Youngstown Daily Legal News

Court of appeals rules felon who tried to sell gun was improperly sentenced

ANNIE YAMSON
Special to the Legal News
Published: January 28, 2014

A three-judge appellate panel in the 6th U.S. Circuit Court of Appeals last week partially affirmed a judgment handed down in the U.S. District Court for the Northern District of Ohio at Cleveland.

The case was reversed and remanded, however, when it came to sentencing and the court of appeals found that the record did not support a sentencing enhancement that the district court had imposed.

The defendant, Irving Seymour, was convicted by a jury of one count of being a felon in possession of a firearm.

The conviction stemmed from information gained from a confidential informant named Jourdan Powell, who was Seymour’s cousin.

On the afternoon of Aug. 19, 2010, Det. James Welsh of the Elyria Police Department was meeting in his office with Powell.

Powell had made undercover drug buys for Welsh on several occasions but on that day he told Welsh that his sources were drying up.

Welsh then asked Powell to contact him if he discovered any other illegal activity, including anyone trying to illegally sell firearms.

According to the case summary, “Welsh’s request paid immediate dividends.”

Powell called Welsh just a few minutes after leaving his office in order to tell him that Seymour was trying to sell a .25 caliber handgun.

Welsh set off with two other officers — Detectives Michael Fairbanks and Gerald Lutz — to apprehend Seymour.

Just a few moments later, the detectives caught up with Powell and Seymour at a local gas station.

When Powell drove the car out of the parking lot, the detectives followed in a marked police car.

Powell immediately made two left turns without signaling and the detectives flipped on their sirens and attempted to pull over the car.

Powell resisted stopping the vehicle and hit the brakes erratically. The detectives told the court that they could see and hear Seymour, who was in the passenger seat, tell Powell to keep driving.

Eventually, Powell pulled over, but before the car came to a complete stop, Seymour jumped out of the car and ran.

The detectives gave chase and Welsh testified that he was directly behind Seymour when he reached into his waistband and pulled out a gun.

At that moment, Fairbanks appeared from Welsh’s right and tackled Seymour, sending the gun flying from his hand.

The gun was found to be a .25 caliber handgun and the detectives also found 2.4 grams of crack cocaine and five hydrocodone pills on Seymour.

He was arrested for numerous violations of Ohio law and later transferred to federal custody and indicted for one count of being a felon in possession of a firearm.

Seymour filed several motions before trial seeking discovery of Powell’s whereabouts and to suppress the evidence seized during his arrest.

The district court denied the motions and proceeded with the trial.

During sentencing, the government asserted that Seymour had possessed the gun in order to facilitate the offense of felony drug possession.

The district court then imposed a four-point firearm enhancement and imposed a 100-month prison sentence.

Seymour was sentenced to 11 months in prison for drug possession some months before his arrest in this case.

The state court ordered its sentence to run consecutively to the sentence imposed in federal court.

Upon appeal, Seymour first argued that the district court should have granted his two motions for discovery, which sought information to impeach Powell and information concerning his whereabouts.

“Defendant’s motions suffer from a fatal flaw,” wrote Judge Eric Clay on behalf of the 6th Circuit. “Powell did not testify at the suppression hearing or trial.”

The appellate panel determined that Seymour did not cite any law to support his claim that he was entitled to impeachment material for a witness not called by either party.

Seymour contended that Powell’s two unsignaled turns were a “ruse schemed up by Detective Welsh to manufacture probable cause.”

“But this speculation is just that — speculation,” wrote Judge Clay. “Defendant also cites nothing to support his request for information concerning Powell’s whereabouts.”

Judge Clay also noted that the government generally has the authority to withhold information concerning confidential informants, their location and identity.

The appellate panel concluded that the district court did not abuse its discretion in denying Seymour’s motions for discovery, however, it found that the court did improperly impose the sentencing enhancement.

The government held that Seymour possessed the firearm in connection to and in furtherance of a drug offense, thus leading to the four-point advisory guidelines enhancement.

The district court adopted this finding, but the court of appeals found otherwise.

“Examining the record before us and giving deference to the conclusion of the district court, we hold that the government cannot sustain its burden and prove that the firearm enhancement applies to defendant,” wrote Judge Clay.

Judge Clay noted that the appellate panel based its decision on two factors.

First, Seymour only had a small amount of drugs in his possession and there was not enough evidence to prove that he engaged in any narcotics trafficking.

Additionally, it noted that the testimony from Welsh established that Seymour was attempting to sell his gun, not use it to protect his drugs.

“Under these circumstances, we cannot defer to the district court’s determination that defendant possessed a firearm in connection with another felony offense,” Judge Clay concluded.

The application of the four-point enhancement was subsequently vacated and the case was remanded for resentencing.

Judges Guy Cole and William Bertelsman, who sat by designation, concurred.

The case is cited United States v. Seymour, Case No. 12-4313.

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