ing over the money or the narcotics. Instead, Penney

was expected to, as he did, bring together a buyer and

a seller in an attempt to complete the deal, in the

course of which the drugs were promised and funds

were produced. All the operative transactions speci-

fied in the warrant actually occurred: Penney met

with the CI, and an attempt was made to purchase

drugs with funds that were actually obtained. While

the triggering condition could have been formulated

in language more attuned to Penney’s known and

expected role as a middle-man, we find that under a

common-sense reading of the warrant, the triggering

condition was met when Penney met with Cotton and

the CI, and the CI signaled to the police that the

funds to be used for the drug purchase were present.

Second, relying on United States v. Ricciardelli,

Penney argues that the warrant was unsupported by

probable cause because the triggering event did not

explicitly link the evidence of a crime to Penney’s

residence. In Ricciardelli, the First Circuit held

that anticipatory warrants are valid only when “the

contraband [is] on a sure and irreversible course to its

destination and a future search of the destination

must be made expressly contingent upon the contra-

band’s arrival there.” 998 F.2d at 12. In this case,

Penney claims, the contraband was not on a “sure

and irreversible course” to Penney’s residence and the

triggering event did not condition the search on the

contraband’s arrival there.

App. 27

To establish probable cause necessary for every

search warrant, the supporting affidavit must set

forth “a nexus between the place to be searched and

the evidence sought.” United States v. Carpenter, 360

F.3d 591, 594 (6th Cir. 2004). “The task of the issuing

magistrate is simply to make a practical, common-

sense decision whether, given all the circumstances

set forth in the affidavit before him, ... there is a fair

probability that contraband or evidence of a crime

will be found in a particular place.” Jllinois v. Gates,

462 U.S. 213, 238 (1983). Our task as “a reviewing

court is simply to ensure that the magistrate had a

substantial basis for concluding that probable cause

existed.” Carpenter, 360 F.3d at 594 (quoting Gates,

462 U.S. at 238-39). We hold that the issuing magis-

trate in this case had a substantial basis for so

concluding.

As the magistrate judge recognized, anticipatory

search warrants are typically sought to conduct

searches triggered by a police-controlled delivery of

contraband when there is little or no evidence con-

necting the place to be searched with evidence of a

crime other than the contraband to be delivered. See

Ricciardelli, 998 F.2d at 10 (“Anticipatory search

warrants are peculiar to property in transit.”); United

States: v. Prince, 57 F.3d 1071 (unpublished table

decision), No. 94-4118, 1995 U.S. App. LEXIS 14815,

*5 (6th Cir. June 13, 1995) (same). In these circum-

stances, rather than “seek permission to search a

house for an item they believe is already located

there,” police seek permission to search for an item

App. 28

they believe will be located there once specified events

occur. United States v. Grubbs, 547 U.S. 90, 95 (2006)

(emphasis added). The Ricciardelli court adopted the

“sure and irreversible course” standard to govern a

typical anticipatory search warrant: if the contraband

to be delivered is the only evidence of criminal ac-

tivity that the police believe will be located in the

place to be searched, it is logical to condition the

search upon the contraband’s arrival at its destina-

tion. See 998 F.2d at 12.

The present search warrant, however, is not a

typical anticipatory warrant contemplated by

Ricciardelli. The contraband involved in the drug

deal arranged by the Cl and Penney was not the only

evidence connecting Penney’s residence to criminal

activity. In making his decision with regard to

probable cause, the magistrate was entitled to look at

the other information regarding prior illicit activity

included in the affidavit, see United States v. Rey, 923

F.2d 1217, 1220 (6th Cir. 1991),° and he was “entitled

* That a magistrate may rely on information in the affidavit

other than the facts regarding the anticipated event in the

context of an anticipatory search warrant is undisputed. Federal

courts, including ours, have relied on such information to uphold

a broader scope for the search than would be justified on the

basis of the “triggering” controlled delivery alone. See, e.g.,

United States v. Rey, 923 F.2d 1217, 1220 (6th Cir. 1991)

(holding that “indications of prior illicit activity,” besides the

controlled delivery, justified a search beyond “the seizure of the

controlled delivery package”); United States v. Garcia, 882 F.2d

699, 704 (2d Cir. 1989) (holding that “additional facts in the

supporting affidavit gave rise to probable cause to believe that

(Continued on following page)

App. 29

to draw reasonable inferences about where evidence

is likely to be kept, based on the nature of the evi-

dence and the type of offense,” United States v.

Williams, 544 F.3d 683, 687 (6th Cir. 2008) (internal

quotation marks and citation omitted). We decline to

apply Ricciardelli’s “sure and irreversible course”

standard to a search warrant supported by a substan-

tially dissimilar — and substantially more informative

~ affidavit.

Detective Sneed’s affidavit contained information

about prior illicit activity, which contributed to the

probability that evidence of drug-trafficking would be

found at Penney’s residence. Sneed described the

August 19, 2003 search and the evidence recovered as

a result thereof, noting that the recovered quantity of

marijuana was stored in a manner “indicative of large

scale marijuana distribution.” The affidavit stated

that the police received information that Penney

received 100 pounds of marijuana from “(Hispanic

individuals” on September 16, 2003, that a Hispanic

individual was arrested with 60 pounds of marijuana

and admitted having delivered 100 pounds of the

drug to Penney. It further related that on January 3,

2004, a discussion between the CI and Penney took

place at the latter’s residence, arranging for a

delivery of over 100 pounds of marijuana. Finally,

in describing the anticipated controlled delivery, the

the apartment was being used as a storage and distribution

center for drugs,” authorizing a broader search than may have

been justified by the delivery of contraband alone).

App. 30

affidavit states that “Penny has previously utilized

his house and business to transact drug deals, [sic] in

the house and business there will be evidence of this

and other drug transactions.” (emphasis added).

It is evident that the issuing magistrate was

presented with facts that indicated Penney’s more

than casual participation in drug trafficking. We have

repeatedly held that an issuing judge is “entitled to

draw reasonable inferences about where evidence is

likely to be kept, based on the nature of the crime and

type of offense.” Williams, 544 F.3d at 686. On this

basis, “we have held that an issuing judge may infer

that drug traffickers use their homes to store drugs

and otherwise further their drug trafficking.” Jd. at

687 (collecting cases). While past drug-trafficking

activity alone does not make such an inference

reasonable, “with continuing criminal operations, any

issue of staleness [of information regarding past

criminal activity], or the lack of a direct known link

between the criminal activity and residence, becomes

minimal.” United States v. Newton, 389 F.3d 631, 635-

36 (6th Cir. 2004) vacated in part on other grounds,

546 U.S. 803 (2005) (emphasis added) (citing United

States v. Greene, 250 F.3d 471, 481 (6th Cir. 2001)).

And in this case, the issuing magistrate was

presented with an anticipated event that, if and when

it occurred, would show that Penney’s participation in

drug trafficking was “continuing.” As the magistrate

judge below noted, a “more immediate temporal con-

text” is precisely what the anticipated drug deal

App. 31

added to the prior illicit activity recounted in the

affidavit.

In sum, although the triggering event did not

explicitly requiré that contraband be delivered to

Penney’s residence, the issuing magistrate had a

substantial basis to conclude that the affidavit estab-

lished a nexus between on-going drug trafficking and

Penney’s residence, and that there was a fair

probability that evidence of drug trafficking would be

found when the triggering event took place. See also

Williams, 544 F.3d at 687 (holding that “even though

no criminal activity or contraband [was] observed” at

defendant’s residence, evidence of “continuing and

related illegal firearm activity,” allowed the issuing

judge to conclude “that evidence pertaining to the

handguns would be found in [defendant’s] residence”).

Next, Penney challenges two of the district

court’s evidentiary rulings: the exclusion of exculpa-

tory hearsay testimony, and the admission of rebuttal

testimony by two government witnesses. We review a

district court’s evidentiary rulings for abuse of

discretion. United States v. White, 492 F.3d 380, 398

(6th Cir. 2007). “A district court abuses its discretion

when it relies on clearly erroneous findings of fact,

when it improperly applies the law, or when it

employs an erroneous legal standard.” United States

v. Cline, 362 F.3d 343, 348 (6th Cir. 2004) (citations

omitted). “We reverse only where the district court’s

App. 32

erroneous admission of evidence affects a substantial

right of the party.” White, 492 F.3d at 398 (citing Fed.

R. Evid. 103(a)).

The government filed a motion in limine to

exclude testimony by Sgt. Van Hinton that, after his

arrest, Penney said “you guys don’t understand, I

thought I was being robbed.” Penney argued that this

statement was an excited utterance or a present

sense impression, and constituted an exception to the

hearsay rule under Fed. R. Evid. 803(2) or 803(1),

respectively. Fed. R. Evid. 803(2) permits a trial court

to admit hearsay statements when they “relat[e] to a

startling event or condition made while the declarant

was under the stress of excitement caused by the

event or condition.” We have held this exception

requires the moving party to show, inter alia, that the

statement was “made before there is time to contrive

or misrepresent.” United States v. Arnold, 486 F.3d

177, 184 (6th Cir. 2007) (en banc) (citing Haggins v.

Warden, Fort Pillow State Farm, 715 F.2d 1050, 1057

(6th Cir. 1983)).

The district court decided not to admit the state-

ment because Penney had time and motive to “con-

trive or misrepresent.” Sgt. Van Hinton testified, and

Penney does not dispute, that the statement was

made ten to fifteen minutes after the confrontation

between Penney and law enforcement was over, and

after EMT vehicles arrived at the scene with sirens

App. 33

blaring. At that point, the district court reasoned,

Penney “had to have known ... that ... he had shot

somebody, and most likely that that was a police

officer.” The district court did not commit reversible

error in concluding that because Penney knew what

was at stake at the time he made the statement, the

statement was unreliable. We also agree with the

district court’s determination that the statement

could not be admitted as a present sense impression

for similar reasons, as it was not made “while the

declarant was perceiving the event or condition, or

immediately thereafter.” Fed. R. Evid. 803(1).’

Penney’s second challenge is to the admission of

rebuttal testimony from two fellow jail inmates, John

Shropshire and Larry Dickerson. Both men testified

that, while in jail, Penney said that he wished he

would have killed the police officers he had shot, so

that they could not testify against him. The gov-

ernment sought the introduction of this testimony

on rebuttal, after Penney had testified, as a prior

’ Moreover, we note that the exclusion of this statement

was unlikely to have affected Penney’s substantial rights be-

cause the jury was presented with the same information as was

contained in the excluded statement: Penney himself presented

his argument that he did not know he was shooting at police

officers and that he thought he was being robbed, and Agent

Melia testified that Penney told him the same thing when Melia

interviewed Penney shortly after his arrest.

App. 34

inconsistent statement under Fed. R. Evid. 801(d)(1).

Penney objected to the admission of this testimony

solely on the grounds that it was irrelevant and

unduly prejudicial, an argument that he renews on

appeal.” Penney argues that his state of mind months

after the fact is not relevant to “any issue in the

case.” Appellant’s Br. at 53. Insofar as the statements

have any probative value, Penney argues, it is

substantially outweighed by the prejudicial effect the

inflammatory statements had on the jury.

Relevant evidence “may be excluded if its proba-

tive value is substantially outweighed by the danger

of unfair prejudice.” Fed. R. Evid. 403. Unfair preju-

dice “does not mean the damage to a defendant’s case

that results from the legitimate probative force of the

evidence”; rather, it means the damage that results

when the introduction of the evidence “tends to sug-

gest [a] decision on an improper basis.” United States

* We express no opinion on the question of whether Shrop-

shire’s and Dickerson’s testimony was properly admitted as a

prior inconsistent statement under Fed. R. Evid. 801(d)(1). It

appears to us at least questionable whether all the requirements

for that exemption from the hearsay rule were satisfied: Pen-

ney’s statement, to which the two witnesses testified, does not

appear to have been “given under oath subject to the penalty

of perjury at a trial, hearing, or other proceeding, or in a

deposition,” as required by 801(d)(1KA). Nonetheless, because

Penney does not challenge the admissibility of the statement on

this basis, and because the statement would likely have been

admissible as an admission by a party-opponent under Fed. R.

Evid. 801(dX2), we limit our decision to the question of relevance

and prejudice.

App. 35

uv. Caver, 470 F.3d 220, 240 (6th Cir. 2006) (citations

omitted, alteration in original). The government ar-

gues that the relevance, or the “legitimate probative

force,” of disputed testimony is two-fold. First, it was

relevant to the question of Penney’s intent at the time

of the offense. And second, it was relevant to Penney’s

credibility.

We find dubious the proposition that a statement

made months after the fact and after Penney became

aware of the charges against him was relevant to

establishing Penney’s intent at the time of the

offense. However, we agree with the district court

that the statement was relevant to the question of

Penney’s credibility. The jury had to evaluate Pen-

ney’s credibility because his testimony — in particular

regarding the January 13, 2004 confrontation —

conflicted with that of the law enforcement officers.

Penney denied saying that he wished he had killed

the officers, which was directly contradicted by

Shropshire’s and Dickerson’s testimony; thus, the

possibility that Penney lied under oath was relevant

to the jury’s evaluation of his credibility. The testi-

mony does not tend to suggest a decision on an im-

proper basis; and to the extent that risk was present,

Penney had ample opportunity to argue that the

statement had no “bearing on his intent at the time of

the incident,” as the district court observed.

We accord the district court “[b]road discretion

. in determinations of admissibility based on con-

siderations of relevance and prejudice,” and we do not

“lightly overrule” those decisions. United States uv.

App. 36

White, 563 F.3d 184, 191 (6th Cir. 2009) (quoting

United States v. Wagner, 382 F.3d 598, 616 (6th Cir.

2004)). Viewing the decision to admit evidence “in the

light most favorable to the government by maxi-

mizing the probative value of the evidence and

minimiz[ing] its potential prejudice,” as we must, we

conclude that the district court did not abuse its

discretion in allowing the witnesses to testify about

Penney’s prior inconsistent statements.

Finally, Penney argues that evidence was in-

sufficient to support his convictions on Counts Six,

Twenty, Twenty-One, and Twenty-Two. It appears

from the record that Penney did not renew his motion

for acquittal after all the evidence was presented.

“[WJhere, as here, a defendant does not renew his

motion for judgment of acquittal for insufficiency of

the evidence at the close of all of the proofs, appellate

review is limited to determining whether there was a

‘manifest miscarriage of justice.’” United States uv.

Price, 134 F.3d 340, 350 (6th Cir. 1998) (citations

omitted). “A miscarriage of justice exists when the

record is devoid of evidence pointing to guilt.” United

States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006)

(internal quotation marks and citation omitted).

First, Penney argues that there was insufficient

evidence to convict him of Count Six, possession of a

firearm in furtherance of a drug trafficking crime on

August 19, 2003, in violation of 18 U.S.C. § 924(c). As

App. 37

Penney argues, “the possession of a firearm on the

same premises as a drug transaction would not, with-

out a showing of a connection between the two, sus-

tain a § 924(c) conviction.” United States v. Mackey,

265 F.3d 457, 462 (6th Cir. 2001). However, if the

firearms are “strategically located so that [they are]

quickly and easily available for use,” their possession

can be deemed “in furtherance of” a drug crime.

Ibid. (citation omitted). The August 19, 2003 search

uncovered firearms placed throughout Penney’s resi-

dence; at least one shotgun was loaded, and several

were next to the $1,300 stash hidden in a bathroom

closet. The record is not devoid of evidence to support

the conclusion that the firearms were placed stra-

tegically and were connected to Penney’s drug

trafficking.

Second, Penney argues that there was _ in-

sufficient evidence to convict him of Count Twenty,

attempt to kill an officer of the United States, in

violation of 18 U.S.C. § 1114. Penney maintains that

lighting outside his residence was poor, the blinds on

his window were closed, he did not hear or see the

law enforcement officers at whom he shot through the

closed blinds; all of these factors, Penney argues,

make it impossible to establish an intent to kill,

amounting to reckless conduct at most. Penney’s as-

sertions, however, were contested by the testimony of

law enforcement officers, indicating that the officers

repeatedly and loudly announced their presence (e.g.,

Officer King’s testimony) and that the entry team’s

yells could be heard by the officers positioned behind

App. 38

the residence (e.g., Detective Dunn’s testimony). The

jury was presented with conflicting evidence, wd

certainly could have rejected Penney’s account and

believed the testimony of the other witnesses.

Third, Penney challenges his convictions under

Counts Twenty-One, discharging a firearm during

and in relation to a crime of violence, in violation of

18 U.S.C. § 924(c)(1A)Gii), and Twenty-Three, pos-

sessing a firearm: in furtherance of drug trafficking,

in violation of 18 U.S.C. §924(c). Penney does not

elaborate why either conviction lacks sufficient evi-

dence, and we deem these claims waived.

In the alternative, Penney claims that these two

counts should have been merged, along with Count

Twenty (attempted murder), for the purposes of sen-

tencing. He argues that sentences for Counts Twenty-

One and Twenty-Three should be merged because

both are “924(c) violations stemming from the exact

same incident, the exact same set of facts.” Appel-

lant’s Br. at 56.

We have previously rejected an identical argu-

ment on substantially similar facts. United States uv.

Nabors, 901 F.2d 1351 (6th Cir. 1990). In particular,

we held that when “two separate predicate offenses

for triggering § 924(c)(1) were charged and proven,” a

defendant may be convicted and sentenced for two

separate crimes, even if both offenses were committed

in the course of the same event. Jd. at 1357-58. Here,

as in Nabors, the two violations of § 924(c)\(1) of which

Penney is convicted are based on distinct predicate

App. 39

cffenses: attempted murder of a federal agent, and an

attempt to possess marijuana with the intent to

listribute. Penney’s unelaborated claim that Count

Twenty should have been merged with Twenty-One

and/or Twenty-Three for the purposes of sentencing is

precluded by the text of the statute. 18 U.S.C.

§ 924(c)(1)(D)Gii) (“[N]o term of imprisonment imposed

on a person under this subsection shall run concur-

rently with any other term of imprisonment imposed

on the person, including any term of imprisonment

imposed for the crime of violence or drug trafficking

crime during which the firearm was used, carried, or

possessed.”). Therefore, the district court did not

commit an error by imposing consecutive sentences

for these three crimes.

Lastly, Penney argues that there was insufficient

evidence to convict him of Count Twenty-Two. Pen-

ney’s argument relies on a misstatement of the crime

of conviction. He claims that he could not be convicted

for “possessing marijuana with the intent to dis-

tribute on January 13, 2004,” because there was no

marijuana in Penney’s home on that date. Penney

was convicted, however, of aiding and abetting an

attempted possession of marijuana, along with Cotton

(North). To justify a conviction on this count, the gov-

ernment had to prove “(1) an act by a defendant that

contributes to the execution of a crime; and (2) the

intent to aid in the crime’s commission.” United

States v. Gardner, 488 F.3d 700, 711 (6th Cir. 2007).

There was ample evidence presented at trial that

App. 40

Penney arranged the drug deal between North and

the CI.

We conclude that the convictions on all of the

disputed counts entailed no manifest miscarriage of

justice and do not warrant reversal.

Iil

Penney’s last challenge is to the reasonableness

of his sentence. In particular, Penney argues that the

660 months of his 895-month sentence that were

based on the three § 924(c) convictions are unreason-

able because (1) two of these convictions are based on

occurrences of the same day and involved the same

gun, (2) the district court did not consider 18 U.S.C.

§ 3553(a) factors, and (3) this is effectively a life

sentence given his age.

The 660 months that Penney emphasizes as

unreasonable were imposed pursuant to mandatory

minimum sentences and a statutory requirement that

the sentences run consecutively to any other terms of

imprisonment. 18 U.S.C. § 924(c)(1)(D)ii). “§ 3553(a)

factors do not apply to congressionally mandated

sentences.” United States v. Franklin, 499 F.3d 578,

585 (6th Cir. 2007). The balance of the sentence — 235

months — was imposed for the remaining counts. The

sentences for each count ranged from 60 to 235

months and were to run concurrently. The district

court properly considered the § 3553(a) factors, insofar

as it had discretion in the imposition of the non-

statutorily mandated portion of the sentence. In

App. 41

particular, the district court stated that after careful

consideration, it found that the need for deterrence

and the protection of the public were the most

important factors to consider in sentencing Penney.

See United States v. Mayberry, 540 F.3d 506, 518 (6th

Cir. 2008) (“A judge is not required, however, to

expressly state each of these factors at sentencing, so

long as his or her opinion reflects a consideration of

these factors.”) The sentence imposed was within the

Guidelines range, and is thus presumptively reason-

able on review. See United States v. Heriot, 496 F.3d

601, 608 (6th Cir. 2007); Gall, 128 S.Ct. at 597.

Penney does not provide us with any reason to doubt

the presumption, and we conclude that the district

court’s sentence was reasonable.

For the reasons stated above, we AFFIRM the

district court on all issues presented.

DISSENT

MERRITT, Circuit Judge, dissenting. I disagree

with the Court’s holding that the local Soddy-Daisy

police had the authority under the Fourth Amend-

ment to search Penney’s home without a warrant on

August 19, 2003, because Bowman, as Penney’s

intermittent, live-in girlfriend, had the “apparent

App. 42

authority” to consent to the warrantless search.

Therefore, I disagree with Section II.B.1 of the

Court’s opinion. “Apparent authority” is absent

because the local police had observed and knew that

the girlfriend had just come to the police station that

morning where she had stated that Penney had made

her leave his house — had actually “thrown her out.”

They knew that she had no key and that they would,

and did, have to break into the house. The record is

clear that they also had observed and knew that

Penney had followed the girlfriend to the police

station and had told the police he had removed her

from his home and did not want her staying there any

longer. He made a request of the police that she be

kept off of his property. All of these facts are clear in

the record. The Court does not deny that these are

the facts of the case. It does not point to any factual

dispute to be resolved concerning these facts.

Based on these undisputed facts, it is beyond me

to understand how the girlfriend could have any kind

of authority, actual or apparent, from Penney to

consent to a search of his home. In my view, the Court

has not performed its judicial duties in an impartial

manner on this issue and has simply followed its

inclination to favor the authority of the police over

the liberty of the individual citizen granted by the

Fourth Amendment. “The right of the people to be

secure in their ... homes ... against unreasonable

searches and seizures” has been openly abridged. The

decision here is simply a backhanded way of

repealing the exclusionary rule and extinguishing the

App. 43

protections of the Fourth Amendment because the

law, as written by the Founders, is inconvenient and

hinders criminal convictions. What should be an open

and shut Fourth Amendment violation is spun as a

close case and decided in favor of the police.

App. 44

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 05-6821

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

TERRY EUGENE PENNEY,

Defendant-Appellant.

Before: BOGGS, Chief Judge; and MERRITT and

GRIFFIN, Circuit Judges.

JUDGMENT

(Filed Aug. 7, 2009)

On Appeal from the United States District Court

for the Eastern District of Tennessee at Chattanooga.

THIS CAUSE was heard on the record from the

district court and was argued by counsel.

IN CONSIDERATION WHEREOFP, it is

ORDERED that the judgment of the distnet court is

AFFIRMED on aii issues presented.

ENTERED BY ORDER

OF THE COURT

/s/ Leonard Green

Leonard Green

Clerk

App. 45

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

at CHATTANOOGA

UNITED STATES OF )

AMERICA )

7 ) No. 1:04-cr-036

) Edgar

TERRY EUGENE PENNEY, )

a/k/a TERRY PENNY )

MEMORANDUM AND ORDER

I. Introduction

Currently pending before the Court is the motion

of defendant, Terry Eugene Penney, [Court File No.

30] for reconsideration of this Court’s order [Court

File No. 24] denying his motion to dismiss (Court File

No. 22] counts 7 and 12 of the February 11, 2004

indictment [Court File No. 13]. In the alternative to

reconsideration, defendant asks that his current

motion be deemed a new motion to dismiss Counts 7

and 12 of the February 11, 2004 indictment [Court

File No. 30).

The United States has filed a response to the

defendant’s motion to reconsider [Court File No. 39].

Consequently, the defendant’s motion to reconsider is

now ripe for review.

App. 46

Il. Background

Defendant was indicted on February 11, 2004

[Court File No. 13]. Count 7 of the indictment

charged that on or about January 17,2004, the

defendant “having been previously convicted of a

crime punishable by imprisonment for a _ term

exceeding on year, did knowingly possess in and

affecting commerce firearms and ammunition ... in

violation of Title 18, United States Code, Section

922(g)(1).” Jd. at p. 3. Count 12 of the indictment also

charges that on or about August 19, 2003, the

defendant, “having been previously convicted of a

crime punishable by imprisonment for a _ term

exceeding one year, did knowingly possess in and

affecting commerce firearms and ammunition ... in

violation of Title 18, United States Code, Section

922(g)(1).” Id. at 5.

In his March 11, 2004 motion to dismiss,

defendant sought dismissal of Counts 7 and 12 of the

indictment on the ground that he had not been

convicted of a felony or offense punishable by

imprisonment exceeding one year. [Court File No. 22].

Therefore, defendant argued he was not subject to

criminal prosecution/punishment under 18 U.S.C.

§ 922(g1). Id.

More specifically, defendant asserted that the

predicate offense relied on by the government for

purposes of the crimes charged in counts 7 and 12 of

the indictment, a 1976 state (Tennessee) charge for

feloniously selling a controlled substance, is not a

App. 47

crime punishable by a term of imprisonment exceeding

one year as defined in 18 U.S.C. § 921(a)(20). Id.

Rather, defendant asserted that in connection with

the 1976 state charges he was convicted only of a

misdemeanor and sentenced to 11 months and 29

days incarceration, which was suspended on his good

behavior. Id. at 2.

On March 25, 2004, this Court issued a

Memorandum and Order denying defendant’s motion

to dismiss counts 7 and 12 of the indictment [Court

File No. 24). This Court found that in 1975, defendant

was indicted by the State of Tennessee on charges of

feloniously selling a controlled substance. In 1976,

defendant entered a guilty plea to attempt to commit

a felony under Tenn.-’Code Ann. § 39-603. At that

time, Tenn. Code Ann. § 39-603 provided for an

alternative sentencing scheme — under that statute,

defendant could have been sentenced to up to five

years imprisonment in the penitentiary, or he could

have received imprisonment in the county jai) for not

more than one year, and a fine not exceeding five

hundred dollars ($500).

This Court noted that a “crime punishable by

imprisonment for a term exceeding one year” under

18 U.S.C. § 922(g)(1) is determined by state law.

United States v. Cassidy, 899 F.2d 543, 546 (6th Cir.

1990). Further, the Court noted that both the

Tennessee Supreme Court and the Tennessee Court of

Criminal Appeals had concluded that under the law

of Tennessee, attempt to commit a felony was a felony

even though a defendant could receive either a felony

App. 48

or misdemeanor sentence. Rafferty v. State, 16 S.W.

728 (Tenn. 1891); State v. Seltzer, 1987 WL 4867

(Tenn. Ct. App. May 27, 1987). The Court further

noted that the U.S. Court of Appeals had reached the

identical conclusion in an unpublished opinion.

United States v. Beazley, 1985 WL 13961 (6th Cir.

Nov. 7, 1985). Consequently, the Court denied

defendant’s motion to dismiss counts 7 and 12 of the

indictment against him. [Court File No. 22).

III. Defendant’s Motion to Reconsider, or in

the Alternative, New Motion to Dismiss

[Court File No. 30].

In his motion to reconsider/new motion to

dismiss, defendant asserts in pertinent part that:

5. The Defendant would show that he did

not plead guilty to attempting to commit

a felony. The Courtroom minutes from

May 19, 1976, state that he pled guilty

to selling a controlled substance, a

misdemeanor ...

6. In the alternative, this Defendant would

show that he alleges new facts, additional

grounds, and other arguments in support

of his Motion to Dismiss Counts Seven

(7) and Twelve (12)...

[Court File No. 30, p. 2].

Subsequent to this Court’s order denying his

motion to dismiss counts 7 and 12 of the indictment,

[Court File No. 24] defendant filed his reply to the

App. 49

government’s response to his motion to dismiss.

[Court File No. 25]. Attached to defendant’s reply

brief are the courtroom minutes from the May 19,

1976 term of the Hamilton County Criminal Court,

Division 1 [Court File No. 25, Exhibit A]. The

courtroom minutes state in relevant part:

130199 State v. Terry Penney — Fel. Selling

Controlled Substance

Came the Attorney General and the

defendant in person with his attorney, Mr.

Buck Dietzen, and this case came on for

hearing before the Court without a jury on

defendant’s plea of guilty.

Upon defendant’s plea and upon proof

heard, it is adjudged by the Court that

the defendant is guilty of Selling A

Controlled Substance Schedule IV, and

it is the judgment of the Court that the

defendant serve a term of XI months and

29 days at the Hamilton County Penal

Farm, and pay all costs. Execution will issue

against the defendant for the costs.

Execution of the judgement is further

ordered withheld pending an investigation

by the “tate Parole Office. Defendant is

allowed 10 days within which to file a

Petition for Suspended Sentence to be heard

on June ?8. 1976. No bond allowed.

App. 50

130200 State v. Terry Penney — Fel. Selling

Controlled Substance

Came the defendant in person with his

attorney, Mr. Buck Dietzen, and the Attorney

General, by leave and agreement, enters a

nolle prosequi in the above case.

Hamilton County will pay the costs of

this case when properly taxed and certified.

[Court File No. 25, Exhibit A, p, 18] (emphasis

added).

The courtroom minutes from the June 28, 1976

term of the Hamilton County Criminal Court,

Division 1 are also attached to defendant’s reply brief

These courtroom minutes state in relevant part:

130199 State v. Terry Penney - Fel. Selling

Controlled Substance

The above case came on for hearing on a

Petition For Suspended Sentence heretofore

filed by Mr. Buck Dietzen, and the Court,

after hearing said petition, is of the opinion

same is a proper case for the suspension of

the sentence.

Said petition is, therefore, sustained and

the sentence hereby suspended upon pay-

ment of the costs on or before July 9, 1976,

and further conditioned, upon the defendants’

good behavior for a period of 5 years, under

the supervision of the State Parole Office.

[Court File No. 25, Exhibit A, p. 513).

App. 51

Attached to defendant’s motion to dismiss is the

May 19, 1976 judgment of the First Division of the

Hamilton County Criminal] Court in Case No. 130199

[Court File No. 22, Exhibit B]. The judgment states in

relevant part that defendant was charged with fel.

selling a controlled substance. Jd. The judgment

further states that:

Came the Attorney-General and_ the

defendant in person, with his attorney, Mr.

Buck Dietzen ... Upon Defendant’s plea,

upon proof heard and arguments of counsel,

is it therefore adjudged by the Court that

defendant is guilty of ATTEMPT TO COM-

MIT A FELONY and it is the judgment of

the Court that defendant be confined in the

Penal Farm of Hamilton County for a term of

11 months 29 days and pay or secure all

costs...

Id. A marginal notation on the judgment states:

“6/28/76 Judgment ordered into execution — petition

for suspended sentence sustained on payment of costs

on or before 7/30/76 and good behavior for 5 years

under parole supervision.” Jd.

Also attached to defendants motion to dismiss is

defendant’s petition for probation. [Court File No. 22,

Exhibit CJ]. The petition for probation states in

relevant part that:

That on the 19th Day of May, 1976, the

petitioner entered a plea of guilty of pos-

session of marijuana, a misdemeanor, and

was sentenced to the workhouse for a period

App. 52

of Eleven (11) months Twenty-Nine (29)

days. The case was passed for an investi-

gation by the probation officers.

Id. at 4 1.

Having reviewed the record, the Court finds that

defendant's contention that his conviction in May

1976 for Attempt to Commit a Felony was a

misdemeanor is incorrect. First, the Court must rely

on state law — in this instance, the law of Tennessee —

to determine whether a defendant is subject to a

federal firearms disability by virtue of a prior

conviction. United Staies v. Cassidy, 899 F.2d 543,

546 (6th Cir. 1990).

Under the applicable law at the time, Tenn. Code

Ann. § 39-603, defendant faced a potential prison

term of five (5) years in May 1976. It is immaterial

that defendant was sentenced to eleven (11) months

and twenty-nine (29) days, because even if the

sentence received is for less than one year, the

conviction does not change from a felony to a

misdemeanor. United States v. Beazley, 780 F.2d 1023

(Table), 1985 WL 13961 at ** 3 (6th Cir. Nov. 7, 1985).

The Tennessee Courts have long recognized that

attempt to commit a felony is a felony charge.

Rafferty v. State, 16 S.W. 728 (Tenn. 1981); State v.

Seltzer, 1987 WL 4867 at *3 (Tenn. Ct. Cr. App.

1987). Further, the Sixth Circuit has held that a

conviction under Tennessee’s Attempt to Commit a

Felony statute qualified as a predicate felony

App. 53

conviction for federal firearms disability purposes.

Beazley, 1985 WL 13961 at *2-*3.

Further, defendant’s contention that the evidence

submitted establishes that he was sentenced only to a

misdemeanor is also without merit. The courtroom

minutes for May 19, 1976, Hamilton County Criminal

Court, Division No. 1, state that “{uJpon [the]

defendant’s plea and upon proof heard, it is adjudged

by the Court that the defendant is guilty of Selling A

Controlled Substance, Schedule IV...” {Court File

No. 25, Exhibit AJ.’

Defendant argues that the petition for probation

filed by his then counsel on June 16, 1976, shows that

“on the 19th day of May, 1976, [defendant Penney]

entered a plea of guilty of possession of marijuana, a

misdemeanor, and was sentenced to the workhouse

for a period of Eleven (11) months Twenty-Nine (29)

days ... ” (Court File No. 22, Exhibit C, {] However,

the exhibits submitted by defendant Penney along

with his original motion to dismiss [Court File No. 22]

and with his reply to the government’s response to his

' Apparently no transcript exists of either the May 19,

1976 or June 28, 1976 session in Hamilton County Criminal

Court, Division I. On March 31, 2004, counsel for the defendant

submitted the March 29, 2004 Affidavit of Abigail M. Pearce, the

Official Court Reporter for the Hamilton County Criminal

Court, Division I. Ms. Pearce’s Affidavit certifies that she

“listened to the o‘ficial audiotapes for court proceedings held on

May 19, 1976 and June 28, 1976, before Judge Campbell Carden

and have found that there was no recording made relating to

case [No. 130199] on either date.” [Court File No. 31].

App. 54

motion to dismiss counts 7 and 12 of the indictment

[Court File No. 25], belie the argument that on May

19, 1976 he either pled guilty to simple possession of

marijuana or that the fact that he was sentenced to

11 months and 29 days shows that he pled guilty only

to a misdemeanor, not a felony.

First, neither the Judgment of Conviction nor the

courtroom minutes of May 19, 1976 mention simple

possession of marijuana. The Judgment of Conviction

of June 28, 1976, states that defendant was found

guilty of “ATTEMPT TO COMMIT A FELONY ...”

[Court File No. 22, Exhibit B]. The courtroom

minutes for May, 19, 1976, state that based upon the

defendant’s guilty plea to offense 130199 and the

proof heard, Judge Campbell Carden found that

defendant was guilty of “Selling A Controlled

Substance, Schedule IV ... ” [Court File No. 25,

Exhibit A].

Second, Tennessee law, Tenn. Code Ann. § 52-

1432 prohibited “(1) the sale and (2) possession with

intent to sell a controlled substance in subsection (a)

and prohibits the possession of a controlled substance

in subsection (b).” State v. Helton, 507 S.W.2d 117,

120 (Tenn. 1974). Under section 52-1432, “(al

violation of subsection (a) is a felony. A violation of

subsection (b) is a misdemeanor. The offense of

possession, prohibited in subsection (b), is a lesser

included offense to that prohibited in subsection (a).”

Id. Further, in order to reduce an action from a felony

under section 52-1432 to a misdemeanor,

App. 55

[t]he amount of drugs involved alone will not

justify the reduction of an offense to mere

possession without intent to sell. A casual

exchange among individuals of a large

amount of drugs will not reduce the offense.

In order to reduce the offense to simple

possession, it is required by T.C.A. 52 —

1432(a)(2) that there be “a casual exchange

among individuals of a small amount of

controlled substances...”

Loveday v. State, 546 S.W.2d 822, 826 (Tenn. Ct. Cr.

App. 1976) (citing Helton, S.W.2d at 120).

The May 19, 1976 courtreom minutes reflect that

Judge Carden concluded that following the plea, the

evidence showed that defendant was guilty of”

Selling A Controlled Substance, Schedule IV ... ”

[Court File No. 25, Exhibit A]. Thus, this offense

would not have been the misdemeanor of mere

possession of a controlled substance under Tenn. Code

Ann. § 52-1432(b), it would have been a felony under

§ 52-1432(a).

In addition, Judge Carden found that defendant

was guilty of “Selling A Controlled Substance,

Schedule IV ... (Court File No. 25, Exhibit Al.

However, during the relevant time frame, “marijuana

[wa]s classified in Schedule VI.” Smithson v. State,

509 S.W.2d 526, 526 (Tenn. Crim. App. 1974) (citing

Tenn. Code Ann. § 52-1422). Thus, the evidence shows

that the characterization of defendant’s plea in his

own June 1976 Petition for Probation is not only not

authoritative, but it is also a misstatement. First, the

App. 56

Petition for Probation is not a court generated

document, it was the work product of defendant’s own

counsel. Second, the Court generated documents in

the record, i.e., the May 19, 1976 courtroom minutes

and the Judgment of Conviction, flatly contract [sic]

defendants characterization of his 1976 conviction as

a misdemeanor for the simple possession of mari-

juana.

Moreover, contrary to defendant’s assertion the

fact that he received a sentence of eleven (11) months

and twenty-nine (29) days incarceration, which was

ultimately suspended does not show that defendant’s

1976 conviction was a misdemeanor and not a felony.

In this instance, pursuant to a plea agreement,

defendant Penney pled guilty to Attempt to Commit a

Felony. The statutory definition of Attempt to Commit

a Felony is:

Attempt to Commit Felony. If a person

attempts to commit a felony or crime pun-

ishable by imprisonment in the penitentiary,

where punishment is not otherwise pre-

scribed, he shall on conviction be punished

by imprisonment in the penitentiary not

exceeding five (5) years, or, in the discretion

of the jury, by imprisonment in the county

workhouse or jail not more than one year...

Beazley, 1985 WL 13961 at ** 2 (citing Tenn. Code

Ann. § 39-1-501). At the time of defendant’s guilty

plea, Tennessee law, Tenn. Code Ann. 40 — 2703

“provide[d) for the commutation of felony sentences as

follows:

App. 57

In no case shall any person convicted of a

felony be confined in the penitentiary for less

than twelve (12) months. Whenever the

minimum punishment is imprisonment in

the penitentiary for one (1) year, but in the

opinion of the jury the offense merits a less

punishment, the jury may punish by

confinement in the county jail or workhouse

for any period less than twelve (12) months

State v. Hughes, 512 S.W.2d 552, 553 (Tenn. 1974)

(citing Tenn. Code Ann. § 40 — 2703). Moreover, the

Court in Hughes noted that it had been “uniformly

held that in all cases where the punishment pre-

scribed by law is as low as 12 months in the

penitentiary, the jury may punish by confinement in

the county jail for any period of time short of twelve

months.” Jd. (citing Jenkins v. State, 163 Tenn. 635,

45 S.W.2d 531 (1931)).

In 1976, defendant Penney entered a guilty plea,

thus, the judge was the trier-of-fact for sentencing

purposes in lieu of a jury. Accordingly, Hamilton

County Criminal Court Judge Carden had the

discretionary “authority to commute defendant's

felony sentence for Attempt to Commit a Felony.

Further, Tenn. Code Ann. § 40-21-101 provided in

relevant part:

Whenever any person has been found guilty

of a crime upon a verdict or a plea of guilty,

all trial judges in the state having criminal

jurisdiction are authorized and empowered

App. 58

to suspend the execution of sentence and

place the defendant on probation, subject to

such conditions as the trial judge may deem

fit and proper ... As used in this chapter,

the word “defendant” means any person

convicted of a misdemeanor or convicted of

any felony, the maximum sentence for which

has been fixed by a jury or by a judge as

confinement in the state penitentiary for a

period of ten (10) years or less, except in

cases in which the defendant has been

convicted of murder in the first degree,

murder in the second degree, rape, unlawful

carnal knowledge of a female under the age

of twelve (12) years, robbery accomplished by

the use of a deadly weapon, a second or

subsequent violation of §§ 39-3-401, 39-3-

402, 39-3-403, or 39-3-404, violation of § 39-

6-471(a)A) or (B), and in all other cases for

which the minimum sentence provided by

law is ten (10) years or more; and except in

those cases in which the defendant has been

convicted of two (2) or more felonies for

which the maximum sentence provided by

law exceeds ten (10) years’ confinement in

the state penitentiary.

State v. Anthony, 733 S.W.2d 129, 130 (Tenn. Crim.

App. 1987) (quoting Tenn. Code Ann. 40-21-101).’

* At the time of defendant’s 1976 conviction, Tenn. Code

Ann. § 40-21-10] was codified at Tenn. Code Ann. §§ 40 — 2901

through 40 — 2909. See Tennessee Code Annotated (Official

(Continued on following page)

App. 59

Thus, contrary to defendant’s assertions, neither

the fact he was sentenced to eleven (11) months and

twenty-nine (29) days incarceration in the county

penal farm, nor the fact that this sentence was

eventually reduced to five (5) years probation shows

that he was convicted of a misdemeanor and not a

felony.

Finally, in United States v. Holloway, 142 F.3d

437, 1998 WL 109987 (6th Cir. Mar. 4, 1998) (per

curiam), the defendant challenged the sentence he

received for his conviction of unlawfully possessing

firearms in violation of 18 U.S.C. §§ 922(g)(1) and

924(a\(2). id. at ** 1. Specifically, he asserted his

prior Tennessee conviction for a felony drug offense

was improperly used to increase his sentence because

the State Court records failed to establish that he

was convicted of a “controlled substance offense”

within the meaning of U.S.S.G. § 2K2.1(7). Id. The

Tennessee judgment revealed that Holloway had been

convicted of conspiracy to possess a “Schedule IV drug

as prohibited by (Tenn. Code Ann.| Section 39-17-417.

Id. at **2. Defendant argued, however, that although

the judgment referenced Tenn. Code Ann. § 39-17-

417, the state court’s minute entries did not Jd, at

n.1. He asserted that as there was a discrepancy, the

federal courts should rely on the minute entries

rather than the judgment to “determine the true

Edition), volume 7A (2003), p. 365. Tenn. Code Ann. § 40-21-101

was repealed in 1989. /d.

App. 60

nature of his conviction.” The Sixth Circuit rejected

this arguments [sic] stating that

[blecause a court speaks through its

judgment. Chapman v. United States, 247

F.2d 879, 881 (6th Cir. 1957), cert. denied,

356 U.S. 945, 78 S. Ct. 791, 2 L.Ed.2d 820

(1958), not its minute entries, we reject

[defendant’s] argument. See Williams v.

Brown, 921 F.2d 277 (6th Cir. 1990) (un-

published) (“[T]he language in the judgment

is controlling.”).

Id.

In addition, defendant asserts, relying on Boykin

v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L.Ed.2d

274 (1969), that there is no indication that his state

court guilty plea was knowingly and voluntarily

made. In Boykin, the Supreme Court stated that it

would not presume that a guilty plea is voluntarily

made from a silent record. Jd., 395 U.S. at 242, 855

S. Ct. at 1712.

Attached as Exhibit E to the addendum to the

defendant’s reply brief to the government’s response

to his motion to dismiss counts seven (7) and twelve

(12) of the indictment is the affidavit of Abigail M.

Pearce, the official court reporter for Division I of the

Hamilton County Criminal Court. [Court File No. 31,

Exhibit E]. In her affidavit, Ms. Pearce states that

she has listened to the official audiotapes for May 19,

1976 and June 28, 1976 before Judge Campbell

Carden and there is no recording on either date

App. 61

related to the case of State of Tennessee v. Penney,

Case No. 130199. Id.

In Parke v. Raley, 506 U.S. 20, 113 S. Ct. 517, 121

L.Ed.2d 391 (1992), the State of Kentucky charged

Raley with being a persistent felony offender, which

required that Raley be convicted of a felony after

having been convicted of two prior felonies. Jd., 506

U.S. at 23, 113 S.Ct. 517, Raley had never challenged

the two predicate, prior felony convictions. However,

he sought to suppress them in the persistent felony

offender proceeding “arguing that they were invalid

under Boykin because the records did not contain

transcripts of the plea proceedings and hence did not

affirmatively show that [his] guilty pleas were

knowing and voluntary.” Jd.

On appeal, the Sixth Circuit had rejected the

burden-shifting scheme used by Kentucky. Under

Kentucky’s burden shifting scheme, a prior judgment

is presumed valid and the defendant may offer

rebuttal evidence showing that the conviction was not

valid. Id., 506 U.S. at 29, 113 S. Ct. 517. The Sixth

Circuit rejected Kentucky’s burden shifting scheme in

light of Boykin on the grounds that if a defendant

were unable to offer rebuttal evidence, the Kentucky

burden shifting scheme would allow the state “to

carry its burden of persuasion upon a ‘bare record of a

conviction’ ”. Id.

The Supreme Court reversed stating:

We seen no tension between the Kentucky

scheme and Boykin. Boykin involved direct

App. 62

review of a conviction allegedly based upon

an uninformed guilty plea. [Raley], however,

never appealed his earlier convictions. They

became final years ago, and he now seeks to

revisit the question of their validity in a

separate ... proceeding. To import Boykin’s

presumption of invalidity into this very

different context would, in our view, im-

properly ignore another presumption deeply

rooted in our jurisprudence: the “pre-

sumption of regularity” that attaches to final

judgments, even when the question is waiver

of constitutional rights. Johnson v. Zerbst,

304 U.S. 458, 464, 468 (1938) ... [Raley], by

definition, collaterally attacked his previous

convictions; he sought to deprive them of

their normal force and effect in a proceeding

that had no independent purpose other than

to overturn the prior judgments. See Black’s

Law Dictionary 261 (6th ed. 1990)...

There is no good reason to suspend the

presumption of regularity here. This is not a

case in which an extant transcript is

suspiciously “silent” on the question whether

the defendant waived constitutional rights.

Evidently no transcripts or other records ...

exist at all... The circumstance of a missing

or nonexistent record is, we suspect, not

atypical, particularly when the _ prior

conviction is several years old ... On

collateral review, we think it defies logic to

presume from the mere unavailability of a

transcript (assuming no allegation that the

App. 63

unavailability is due to governmental mis-

conduct) that the defendant was not advised

of his rights...

Id., 506 U.S. at 29-30, 113 S. Ct. 517.

That is the situation here. In this instance,

defendant Penney seeks to challenge the validity of a

guilty plea in a situation where the State Court

judgment is not only “final,” but more than a quarter

century has elapsed since the judgment became final.

Further, Penney seeks a presumption that his state

court guilty plea was not knowingly and voluntarily

made based upon no allegation other than a

transcript of the plea proceeding is unavailable.

Under such situation, and in light of Raley, supra, the

Court sees no reason to presume from the mere

unavailability of a transcript of the May 19, 1976 and

June 28, 1976 court proceedings, either that defendant

was not advised of his rights or that his state court

guilty plea was not knowing and voluntary.

Lastly, the defendant asserts that as the result of

his 1976 conviction he never lost the right to possess

a firearm and, therefore, cannot be a felon in

possession for purposes of 18 U.S.C. § 922(g)(1) as

charged in counts seven (7) and (12). It [sic] its

response, the government concedes that:

[iJn the case at bar, the defendant correctly

points out that prior to May 18, 1981, only

certain felonies rendered a convict infamous.

The defendant’s conviction for Attempt to

Commit a Felony (Selling a Schedule IV

App. 64

controlled substance) was not an infamous

crime at the time he was convicted in 1976.

[Court File No. 39, p. 33].

However, the government correctly points out

that this fact is not dispositive of the issue as the

defendant had a state law restriction on his ability to

carry a firearm at the time of his arrest. The Sixth

Circuit has held that

in cases involving 18 U.S.C. § 922(g)(1), the

federal courts should examine state law

solely for the purpose of determining whether

the state has restored felons to their full civil

rights, including allowing them to possess

firearms. If so, then the state has effectively

vouched for its convicted felons, declaring

them free of stigma and worthy of equal

treatment by the federal government.

United States v. Driscoli, 970 F.2d 1472, 1480 (6th

Cir. 1992), cert. denied, 506 U.S. 1083, 113 S. Ct. 1056

(1993)).

Tenn. Code Ann. § 39-17.1307(b)(1) states:

(b)(1) A person commits an offense who

possesses a handgun and:

(A) Has been convicted of a felony involving

the use or attempted use of force, violence or

a deadly weapon; or

(B) Has been convicted of a felony drug

offense.

Tenn. Code Ann. § 39-17-1307.

App. 65

In State v. Ferguson, 106 S.W.3d 665 (Tenn. Ct.

App. 2003), the defendant was indicted by the

Lawrence County (Tennessee) Grand Jury on two

charges, one of which was, possession of a controlled

substance (cocaine) for the purpose of resale. Jd. at

666. Defendant was found guilty of “Attempt to

Commit a Felony.” Jd. He was sentenced to two

concurrent terms of three years, but was granted six

years immediate probation and a $2,500 fine. Jd.

Once he had paid the fine, defendant petitioned

the Lawrence County Circuit Court to restore his

citizenship rights and in December 1991, the Court

did so. Id. Subsequently, Ferguson applied for a

handgun permit, indicating on the permit application

form that he had not been convicted of a felony. Id.

Thereafter in May 2001, a judge of the Lawrence

County Circuit Court entered a order “clarifying the

effect of the 1991 order,” which “went on to declare

that all of Mr. Ferguson’s [Tennessee] constitutional

rights, including the right to keep and bear arms had

been restored.” Jd.

The Lawrence County District Attorney sought

reconsideration of the 2001 order arguing that under

Tenn. Code Ann. § 39-17-1307(b\1\B), individuals

such as Ferguson who had been convicted of a drug

felony were prohibited from possessing a firearm. Id.

At the reconsideration hearing, Ferguson’s counsel

asserted that his client’s conviction for attempt to

commit a felony should not be considered a drug

conviction because it made no reference to the nature

of the felony involved. Jd. at 666-667. The Lawrence

App. 66

County Circuit Court trial judge accepted Ferguson’s

argument.

On appeal, the Tennessee Court of Criminal

Appeals reversed stating:

There is no proof however, that Mr. Ferguson

pled guilty to any crime other than attempt

to possess a Schedule II substance for

purposes of resale. The record contains only

speculation that he might have or could have

pled to a difference [sic] offense, if the

prosecutor had decided to skirt the

requirements of the law. We note that if Mr.

Ferguson had been prosecuted for a vioiation

of Tenn. Code Ann. § 39-17-1307, he would

not have had to prove anything, and the

State would have had to prove its case

beyond a reasonable doubt. But the burden

of proof on a petition to restore citizenship

must necessarily fall more heavily on the

petitioner. We therefore believe that Mr.

Ferguson is not entitled to have his right to

keep and bear arms restored.

Td. at 668.

In State v. Johnson, 79 S.W.3d 522 (Tenn. 2002),

the defendant pled guilty to one count of unlawful

possession of a weapon, a class E felony under

Tennessee law, and one count of simple possession of

marijuana. Jd. at 525. On appeal to the Supreme

Court of Tennessee, Johnson certified the following

question of law for appeal under Tenn. R. Crim. P. 37:

App. 67

After an individual has had his full mghts of

citizenship restored pursuant to Tenn. Code

Ann. §40-29-101, et seq., following a

conviction of aggravated assault with a deadly

weapon, can he be convicted of a violation of

Tenn. Code Ann. § 39-17-1307(b)(1)(A) or is

he allowed to possess a handgun?

Id.

The Supreme Court of Tennessee specifically held

that under Tenn. Code Ann. § 39-17-1307(b)(1)(A) the

[Tennessee] legislature intended that a

person who has been convicted of a felony

involving the use or attempted use of force,

violence, or a deadly weapon cannot possess

a handgun, even were his or her citizenship

rights have been restored pursuant to Tenn.

Code Ann. § 40-29-101, et seq.

Id. at 528. The Tennessee Supreme Court further

observed that Tenn. Code Ann. § 39-17-1307(b)(1)

“demonstrated the [Tennessee] legislature’s clear

intent to prohibit convicted violent felons from

possessing a handgun... ” Jd.

Further, in reaching its conclusion the Tennessee

Supreme Court specifically rejected Johnson’s argu-

ment that Tenn. Code Ann. § 39-17-1308 demon-

strated that any restoration of citizenship rights

under Tennessee law included the right to possess a

handgun. Tenn. Code Ann. § 39-17-1308 states, inter

alia, that it is a “defense to the application of § 39-17-

1307 if the possession of carrying [of a weapon] was

App. 68

... [a]t the person’s ... [p]lace of residence.” Jd. at

527 (citing Tenn. Code Ann. § 39-17-1308(a)(3)(A)

(1997 & Supp. 2001). However, the Tennessee

Supreme Court noted that Johnson’s argument was

flawed because Tenn. Code Ann. § 39-17-1308 also

expressly stated that “the defenses described in this

section are not available to persons described in § 39-

17-1307(bX1).” Id. (citing Tenn. Code Ann. § 39-17-

1308(b)).

In this instance, the judgment states that

defendant Penney was found guilty of Attempt to

Commit a Felony. [Court File No. 22, Exhibit B).

However, the courtroom minutes note that the “...

defendant is guilty of selling a controlled substance

schedule IV ... ,” [Court File No. 25, Exhibit A,

p. 18).

As the Court noted previously, a “court speaks

through its judgment.” Holloway, 1998 WL 109987 at

**2. Consequently, the Court has considered the June

1976 state court judgment in order to determine that

defendant pled guilty to an offense which was a

felony under state law; namely, attempt to commit a

felony. The courtroom minutes, however, clearly shed

light on the nature of the felony which defendant

Penney attempted to commit, i.e., the felony involved

the selling of a schedule IV controlled substance. The

Court has considered the courtroom minutes only to

the extent that they show that the felony in the 1976

judgment was an offense which involved a controlled

substance which was classified as a schedule IV

controlled substance. The Court has not, however,

App. 69

considered the courtroom minutes for the purpose of

varying the 1976 state court judgment.

Thus, the Court finds that applying the decisions

and rationale of Ferguson and Johnson, supra, even

though defendant Penney’s crime was not an

“infamous” crime at the time of his guilty plea, at the

time of his arrest on the charges pending in counts

seven (7) and twelve (12) of the indictment, he was

prohibited from possessing a handgun under Tenn.

Code Ann. § 37-13-1307(b)(1)(B).*

Tenn. Code Ann. § 39-17-1351(b) provides that:

Except as provided in subsection (r), any

resident of Tennessee who has reached twenty-

one (21) years of age may apply to the

department of safety for a handgun carry

permit. If the applicant is not prohibited

from purchasing or possessing a firearm in

this state pursuant to... § 39-17-1307(b)...

or any other state or federal law and the

applicant otherwise meets all of the

requirements of this section, the department

shall issue a permit to the applicant.

Further, Tenn. Code Ann. § 39-17-1351(j)(3) provides

in relevant part:

* Further although Johnson addressed Tenn. Code Ann.

§ 37-17-1307(bX1)(A) rather than § 37-17-1307(b\1)(B), in light

of the reasoning used by the Supreme Court of Tennessee in

Johnson, the Court concludes that the holding of that case

would apply to Tenn. Code Ann. § 37-17-1307(bX 1B) as well.

App. 70

(j) The department shall not deny a permit

application if:

(3) The applicant, who was ren-

dered infamous or deprived of the

rights of citizenship by judgment of

any state or federal court, has had

the applicant’s full rights of citi-

zenship duly restored pursuant to

procedures set forth within title 40,

chapter 29, or other federal or state

law, provided, however that the

provisions of this subdivision (j)(3)

shall not apply to any person who

has been convicted of burglary, any

felony offense involving violence or

use of a firearm or any felony drug

offense involving a Schedule I, II,

III, IV, or V controlled substance...

Tenn. Code Ann. § 39-17-1351(b), (j). Tenn. Code Ann.

§ 39-17-1351 was enacted by the Tennessee

legislature in 1996. Tenn. Code Ann. §§ 39-17-1307,

1308 were enacted in 1989.

Pursuant to 18 U.S.C. § 921(a)(20) there is not a

prior “conviction” under 18 U.S.C. § 922(g)(1) if under

state law the defendant’s rights have been restored

04 unless such ... restoration of civil rights

expressly provides that the person may not ...

possess... firearms.” Title 18 U.S.C. § 921(aX20)

(Emphasis added). This is the so called “unless”

clause. Thus, although defendant was not prohibited

App. 71

from possessing a firearm at the time of his guilty

plea, at least since 1996 under Tenn. Code Ann. § 39-

17-1351, he has been ineligible to obtain a handgun

permit because of his 1976 conviction. Therefore,

pursuant to Caron v. United States, 524 U.S. 308

(1988), the “unless” clause of 18 U.S.C. § 921(a)(20) is

activated; and, therefore, defendant may not possess

a handgun under federal law.

Moreover, as the Court has explained in detail

previously, despite the actual sentence imposed,

defendants 1976 conviction was a “crime punishable

by imprisonment for a term exceeding one year;” and,

thus, defendant is a person who is prohibited from

possessing a firearm under 18 U.S.C. § 922(g)(1).

Caron v. United States, 524 U.S. 308 (1988); United

States v. Campbell, 256 F.3d 381, 392 (6th Cir. 2001);

United States v. Cassidy, 809 F.2d 543, 550 (6th Cir.

1990); United States v. Williams, 134 F. Supp.2d 851,

852-53 (ED. Mich. 2001), aff’d, United States v.

Williams, No. 02-1663, 2003 WL 2217520 (6th Cir.

Sept. 18, 2003).

Further, the Court finds that application of Tenn.

Code Ann. § 39-17-1351(j)(3) is not unconstitutional

in light of the Ex Post Facto Clause of the United

States Constitution when applied to defendant

Penney. As noted previously, it was not until 1996

that defendant Penney’s right to possess a firearm

was affected by this statute. This subject was

discussed by the Sixth Circuit in United States v.

Campbell, 256 F.3d 381 (6th Cir. 2001), in connection

with a similar fact pattern posed by Michigan law.

App. 72

The Sixth Circuit Court of Appeals observed that the

Michigan courts have held that a Michigan statute

which is somewhat akin to Tenn. Code Ann.§ 39-17-

1351 was not an infliction of further punishment

upon those who had prior felony convictions, but was

instead an effort to protect the public. Campbell, 256

F.3d at 393-94. It was also pointed out that the

defendant in Campbell was not being sanctioned for

any act he performed prior to the enactment of the

Michigan statute; rather, what was being sanctioned

was the defendant’s recent or present act of

possession of a firearm. Jd; see People v. Tice, 558

N.W.2d 245, 246-47 (Mich. Ct. App. 1997). Although

in Campbell the Sixth Circuit based its ultimate

decision on another ground, it did observe that it

found the aforementioned reasoning “persuasive.”

Campbell, 256 F.3d at 393.

In the instant action, Terry Penney has been

indicted in count seven for unlawfully possessing a

firearm on or about January 17, 2003, and in count

twelve for unlawfully possessing a firearm on or

about August 19, 2003. He had been prohibited under

Tennessee law from possessing a firearm at least

since the enactment of Tenn. Code Ann. § 39-17-

13519G\3). That statute did not provide for nor result

in criminal sanctions for anything Mr. Penney had

done prior to 1996. Rather, the statute was an

exercise of the police power of the State of Tennessee

to make Mr. Penney ineligible to possess a firearm,

Therefore, the Court finds it is not an ex post facto

law.

App. 73

Accordingly, the motion of defendant Terry

Penney [Court File No. 30] for reconsideration of this

Court’s order denying his motion to dismiss counts

seven (7) and twelve (12) of the February 11, 2004

indictment is DENIED.

SO ORDERED.

ENTER:

/s/ R. Allan Edgar _

R. ALLAN EDGAR

CHIEF UNITED STATES

DISTRICT JUDGE

App. 74

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT CHATTANOOGA

UNITED STATES OF AMERICA

TERRY PENNEY, also known as

“Terry Penny,” and WILLIAM

NORTH, also known as “Cotton”

)

) No. 1:04-cr-036

) Edgar

)

MEMORANDUM AND ORDER

(Filed Mar. 25, 2004)

Defendant Terry Eugene Penney (“Penney”) has

moved [Court File No. 22] to dismiss Counts Seven

and Twelve of the Indictment, which charges the

defendant on different dates with being a felon in

possession of a firearm, in violation of 18 U.S.C.

§ 922(g\1). Penney asserts that the predicate con-

viction is a misdemeanor, not a felony; therefore, he

cannot be convicted under § 922(g)(1).

What constitutes a “crime punishable by im-

prisonment for a term exceeding one year” under 18

U.S.C. § 922(g)(1) is to be determined in accordance

with state law; in this ease, Tennessee law. 18 U.S.C.

§ 921(20); United States v. Cassidy, 899 F.2d 543, 546

(6th Cir. 1990). In 1995, Penney was indicted for

feloniously selling a controlled substance. In 1976, he

pleaded guilty to attempt to commit a felony, TENN.

CopE. ANN. § 39-603, which at that time proscribed

attempt to commit a felony and provided for an

App. 75

alternative sentencing scheme. Penney could have

been sentenced to imprisonment in the penitentiary

for up to five years, or, in the alternative, he could

have received imprisonment in the county jail for not

more than one year, and a fine not exceeding five

hundred dollars ($500).’

The Tennessee Supreme Court in Rafferty v.

State, 16 S.W. 728 (1891), held that under Tennessee

law an attempt to commit a felony is a felony, despite

the fact that it was punishable both as a felony and

as a misdemeanor.’ In State v. Seltzer, 1987 WL 4867

(May 27, 1987), the Tennessee Court of Criminal

Appeals in an unpublished opinion citing Rafferty

concluded that the crime of attempt to commit a

felony was indeed a felony even though the defendant

' Tenn. Code Ann. § 39-603:

Assault with intent to commit felony -

Attempt to commit felony - Penalty. - If any

person assault another, with intent to commit, or

otherwise attempt to commit, any felony or crime pun-

ishable by imprisonment in the penitentiary, where

the punishment is not otherwise prescribed, he shall,

on conviction, be punished by imprisonment in the

penitentiary not exceeding five (5) years, or, in the

discretion of the jury, by imprisonment in the county

workhouse or jail not more than one (1) year, and by

find [sic] not exceeding five hundred dollars ($500).

(Cum. Supp. 1981).

* At that time a felony was an offense punishable by im-

prisonment in the penitentiary or by the infliction of the death

penalty. Misdemeanors were law violations punishable by fine

or imprisonment in the county jail. Rafferty, i6 S.W. at 728.

App. 76

might receive the alternative misdemeanor sentence.

This same conclusion was reached by the United

States Court of Appeals for the Sixth Circuit in

another unpublished decision, United States v.

Beazley, 1985 WL 13961 (Nov. 7, 1985).

It is noteworthy that had Penney’s 1976 offense

been committed today, the Tennessee law would also

clearly classify it as a felony because it would be

punishable “by one (1) year or more of confinement.”

TENN. CODE ANN. § 39-11-110.

In sum, since Penney’s 1976 conviction was pun-

ishable as a felony under Tennessee law, it was, and

is, deemed under Tennessee law to be a felony. It was

punishable by imprisonment for a term exceeding one

year. Hence, it qualifies as a predicate conviction

under 18 U.S.C. § 922(g)(1).

The defendant’s motion [Court File No. 22] to

dismiss Counts Seven and Twelve of the Indictment is

DENIED.

SO ORDERED.

ENTER:

/s/ R. Allan Edgar

R. ALLAN EDGAR

CHIEF UNITED STATES

DISTRICT JUDGE

App. 77

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

at CHATTANOOGA

UNITED STATES OF AMERICA $:

: No. 1:04-cr-036

: Edgar

, a

TERRY EUGENE PENNEY

MEMORANDUM AND ORDER

On March 25, 2004, defendant Terry Eugene

Penny filed: (1) a motion to suppress the search

of his business, Penney’s Place [Court File No. 27];

(2) a motion to suppress the search of his residence at

10609 Dayton Pike, Soddy Daisy, Tennessee pursuant

to an anticipatory search warrant [Court File No. 28];

and (3) a motion to suppress the search of his

residence after consent to search was given by a third

party. [Court File No. 29]. On May 14, 2004, this

Court referred defendant’s motions to suppress to

United States Magistrate Judge William B. Mitchell

Carter for a report and recommendation pursuant to

28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b). [Court

File No. 43].

Judge Carter has held hearings on defendant’s

motion to suppress and on September 15, 2004, filed

a report and recommendation [Court File No. 53]

App. 78

concerning defendant’s motions to suppress.’ In this

report and recommendation [Court File No. 53],

Magistrate Judge Carter recommends: (1) that defen-

dant’s motion to suppress the search of his business,

Penney’s Place, [Court File No. 27] be denied as moot;

(2) that defendant’s motion to suppress the search

of his residence pursuant to an anticipatory search

warrant [Court File No. 28] be denied; and (3) the

defendant’s motion to suppress the search of his

residence after consent to search was given by a third

party [Court File No. 29] be denied, in part, as to the

search of Penney’s residence and his chicken house;

and granted, in part, as to the search of his pick-up

truck, wherein a shotgun was seized.

Subsequently, on October 19, 2004, this Court

granted defendant’s motion for an extension of time —

up to and including October 29, 2004 —- to file

objections to the magistrate judge’s report and recom-

mendation. [Court File No. 26, 27]. Thereafter, on

October 29, 2004, defendant Penney timely filed

objections to the magistrate judge’s report and

recommendation. (Court File No. 59].

In his objections to the report and recom-

mendation on his motions to suppress, Penney

asserts: (1) the magistrate judge erred in finding that

Devota Bowman had actual authority to consent to

' Magistrate Judge Carter held hearings on defendan

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