* The Honorable William W Schwarzer, Senior Unite d States District Judge for the Northern District of California, sitting by designation. NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 06a0546n.06 Filed: July 31, 2006 No. 04-1749 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee.

v. KEVIN K. SMITH, Defendant-Appellant. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN OPINION

BEFORE: BOGGS, Chief Judge; SUTTON, Circuit Judge, and SCHWARZER, * Senior District Judge WILLIAM W SCHWARZER, Senior District Judge. Kevin Smith appeals his conviction and sentence for crimes related to hi ring an undercover ATF agent to kill his ex-wife. On appeal, Smith argues that the government failed to disprove his entrapment defense and to prove that he possessed a firearm beyond a reasonable doubt. Smith also argues that he should have received a competency hearing, that his Sixth Amendment right to call witnesses was violated because he could not call a witness at his pretrial detention hearing, and that the prosecutor engaged in impermissibly prejudicial questioning. Fina lly, Smith appeals his sentence as unlawful and unreasonable. We affirm Smith’s conviction butvacate his sentence and remand for resentencingNo. 04-1749 United States v. Smith

-2- under the now-advisory Sentencing Guidelines. FACTUAL AND PROCEDURAL HISTORY Because the parties are familiar with the facts, we recite them here only to the extent necessary for our decision. Beginning in late 2002 or early 2003, Kevin Smith held numerous discussions with Mike Slaninka regarding hiring a hitman to kill his ex-wife, Monica Jarvis. Slaninka, who had previously provided information to Alcohol, Tobacco, and Firearms (ATF) agents following his 2002 arrest on an explosives charge, contacted an ATF agent regarding Smith’s comments. The ATF agent gave Slaninka a tape recorder, instructed him to contact Smith, and arranged for another agent to pose as a hitman. Slaninka put Smith in touch with the undercover ATF agent, but testified that he told Smith thatit was Smith’s choice whether to go through with the killing. Shortly before July 1, 2003, Smith sent a package to the ATF agent containing $1000, a map to Jarvis’s home, and photos of Jarvis. The ATF agent then contacted Smith to arrange delivery of a gun for use in the killing and told Smith that there would be no harm if he were to call off the plan. Smith stated that there were “no changes” to the plan. On July 21, 2003, Smith contacted the ATF agen t to arrange delivery of the weapon to be used in the killing. Early the next morning, Smithleft a .25-caliber handgun with the serial numbers removed near the arranged location. ATF agents recovered the gun almost immediately after Smith’s departure from the area. The ATF agent posing as the hitman also called Smith to obtain more specific details regarding where he dr opped the gun, which Smith provided. Following the drop, ATF agents arrested Smith and searchedhis home, where they found a .22-caliber handgun. On August 5, 2003, Smith was indicted on four counts: murder for hire, being a felon inNo. 04-1749 United States v. Smith

-3- possession of a firearm, possessing a firearm w ith the serial number removed, and possessing a firearm in furtherance of a crime of violence. On October 24, 2003, Smith filed an ex parte application for process costs and witness fees to have Slaninka testify as part of Smith’s de fense. Smith’s application listed October 31, 2003, the date of Smith’s detention hearing, as the relevant date for Slaninka’s testimony. The application was not granted until November 12, 2003, after Smith’s detention hearing. Smith did not make other requests to have Slaninka appear at his detenti on hearing and did not object to Slaninka’s absence during the hearing. During his December 2003 jury trial, Smith took the stand and admitted that he had hired a hitman to kill his ex-wife. Smith argued, however, that Slaninka had been working as a government informant and entrapped him. According to Smith, Slaninka repeatedly suggested that he kill Jarvis and stated that he knew someone who could do it. Although Smith stated that he would generally change the subject when Slaninka made such sugges tions, he testified that he eventually indicated that Slaninka should contact the hitman. Smith also testified that he had been convict ed of a firearm-related felony in 1995, but gave away his guns following his convicti on. He stated that his current wife owned a gun, but that he did not know where she kept it. On cross-examinati on, he stated that the .22-caliber gun found in his home belonged to his wife. He testified that she “went and got this gun” because of security concerns. Following this testimony, the prosecutor impeached Smith with a firearm application that indicated that Smith had purchased the gun in 1994. On his application, Smith answered “no” when asked whether he had any prior fe lony convictions. The prosecutor argued that this was a lie, sinceNo. 04-1749 United States v. Smith

-4- Smith had been convicted of a felony in 1979 at the age of nineteen. During cross-examination, Smith admitted this prior felony, but stated that he thought he had been tried as a youthful offender and that the felony would not show up on his record. In closing argument rebuttal, the prosecutor argued that Smith had lied on his application for the gun. On December 16, 2003, the jury found Smith guilty on all four counts. Following the verdict, Smith twice moved unsuccessfully for a dete rmination of his competency to stand trial. On May 27, 2004, the district court sentenced Smith to 240 months’ imprisonment, imposing concurrent 120-month sentences for murder for hire and bei ng a felon in possession of a firearm, followed by two consecutive sixty-month sentences for the remaining firearm possession offenses. Smith filed a timely appeal. DISCUSSION I. ENTRAPMENT DEFENSE Smith contends that the government failed to disprove his entrapment defense beyond a reasonable doubt. He moved for an acquittal on December 22, 2003, within se ven days of his jury verdict as required by Federal Rule of Criminal Procedure 29(c). When a timely motion for acquittal has been made, the court “views the evidence in the light most favorable to the prosecution and gives the prosecution the benefit of all r easonable inferences from the testimony.” United States v. Abboud , 438 F.3d 554, 589 (6th Cir. 2006). To support an entrapment defense, Smith must first demonstrate that the government induced him to commit a crime. United States v. Nelson , 922 F.2d 311, 317 (6th Cir. 1990); United States v. Meyer , 803 F.2d 246, 249 (6th Cir. 1986). The burden th en shifts to the government to proveNo. 04-1749 United States v. Smith

-5- predisposition beyond a reasonable doubt. Meyer , 803 F.2d at 249. Viewing the evidence in the light most favorable to the prosecution, Smith failed to show government inducement, thereby relieving the government of the burden of proving predisposition. Smith based his entrapment defense entirely on his own testimony, which the ju ry could have reasonably rejected as lacking credibility. Moreover, the government presented evidence showing that Smith made initial contact with Slaninka regarding the killing and took substa ntial steps of his own volition, without Slaninka’s involvement, to further the plot. The evidence s upports the jury verdict that Smith was not induced to commit this crime and was predisposed to do so. II. POSSESSION OF A FIREARM Smith contends that the government faile d to prove beyond a r easonable doubt that he possessed the .22-caliber handgun found in his home. Because Smith’s post-verdict acquittal motion addressed only his entrapment defense, we revi ew Smith’s sufficiency of the evidence claim regarding possession for manifest miscarriage of justice. United States v. Price , 134 F.3d 340, 350 (6th Cir. 1998). The jury’s finding that Smith possessed the handgun was not a miscarriage of justice. Generally, dominion over the premises where a firearm is found is sufficient to show possession. United States v. Kincaide , 145 F.3d 771, 782 (6th Cir. 1998). The government presented evidence showing that Smith purchasedthe .22-caliber handgun in 1994 and that officers found it in his bedroom closet. Even if Smith “gav e” the gun to his wife, as he claimed at trial and on appeal, the jury still could have found that he possessed it. The jury also could have based its possession finding on the .25-caliber handgun that Smithdropped off to be us ed to kill Jarvis, an alternative basis not addressed by Smith.No. 04-1749 United States v. Smith

-6- III. DENIAL OF COMPETENCY HEARING Smith contends that the district court erred in denying, without an evidentiary hearing, his motion to determine competency. A district court’s determination of whether there is reasonable cause to believe that the defendant is incomp etent is reviewed for abuse of discretion. Harper v. Parker , 177 F.3d 567, 571 (6th Cir. 1999). On appeal, Smith neither raises new arguments on this matter nor identifies flaws in the district court’s f actual conclusions, but instead asserts only that the failure to grant a good faith request for a compet ency hearing was an abuse of discretion. Smith cites no binding or analogous authority to support su ch an argument, citing only out-of-circuit cases in which there were substantial facts supporting a finding of reasonable cause or where the district court made legal errors in the analysis. See United States v. Ramirez , 304 F.3d 1033, 1035 (10th Cir. 2002); United States v. Graves , 98 F.3d 258, 261-62 (7th Cir. 1996); United States v. Mason , 52 F.3d 1286, 1290 (4th Cir. 1995). Smith, lacking evid ence of reasonable cause for the hearing or legal error in the court’s analysis, fails to demonstr ate that the district court abused its discretion in its competency-hearing denial. IV. SUBPOENA FOR DETENTION HEARING Smith submitted an ex parte application requesti ng payment of costs to have Slaninka testify at the detention hearing. He argues on appeal thatif Slaninka had been called to testify at the detention hearing, it would have foreclosed the gove rnment’s argument at trial that Slaninka was not a government agent for entrapment purposes. He a sserts that this inability to call Slaninka at his detention hearing violated his Sixth Amendment right to call witnesses on his behalf. Generally, whether a defendant’s Sixth Amendment rights have been violated is reviewed de novo. See, e.g. ,No. 04-1749 United States v. Smith

1 In his reply brief, Smith argues that the pr osecutor made several other improper statements. We do not address these statemen ts, however, since “[a]n argument first presented to the Court in a reply brief is waived.” Abboud , 438 F.3d at 589. -7- United States v. Stone , 432 F.3d 651, 654 (6th Cir. 2005). Although the Sixth Amendment provides that criminal defendants have the right to “compulsory process for obtaini ng witnesses in his favor,” United States v. Hubbell , 530 U.S. 27, 54 (2000) (quoting U.S. Const. amend. VI), Smith cites no authority holding that the Sixth Amendment right to compulsory process applies to pretrial detention hearings. Moreover, Smith does not demonstrate how Slaninka’s testimony at the detention hearing would have precluded the government from rebutting Smith’s entrapment theory at trial. Therefore, Slaninka’s absence at Smith’s detention hearing did not violate Smith’s Sixth Amendment rights. V. QUESTIONING ON PRIOR CONVICTIONSSmith argues that the prosecutor’s questions about his felony conviction as a nineteen-yearold and the prosecutor’s reference to that testim ony in closing argument were “highly prejudicial.” 1 Since Smith made no objection to the que stion, we review for plain error. United States v. Oliver , 397 F.3d 369, 375 (6th Cir. 2005). Federal Rule of Evidence 608 allows inquiry on cross-examination into specific instances of conduct that relate to the witn ess’s character for truthfulness or untruthfulness. The prosecutor’s questioning is admissible based upon Smith’s mislead ing response on his firearm application. Smith argues that, under Michigan law, a felon’s civil rights are restored once the felon’s sentence is completed. Hampton v. United States , 191 F.3d 695, 702-03 (6th Cir. 1999). Therefore, he argues, his 1979 felony is not a bar to his firearms ow nership. This argument is nonresponsive. TheNo. 04-1749 United States v. Smith

-8- relevant application form asked whether Smith ha d ever been convicted of a felony, not whether he was currently a felon who could not possess a fir earm. Smith’s “no” answer was, at best, misleading. The prosecutor’s reference to the answer in rebuttal argument was not improper. VI. SENTENCING Smith argues that the district court erred under Apprendi v. New Jersey , 530 U.S. 466 (2000), by imposing a sentence that was greater than th e statutory maximum for his murder for hire conviction. Smith mistakenly assumes that the 120-month statutory maximum for his murder for hire conviction (Count I) bars the district court from stacking two sixty-month sentences for possessing a firearm with a removed serial number (Count III) and in furtherance of a crime of violence (Count IV) onto his murder-for-hire sentence. The district court permissibly exercised its discretion in imposing a consecutive sentence for possessing a firearm with a removed serial number, 18 U.S.C. § 3584(a), and was statutorily required to impose a consecutive sentence for possessing a firearm in furtherance of a crime of violence, 18 U.S.C. § 924(c)(1)(A). Under USSG 5G1.2(d), the district court had authority to stack the sentences on Counts I (120 months) and III (60 months) since the combined total did not exceedthe maximum Guidelines sentence (188 months). Following the statutorily mandated addition of sixty months for Count IV, the district court properly arrived at a total sentence of 240 months. See 18 U.S.C. § 924(c)(1)(A). Nonetheless, we must vacate the sentence base d upon the district court’s treatment of the Guidelines as mandatory. When a district court sentences a defendant under a mandatory Guidelines scheme, plain error is presumed if there is not “clear and specific evidence” in the trial record that the district court would have imposed the same sentence under an advisory Guidelines regime.No. 04-1749 United States v. Smith

-9- United States v. Barnett , 398 F.3d 516, 529 (6th Cir. 2005), cert. dismissed , ___ U.S. ___, 126 S. Ct. 33 (2005). We vacate Smith’s sentence and re mand to the district court for resentencing consistent with United States v. Booker , 543 U.S. 220 (2005) , and this court’s post- Booker precedents. CONCLUSION
We AFFIRM Smith’s convictions but VACATE his sentence and REMAND for resentencing.