# Petition for Writ of Certiorari — Penney v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2010
- **Citation:** 559 U.S. 940

## Text

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,
v.

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.

li

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

lV

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

1

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.

2

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.

4.

3

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.”

5.

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

4

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

5

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

6

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

7

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.

8

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

9

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.

10

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;

11

(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

12

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.

13

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

14

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);

15

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

16

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).

a

17

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.

18

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.

19

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.

20

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).

21

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.

22

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

23

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

24

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.

25

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.

26

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,

27

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.

28

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

29

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

30

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.

+

31

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.

I

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.

II
A

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).

1

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

2

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

3

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).

B

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.

1

“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.

2

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”).

C

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)).

1

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).’

2

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.

D

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.

Iv

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
furth

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1403%3A1. Public record. Not legal advice.