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United States v. Shanklin

United States Court of Appeals, Sixth Circuit

May 24, 2019

United States of America, Plaintiff-Appellee,
v.
Damon Lamont Shanklin, Defendant-Appellant.

          Argued: May 2, 2019

          Appeal from the United States District Court for the Western District of Kentucky at Louisville. No. 3:16-cr-00085-1-Thomas B. Russell, District Judge.

         ARGUED:

          Thomas W. Kidd, Jr., KIDD & URLING LLC, West Chester, Ohio, for Appellant.

          Erin McKenzie, UNITED STATE ATTORNEY'S OFFICE, Louisville, Kentucky, for Appellee.

         ON BRIEF:

          Thomas W. Kidd, Jr., KIDD & URLING LLC, West Chester, Ohio, for Appellant.

          Erin McKenzie, UNITED STATE ATTORNEY'S OFFICE, Louisville, Kentucky, for Appellee.

          Before: MOORE, SUTTON, MURPHY, Circuit Judges.

          OPINION

          KAREN NELSON MOORE, CIRCUIT JUDGE.

         Damon Lamont Shanklin appeals his conviction and sentence, following a jury trial, for being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Shanklin contends that (1) the district court erred when it denied his motion to compel the government to disclose the identity of a confidential informant ("CI"); (2) the government failed to provide sufficient identification evidence to sustain Shanklin's conviction; and (3) the district court erred when it applied a sentencing enhancement under USSG § 2K2.1(b)(6)(B) for using or possessing a firearm or ammunition "in connection with another felony offense." For the reasons stated below, we reject these arguments and AFFIRM Shanklin's conviction and sentence.

         I. FACTUAL & PROCEDURAL BACKGROUND

         On September 3, 2013, Louisville police began surveilling 2429 Elliott Avenue to investigate a tip that Damon Shanklin was growing marijuana at the location. R. 116 (McKinney Test. at 160, 194) (Page ID #791, 825); id. at 97 (Schardein Test.) (Page ID #728). The tip came from a "reliable confident[i]al informant," who informed Detective Kevin McKinney that within the last 48 hours, he/she had seen "numerous" marijuana plants inside the residence and that he/she believed that Shanklin was the "only occupant of the home." R. 29-2 (Search Warrant Affidavit at 2) (Page ID #79). After beginning surveillance on September 3, 2013, McKinney and other officers observed Shanklin exit 2429 Elliott Avenue and enter a vehicle. R. 116 (Schardein Test. at 97) (Page ID #728); id. at 161-62 (McKinney Test.) (Page ID #792-93). McKinney began to follow Shanklin, who drove a short distance and eventually pulled into the parking lot of a convenience store. Id. at 163-64 (McKinney Test.) (Page ID #794-95). McKinney and other officers subsequently approached Shanklin, confirmed his identity, and had a K-9 sniff the outside of Shanklin's car. Id. at 164-65 (McKinney Test.) (Page ID #795-96). The dog alerted to the trunk area, and a search of the car revealed a small amount of marijuana leaves in the trunk. Id.

         During this investigation, McKinney notified other officers to continue to surveil the residence to ensure that no one exited or entered 2429 Elliott Avenue; no one did. Id. at 130-31 (Evans Test.) (Page ID #761-62). One of the officers testified that when he approached the house, he observed marijuana plants in the backyard and noticed a "strong smell of marijuana coming from the house." Id. at 131 (Evans Test.) (Page ID #762). Based on the CI's statements, as well as the smell of marijuana from the residence, McKinney applied for and received a search warrant for 2429 Elliott Avenue. See R. 29-2 (Search Warrant) (Page ID #78-82).

         Officers subsequently executed the search warrant, using a key that Shanklin had given them to enter the residence. R. 116 (Schardein Test. at 116) (Page ID #747); id. at 169 (McKinney Test.) (Page ID #800). The house was small and had four rooms, including one front bedroom. Id. at 124 (Schardein Test.) (Page ID #755); id. at 137 (Evans Test.) (Page ID #768). During the search, officers located 51 bud-producing marijuana plants. Id. at 185 (McKinney Test.) (Page ID #816); R. 132-3 (Seized Property Log) (Page ID #1114). Additionally, officers found a glass marijuana pipe in the kitchen sink, a digital scale in the living room, various letters addressed to Shanklin at 2429 Elliott Avenue, and personal items associated with Shanklin, including car registrations, photographs of Shanklin, a medication prescription from 2008, and a medical discharge notice from July 2013. R. 132-3 (Seized Property Log) (Page ID #1114); R. 132-1 (Gov't Exs. at 9-10, 12-13, 57-61, 64-69, 72-74) (Page ID #993-94, 996-97, 1041-45, 1048-53, 1056-58); R. 132-2 (Gov't Exs. at 16-20) (Page ID #1084-88). There were also a small number of bills addressed to Shanklin's mother, as well as other individuals, dated from 2010 to 2013. R. 132-1 (Gov't Exs. at 66, 78) (Page ID #1050, 1062); R. 132-2 (Gov't Exs. at 10-11, 21-23) (Page ID #1078-79, 1089-91).

         Finally, in the "front bedroom," officers located a loaded 9-millimeter Glock pistol on the nightstand, a digital scale, and a magazine focusing on growing marijuana. R. 132-3 (Seized Property Log) (Page ID #1114); R. 116 (Schardein Test. at 120-21) (Page ID #751-52); id. at 141 (Reccius Test.) (Page ID #772); id. at 174, 188 (McKinney Test.) (Page ID #805, 819) (testifying that the gun was located on the nightstand and that, based on a later photograph of the gun and ammunition, a round of ammunition was found in the chamber of the gun); see also R. 88 (ATF Agent Test. at 3, 9) (Page ID #405, 411) (testifying about the ammunition). While Schardein believes he took a photograph of the gun, all parties agree that the photograph could not be located and was not entered into evidence. R. 116 (Schardein Test. at 120-21) (Page ID #751-52); Appellant Br. at 5.

         Shanklin was subsequently indicted by the Jefferson County Circuit Court for cultivating five or more plants of marijuana, in violation of Kentucky Revised Statute § 218A.1423, as well as for possessing a handgun as a convicted felon. Although the firearm charge was later severed, state prosecutors amended the marijuana cultivation charge to include a sentence enhancement based upon Shanklin's firearm possession. See Appellant Br. at 5-6; Appellee Br. at 6 n.2. Shanklin was then convicted of the marijuana cultivation charge in state court; the jury found Shanklin not guilty of the firearm enhancement. Appellant Br. at 6; see also R. 102 (Sent'g Hr'g Tr. at 15-16) (Page ID #465-66).

         On July 20, 2016, a federal grand jury returned an indictment against Shanklin on a single count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). R. 1 (Indictment at 1) (Page ID #1). Prior to trial, Shanklin's defense counsel filed a motion to compel the government to disclose the identity of the confidential informant who spoke to McKinney in September 2013. R. 29 (Page ID #71). Shanklin asserted that the CI's identity was necessary to establish his defense because "[i]t is quite possible the CI placed or left items with[in] the residence that are now being attributed to Shanklin." Id. at 3 (Page ID #73). The district court denied the motion, concluding that Shanklin had not provided any evidence indicating how the CI's identity would assist him in preparing his defense. R. 44 (Order at 5-9) (Page ID #121-25).

         The case proceeded to trial. Following the government's presentation of evidence, Shanklin moved for a judgment of acquittal, asserting, among other things, that the government had not presented any evidence that the individual at the defense table was Damon Shanklin. R. 117 (Trial Tr. at 4-6) (Page ID #861-63). The district court denied Shanklin's motion, noting that, "I think he [Shanklin] was identified several times." Id. at 6 (Page ...


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