United States Court of Appeals, District of Columbia Circuit
May 8, 2018
Appeals from the United States District Court for the
District of Columbia (No. 1:15-cr-00088-1)
Jenifer Wicks argued the causes and filed the briefs for
M. Jones and Lauren R. Bates, Assistant U.S. Attorneys,
argued the causes for appellee/cross-appellant. With them on
the briefs were Jessie K. Liu, U.S. Attorney, and Elizabeth
Trosman, Nicholas P. Coleman, and Christopher Macchiaroli,
Assistant U.S. Attorneys.
Before: Garland, Chief Judge, and Kavanaugh and Srinivasan,
KAVANAUGH CIRCUIT JUDGE.
convicted Marlon Haight of several drug- and gun-related
offenses. The District Court sentenced Haight to 12 years and
8 months in prison.
appeals his conviction on three grounds. He challenges the
District Court's refusal to postpone his trial. He
contests two of the District Court's evidentiary rulings
at trial. And he raises an ineffective assistance of counsel
claim. We affirm Haight's conviction except that,
consistent with our ordinary practice, we remand for the
District Court to address Haight's ineffective assistance
claim in the first instance.
Government cross-appeals Haight's sentence. The
Government argues that Haight was subject to a 15-year
mandatory-minimum sentence under the Armed Career Criminal
Act because of Haight's three prior convictions for
violent felonies and serious drug offenses. We agree with the
Government. We therefore vacate Haight's sentence and
remand for resentencing.
2014, the Metropolitan Police Department of Washington, D.C.,
received a tip that a man known as Boo was selling crack
cocaine in the Lincoln Heights neighborhood of Washington.
The tip came from Blaine Proctor, a cocaine user and
long-time police informant. Proctor claimed to have bought
cocaine from Boo on several occasions.
gave the police Boo's cell-phone number. Police Officer
Herbert LeBoo ran the cell-phone number through a subscriber
database and determined that the number belonged to Marlon
Haight. Officer LeBoo then ran the name Marlon Haight through
another database and matched the name to a photograph.
Officer LeBoo showed the photograph to Proctor, who said,
Officer LeBoo's supervision, Proctor then made three
controlled purchases of crack cocaine from Boo. After the
third controlled purchase, police officers executed a search
warrant at the apartment where Boo had sold the cocaine to
Proctor. No one answered the door, so the officers used a
battering ram to enter the apartment. While most of the
officers were breaking down the door, Officer Clifford, who
was standing outside the apartment building, saw two men jump
from one of the building's windows and run away before
they could be apprehended. Officer Clifford later testified
that he was "90 percent" sure that one of the
jumpers was Marlon Haight, whose photo Officer Clifford had
studied earlier that day.
the other officers finished breaking down the door and
entered the apartment. There, they found Russell Ferguson.
Ferguson lived in the apartment. Ferguson denied that Haight
was selling cocaine from the apartment. But Ferguson later
cooperated with the police and changed his tune: He testified
that he had allowed Haight and four other men to use his
apartment to process and sell crack cocaine.
police officers searched Ferguson's apartment and found
cocaine, cocaine base, crack cocaine in small plastic bags, a
scale, baking soda, and hundreds of empty plastic bags. They
also found marijuana, a loaded handgun, ammunition, cash, and
a cell phone with a picture of Haight on its home screen.
bedroom, the police saw that the screen to one of the windows
had been pushed out. They found another cell phone sitting on
the window sill. The police later determined that Haight had
purchased that cell phone.
month later, the police located and arrested Haight. The
police then applied for a search warrant to search
Haight's own apartment. While they were waiting for the
warrant, the police staked out Haight's apartment
building. They saw Haight's girlfriend leave the building
carrying a backpack. They stopped her and eventually searched
the backpack. In the backpack, the officers found several
pounds of marijuana, Haight's employment documents, and a
sheaf of handwritten papers. The handwritten papers turned
out to be rap lyrics and a skit script that included
Haight's name and expressed Haight's desire to deal
drugs in Lincoln Heights. Later that day, after securing the
search warrant for Haight's apartment, the police
searched the apartment. There, they found another gun and
Government charged Haight with numerous drug and gun crimes.
The jury found Haight guilty on six counts.
sentencing, the Government argued that Haight was subject to
a 15-year mandatory-minimum sentence based on his three prior
convictions for violent felonies and serious drug offenses.
The District Court ruled that one of the three convictions
did not qualify as a violent felony. The District Court
therefore concluded that Haight was not subject to the
15-year mandatory-minimum sentence. The District Court
sentenced Haight to 12 years and 8 months in prison.
appeals his conviction. The Government cross-appeals