United States of America v. A. Philip Thomas Christian Daugherty, aka Phil Hardaway

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0120n.06
Case No. 21-3459
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
A. PHILIP THOMAS CHRISTIAN
DAUGHERTY, aka Phil Hardaway
Defendant-Appellant.
)
)
)
)
)
)
)
)
)
)
)
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE SOUTHERN
DISTRICT OF OHIO
O P I N I O N
Before: MOORE, COLE, and NALBANDIAN, Circuit Judges.
COLE, Circuit Judge. A. Philip Thomas Christian Daugherty and three co-defendants were
named in a four-count indictment, based on allegations that the group orchestrated a carjacking.
Daugherty pleaded guilty to all relevant charges against him except for Count Three of the
indictment, which charged him with discharging or aiding and abetting in the discharge of a firearm
during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii) and 2.
The indictment specifically alleged that a firearm was “used, carried, brandished and discharged”
during the carjacking. At the bench trial, the district court found that Daugherty’s co-defendant
discharged a firearm. But, when rendering its verdict, the district court found Daugherty guilty of
aiding and abetting the use of a firearm in relation to a crime of violence, in violation of 18 U.S.C.
§§ 924(c)(1)(A) and 2, with no mention of “discharge” under § 924(c)(1)(A)(iii). At sentencing,

-- 1 of 6 --

Case No. 21-3459, United States v. Daugherty
- 2 -
the district court—without objection—sentenced Daugherty to the mandatory term of
imprisonment of ten years for the discharge of a firearm, rather than five years for the mere use of
one.
Daugherty now argues that this sentence was imposed in violation of Alleyne v. United
States, 570 U.S. 99 (2013), and that resentencing is required. Because we find no error, we affirm.
I. BACKGROUND
A. Factual Background
On November 27, 2018, Daugherty was indicted by a federal grand jury on multiple
charges stemming from an incident where he and his co-defendants—Zhaire Evans, Zy’lique
Murphy, and Carlos Alvarez—allegedly carjacked an individual. Less than a year later, Daugherty
pleaded guilty to carjacking and conspiracy to commit carjacking. But he requested a bench trial
as to Count Three, which alleged that Daugherty and Alvarez “knowingly used, carried, brandished
and discharged a loaded firearm . . . during and in relation to a crime of violence,” specifically,
carjacking, “[i]n violation of 18 U.S.C. §§ 924(c)(1)(A)(iii) and 2.” (Indictment, R. 27, PageID
125–26.) Accordingly, the parties agreed that the sole issue at trial was whether Daugherty
violated 18 U.S.C. § 924(c)(1)(A)(iii), “either as a principal, or as an aider or abettor.” (Daugherty
Trial Br., R. 161, PageID 875.) A finding that a firearm was “discharged” violation of
§ 924(c)(1)(A)(iii) results in increased penalties. Compare 18 U.S.C. § 924(c)(1)(A)(i) with
18 U.S.C. § 924(c)(1)(A)(iii).
Daugherty presented three days’ worth of testimony and evidence over the course of nine
months. In the end, the district court found Daugherty guilty of Count Three of the indictment
based on the following facts:
On the afternoon of July 5, 2018, Daugherty, Evans, Murphy, and Alvarez were hanging
out at Alvarez’s grandmother’s home in Dayton, Ohio. Daugherty brought a gun with him, which

-- 2 of 6 --

Case No. 21-3459, United States v. Daugherty
- 3 -
he passed back and forth with Alvarez. At some point, Daugherty left the home to take a shower
at a different residence. When he did so, he placed the gun in an abandoned vehicle.
Upon his return, the rest of the group was attempting to arrange transportation from Dayton
to Columbus. Alvarez had somehow come to be in possession of the gun. The four decided to
make the trip to Columbus by stealing someone’s car. The group agreed that the two women,
Murphy and Evans, would go to an abandoned house down the street from Alvarez’s
grandmother’s home and use a dating app to lure a person to their location. Once the person
arrived, the women would alert the men, who would then take the victim’s keys.
Their plan was successful. Sometime around midnight, Niles Isaac arrived at the
abandoned home. Daugherty and Alvarez approached him while he spoke with the two women.
Alvarez pulled out Daugherty’s gun and fired it. After a brief, physical struggle, the men stole
Isaac’s keys and car, and drove with the women to Columbus.
B. Procedural History
The government presented two theories on which it contended the district court could find
Daugherty guilty: “(1) [Daugherty] personally used the firearm, or (2) [Daugherty] aided and
abetted Alvarez’s use of the firearm during the carjacking.” (Findings of Fact & Conclusions of
Law, R. 179, PageID 942.) The district court found that the government “failed to prove beyond
a reasonable doubt that [Daugherty] was the person who discharged the firearm during the
carjacking.” (Id. at PageID 942–43.) It did, however, find Daugherty guilty “as an aider and
abettor[.]” (Id. at PageID 943.) Accordingly, the district court found Daugherty guilty of “the use
of a firearm in relation to a crime of violence, pursuant to 18 U.S.C. § 924(c)(1)(A) and 18 U.S.C.
§ 2.” (Id. at PageID 945–46; Verdict, R. 190, PageID 1041.)

-- 3 of 6 --

Case No. 21-3459, United States v. Daugherty
- 4 -
Daugherty’s Presentence Investigation Report described Count Three as “Use of a Firearm
During and in Relation to a Crime of Violence [18 U.S.C. § 924(c)(1)(A)(iii) and § 2]—a Class A
felony, 10 years to life imprisonment consecutive to any other term of imprisonment[.]” (PSR, R.
183, PageID 979 (brackets original).) At sentencing, the district court—without objection—
applied the statutory mandatory minimum ten years’ imprisonment associated with the discharge
of a firearm in violation of 18 U.S.C. § 924(c)(1)(A)(iii), rather than the statutory minimum of five
years’ imprisonment associated with the mere “use” of a firearm in violation of 18 U.S.C.
§ 924(c)(1)(A)(i). Daugherty’s judgment reflects that he was convicted of “Use of a Firearm
During and in Relation to a Crime of Violence,” in violation of “18 U.S.C. § 924(c)(1)(A)(iii)[.]”
(J. in a Crim. Case, R. 186, PageID 1022.)
Daugherty now contends that was in error. He argues that the district court intentionally
and sua sponte chose to find him guilty of the “use” of a firearm, in violation of 18 U.S.C.
§ 924(c)(1)(A)(i), rather than the indicted conduct of “discharge” of a firearm, in violation of
18 U.S.C. § 924(c)(1)(A)(iii). By applying the mandatory minimum for “discharge” of a firearm,
Daugherty asserts that the district court inappropriately found a fact that increased his mandatory
minimum sentence that was not found at trial, in violation of Alleyne.
II. ANALYSIS
The parties agree that, because Daugherty failed to object at sentencing, his challenge is
reviewed for plain error. United States v. Young, 847 F.3d 328, 363 (6th Cir. 2017). “[T]he burden
of establishing entitlement to relief for plain error is on [Daugherty] . . . .” United States v.
Dominguez Benitez, 542 U.S. 74, 82 (2004). Under plain-error review, there must be a “clear”
“error or defect” that “affected the outcome,” i.e., caused “prejudice” to the defendant, and then
this court “has the discretion to remedy the error . . . only if the error seriously affects the fairness,
integrity or public reputation of judicial proceedings.” Puckett v. United States, 556 U.S. 129,

-- 4 of 6 --

Case No. 21-3459, United States v. Daugherty
- 5 -
135, 140 (2009) (internal modification, quotations, and citation omitted). “Meeting all four prongs
is difficult, as it should be.” Id. at 135.
Alleyne provides “that any fact that increases the mandatory minimum is an ‘element’ that
must be submitted to the jury.” 570 U.S. at 103. In Daugherty’s case, we know for certain that
whether the gun was discharged was a fact that was submitted to the factfinder and found beyond
a reasonable doubt. In a bench trial, “the court must state its specific findings of fact in open court
or in a written decision or opinion.” Fed. R. Crim. P. 23(c). The district court found that “Alvarez
pulled out the firearm and discharged it.” (Findings of Fact & Conclusions of Law, R. 179, PageID
941.) The district court also found that Daugherty had knowledge that a firearm would be used
during the carjacking because he knew Alvarez had his gun. The district court also found it
relevant that Daugherty continued to participate in the carjacking “even after the firearm was
discharged.” (Id. at PageID 944.) The district court subsequently found that Daugherty had aided
and abetted Alvarez and was “GUILTY of Count Three of the Indictment—the use of a firearm in
relation to a crime of violence, pursuant to 18 U.S.C. § 924(c)(1)(A) and 18 U.S.C. § 2.” (Findings
of Fact & Conclusions of Law, R. 179, PageID 945–46.)
That the district court described Count Three of the Indictment as “use of a firearm” while
referencing the umbrella provision, 18 U.S.C. § 924(c)(1)(A), is of little consequence. An Alleyne
error is found only where post-trial, judge-found facts are used to increase mandatory minimum
sentences. See Robinson v. Woods, 901 F.3d 710, 716 (6th Cir. 2018). Because the district court
found beyond a reasonable doubt at trial both that a firearm was discharged and that Daugherty
had aided and abetted Alvarez in the carjacking, there was no error in sentencing Daugherty to the
mandatory minimum of ten years’ imprisonment under 18 U.S.C. § 924(c)(1)(A)(iii).

-- 5 of 6 --

Case No. 21-3459, United States v. Daugherty
- 6 -
III. CONCLUSION
For the foregoing reasons, we affirm.

-- 6 of 6 --