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United States v. Haight

United States Court of Appeals, District of Columbia Circuit

June 22, 2018

United States of America, Appellee
v.
Marlon Haight, Appellant

          Argued 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 appellant/cross-appellee.

          Luke 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, Circuit Judges.

          OPINION

          KAVANAUGH CIRCUIT JUDGE.

         A jury convicted Marlon Haight of several drug- and gun-related offenses. The District Court sentenced Haight to 12 years and 8 months in prison.

         Haight 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.

         The 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.

         I

         In 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.

         Proctor 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, "That's Boo."

         Under 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.

         Meanwhile, 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.

         The 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.

         In the 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.

         About a 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 more ammunition.

         The Government charged Haight with numerous drug and gun crimes. The jury found Haight guilty on six counts.

         At 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.

         Haight appeals his conviction. The Government cross-appeals ...


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