*

The Honorable William H. Stafford, Jr., United States District Judge for the Northern District of Florida, sitting

by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 07a0435p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

TIMOTHY ALLEN GIBBS,

 Defendant-Appellant.

X

-

-

-

-

>

,

-

-

N

No. 06-1916

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 06-00003—Robert Holmes Bell, Chief District Judge.

Argued: September 17, 2007

Decided and Filed: October 29, 2007 

Before: BATCHELDER and GILMAN, Circuit Judges; STAFFORD, District Judge.*

_________________

COUNSEL

ARGUED: Michael Robert Bartish, WILLEY & CHAMBERLAIN, Grand Rapids, Michigan, for

Appellant. Michael L. Schipper, ASSISTANT UNITED STATES ATTORNEY, Grand Rapids,

Michigan, for Appellee. ON BRIEF: Michael Robert Bartish, WILLEY & CHAMBERLAIN,

Grand Rapids, Michigan, for Appellant. Michael L. Schipper, ASSISTANT UNITED STATES

ATTORNEY, Grand Rapids, Michigan, for Appellee. Timothy Allen Gibbs, Muskegon, Michigan,

pro se.

_________________

OPINION _________________

RONALD LEE GILMAN, Circuit Judge. Timothy Allen Gibbs appeals his jury conviction

on one count of being a felon in possession of a firearm and the corresponding sentence of 108

months’ imprisonment. He was indicted on the basis of a handgun that was found in the basement

bedroom of his mother’s residence, where he had been living. Gibbs has raised three issues on

appeal: (1) that the district court abused its discretion and violated the terms of its own motion-inlimine order by allowing evidence of prior bad acts, (2) that the district court erred in allowing into

evidence an out-of-court statement in violation of the Confrontation Clause of the Sixth Amendment,

and (3) that the district court committed plain error by ordering Gibbs’s federal sentence to run

1
No. 06-1916 United States v. Gibbs Page 2

consecutively to a sentence that he was serving for a state-court conviction. For the reasons set forth

below, we AFFIRM Gibbs’s conviction, but VACATE his sentence and REMAND for

resentencing.

I. BACKGROUND

A. Factual background

In August of 2005, officers from the Muskegon County Sheriff’s Department and the

Michigan State Police were investigating a series of burglaries in Muskegon County, Michigan.

Gibbs and another individual, Billy Joe Miel, were identified as suspects in these burglaries. Both

Gibbs and Miel were convicted felons on parole at the time. Detective Brent Sowles of the

Muskegon County Sheriff’s Department and Trooper William Coon of the Michigan State Police

interviewed Gibbs at the office of his parole agent on August 10, 2005. 

According to Sowles, Gibbs denied any involvement in the burglaries. But Gibbs did

provide information that he claimed to have received from Miel about the location of some guns.

Gibbs also denied that there were any guns at his mother’s residence. He then said, however, “I

don’t know if my cousin had picked up a gun, but there was a gun of my cousin’s there.” Gibbs’s

parole officer, Don Cole, interrupted the interview to tell Sowles and Coon that Gibbs may have

“some long guns, shotguns and/or rifles hidden in his basement bedroom.” Cole testified that he had

received this tip from another parole officer, who had in turn received the information from a parolee

named Frank Kuzyk. When Gibbs was informed that Cole was going to conduct a search of the

bedroom and was asked what Cole could expect to find, Gibbs replied that there was a pistol lying

on a shelf a few feet from the bed. Gibbs denied, however, possessing or attempting to sell firearms.

After the interview with Gibbs had concluded, investigators from the Michigan State Police

went to the residence located at 224 West Grand Avenue in Muskegon. Gibbs lived there with his

mother, Denise Vos. When the investigators arrived, parole agents were already there conducting

a search pursuant to the search clause in Gibbs’s parole order. In the basement bedroom that Gibbs

occupied, officers found a .380 caliber Llama pistol on a shelf near the headboard of the bed.

Agents also found several rounds of .380 and .22 caliber ammunition, three knives, a roll of

firecrackers, and a gun scope. 

In the meantime, Gibbs had been arrested and was being held in the county jail. While in

jail, he made a telephone call to his friend Justine Barrett, a recording of which was admitted into

evidence. Gibbs told Barrett that “well, they got me—they got that pistol at my house.” He

instructed Barrett to call either his sister (Heather Bramer) or his girlfriend (Rachel DeKubyer) and

ask them to claim the gun as theirs because “ain’t neither one of them ever been in no shit.” 

B. Procedural background

Gibbs was indicted in January of 2006 on one count of being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g)(1). Before trial, Gibbs stipulated that he was a convicted

felon and that the weapon at issue, the .380 Llama pistol described in the indictment, had traveled

in interstate commerce. Thus the only element of the charged offense that the government was

required to prove at trial was that Gibbs had actual or constructive possession of the firearm. In

putting on its proof, however, the government was prohibited by a pretrial order from introducing

evidence linking Gibbs to multiple uncharged larcenies and home invasions unrelated to the present

offense, as well as any evidence of Gibbs’s alleged involvement in a drive-by shooting in Muskegon.

Gibbs was convicted by the jury after a two-day trial in March of 2006. He was later

sentenced by the district court to 108 months of imprisonment. Gibbs originally appealed only his
No. 06-1916 United States v. Gibbs Page 3

conviction, but subsequently was allowed to supplement his appeal to address a plain error allegedly

committed by the district court in sentencing him. 

II. ANALYSIS

A. Standard of review

We review the district court’s evidentiary rulings under the abuse-of-discretion standard.

United States v. Pugh, 405 F.3d 390, 397 (6th Cir. 2005). “A district court abuses its discretion

when it applies the incorrect legal standard, misapplies the correct legal standard, or relies upon

clearly erroneous findings of fact.” Id. (citation and quotation marks omitted). We will reverse the

district court’s decision “only if we are firmly convinced that a mistake has been made.” Id. 

Gibbs failed to object to the admission of parolee Kuzyk’s out-of-court statement at trial and

did not raise the alleged sentencing error in his final brief. Pursuant to Rule 52(b) of the Federal

Rules of Criminal Procedure, however, “a plain error that affects substantial rights may be

considered even though it was not brought to the court’s attention.” But review of forfeited claims

is “circumscribed by the standard of review for plain error.” United States v. Graham, 275 F.3d 490,

522 (6th Cir. 2001). Plain-error review requires us to determine whether: “(1) there was an error,

(2) which was plain, (3) that affected the defendant’s substantial rights, and (4) that, in our

discretionary view, seriously affects the fundamental fairness, integrity, or public reputation of

judicial proceedings.” United States v. Trammel, 404 F.3d 397, 401 (6th Cir. 2005).

B. Evidence of other acts

Gibbs’s first argument on appeal is that the government violated the district court’s pretrial

order by “repeatedly elicit[ing] testimony from its law enforcement witnesses” regarding Gibbs’s

involvement in various home invasions in the Muskegon County area. Although he does not specify

the precise testimony that allegedly should have been excluded, Gibbs cites generally to testimony

by Trooper Coon, Detective Sowles, Parole Agent Cole, and Trooper Andrew Fias. 

Trooper Coon testified that part of his assignment during the spring and summer of 2005 was

to investigate home invasions that had taken place in the Muskegon area. In the course of the

investigation, he had asked Agent Cole to identify two men from a video surveillance tape. This led

to the questioning of Gibbs and his subsequent admission that officers would find a gun next to the

bed in the basement of his mother’s house located at 224 West Grand Avenue. Counsel for Gibbs

twice objected to this testimony on the basis of relevance, but the district court overruled the

objections. 

On appeal, Gibbs argues that his defense counsel “objected to the testimony pursuant to Rule

403, but more properly should have objected to the testimony pursuant to Rule 404(b)” of the

Federal Rules of Evidence. A review of the record, however, reveals that both objections to Trooper

Coon’s testimony were made on the basis of relevance, which is an objection under Rule 401. That

rule defines “relevant evidence” as “evidence having any tendency to make the existence of any fact

that is of consequence to the determination of the action more probable or less probable than it

would be without the evidence.” Fed. R. Evid. 401. 

The government’s theory of the case was that Gibbs stole several guns, including the .380

Llama pistol, while committing a burglary. Trooper Coon’s testimony was relevant background

information offered to show how his investigation led him to Gibbs. It also provided context for

Gibbs’s admission that a gun would be found in his bedroom. We thus conclude that the district

court did not abuse its discretion by allowing this testimony over the defense’s objection of

relevancy.
No. 06-1916 United States v. Gibbs Page 4

Detective Sowles testified that he was also investigating home invasions in Muskegon

County. Sowles’s testimony described his interview with Gibbs about the latter’s possible

involvement in these home invasions and Sowles’s involvement in the subsequent search of the

residence at 224 West Grand Avenue. His testimony is relevant for the same reason that Trooper

Coon’s testimony is relevant, and therefore the district court did not abuse its discretion by admitting

it. Moreover, Gibbs’s counsel did not object to any of the testimony when given, and he has failed

to specify exactly what portions of Sowles’s testimony should not have been admitted. 

Trooper Fias also testified about his involvement in the home-invasion investigation and

about his participation in the interview with Gibbs. Gibbs’s counsel made one hearsay objection,

which was sustained. Finally, Agent Cole’s testimony offers much of the same background

information, and Gibbs’s counsel made no objection to any of it. Nor does Gibbs explain on appeal

exactly what is objectionable about these officers’ testimony. Although the government was

prohibited by the pretrial order from offering testimony about Gibbs’s involvement with the homeinvasions, the officers’ tangential testimony on this subject provided necessary background into how

they were led to Gibbs and their discovery of the firearm. We find no error in the admission of this

evidence. 

Gibbs next argues that the district court abused its discretion in admitting the testimony of

Billy Joe Miel with respect to Gibbs’s alleged involvement in a drive-by shooting in Muskegon

during the summer of 2005. At the pretrial hearing on Gibbs’s motion in limine, the district court

ruled that Miel could testify as to whether he had seen Gibbs with specific guns and whether Miel

had ever seen those guns before. The court also ruled that Miel could testify about his belief that

the guns belonged to his cousin, Troy Ropp. On the other hand, the order prohibited Miel from

testifying about whether he had ever seen Gibbs fire the .380 Llama pistol or about a bullet that was

allegedly fired from the gun.

At trial, Miel testified that he had seen Gibbs with a gun at some point during the previous

summer. He was not sure whether the gun was a .380 caliber, but described it as a “little black gun.”

The government also elicited testimony that during the summer of 2005, Miel saw Gibbs retrieve

a handgun from his bedroom in the basement of the 224 West Grand Avenue residence, leave the

residence, and return a short time later to ask Miel’s assistance in recovering a number of .380 shell

casings from Gibbs’s car. Counsel for Gibbs objected on the basis that this testimony violated the

order on the motion in limine, but the district court overruled it. 

Gibbs concedes on appeal that Miel did not specifically testify that Gibbs participated in a

drive-by shooting, but instead argues that the line of questioning in which the government engaged

“certainly implied it.” Nothing in Miel’s testimony, however, runs afoul of the motion-in-limine

order. In the motion, Gibbs objected to the introduction of a .380 caliber bullet recovered from the

residence of Gibbs’s ex-girlfriend. At the final pretrial conference, the government stated that it

would “have testimony about individuals seeing this defendant with the gun,” but would not offer

testimony from anyone claiming that they saw Gibbs shoot the gun. Counsel for Gibbs replied that

this stipulation from the government resolved his issue with respect to the bullet. The bullet was not

introduced, nor was any testimony from witnesses claiming that they saw Gibbs shoot a gun. We

conclude that the district court did not abuse its discretion in its ruling on this issue.

Gibbs also argues that the district court abused its discretion in allowing Miel to testify that

he had seen other guns in Gibbs’s bedroom. Counsel for Gibbs objected on the basis that this

testimony was more prejudicial than probative under Rule 403 of the Federal Rules of Evidence.

This argument is meritless. Gibbs was initially investigated because of burglaries in the Muskegon

area. Moreover, the search of his bedroom was a result of law enforcement’s learning that Gibbs

had potentially hidden several long guns, stolen in those burglaries, in that bedroom. Any testimony

of this nature was relevant background evidence and not unfairly prejudicial under Rule 403. 
No. 06-1916 United States v. Gibbs Page 5

Gibbs has made no showing, other than by conclusory allegations, that the testimony’s

probative value was substantially outweighed by unfair prejudice. See United States v. Sanders, 95

F.3d 449, 453 (6th Cir. 1996) (“[T]he prejudice to be weighed is the unfair prejudice caused by

admission of the evidence.”) (emphasis in original). Moreover, this court “must view the evidence

in the light most favorable to the government by maximizing the probative value of the evidence and

minimizing its potential prejudice.” Id. 

We further hold that all of the alleged evidentiary errors were harmless, even if we were to

assume that some or all of the above testimony was improperly admitted into evidence. See United

States v. Rayborn, 491 F.3d 513, 518 (6th Cir. 2007). “In determining whether an error is harmless,

the reviewing court must take account of what the error meant to the jury, not singled out and

standing alone, but in relation to all else that happened.” United States v. Pugh, 405 F.3d 390, 401

(6th Cir. 2005) (brackets, citation, and quotation marks omitted). We would have to conclude “that

it was more probable than not that the error materially affected the verdict,” id., in order to rule in

Gibbs’s favor. 

In the present case, the government had overwhelming evidence that Gibbs had actual or

constructive possession of the .380 Llama pistol, including Gibbs’s admission that there was a gun

in his bedroom on a shelf just above his bed. When the officers arrived at 224 West Grand Avenue,

Gibbs’s mother identified the basement bedroom in which the gun was found as Gibbs’s bedroom.

The gun was discovered exactly where Gibbs said it would be. Miel also testified in front of the

grand jury that he had witnessed Gibbs handle the .380 Llama pistol on several occasions. Although

Miel tried to recant some of this testimony at trial, the government read portions of the grand jury

testimony into evidence. The jury was free to believe or disbelieve either the grand jury testimony

or the trial testimony of Miel. Finally, Gibbs made a recorded phone call from jail where he

acknowledged that officers “got” him by recovering the pistol from his bedroom, and inquiring as

to whether someone else would claim ownership of the gun so that he could escape prosecution. 

In short, the present case is not at all similar to Pugh, where an out-of-court statement

improperly admitted into evidence was the only evidence placing the defendant at the scene of the

crime. See id. Here, Gibbs proved the government’s case through his own admission that the gun

was in his bedroom and through his jailhouse phone call. Even if we had determined that the above

testimony was improperly admitted into evidence, we would still conclude that any error was

harmless.

C. Confrontation Clause

Gibbs also claims that the district court erred in admitting an out-of-court statement by Frank

Kuzyk, a fellow parolee, through the testimony of Agent Cole. Cole testified that Kuzyk told him

that Gibbs had some long guns hidden in his basement bedroom. This statement, Gibbs contends,

was improperly admitted hearsay in violation of the Confrontation Clause of the Sixth Amendment.

The Confrontation Clause provides that, “[i]n all criminal prosecutions, the accused shall enjoy the

right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI.

Hearsay “is a statement, other than one made by the declarant while testifying at the trial or

hearing, offered in evidence to prove the truth of the matter asserted.” Fed. R. Evid. 801(c). This

court has held that “statements of a confidential informant are testimonial in nature and therefore

may not be offered by the government to establish the guilt of an accused absent an opportunity for

the accused to cross-examine the informant.” United States v. Cromer, 389 F.3d 662, 670-71 (6th

Cir. 2004) (citing Crawford v. Washington, 541 U.S. 36 (2004)). The admission of a testimonial

statement, however, does not necessarily trigger a violation of the Confrontation Clause. Pugh, 405

F.3d at 399. To do so, “the statement must be used as hearsay—in other words, it must be offered

for the truth of the matter asserted.” Id. We must thus determine (1) whether Kuzyk’s statement
No. 06-1916 United States v. Gibbs Page 6

was testimonial in nature, and (2) whether it was offered to prove the truth of the matter asserted.

See id. 

The government does not contest the fact that Kuzyk’s statement, made to his parole agent,

was testimonial in nature. See Cromer, 389 F.3d at 675 (concluding that a statement is testimonial

where a reasonable person would anticipate that his or her statement would later be used “against

the accused in investigating and prosecuting the crime”). We thus need to determine only whether

the statement was hearsay. The government contends, and we agree, that Kuzyk’s statement was

not hearsay, but instead testimony offered simply as background evidence. “In some circumstances,

out of court statements offered for the limited purpose of explaining why a government investigation

was undertaken have been determined not to be hearsay.” United States v. Martin, 897 F.2d 1368,

1371 (6th Cir. 1990); cf. Cromer, 389 F.3d at 676 (finding a Confrontation Clause violation where

the out-of-court statement implicated the defendant in the charged crime and thus went “to the very

heart of the prosecutor’s case”). 

Here, Agent Cole testified that Kuzyk told him that Gibbs “had some long guns, shotguns

and/or rifles hidden in his basement bedroom.” Cole offered this testimony solely as background

evidence to show why Gibbs’s bedroom was searched. Whether Gibbs had long guns, shotguns, or

rifles in his bedroom was not offered for its truth, because the testimony did not bear on Gibbs’s

alleged possession of the .380 Llama pistol with which he was charged. Moreover, a review of the

record reveals that Agent Cole’s mention of Kuzyk was a miniscule part of his overall testimony,

and Kuzyk was mentioned only once more, during the government’s closing argument. 

We further conclude that any error in admitting Cole’s testimony regarding Kuzyk was

harmless in light of all of the other evidence against Gibbs, including Gibbs’s own admissions. See

United States v. Hayes, 218 F.3d 615, 622-23 (6th Cir. 2000) (holding that, under plain-error review,

the defendant would not have been entitled to relief even if the court had found a violation of the

Confrontation Clause because any error was harmless). 

D. Sentencing

The final issue raised by Gibbs concerns the length of his combined federal and state

sentences. At the time Gibbs was indicted for the instant offense, he was in the custody of the

Michigan Department of Corrections for violating the terms of his state parole. Gibbs had not yet

been sentenced for the parole violation when he was sentenced by the district court. In sentencing

Gibbs, the district court stated that, “[o]bviously, a sentence of this Court pursuant to guideline

section 561.3(c) [sic], which is a recitation of the law in this matter, means that a sentence must be

consecutive to the state sentence which has underlying violations of parole not necessarily related

to this case.” Gibbs contends that the district court committed clear error in ordering that Gibbs’s

federal sentence run consecutively to any sentence imposed by the Michigan Department of

Corrections. 

Both parties agree that Sentencing Guidelines § 5G1.3(c), designated as a Policy Statement,

was applicable to Gibbs in determining whether his federal sentence should be served concurrently

or consecutively to any state sentence imposed for his parole violations. Section 5G1.3(c) provides

that, “[i]n any other case involving an undischarged term of imprisonment, the sentence for the

instant offense may be imposed to run concurrently, partially concurrently, or consecutively to the

prior undischarged term of imprisonment.” U.S. Sentencing Guidelines Manual § 5G1.3(c) (2006).

Gibbs argues that the district court’s statement that the sentence “must be consecutive to the state

sentence” constitutes plain error because the court mistakenly believed that § 5G1.3(c) required the

imposition of a consecutive sentence, despite the explicit discretionary language of the Guideline.

In response, the government contends that the district court has applied § 5G1.3(c) “literally
No. 06-1916 United States v. Gibbs Page 7

hundreds of times,” and that “[i]t was clear to everyone at sentencing that USSG § 5G1.3(c) allows

the court to impose either a consecutive or concurrent sentence.” 

Although we have not previously ruled on this particular issue, this court has repeatedly held

that a district court commits plain error when it mistakenly believes that the policy statements

contained in Chapter 7 of the Sentencing Guidelines limit its discretion. United States v. Jackson, No. 05-6884, 2007 WL 2286540, at *2 (6th Cir. Aug. 9, 2007); United States v. Green, 157 F. App’x

853, 858 (6th Cir. 2005); United States v. Sparks, 19 F.3d 1099, 1101 (6th Cir. 1994). These prior

cases addressed the application of § 7B1.3(f), which provides that “[a]ny term of imprisonment

imposed upon the revocation of probation or supervised release shall be ordered to be served

consecutively . . . .” U.S. Sentencing Guidelines Manual § 7B1.3(f) (2006) (emphasis added).

Section 5G1.3(c), on the other hand, has explicit permissive language, granting discretion to the

district court to impose a concurrent, partially concurrent, or consecutive federal sentence. In light

of the explicit language of § 5G1.3(c), the district court’s statement that Gibbs’s federal sentence

must be consecutive to his state sentence constitutes plain error. See Jackson, 2007 WL 2286540,

at *2; Green, 157 F. App’x at 858; Sparks, 19 F.3d at 1101.

Moreover, where the district court believes that an aspect of the Guidelines is mandatory,

there is a presumption of prejudice to the substantial rights of the defendant, and a remand for

resentencing is required. United States v. Trammel, 404 F.3d 397, 402 (6th Cir. 2005) (noting that

prejudice is presumed because the district court’s failure to recognize its discretion in sentencing

renders it impossible for the defendant “to show that the subjective decision of the court would have

been different if the error had not occurred”). We conclude that the analysis previously applied by

this court to Chapter 7 of the Guidelines is applicable here, and hold that treating § 5G1.3(c) as

leaving the district court without discretion to impose a federal sentence concurrent or partially

concurrent with an undischarged term of state imprisonment is reversible error requiring a remand

for resentencing. Id.

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM Gibbs’s conviction, but VACATE his

sentence and REMAND for resentencing consistent with this opinion.