United States v. Anthony Gray

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0329n.06
Filed: May 9, 2006
No. 05-5106
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES,
Plaintiff-Appellee,
v.
ANTHONY GRAY,
Defendant-Appellant.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE WESTERN
DISTRICT OF TENNESSEE
O P I N I O N
BEFORE: KENNEDY, COLE, McKEAGUE, Circuit Judges.
R. GUY COLE, JR., Circuit Judge. Anthony Gray pleaded guilty to being a felon in
possession of a firearm, and of altering and modifying that firearm, in violation of federal laws,
following the district court’s denial of his motion to suppress a sawed-off shotgun. Gray’s plea was
conditioned on his ability to appeal the court’s denial of his motion to suppress. Gray challenges
this denial, and further argues that he is entitled to a remand under United States v. Booker, 543 U.S.
220 (2005). For the reasons that follow, we AFFIRM Gray’s conviction but VACATE Gray’s
sentence and REMAND to the district court for resentencing.
I.
Anthony Gray was indicted on one count of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g), and one count of knowingly possessing a firearm that had been
altered and modified so as to have a barrel of less than 18 inches and an overall length of less than

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26 inches, in violation of 26 U.S.C. § 5861(d). Gray moved to suppress the firearm underlying these
charges. The following relevant facts were elicited during Gray’s suppression hearing.
On August 31, 2002, two uniformed police officers responded to a call at an apartment
complex. The officers—Shawn Baltz and Bob Parker, Jr.—were informed by the police dispatcher
that an individual at the complex was in possession of a weapon. When the officers arrived at the
apartments, they were met by Brandi Rounds. Rounds informed the officers that Gray had
brandished a weapon and threatened to shoot her. Rounds further stated that Gray had retreated into
a particular apartment. Baltz and Parker approached the apartment and knocked on the door. The
tenant, Chaquita Martin, answered the door.
Baltz testified that he asked Martin if he and Parker could enter the apartment in order to
locate Gray. She said “yes.” The officers found Gray in a bedroom, handcuffed him, and brought
him into the living room. According to Baltz, he then asked for Martin’s permission to search her
apartment, which she again granted orally. On cross-examination, however, Baltz was less clear as
to Martin’s consent to search:
Q: So did you ask [Martin] if you could search for a sawed-off shotgun?
A: For a weapon.
Q: Her response was?
A: There is no weapon inside the apartment.
Q: Okay. So her response wasn’t yes or no, it was [that] there was no weapon
in the apartment?
A: There is no weapon. She said there is no weapon inside the apartment.
According to Parker, he and Baltz received Martin’s verbal permission both to enter and
search the apartment before locating Gray. Parker testified that, having conducted an initial search,
he specifically asked for permission to search under the bed. Upon Martin’s oral consent, the

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officers looked under the bed and there recovered the sawed-off shotgun that underlies Gray’s
conviction.
Martin also testified at Gray’s suppression hearing. According to Martin, when the officers
arrived she told them that Gray was not in the apartment. The officers nevertheless forced their way
inside. Martin also denied granting permission to the officers to search her home. Yet on cross-
examination, the following exchange took place between the prosecutor and Martin:
Q: Ms. Martin, do you remember meeting with me on June 22, 2004?
A: Yes, ma’am.
Q: And do you remember testifying before the grand jury?
A: Yes, ma’am.
***
Q: This was my question [at that time,] “Okay, so you told them that you did not
care and that you didn’t have anything to hide, correct?” And then your answer
[was,] “Yes, ma’am.”
A: Oh, I remember that you said that. I told you that it was okay for them to
search. I said I don’t recall that. I did say tell them that I — eventually that I didn’t
have anything to hide, I did, but talking about did I give them permission to search,
I don’t recall telling you that.
The district court ultimately credited the testimony of the officers over that of Martin. The
court acknowledged that there were inconsistencies in the officers’ testimony, but found that the
inconsistencies were “not sufficient to make their testimony unbelievable.” In contrast, the court
found Martin’s testimony to be “somewhat suspect.” The court concluded that Martin “did give
consent to search” and that it was “freely and voluntarily given.” The court based its finding on
Martin’s testimony that she told the officers that Gray was not in the apartment, and “what was said
by her in the [grand jury] transcript.”

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The court denied Gray’s motion to suppress. Gray then changed his plea to guilty, on the
condition that he could appeal the district court’s denial of his suppression motion. The Probation
Office completed a Presentence Investigation Report (“PSI”). The PSI recommended a base-offense
level of twenty-two, a three-point reduction for acceptance of responsibility, and a total of six
criminal history points, resulting in a criminal history category of III. Accordingly, Gray’s
Guideline range was between thirty-seven and forty-six months imprisonment. The district court
sentenced Gray to thirty-seven months imprisonment.
II.
A. Motion to Suppress
In analyzing a district court’s denial of a defendant’s motion to suppress evidence, we review
the district court’s factual findings for clear error and its legal conclusions de novo. United States
v. Smith, 386 F.3d 753, 757-58 (6th Cir. 2004). This case turns on a factual question: whether
Martin consented to the entry into, and search of, her home. See United States v. Bueno, 21 F.3d
120, 126 (6th Cir. 1993) (“Consent is a question of fact, and the district court’s decision regarding
consent will not be overturned unless it is clearly erroneous.”). A decision constitutes clear error
if “the reviewing court on the entire evidence is left with the definite and firm conviction that a
mistake has been committed.” United States v. Dillard, 438 F.3d 675, 680 (6th Cir. 1999) (quoting
United States v. Navarro-Camacho, 186 F.3d 701, 705 (6th Cir.1999)).
We give particular deference to a trial court’s assessment of credibility. See Anderson v.
Bessermer City, 470 U.S. 564, 573-75 (1985). Indeed, “findings of fact anchored in credibility
assessments are generally not subject to reversal upon [appellate] review.” United States v. Taylor,

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1Gray also argues on appeal that Martin “acquiesced” to the search of her home, rather than
consented. See U.S. v. Worley, 193 F.3d 380, 387 (6th Cir. 1999). Neither the officers’ testimony,
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956 F.2d 572, 576 (6th Cir. 1992) (en banc). However, a court’s decision to credit testimony can
constitute clear error if the testimony was implausible, internally inconsistent, or against the weight
of evidence, such that no reasonable fact-finder would credit it. See Anderson, 407 U.S. at 575.
A reasonable fact-finder could credit the testimony of Baltz and Parker over that of Martin.
Martin was evasive when questioned on cross-examination about her grand jury testimony. During
Gray’s suppression hearing, Martin eventually recalled answering “yes ma’am” to the prosecutor’s
following question before the grand jury: “Okay, so you told them you didn’t care and that you
didn’t have anything to hide, correct?” Furthermore, as the trial court noted, Martin’s description
of the events would have left Gray alone in the living room while both officers searched her home,
which a reasonable trier of fact could find implausible.
As the district court acknowledged, there were a few inconsistencies between the testimony
of Baltz and Parker. For instance, Baltz recalled first asking permission to enter Martin’s home, and
later to search it, whereas Parker recalled asking permission at Martin’s door both to search and
enter her home. Yet we agree with the district court that the officers, who were testifying as to
events that occurred three years earlier, were basically consistent on whether they asked and
received consent to enter and search Martin’s home. We also agree that their testimony constituted
a more plausible account of the events. In short, we are not left with a firm conviction that the
district court erred, and we accordingly affirm the district court’s denial of Gray’s motion to
suppress. 1

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nor that of Martin, support this argument. Martin testified that she denied the officers’ requests
outright, and Martin never maintained that she was in any way intimidated or coerced by the
officers.
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B. Remand in Light of Booker
Gray was sentenced on January 10, 2005, at the bottom of the Guideline range set forth in
the PSI. His sentence was entered before the Supreme Court issued its decision in United States v.
Booker, 543 U.S. 220 (2005), which held that the Sixth Amendment requires that the Guidelines be
treated as advisory, rather than mandatory. Id. at 260. Both parties agree that this case should be
remanded for resentencing pursuant to Booker, which is the proper result under our precedent. See
United States v. Barnett, 398 F.3d 516, 525-30 (6th Cir. 2005); United States v. Chandler, 419 F.3d
484, 486 (6th Cir. 2005).
III.
For the preceding reasons, we AFFIRM the district court’s denial of Gray’s motion to
suppress, but VACATE his sentence in light of Booker and REMAND for resentencing.

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