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United States v. Middlebrooks

United States District Court, E.D. Kentucky, Central Division, Lexington

July 19, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
D'VONTA L. MIDDLEBROOKS, Defendant.

          MEMORANDUM OPINION AND ORDER

          DANNY C. REEVES, UNITED STATES DISTRICT JUDGE

         On December 6, 2018, an indictment was returned by a federal grand jury, charging Defendant D'Vonta Middlebrooks with being a felon in possession of a firearm, possessing a stolen firearm, and possessing cocaine. The charges are the result of Middlebrooks' interactions with law enforcement officers on August 22, 2018. He pleaded guilty on April 5, 2019, to being a felon in possession of a firearm. In exchange, the United States agreed to move to dismiss the remaining counts at the time of the sentencing hearing. The probation officer assigned to the case prepared a pre-sentence investigation report ("PSR") which assigned four points to Middlebrooks' base offense level pursuant to United States Sentencing Guidelines section 2K2.1(b)(6)(B). The increase applies if a defendant possesses a firearm or ammunition in connection with another felony offense.

         Middlebrooks objects to the four-level enhancement. [Record No. 19] However, because the government has established, by a preponderance of the evidence, that Middlebrooks possessed a firearm in connection to another felony offense (drug trafficking), Middlebrooks' objection will be overruled.

         I.

         A. Uncontested Information from Middlebrooks' PSR

         Part B of Middlebrooks' PSR outlines his criminal history. Although he is only 24 years' of age, he has a total of 16 criminal history points, placing him in Criminal History Category VI. On October 16, 2016, Middlebrooks was involved in a shooting which resulted in the death of Trinity Gay, a young high school student. Middlebrooks was later charged with wanton endangerment in the first degree and being a persistent felony offender. He was sentenced on January 17, 2019, to a term of imprisonment of 15 years by a judge of the Fayette Circuit Court. At the time of the incident giving rise to the present federal charges, Middlebrooks was out on bond pending resolution of the state charges regarding the shooting death. Additional details are outlined in paragraph 34 of the PSR.

         In addition to receiving three criminal history points for the above-described state conviction, Middlebrooks has other state convictions for possession of a controlled substance in the first degree for which he was given a one-year prison sentence (suspended) imposed by the Fayette Circuit Court on July 20, 2016. The PSR indicates the conduct giving rise to this conviction occurred in February 2016. Paragraph 33 of the PSR outlines that Middlebrooks was approached by officers attempting to execute a warrant. Middlebrooks fled on foot but was eventually apprehended. He was found to be in possession of 1.2 grams of cocaine. Officers located an additional 2 grams of cocaine in the area of the officer's pursuit. He received two criminal history points for this incident.

         Middlebrooks was also convicted of fleeing and evading police in the second degree on November 19, 2015 and eventually received a 12-month jail sentence by the Fayette Circuit Court. Again, however, service of the sentence was suspended. The description of the conviction and facts leading to the charge are outlined in paragraph 32 of the PSR. According to state court records, officers attempted to stop Middlebrooks as he was driving a vehicle which was believed to have been involved in a shooting earlier that same day. The defendant, however, fled at a high rate of speed through a residential area. Middlebrooks received two criminal history points for this conviction.

         At age 19, Middlebrooks was also charged and later convicted of trafficking in a controlled substance in the first degree (less than four grams of cocaine), and fleeing and evading police. Paragraph 31 of the PSR reflects that the conduct giving rise to these charges occurred on October 3, 2014. On that date, Middlebrooks was involved in a traffic stop in Lexington, Kentucky. After a drug-detection dog alerted to the presence of narcotics, the defendant fled from the scene. He was ultimately apprehended and found to be in possession of 6.9 grams of cocaine. Middlebrooks was sentenced on February 19, 2015, to a term of three years' imprisonment on the drug trafficking charge and a twelve-month sentence (to run concurrently) on the fleeing and evading conviction. He was paroled on September 30, 2015. Middlebrooks received three criminal history points for this conviction.

         Middlebrooks was also convicted in 2015 for illegally possessing a controlled substance in the first degree and attempted receipt of stolen property. He received a one-year prison sentence on March 24, 2015. Additional charges of carrying a concealed deadly weapon and possession of a defaced firearm were dismissed by the Fayette Circuit Court. [See PSR, ¶ 30.]

         Middlebrooks' first adult conviction occurred in 2013. At age 18, he was convicted of fleeing and evading police in the second degree, criminal mischief, and giving officers a false name or address. He received a 90-day jail sentence on September 9, 2013, resulting in two criminal history points being assigned by the probation officer. [See PSR, ¶ 29.]

         Despite Middlebrooks' convictions involving cocaine (either for possessing or trafficking the controlled substance), his PSR does not indicated that he uses the drug. Instead, paragraph 48 of the report only indicates prior use of marijuana.

Middlebrooks states that he began using marijuana at age 17. Thereafter, he used the substance approximately twice per week until 2018. He has not had the ...

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