United States of America v. Malliek D. Haynes

United States Court of Appeals
For the Eighth Circuit
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No. 20-2947
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Malliek D. Haynes
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: September 21, 2021
Filed: November 30, 2021
[Unpublished]
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Before SHEPHERD, WOLLMAN, and KOBES, Circuit Judges.
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PER CURIAM.
After Malliek Haynes pleaded guilty to one count of being a felon in
possession of a firearm, the district court1 sentenced him to 60 months’ imprisonment,
1The Honorable Beth Phillips, Chief Judge, United States District Court for the
Western District of Missouri.

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to run consecutively to an unrelated 22-year state sentence for second-degree murder.
Haynes argues that the district court erred in calculating his sentencing range under
the United States Sentencing Guidelines (Guidelines) and abused its discretion in
imposing a consecutive sentence. We affirm.
Haynes went to a convenience store with a handgun tucked into the waistband
of his pants in April 2017. After he began arguing with a group of people in the
store, he raised his shirt to display the handgun to a store clerk. The group exited the
store. Haynes followed shortly thereafter and remained near the store’s entrance,
continuing to display the handgun. Someone fired a shot at Haynes from a vehicle,
and he returned fire, engaging in a brief gunfight that left him injured.
A federal grand jury indicted Haynes in July 2017, but he was not arraigned
until August 2019. During the intervening period, Haynes committed second-degree
murder, pleaded guilty in state court, and was sentenced to 22 years’ imprisonment.
He thereafter was arraigned in federal court for the felon in possession count at issue
here. While in state custody pending resolution of the federal charge, Haynes
assaulted other inmates on two occasions.
In calculating Haynes’s Guidelines offense level, the district court applied a
four-level increase under U.S.S.G. § 2K2.1(b)(6)(B) for possessing the firearm in
connection with other felonies. Finding that Haynes’s assault of other inmates
demonstrated his failure to withdraw from criminal conduct, the district court also
denied a decrease to his offense level for acceptance of responsibility under § 3E1.1.
With a total offense level of 24 and a criminal history category of VI, Haynes’s
Guidelines sentencing range was 100 to 125 months’ imprisonment, capped at the
statutory maximum of 120 months. See 18 U.S.C. § 924(a)(2) (“Whoever knowingly
violates subsection . . . (g) . . . of section 922 shall be . . . imprisoned not more than
10 years . . . .”). We review the district court’s factual findings for clear error and its
application of the Guidelines de novo. United States v. Boll, 3 F.4th 1099, 1100 (8th
Cir. 2021).
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Haynes first contends that the district court erred in applying a four-level
increase to his offense level for possessing a firearm “in connection with another
felony offense[.]” U.S.S.G. § 2K2.1(b)(6)(B). The district court concluded that
Haynes possessed the firearm in connection with two Missouri felony offenses: (1)
assault, in violation of Mo. Rev. Stat. § 565.050, and (2) unlawful use of a weapon,
in violation of Mo. Rev. Stat. § 571.030.1(4). Haynes argues that he had not
committed assault because he was acting in self defense when he returned gunfire
outside the convenience store. We need not decide that issue, however, because there
is no clear error in the district court’s finding that Haynes “showed the gun in an
angry and threatening manner” to others before the gunfight began. Sentencing Tr.
13. The district court thus did not err in concluding that Haynes had committed the
Missouri law felony offense of unlawful use of a weapon and in applying an increase
under § 2K2.1(b)(6)(B).
Haynes next argues that the district court erred by denying him any decrease
for acceptance of responsibility under § 3E1.1. He contends that he demonstrated his
acceptance of responsibility by pleading guilty and that his assaults of other inmates
did not negate that acceptance. “One factor in determining whether a defendant has
clearly demonstrated acceptance is whether he has withdrawn from ‘criminal
conduct.’” United States v. Cooper, 998 F.3d 806, 811 (8th Cir. 2021) (quoting
United States v. Arellano, 291 F.3d 1032, 1034-35 (8th Cir. 2002)); see U.S.S.G. §
3E1.1 cmt. n.1(B). We have previously upheld the denial of a reduction for
acceptance of responsibility because of a defendant’s failure to withdraw from
criminal conduct, as shown by the defendant’s pre-plea bad acts unrelated to the
offense of conviction. Cooper, 998 F.3d at 812. We reach the same conclusion here,
for the district court did not clearly err in finding that Haynes continued his criminal
conduct by instigating two in-custody fights before pleading guilty in the present
case. See id. at 810 (quoting United States v. Davis, 875 F.3d 869, 875 (8th Cir.
2017) (“We afford ‘great deference’ to the sentencing judge’s determination of
whether to grant the reduction [under § 3E1.1] because of the judge’s ‘unique
position to evaluate a defendant’s acceptance of responsibility.’”)).
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Haynes additionally argues that the district court imposed a substantively
unreasonable sentence by ordering that his 60-month federal sentence—a downward
variance from his Guidelines range—run consecutively to his state sentence,
contending that the court failed to give adequate weight to Haynes’s childhood
trauma. We review the substantive reasonableness of a district court’s sentence for
abuse of discretion. United States v. Nelson, 982 F.3d 1141, 1146 (8th Cir. 2020).
The district court considered the mitigating factors—including Haynes’s desire to
change, the steps he had taken to effect positive change, and his traumatic
childhood—against the egregious and violent nature of his state and federal offenses.
See United States v. Hewitt, 999 F.3d 1141, 1149 (8th Cir. 2021) (per curiam)
(quoting United States v. Bridges, 569 F.3d 374, 379 (8th Cir. 2009) (“The district
court has wide latitude to weigh the § 3553(a) factors in each case and assign some
factors greater weight than others in determining an appropriate sentence.”)). We
conclude that the district court did not abuse its discretion in deciding that the federal
offense warranted a consecutive sentence, particularly to protect the public against
Haynes’s criminal conduct. In the district court’s view, it was “a pure act of God that
no one was killed” during the convenience store altercation. Sentencing Tr. 41.
The judgment is affirmed.
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