Youngstown Daily Legal News

Convicted felon caught with gun loses appeal for shorter sentence

ANNIE YAMSON
Special to the Legal News
Published: March 29, 2016

The 6th U.S. Circuit Court of Appeals recently ruled that a Cleveland man was properly sentenced to more than nine years in prison for being a felon in possession of a firearm and ammunition.

Kenneth Pinkney was charged in the U.S District Court for the Northern District of Ohio after police found him in the back seat of a vehicle with a stolen gun between his feet and a box of ammunition hidden under a scarf beside him.

The proceedings took place in federal court because the gun was found to have been transported across state lines.

While in prison awaiting trial, Pinkney wrote letters to his brother, Kwamaine Davis, instructing him to pay the driver of the vehicle, Slater Howell, to perjure himself at trial by testifying that Pinkney never possessed the gun.

According to court documents, when Pinkney spoke to investigators with the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives, he claimed that the gun belonged to Howell, who dropped the firearm on the floor and kicked it under the front seat to hide it from police.

Pinkney knew exactly how many rounds of ammunition there were in the box beside him (17) and that the gun was a 9mm weapon that was jammed and couldn’t be loaded.

Case summary states that Pinkney declined to present any evidence in his defense at trial and that a jury found him guilty of possessing the ammunition but not guilty of possessing the firearm.

However, at sentencing, the district court found that Pinkney had obstructed justice and had possessed the stolen gun, warranting two, two-point enhancements to his sentence under federal sentencing guidelines.

“Pinkney obstructed justice by writing letters to his brother instructing him to tell a witness what to say on the stand,” case summary states. “As to possession of the firearm, the district court found by a preponderance of the evidence that the events leading to Pinkney’s arrest, his knowledge of the firearm, and a number of recorded prison phone calls between Howell and Pinkney indicated that Pinkney possessed the firearm.”

The district court ultimately calculated Pinkney’s guideline sentencing range to be 110 to 120 months in prison.

It imposed the lowest sentence, taking into account Pinkney’s age, mental health and criminal history.

The court also considered Pinkney’s criminal activity after his indictment, which included the jailhouse letters and an attempt to file a fraudulent tax return using stolen personal information.

On appeal to the 6th Circuit court, Pinkney argued that the letters he wrote while in jail should not have been admitted into evidence. According to him, the value of the letters was significantly outweighed by the risk of unfair prejudice.

“Pinkney’s argument is barely developed in his brief and has no merit,” Judge David McKeague wrote in the opinion he authored on behalf of the appellate court.

Pinkney argued that the letters suggested that his attorney was working with the police but the court of appeals noted that the evidence was redacted so that the jury never saw any reference to “police.”

“He also argues that the letters show he and his attorney were at odds,” McKeague wrote, “but in truth, all they show is Pinkney’s consciousness of guilt and his attempts to tamper with a witness.”

That evidence, the appellate panel held, was not prejudicial and the district court properly admitted the letters as evidence to the jury.

“Pinkney also makes a barebones challenge to the sufficiency of the evidence supporting his conviction and sentence,” McKeague wrote. “Again, Pinkney’s undeveloped argument has no merit.”

Pinkney pointed to a lack of DNA and fingerprint evidence but the court of appeals noted that even Pinkney’s own attorney admitted at trial that such evidence was not required to sustain a conviction.

The court of appeals also held that Pinkney’s argument ignored the other evidence and testimony presented at his trial, all of which was plenty to sustain a conviction.

Pinkney went on to challenge his sentence and statements made by his arresting officer but the court of appeals found little merit to his arguments and it affirmed the judgment of the district court.

Judges Damon Keith and Deborah Cook joined McKeague to form the majority.

The case is cited United States v. Pinkney, case No. 15-3642.

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