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RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 15a0147p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

_________________ 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v. 

FRANK RICHARDSON, 

Defendant-Appellant. 

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Nos. 13-2655/2656 

Appeal from the United States District Court 

for the Eastern District of Michigan at Detroit. 

Nos. 2:10-cr-20397; 2:11-cr-20444—Gerald E. Rosen, Chief District Judge. 

Argued: March 6, 2015 

Decided and Filed: July 13, 2015 

Before: COLE, Chief Judge; MOORE and CLAY, Circuit Judges. 

_________________ 

COUNSEL 

ARGUED: Richard A. Cline, CLINE, MANN & CO., LLC, Powell, Ohio, for Appellant. 

Shane Cralle, UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee. ON 

BRIEF: Richard A. Cline, CLINE, MANN & CO., LLC, Powell, Ohio, for Appellant. Shane 

Cralle, UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee. 

_________________ 

OPINION

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CLAY, Circuit Judge. Defendant Frank Richardson appeals from the December 4, 2013 

judgments of the United States District Court for the Eastern District of Michigan sentencing him 

to 1,494 months of incarceration for committing five counts of armed robbery in violation of 

18 U.S.C. § 1951(a), five counts of using a firearm in furtherance of a crime of violence in 

>
Nos. 13-2655/2656 United States v. Richardson Page 2

violation of 18 U.S.C. § 924(c), and one count of being a felon in possession of a firearm in 

violation of 18 U.S.C. §§ 922(g) and 924(a)(2). On appeal, Richardson challenges the district 

court’s denial of his motion to dismiss on speedy trial grounds, as well as the district court’s 

evidentiary rulings, jury instructions, and sentence imposed. 

For the reasons set forth below, we AFFIRM the judgments of the district court. 

BACKGROUND

A. Procedural History 

This appeal relates to two separate cases that were consolidated for the purposes of trial, 

Case No. 2:10-cr-20397 (“Case 1”) and Case No. 2:11-cr-20444 (“Case 2”). 

In the Case 1 indictment, filed on August 10, 2010, Richardson was charged with four 

counts of interference with commerce by robbery in violation of 18 U.S.C. § 1951(a), four 

counts of using a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c), 

and one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). 

Richardson was arraigned on August 19, 2010 and pleaded not guilty to all counts. 

The Case 2 indictment, filed on July 12, 2011, charged Richardson with one count of 

interference with commerce by robbery in violation of 18 U.S.C. § 1951, and one count of using 

a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c). Richardson 

was arraigned on April 5, 2012, approximately nine months after his indictment. He pleaded not 

guilty to both counts. 

The district court issued an order consolidating the two cases on February 26, 2013, and 

Richardson’s trial began on June 11, 2013. Nearly three years elapsed between Richardson’s 

Case 1 indictment and the beginning of trial. During this time, two attorneys assigned to 

represent Richardson withdrew, and the parties engaged in “extensive pre-trial pleadings, status 

conferences, and motions.” Richardson’s Br. at 5. At trial, the government called as witnesses a 

number of law enforcement officers, as well as patrons and employees of the burglarized stores 

who had been present during the robberies. The government also called three individuals who 

had allegedly participated in the robberies with Richardson. 
Nos. 13-2655/2656 United States v. Richardson Page 3

On June 28, 2013, a jury found Richardson guilty on all counts. Richardson was 

sentenced to 210 months of imprisonment for each count of interference with commerce by 

robbery, respectively, and 120 months of imprisonment for being a felon in possession of a 

firearm, to be served concurrently. In addition, Richardson was sentenced to 84 months of 

imprisonment for one § 924(c) count and 300 months of imprisonment for the other four § 924(c) 

counts, respectively, to be served consecutively to each other and the other sentences, as 

mandated by § 924(c)(1)(D)(ii). Altogether, Richardson was sentenced to 1,494 months of 

imprisonment. Richardson timely appealed. 

B. Factual History 

Richardson was convicted of participating in the armed robbery of five stores in and 

around Detroit, Michigan between February 22, 2010 and May 28, 2010. The stores were all 

robbed at gunpoint during business hours. In each instance, the robbers wore masks and gloves 

and stole electronics, primarily cellular telephones. At least one robber was armed during each 

robbery. Richardson never entered any of the stores during the commission of the robberies. 

Instead, he planned the robberies, provided supplies, and served as a lookout while they were 

taking place. The following facts are based on witness testimony at trial. 

1. First Robbery 

On February 22, 2010, Richardson and four other men robbed a T-Mobile store in 

Detroit, Michigan. Richardson coordinated the robbery with Jerome Andrews (his nephew), 

Derick Shirley, Derrick Bivens, and Tevin Bivens. In preparation for the robbery, Richardson 

and Shirley purchased plaid laundry bags to carry the stolen merchandise. Richardson then 

drove to pick up the other men in his SUV. On the ride, he provided the men with masks and 

gloves to wear, as well as at least one firearm. When they arrived at the store, Shirley and 

Richardson stayed in the vehicle to act as lookouts, while Andrews, Derrick Bivens, and Tevin 

Bivens executed the robbery. 

Upon entering the store, Derrick Bivens displayed his firearm and ushered the employees 

and customers to the back storage room at gunpoint. The other men collected approximately 

thirty phones in the laundry bags that Richardson had purchased with Shirley. During the 
Nos. 13-2655/2656 United States v. Richardson Page 4

robbery, Richardson called Derrick Bivens to confirm that there was no cause for concern 

outside. Once the robbery was completed, all of the men returned to Richardson’s SUV and 

drove back to Richardson’s mother’s house. Richardson subsequently sold the stolen phones to a 

contact of his and split the proceeds among the men. 

2. Second Robbery

Eight days after the first robbery, on March 3, 2010, the men robbed another T-Mobile 

store in Detroit, Michigan. Before the robbery, Richardson, Tevin Bivens, and Andrews stole a 

van, which they disguised to look like a security van. As with the first robbery, Richardson 

picked everyone up on the day of the robbery. They then procured masks, gloves, laundry bags, 

and guns, and Richardson dropped the men off at the stolen van. Richardson drove behind the 

van to the T-Mobile store in order to obscure the stolen van’s license plate. The men parked the 

stolen van outside the store, and Richardson remained in his SUV. 

Derrick Bivens and Shirley entered the store, with Bivens brandishing a gun, and stole a 

number of cellular phones. After the robbery, Richardson and the other men met at Richardson’s 

house, where they unpacked the stolen phones. Richardson then directed Andrews to get rid of 

the stolen van, while Richardson departed to sell the phones to his contact. 

3. Third Robbery 

A month later, on April 3, 2010, the men robbed a Radio Shack in Detroit, Michigan. 

Richardson selected the store and determined when the robbery would occur. Because Shirley 

was not able to participate in this robbery, Richardson and Andrews recruited a man named 

Curtis Williams to take his place. Richardson once again supplied the masks, gloves, laundry 

bags, and firearms. The men drove to Radio Shack in a different stolen van while Richardson 

followed in his SUV. The store was crowded when they got there, so the men waited in the van 

until they got word from Richardson to begin the robbery. Derrick Bivens, Andrews, and 

Williams then entered the store brandishing weapons. They directed the employees and 

customers to the back of the store, collected telephones, and left in the van. They then gave the 

phones to Richardson, who sold them and split the proceeds with the other men. 
Nos. 13-2655/2656 United States v. Richardson Page 5

4. Fourth Robbery 

On May 8, 2010, the men robbed another T-Mobile store in Detroit, Michigan. As with 

the previous robberies, Richardson coordinated the logistics and provided masks, gloves, laundry 

bags, and guns. As before, the men drove in a different stolen van while Richardson followed 

behind in his SUV. When they arrived at the store, they noticed a woman struggling to open the 

door. In order to assess the situation, Richardson went to the door pretending to be a customer. 

An employee informed him that the store was experiencing a power outage and was closed. 

Richardson decided to proceed with the robbery, and the men convinced Shirley to go to the door 

without a mask, pretending to be a customer, in order to gain access to the store. 

As soon as the employee opened the door to speak with Shirley, Shirley pushed the door 

open and commanded the employees to go to the back of the store. Andrews and Derrick Bivens 

then entered the store as well. During the course of the robbery, an employee approached the 

store from the outside, noticed Bivens stealing money from the cash register, and ran away. 

Upon seeing the employee, the robbers ran to the van and drove off. They eventually met to 

place their guns in a compartment in Richardson’s SUV, and Richardson sold the phones and 

distributed the proceeds. 

5. Fifth Robbery 

On May 28, 2010, the men conducted the final robbery at a Radio Shack in Eastpointe, 

Michigan. This time, the participants were Richardson, Andrews, Tevin and Derrick Bivens, and 

a man named Montez Fails. As with the previous robberies, Richardson collected the men, who 

then drove to the store separately in a stolen vehicle while Richardson drove behind them in his 

SUV. Richardson gave Bivens a 9-millimeter semiautomatic handgun to use during the robbery. 

As he had done during the previous robberies, Richardson stayed in the SUV, and the men 

entered the store upon Richardson’s signal. Once they were inside, the men moved the 

employees and customers to the back of the store. However, one employee was able to escape 

out of the back door undetected. The men gathered the phones and a television, then ran out the 

back door and drove away with Richardson following directly behind them. 
Nos. 13-2655/2656 United States v. Richardson Page 6

As they were driving away from the store, the men were intercepted by members of 

Detroit’s Violent Crime Task Force, who had been surveilling them throughout the day. The 

men in the van evaded the officers initially, but Richardson was stopped and arrested. The men 

abandoned the stolen van and tried to run away, but were all eventually caught and arrested. The 

police found the stolen phones, television, masks, gloves, and a firearm in and around the stolen 

van. 

6. Indictments 

Frank Richardson and others were subsequently charged in the Case 1 indictment for 

their involvement in the robberies that took place on February 22, 2010, March 3, 2010, May 8, 

2010, and May 28, 2010. Richardson and Williams were charged in the Case 2 indictment for 

their involvement in the April 3, 2010 robbery. 

DISCUSSION

A. Speedy Trial Claim

When considering a defendant’s speedy trial claim, we review questions of law de novo

and questions of fact for clear error. Maples v. Stegall, 427 F.3d 1020, 1025 (6th Cir. 2005). 

This standard of review applies both to claims raised under the Sixth Amendment and those 

raised under the Speedy Trial Act, 18 U.S.C. § 3161. Id.; United States v. DeJohn, 368 F.3d 533, 

538 (6th Cir. 2004). 

Richardson raises his speedy trial claim under the Sixth Amendment and the Speedy Trial 

Act. The Speedy Trial Act typically requires that a criminal trial begin within seventy days of a 

defendant’s indictment or initial court appearance, but allows for periods of exclusion from the 

seventy day clock in certain instances. United States v. Brown, 498 F.3d 523, 529 (6th Cir. 

2007). Meanwhile, the Sixth Amendment guarantees to defendants the right to a speedy trial, the 

potential violation of which is analyzed under a four factor test, which will be discussed below. 

Id. at 530. We find that Richardson’s speedy trial claim fails under both the Speedy Trial Act 

and the Sixth Amendment analysis. 
Nos. 13-2655/2656 United States v. Richardson Page 7

1. Timeline of Events Relevant to Speedy Trial Analysis 

While Richardson’s speedy trial argument relates exclusively to Case 2, the timeline 

relevant to the analysis of his claim is intertwined with the timeline of Case 1. Richardson’s 

attorneys in both Case 1 and Case 2 were replaced multiple times in the period leading up to his 

trial. As a result of this attorney turnover and both parties’ desire to resolve Case 2 after Case 1, 

the trial date for Case 2 was adjourned multiple times. Relevant portions of the timeline are 

summarized below. 

a. Delay from Indictment to Arraignment 

The Case 2 indictment was filed on July 12, 2011. Richardson was formally arraigned in 

Case 2 on April 5, 2012, nearly nine months later. Richardson was in the custody of Michigan 

authorities until February 28, 2012, at which point he was remanded to the custody of the United 

States Marshals. 

b. Exclusion from June 4, 2012 to November 13, 2012

Case 2 was scheduled for trial on June 4, 2012. On May 24, 2012, the parties entered a 

stipulation requesting that the court reschedule the trial for November 13, 2012 and exclude the 

time between June 4, 2012 and November 13, 2012 from the speedy trial calculation. The 

district court’s stipulation and order recognized that attorneys for both parties were still trying to 

reach a pre-trial resolution in Case 2, which was dependent on the resolution of Case 1. 

Richardson’s attorney advised the court that Richardson had no objections to a delay in Case 2. 

c. Exclusion from November 13, 2012 to February 5, 2013 

The parties first discussed the need to adjourn the November 13, 2012 Case 2 trial date at 

an October 22, 2012 status conference in Case 1. At that status conference, Mr. Daly, who had 

just become Richardson’s third attorney in Case 1, was appointed to represent Richardson in 

Case 2 as well. During the status conference, Mr. Daly, the government, and the court 

acknowledged that it would likely be necessary to adjourn the November 13, 2012 trial date in 

Case 2, given Mr. Daly’s new appointment. Mr. Daly agreed to discuss the matter with 

Richardson, and the government volunteered to circulate a draft stipulation. 
Nos. 13-2655/2656 United States v. Richardson Page 8

i. Government’s Motion to Adjourn Trial 

Despite not having been formally adjourned, the trial in Case 2 did not begin on 

November 13, 2012. On November 28, 2012, two weeks after the scheduled trial date, the 

government filed a motion to adjourn the trial. In that motion, the government noted that it had 

sent a proposed stipulation for adjournment of trial to Mr. Daly, as was discussed during the 

October 2012 status conference. In response, Mr. Daly informed the government that it would 

take him a week to speak with his client. On January 8, 2013, the district court scheduled a 

hearing to address the government’s motion. 

ii. Richardson’s Motion to Dismiss for Violation of Speedy Trial

Two days after notice of the hearing was filed, on January 10, 2013, Richardson filed a 

motion to dismiss Case 2 with prejudice for violation of his right to a speedy trial. In his motion, 

Richardson argued that he was unaware of and had not consented to his previous attorney’s May 

24, 2012 stipulation to adjourn the trial. Richardson also argued that the government was 

dilatory in delaying Richardson’s arraignment in Case 2 because he was already in their custody 

pending Case 1. Finally, Richardson argued that he was prejudiced by the death of two 

witnesses who were prepared to testify that they were involved in the robbery and that he was 

not. 

iii. Hearing on Motion to Dismiss on Speedy Trial Grounds 

At a subsequent hearing, the district court determined that, given the extent to which the 

trial delay was caused by Richardson’s “inabilities to get along with his lawyers [and] the filing 

of grievances . . . , there [was] really no way that this case could have proceeded to trial on the 

scheduled date.” (R. 65, Hearing Transcript, Page ID # 272.) At the hearing, Mr. Daly indicated 

that he would not have been prepared to go to trial on November 13, 2012 and focused his 

argument primarily on the time period between Richardson’s indictment and arraignment in Case 

2. As to that period, the government conceded that it was partially to blame for the delay. The 

government explained that, because there had been ongoing informal conversations about Case 2 

with Richardson’s first attorney in Case 1, it took the government some time to realize that 

Richardson had never been formally arraigned in Case 2. 
Nos. 13-2655/2656 United States v. Richardson Page 9

The district court ultimately determined that Richardson did not suffer any prejudice as a 

result of the pre-arraignment delay, despite the government’s partial blame for causing it. 

Accordingly, the district court denied Richardson’s motion to dismiss the case and agreed to 

consolidate Case 1 and Case 2. The parties then agreed to an adjournment of the combined case 

and stipulated to a speedy trial exclusion. The court found the time between November 13, 2012 

and February 5, 2013 to be excludable delay. 

d. Exclusion from February 5, 2013 to June 11, 2013

The district court entered an order on February 26, 2013 officially consolidating the two 

cases for the purposes of trial and setting a trial date for June 11, 2013. In that order, the district 

court found that the period of time between February 5, 2013 and June 11, 2013 was all 

excludable delay agreed to by the parties in order to provide Mr. Daly with sufficient time to 

prepare for trial. 

2. Speedy Trial Act Claim

The Speedy Trial Act “generally requires a federal criminal trial to begin within seventy 

days after a defendant is charged or makes an initial appearance . . . .” Brown, 498 F.3d at 529; 

18 U.S.C. § 3161(c)(1). However, the Act provides for the exclusion of certain periods of delay 

from the calculation of these seventy days. 18 U.S.C. § 3161(h)(1). These exclusions include 

delays for pretrial motions and proceedings. Id. If, after accounting for all permissible 

exclusions, the seventy day deadline is not met, “the district court must dismiss the indictment, 

either with or without prejudice.” United States v. Monger, 879 F.2d 218, 220 (6th Cir. 1989). 

a. Starting Point for the Seventy Day Calculation 

The first determination that must be made in addressing Richardson’s Speedy Trial Act 

claim is the point in time at which the seventy day clock began to run. We have held that the 

Speedy Trial Act clock begins to run after a defendant’s indictment or after the defendant’s first 

court appearance, “whichever occurs later.” United States v. Gardner, 488 F.3d 700, 717 (6th 

Cir. 2007). Richardson’s first court appearance related to Case 2 occurred after his indictment at 

his arraignment on April 5, 2012. The seventy day clock therefore began running after his 

arraignment. 
Nos. 13-2655/2656 United States v. Richardson Page 10

b. Seventy Day Calculation 

Sixty days elapsed between the date of Richardson’s arraignment and the original June 4, 

2012 trial date. As the above timeline indicates, all of the periods of delay between June 4, 2012 

and November 13, 2012 were agreed to by the parties, both to facilitate potential pre-trial 

resolutions and to accommodate the replacement of defense counsel in both Case 2 and Case 1. 

The delay between November 13, 2012 and the June 11, 2013 trial date was also properly 

excluded from the speedy trial calculation in order to provide Richardson’s counsel with time to 

prepare for trial, as he had only recently been assigned to represent Richardson in Case 2. The 

district court appropriately granted the adjournment and exclusion requested by the government. 

Following the February 5, 2013 hearing, both parties agreed to a stipulation to exclude the period 

of time from the date of that hearing to the eventual trial date of June 11, 2013. 

Altogether, the stipulations and orders entered by the district court provide for proper 

Speedy Trial Act exclusions for the entire duration between the original trial date of June 4, 2012 

and the actual trial date of June 11, 2013. Accordingly, only the initial sixty-day period between 

Richardson’s arraignment and the original June 4, 2012 trial date counted towards Richardson’s 

Speedy Trial Act calculation. His trial therefore began before the seventy day deadline had 

elapsed, and his rights under the Speedy Trial Act were not violated as a result of delay. 

3. Sixth Amendment Claim 

The Sixth Amendment guarantees that, “[i]n all criminal prosecutions, the accused shall 

enjoy the right to a speedy trial and public trial.” U.S. Const. amend. VI. We have recognized 

that the right to a speedy trial is typically “trigger[ed] [by] the filing of an indictment.” United 

States v. Watford, 468 F.3d 891, 901 (6th Cir. 2006). In Barker v. Wingo, 407 U.S. 514 (1972),

the Supreme Court established a four factor test for courts to employ when assessing whether a 

defendant’s right to a speedy trial has been violated. Under this test, courts consider and 

balance: the “[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, 

and prejudice to the defendant.” Id. at 530. “When a defendant’s constitutional right to a speedy 

trial has been violated, dismissal of the indictment is the only remedy even when it allows a 
Nos. 13-2655/2656 United States v. Richardson Page 11

defendant who may be guilty of a serious crime to go free.” United States v. O’Dell, 247 F.3d 

655, 667 (6th Cir. 2001). 

a. Length of Delay 

The “length of delay” factor constitutes a “triggering mechanism.” Id. at 667. “[I]f the 

delay is not uncommonly long, judicial examination ceases.” United States v. Robinson, 

455 F.3d 602, 607 (6th Cir. 2006). However, if this threshold requirement is met, it necessitates 

consideration of the remaining three factors. Id. As the government concedes, “[a] delay 

approaching one year is presumptively prejudicial.” Id. In this case, the nearly two year delay 

between Richardson’s indictment on July 12, 2011 and the start of his trial on June 11, 2013 

necessitates a full consideration of the remaining Barker factors. 

b. Reason for the Delay 

In weighing the second Barker factor, “[t]he core task is determining which party 

shoulders the balance of blameworthiness for [the] delay.” O’Dell, 247 F.3d at 667. We have 

recognized that “[n]ot all delays are susceptible to equal blame.” United States v. Schreane, 

331 F.3d 548, 553 (6th Cir. 2003). “[D]ifferent weights should be assigned to different reasons.” 

Barker, 407 U.S. at 531. Where a government’s delay is motivated by “bad faith, harassment or 

attempts to seek a tactical advantage,” these reasons “weigh heavily against the government.” 

Schreane, 331 F.3d at 553. “A more neutral reason such as negligence or overcrowded courts 

should be weighted less heavily but nevertheless should be considered . . . .” Barker, 407 U.S. at 

531. Finally, “valid reasons for a delay weigh in favor of the government.” Robinson, 455 F.3d 

at 607. The resolution of pretrial motions is viewed as a “presumptively justifiable reason[]” for 

delay. O’Dell, 247 F.3d at 668. 

It is evident that Richardson, rather than the government, is responsible for much of the 

fourteen-month delay between his arraignment and trial. As has already been discussed, the 

delay between Richardson’s arraignment and trial was largely caused by his conflicts with his 

counsel, the subsequent appointment of new defense counsel, and both parties’ desire to seek 

pre-trial resolution that was dependent on separate proceedings in Case 1. 
Nos. 13-2655/2656 United States v. Richardson Page 12

However, with respect to the period of nearly nine months that elapsed between 

Richardson’s indictment on July 12, 2011 and his arraignment on April 5, 2012, the government 

is solely responsible. The government even conceded that this delay was partially caused by an 

oversight on its part. Nonetheless, a large portion of this period of delay appears to have been 

justifiable. When a defendant is in state, rather than federal, custody, it may be justifiable for the 

federal government to delay prosecution on federal charges. As we previously explained in 

Schreane: 

[T]o require the federal government to prosecute an accused before state 

proceedings have run their course would be to mire the state and federal systems 

in innumerable opposing writs, to increase inmate transportation back and forth 

between the state and federal systems with consequent additional safety risks and 

administrative costs, and generally to throw parallel federal and state prosecutions 

into confusion and disarray. 

331 F.3d at 555 (internal quotation marks omitted). Until February 28, 2012, Richardson was in 

state custody, and the government needed to secure his presence by writ whenever he was 

needed in federal court for federal proceedings related to Case 1. Therefore, even if it was 

technically possible for the government to proceed with Richardson’s Case 2 arraignment while 

he was in state custody, it was not plainly improper for the government not to have done so. 

Consequently, the only period of delay for which the government is solely responsible and has 

no excusable justification is the period of just over a month from February 28, 2012, when 

Richardson was released to federal custody, to April 5, 2012, when he was finally arraigned. 

In sum, while Richardson and the government are both responsible for portions of the 

delay in bringing Richardson to trial, Richardson bears greater responsibility for it. Cf. O’Dell, 

247 F.3d at 671 (finding a defendant’s “culpability with respect to delay” to be “at least equal to 

that of the government” where the defendant had filed multiple interlocutory appeals). 

c. The Defendant’s Assertion of His Right 

“[A] defendant’s assertion of his speedy trial right [] is entitled to strong evidentiary 

weight in determining whether the defendant is being deprived of the right.” Barker, 407 U.S. at 

531-32. Meanwhile, a defendant’s “failure to assert the right will make it difficult for a 

defendant to prove that he was denied a speedy trial.” Id. at 532. The first time Richardson 
Nos. 13-2655/2656 United States v. Richardson Page 13

asserted his speedy trial right was in his January 10, 2013 motion to dismiss. At no point in time 

prior to the filing of this motion had any of Richardson’s attorneys asserted a speedy trial claim. 

The fact that Richardson waited eight months after he was arraigned and seventeen 

months after he was indicted before raising a speedy trial claim based primarily on prearraignment delay “is sufficient to cast doubt on the sincerity of [his] demand.” United States v. 

Williams, 753 F.3d 626, 633-34 (6th Cir. 2014) (“The fact that [the defendant] did not assert his 

right to a speedy trial for some eight months after he was arraigned and sixteen months after he 

was arrested is sufficient to cast doubt on the sincerity of the defendant’s demand.” (internal 

quotation marks omitted)). 

d. Prejudice to the Defendant 

The last Barker factor that we must consider is whether Richardson was prejudiced by the 

delay. “A defendant must show that ‘substantial prejudice’ has resulted from the delay.” 

Schreane, 331 F.3d at 557. The Barker Court provided guidance about the prejudice assessment, 

identifying three interests that should be considered for the purposes of the prejudice analysis: 

(1) preventing oppressive pretrial incarceration; (2) minimizing the accused’s anxiety and 

concern; and (3) limiting the possibility that the defense will be impaired. Barker, 407 U.S. at 

532. 

The Supreme Court has noted that “[the] impairment of one’s defense is the most difficult 

form of speedy trial prejudice to prove because time’s erosion of exculpatory evidence and 

testimony can rarely be shown.” Doggett v. United States, 505 U.S. 647, 655 (1992) (internal 

quotation marks omitted). As such, “consideration of prejudice is not limited to the specifically 

demonstrable, and affirmative proof of particularized prejudice is not essential to every speedy 

trial claim.” Brown v. Bobby, 656 F.3d 325, 336 (6th Cir. 2011) (internal quotation marks 

omitted). In certain cases of “excessive delay,” prejudice can be presumed. Id. However, where 

there is no bad faith on the part of the government, “[t]his court has recognized that in the 

absence of particularized trial prejudice, delay attributable to the state’s negligence has typically 

been shockingly long to warrant a finding of prejudice.” Id. at 337 (internal quotation marks 

omitted). 
Nos. 13-2655/2656 United States v. Richardson Page 14

Richardson argues that his defense was impaired because “two witnesses [Walter Hill and 

Anthony Pouncy] who would otherwise have been available to testify for the defense were 

unavailable at trial because they died during the delay.” Richardson’s Br. at 24. Richardson 

claims that both men would have testified that they themselves participated in the robbery 

charged in Case 2 and that Richardson did not participate in the robbery with them. Since 

Richardson points to no evidence that would substantiate his contention that Hill and Pouncy 

would have implicated themselves and testified on his behalf, the government contends that 

Richardson’s claim of prejudice is speculative at best. 

The district court, in considering Richardson’s speedy trial claim in the first instance, 

concluded that the alleged exculpatory testimony would likely not have been available to 

Richardson even absent any delay. The court based this conclusion on the following 

observations and determinations. First, although Richardson was represented by counsel prior to 

the deaths of these purported witnesses, there is no indication that an investigation into either 

witness was undertaken by defense counsel. Second, neither individual was ever charged in 

relation to either the Case 1 or Case 2 robberies, and the government contended that neither 

individual had ever come up in their investigation of the crimes. Third, with respect to Walter 

Hill, who died on October 8, 2011, it is improbable that he would have been alive when Case 2 

went to trial even absent a delay. Finally, it is unlikely that Pouncy would have testified at trial 

regarding his complicity in a crime for which he had not been charged that occurred while he 

was on probation. 

Given these considerations and the absence of evidence to support Richardson’s claim, 

the district court’s determination that the allegedly exculpatory testimony would likely not have 

been available absent the delay is not clearly erroneous. Richardson has therefore failed to meet 

his burden of demonstrating that the delay resulted in “substantial prejudice.” Schreane, 

331 F.3d at 557. And, in the absence of “excessive delay” attributable to the government’s 

negligence, Richardson is not entitled to a presumption of prejudice. See Bobby, 656 F.3d at 

337. 
Nos. 13-2655/2656 United States v. Richardson Page 15

e. Balancing the Factors 

The length of the delay between Richardson’s indictment and his trial was substantial. 

Nonetheless, a balancing of the four Barker factors weighs against the dismissal of Richardson’s 

indictment in Case 2. Richardson’s complicity in the delay, the date he first asserted his speedy 

trial rights, and the lack of “substantial prejudice” support the conclusion that Richardson’s Sixth 

Amendment right to a speedy trial was not violated. 

B. Prior Inconsistent Statements 

The district court’s evidentiary decisions are reviewed for abuse of discretion. Schreane, 

331 F.3d at 564. 

Richardson argues that the district court erred by not admitting the prior inconsistent 

statements of two government witnesses as extrinsic evidence under Rule 613(b) of the Federal 

Rules of Evidence. Jerome Andrews and Derrick Bivens, two participants in the robberies, 

testified for the government about Richardson’s role in the crimes. During cross-examination, 

Richardson’s attorney sought to introduce letters signed by Andrews and Bivens while they were 

in jail that contradicted their trial testimony and renounced Richardson’s participation in the 

crimes. The district court permitted Richardson’s attorney to read the letters out loud and 

attempt to use these letters to impeach the witnesses’ credibility, but did not allow Richardson to 

introduce the letters themselves as extrinsic evidence. The district court determined that the 

statements in the letters were hearsay and provided a limiting instruction to the jury explaining 

that the statements could only be used to determine the witnesses’ credibility, and not for the 

truth of the matter asserted. When questioned, both Andrews and Bivens admitted to having 

written or affirmed the prior inconsistent statements. 

Federal Rule of Evidence 613(b) “provides for impeachment of a witness with extrinsic 

evidence of a prior inconsistent statement if the witness is afforded an opportunity to explain or 

deny the same and the opposite party is afforded an opportunity to interrogate the witness 

thereon.” United States v. Lester, 238 F. App’x 80, 83 (6th Cir. 2007) (internal quotation marks 

omitted). While Rule 613(b) permits a party to use extrinsic evidence to challenge a witness’ 

credibility, it cannot be used to establish which of two inconsistent statements is true. United 
Nos. 13-2655/2656 United States v. Richardson Page 16

States v. Fonville, 422 F. App’x 473, 482 (6th Cir. 2011); see United States v. Pandilidis, 

524 F.2d 644, 650 (6th Cir. 1975) (“While evidence of contradictory statements may be used to 

impeach [a witness], they may not be introduced to prove the truth of the statements offered.”). 

Where, as here, a witness admits to having made prior inconsistent statements, circuits 

are split as to whether a defendant is entitled to introduce extrinsic evidence of those statements. 

Compare United States v. Lashmett, 965 F.2d 179, 182 (7th Cir. 1992) (adopting a broad reading 

of Rule 613), with United States v. Soundingsides, 820 F.2d 1232, 1240 (10th Cir. 1987) 

(“Where the witness does not deny making a prior inconsistent statement, there is clearly no 

rationale for the introduction of a prior ‘inconsistent’ statement.” (internal quotation marks 

omitted)). This Circuit has yet to decide this issue, and we need not do so today. In this case, 

even if the district court’s failure to admit the letters themselves was erroneous, such omission 

was harmless. Both witnesses admitted to having made prior inconsistent statements, and the 

district court permitted Richardson to read the actual statements to the jury. Consequently, 

Richardson was able to effectively impeach both witnesses and was not prejudiced by his 

inability to introduce extrinsic evidence of these statements. See United States v. Davis, 28 F.3d 

1214, No. 93-5984, 1994 WL 362061, at *3 (6th Cir. 1994) (table) (“[T]he district court’s refusal 

to admit the [extrinsic evidence] under Rule 613 was harmless, if error, as the substance of the 

inconsistent statement was before the jury and admission of the affidavit itself would have been 

cumulative.”). 

C. Impeachment with Unrelated Judicial Opinion 

We generally review a district court’s evidentiary rulings for abuse of discretion. United 

States v. Holden, 557 F.3d 698, 703 (6th Cir. 2009). Evidentiary rulings challenged as violating 

the Sixth Amendment’s Confrontation Clause are reviewed de novo. United States v. Adams, 

722 F.3d 788, 829 (6th Cir. 2013). 

Richardson argues that the district court erred by refusing to permit him to impeach a 

government witness, Officer Herzog, with a prior judicial finding that Herzog’s testimony was 

not credible. Richardson contends that the court’s decision to disallow the introduction of this 

evidence under Federal Rules of Evidence 608(b) and 403 violated his Sixth Amendment 

Confrontation Clause rights. 
Nos. 13-2655/2656 United States v. Richardson Page 17

The extrinsic evidence at issue is a 2002 opinion in which the Honorable Denise Page 

Hood of the Eastern District of Michigan granted a motion to suppress evidence in an unrelated 

case (hereinafter “2002 case”). United States v. Nelson, No. 02-cr-80254, slip op. at 7, 9 (E.D. 

Mich. Sept. 4, 2002). In that opinion, the district judge determined that two officers, one of 

whom was Officer Herzog, lacked probable cause for a traffic stop. In reaching this decision, the 

district judge expressed skepticism regarding the credibility of the officers’ testimony. 

Although the opinion did not differentiate between the testimony of the two officers in making 

the subsequent credibility determination, it bears noting that the testimony of the officers differed 

substantially. While Officer Herzog’s partner testified that he saw a gun in the defendant’s 

waistband and that he saw the defendant urinating in a public alley, Officer Herzog testified that 

he did not see a gun in the defendant’s waistband, but that he did see the defendant urinating in 

public. The district judge found that, given the poor lighting in the alley, the officers would not 

have been able to see a gun in the defendant’s waistband from their location. This finding is not 

inconsistent with Officer Herzog’s testimony. With regard to the officers’ testimony about 

public urination, the district judge noted that “[t]he Court finds incredible that Defendant would 

urinate in public in the manner described by the officers.” Id. at 7. 

The district court in this case excluded the 2002 opinion as impermissible collateral 

evidence under Rule 608(b) and also under Rule 403, due to the concern that introducing this 

opinion would lead to jury confusion and prejudice to the government. 

1. Federal Rules of Evidence 608(b) and 403 

Rule 608(b) of the Federal Rules of Evidence provides that “extrinsic evidence is not 

admissible to prove specific instances of a witness’s conduct in order to attack or support the 

witness’s character for truthfulness.” However, Rule 608(b) also provides that “the court may, 

on cross-examination, allow [these specific instances] to be inquired into if they are probative of 

the character for truthfulness or untruthfulness of [a witness].” We have previously noted that 

Rule 608(b)’s prohibition on extrinsic evidence is “designed to prevent distracting mini-trials on 

collateral matters.” Boggs v. Collins, 226 F.3d 728, 744 (6th Cir. 2000). Rule 608(b) therefore 

places “within the discretion of the trial court” whether to permit cross-examination about 

specific conduct that may be probative of a witness’ truthfulness or lack therefore. Id. 
Nos. 13-2655/2656 United States v. Richardson Page 18

In this case, the district court determined that the judicial opinion Richardson sought to 

introduce on cross-examination: (1) was the type of evidence intended to be precluded by Rule 

608(b), (2) was not clearly probative of the witness’ character for truthfulness, (3) would likely 

confuse or mislead the jury, and (4) could prejudice the government. The district court did not 

abuse its discretion in reaching these conclusions. As a preliminary point, a judicial opinion 

making a credibility determination does indeed appear to be the type of extrinsic evidence 

disallowed by Rule 608(b). See United States v. Taylor, 471 F. App’x 499, 521 (6th Cir. 2012) 

(opining that an opinion written by a district judge “may not be admitted as extrinsic evidence” 

under Rule 608(b)); United States v. Mendez, 303 F. App’x 323, 325 (6th Cir. 2008) (finding that 

official reports of a witness interview were inadmissible under Rule 608(b) as extrinsic evidence 

of collateral matters). 

Moreover, the district court was within its discretion in determining both that the crossexamination sought by Richardson would likely lead to jury confusion and that it lacked 

probative value. The district court’s credibility determination in the 2002 case was generalized 

as to both testifying officers and seemed to relate to Officer Herzog primarily with respect to the 

question of whether a defendant urinated in an alley in a particular manner at a particular time of 

night. It was reasonable for the district court in this case to conclude that the previous district 

judge’s incredulity regarding Officer Herzog’s testimony was not probative of his general 

character for truthfulness. Additionally, given the context and nature of this credibility 

assessment, if the 2002 case were raised on cross-examination, the jury would need to be 

presented with detailed testimony regarding an entirely collateral matter in order to assess its 

probative value. This type of collateral “mini-trial” is precisely what Rule 608(b) is intended to 

prevent, and why the decision of whether or not to permit such cross-examination should be, and 

is, within the district court’s discretion. 

Richardson further contends that the district court erred in its application of Rule 403 of 

the Federal Rules of Evidence because Officer Herzog’s testimony was important to the 

government’s case. However, Richardson misconstrues the Rule 403 analysis. Rule 403 allows 

the district court to “exclude relevant evidence if its probative value is substantially outweighed 

by a danger of . . . unfair prejudice, confusing the issues, [or] misleading the jury . . . .” The 
Nos. 13-2655/2656 United States v. Richardson Page 19

district court acted within its discretion in determining that the limited probative value of the 

2002 case was outweighed by the danger that the jury would be confused or misled and the 

possibility of prejudice to the government. 

2. Confrontation Clause 

Richardson also argues that the district court’s decision not to permit cross-examination 

regarding the 2002 case violated his Sixth Amendment right to confront and cross-examine 

witnesses. The Confrontation Clause of the Sixth Amendment guarantees a defendant “an 

opportunity for effective cross-examination.” Delaware v. Fensterer, 474 U.S. 15, 20 (1985) 

(emphasis omitted). It does not guarantee the right to “cross-examination that is effective in 

whatever way, and to whatever extent, the defense might wish.” Id. “[T]rial judges retain wide 

latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such 

cross-examination based on concerns about, among other things, harassment, prejudice, 

confusion of the issues, the witness’s safety, or interrogation that is repetitive or only marginally 

relevant.” United States v. Cunningham, 679 F.3d 355, 384 (6th Cir. 2012) (internal quotation 

marks omitted). 

As has already been discussed, the district court’s decision to prohibit cross-examination 

regarding the 2002 case was based on prudential concerns that fall within the court’s “wide 

latitude” to impose limits on cross-examination, namely concerns about jury confusion, prejudice 

to the government, and interrogation that is only marginally relevant. See id. Accordingly, the 

district court did not violate Richardson’s right to cross-examination under the Confrontation 

Clause by prohibiting cross-examination regarding the 2002 case. 

D. Jury Instructions Regarding 18 U.S.C. § 924(c) 

We review challenges to jury instructions for abuse of discretion. United States v. 

Kuehne, 547 F.3d 667, 679 (6th Cir. 2008). “‘When jury instructions are claimed to be 

erroneous, we review the instructions as a whole, in order to determine whether they adequately 

informed the jury of the relevant considerations and provided a basis in law for aiding the jury in 

reaching its decision.’” Id. (quoting United States v. Frederick, 406 F.3d 754, 761 (6th Cir. 

2005)). Trial courts are afforded broad discretion “in crafting jury instructions and [do] not 
Nos. 13-2655/2656 United States v. Richardson Page 20

abuse [their] discretion unless the jury charge fails accurately to reflect the law.” United States 

v. Ross, 502 F.3d 521, 527 (6th Cir. 2007) (internal quotation marks omitted). We will reverse a 

judgment due to an improper jury instruction only where the instructions, when “viewed as a 

whole,” are found to be “confusing, misleading, or prejudicial.” Id.

1. The Aiding and Abetting Instruction 

Richardson argues that the district court abused its discretion by instructing the jury that 

he could be found guilty of an 18 U.S.C. § 924(c) violation on a theory of aider and abettor 

liability even though that theory of liability was not specifically referenced in the indictments. 

His argument lacks merit. This question is directly controlled by our decision in United States v. 

McGee, 529 F.3d 691 (6th Cir. 2008), where we held that aiding and abetting is “a theory of 

liability embodied in every federal indictment, whether specifically charged or not, and not a 

distinct substantive crime.” McGee, 529 F.3d at 695 (internal quotation marks omitted). 

Therefore, “an indictment need not explicitly refer to aiding or abetting to support a jury verdict 

based on a finding under that theory.” Id. 

 Richardson concedes that McGee is directly applicable to this case. Furthermore, 

Richardson acknowledges that McGee necessitates the conclusion that the district court’s 

inclusion of jury instructions on aiding and abetting was not erroneous. Even so, Richardson 

contends that McGee was wrongly decided and asks us to revisit this question. This we cannot 

do. As is clearly stated in Sixth Circuit Rule 32.1(b), “[p]ublished panel opinions are binding on 

later panels. A published opinion is overruled only by the court en banc.” We are therefore not 

at liberty to overrule the previous decision in McGee. The district court did not abuse its 

discretion by instructing the jury on aiding and abetting as an alternative theory of liability. 

2. Failure to Instruct on Knowledge Requirement 

 The district court erred by omitting a necessary element in its jury instructions regarding 

aiding and abetting an 18 U.S.C. § 924(c) violation; however, this was harmless error. Section 

924(c) creates liability for using or carrying a firearm during and in relation to a crime of 

violence. Richardson was convicted of five counts of violating § 924(c) under an aiding and 

abetting theory of liability. Richardson argues that the jury instructions provided by the district 
Nos. 13-2655/2656 United States v. Richardson Page 21

court relating to this crime were erroneous because they failed to explain that Richardson needed 

prior knowledge that a firearm was present in order to be convicted as an aider or abettor. 

The resolution of this issue is governed by the Supreme Court’s recent decision in 

Rosemond v. United States, which addressed “what the Government must show when it accuses a 

defendant of aiding or abetting [a § 924(c)] offense.” 134 S. Ct. 1240, 1243 (2014). The Court 

determined that a participant in a predicate crime “has the intent needed to aid and abet a 

§ 924(c) violation when he knows that one of his confederates will carry a gun.” Id. at 1249. 

Consequently, the Court found erroneous jury instructions that “failed to require that the 

defendant knew in advance that one of his cohorts would be armed.” Id. at 1243. 

 Richardson argues that the concerns implicated in the Rosemond jury instructions are 

implicated in his case as well. With regard to aiding and abetting a § 924(c) violation, the 

district court provided the following jury instructions: 

[F]or you to find Mr. Richardson guilty of using or carrying a firearm during and 

in relation to a federal crime of violence as an aider and abettor, you must be 

convinced that the government has proven each and every one of the following 

three elements beyond a reasonable doubt. 

First, that the crime of using or carrying a firearm during and in relation to a 

federal crime of violence, robbery affecting commerce, was committed. 

Second, that Mr. Richardson helped to commit the crime. 

And, third, that Mr. Richardson intended to help commit the crime.

(R. 214, Jury Instructions, Page ID # 2574-75.) The government contends that these jury 

instructions satisfy the requirements set out in Rosemond, “albeit perhaps not as artfully worded 

as may be desired.” Appellee’s Br. at 53. According to the government, the knowledge 

requirement is implied in the district court’s jury instruction regarding the third element of aiding 

and abetting, which states: “that Mr. Richardson intended to help commit the crime.” (R. 214, 

Jury Instructions, Page ID # 2575.) The government’s interpretation of this jury instruction is 

dependent on a peculiar reading in which the word “crime” in the relevant section is defined as 

the crime of using or carrying a firearm during a robbery, rather than as the crime of perpetrating 

the robbery itself. This reading is at odds with the most obvious reading of the jury instructions, 

under which the word “crime” refers to the predicate crime of robbery, not to the § 924(c) 
Nos. 13-2655/2656 United States v. Richardson Page 22

violation. Under this more natural reading, these jury instructions fail to satisfy Rosemond as 

they insufficiently explain the knowledge requirement necessary to convict Richardson of aiding 

and abetting a § 924(c) violation. 

Nonetheless, the district court’s improper jury instructions amount to harmless error. 

“[A] jury instruction that misdescribes or omits an element of an offense is subject to harmless 

error review.” United States v. Tarwater, 308 F.3d 494, 521 (6th Cir. 2002) (citing Neder v. 

United States, 527 U.S. 1, 9-10 (1999)). This is so because such errors do not “render the trial 

fundamentally unfair.” United States v. Stewart, 306 F.3d 295, 319 (6th Cir. 2002). “The 

[Supreme] Court [has] noted that omission of a jury instruction differs markedly from the 

constitutional violations [it has] found to defy harmless-error review.” Id. (internal quotation 

marks omitted). 

Where the reviewing court “cannot conclude beyond a reasonable doubt that the jury 

verdict would have been the same absent the error . . . it should not find the error harmless.” 

Neder, 527 U.S. at 19. In Neder, the Supreme Court explained that: 

A reviewing court making this harmless-error inquiry does not . . . become in 

effect a second jury to determine whether the defendant is guilty. Rather a court, 

in typical appellate-court fashion, asks whether the record contains evidence that 

could rationally lead to a contrary finding with respect to the omitted element. If 

the answer to that question is ‘no,’ holding the error harmless does not reflect a 

denigration of the constitutional rights involved. 

Id. (internal citations and quotation marks omitted). 

 The government contends that any jury instruction error was harmless because “[t]he 

robberies and the guns were so interconnected that it is inconceivable that a jury could find 

Richardson intended to commit, or assist in the commission of, the robberies but not the armed

robberies.” Appellee’s Br. at 56 (emphasis added). A review of the record in this case confirms 

the government’s assertion. Richardson’s § 924(c) convictions were based on five armed 

robberies. According to the government’s theory of the crimes, Richardson’s role in these 

robberies was as the planner, facilitator, and driver. His conviction was based largely on the 

testimony of three other participants in the crimes who provided similar testimony regarding 

Richardson’s role. The use of firearms was a consistent characteristic of the five robberies at 
Nos. 13-2655/2656 United States v. Richardson Page 23

issue and the government’s key witnesses all attributed the gun procurement to Richardson. It is 

implausible that a jury would simultaneously believe the portions of the government witnesses’ 

testimony establishing Richardson’s liability for the predicate robberies but not believe the 

portions of the testimony regarding Richardson’s knowledge of the use of firearms. The record 

simply does not contain “evidence that could rationally lead to a contrary finding with respect to 

the omitted element.” Neder, 527 U.S. at 19. Accordingly, although the jury instructions were 

erroneous, this error was harmless. 

E. Constitutionality of Richardson’s Sentence 

“A constitutional challenge to a sentence is a question of law and reviewed de novo.” 

United States v. Jones, 569 F.3d 569, 573 (6th Cir. 2009). 

Richardson raises a number of constitutional challenges to his 1,494 month sentence, 

which is comprised largely by his consecutive mandatory sentences under 18 U.S.C. § 924(c). 

Section 924(c) establishes mandatory minimum sentences for using or carrying a firearm during 

and in relation to any crime of violence. In particular, § 924(c)(1)(A) establishes a mandatory 

minimum sentence of seven years of incarceration for an individual’s first conviction under 

§ 924(c), and § 924(c)(1)(C) establishes a 25 year mandatory minimum sentence “[i]n the case of 

a second or subsequent conviction under this subsection.” Section 924(c)(1)(D)(ii) further 

mandates that sentences under § 924(c) must run consecutively with any other terms of 

imprisonment. Richardson specifically contends that his consecutive mandatory minimum 

sentences under § 924(c) and (d) violate: (1) separation of powers, (2) the Fifth Amendment right 

to an individualized sentence, (3) equal protection, and (4) the Eighth Amendment’s prohibition 

against cruel and unusual punishment. These arguments fail. 

1. Separation of Powers 

Richardson first argues that the consecutive mandatory minimum sentences at issue 

violate the separation of powers doctrine by “stripp[ing] the judiciary of its constitutional and 

judicial prerogative in sentencing.” Richardson’s Br. at 39. The Supreme Court has recognized 

that “Congress, of course, has the power to fix the sentence for a federal crime, and the scope of 

judicial discretion with respect to a sentence is subject to congressional control.” Mistretta v. 
Nos. 13-2655/2656 United States v. Richardson Page 24

United States, 488 U.S. 361, 364 (1989) (internal citations omitted). We previously denied a 

separation of powers challenge to a mandatory minimum sentence in United States v. Cecil, 

noting that we have “‘flatly rejected’ the claim that mandatory minimums unconstitutionally 

violate separation-of-powers principles.” 615 F.3d 678, 696 (6th Cir. 2010) (quoting United 

States v. Odeneal, 517 F.3d 406, 414 (6th Cir. 2008)). Richardson recognizes this existing 

precedent, but “asks this Court to revisit the Cecil holding that rejected the separation of powers 

argument.” Richardson’s Br. at 40. This panel cannot grant Richardson’s request. As was 

explained earlier in this opinion, pursuant to Sixth Circuit Rule 32.1(b), “[p]ublished panel 

opinions are binding on later panels. A published opinion is overruled only by the court en 

banc.” 

2. Right to an Individualized Sentence 

Richardson next argues that his consecutive mandatory minimum sentences violate his 

right to individualized sentencing under the Due Process clause of the Fifth Amendment. This 

argument is also foreclosed by this Circuit’s existing precedent. In Odeneal, we recognized “that 

there is no constitutional right to individualized sentencing in non-capital cases.” 517 F.3d at 

415; see also United States v. Levy, 904 F.2d 1026, 1035 (6th Cir. 1990). As this is a non-capital 

case, Richardson’s argument is foreclosed by this precedent. Once again, Richardson invites us 

to reconsider our previous holdings and, once again, we are not empowered to do so. 

3. Equal Protection 

Richardson also argues that his mandatory minimum sentences deprive him of the equal 

protection of the law. The Supreme Court has acknowledged that the Fifth Amendment contains 

“an equal protection component” applicable to the federal government. United States v. Hughes, 

632 F.3d 956, 960 (6th Cir. 2011) (citing to San Francisco Arts & Athletics, Inc. v. U.S. Olympic 

Committee, 483 U.S. 522, 543 n. 21 (1987)). “The analysis of a Fifth Amendment equal 

protection claim is identical to an equal protection claim under the Fourteenth Amendment.” Id. 

Where a legislative distinction does not target a suspect class or implicate a fundamental right, it 

need only have a rational basis to survive an equal protection challenge. LensCrafters, Inc. v. 

Robinson, 403 F.3d 798, 806 (6th Cir. 2005). 
Nos. 13-2655/2656 United States v. Richardson Page 25

Richardson claims that the sentence required by 18 U.S.C. § 924(c) impinges on his 

fundamental right to liberty. However, no such right to liberty exists for a person who has been 

“justly convicted.” Hughes, 632 F.3d at 962. Accordingly, the challenged mandatory minimum 

sentences must survive only rational basis review. Of particular concern to Richardson is the 

sentencing disparity implicit in § 924(c)(1)(C)’s higher mandatory minimum sentence for 

individuals who have been convicted under § 924(c) for a second or subsequent offense. 

Richardson argues that this disparity lacks a rational basis. 

We have previously held that, “[w]here rational basis review governs, we will not strike 

down a statute on equal protection grounds unless the varying treatment of different groups or 

persons is so unrelated to the achievement of any combination of legitimate purposes that we can 

only conclude that the legislature’s actions were irrational.” Johnson v. Bredesen, 624 F.3d 742, 

747 (6th Cir. 2010) (internal quotation marks omitted). The government argues that § 924(c) 

survives rational basis review because the statute’s sentencing discrepancy between first time 

offenders and repeat offenders can be justified by the legitimate governmental goal of deterring 

recidivism. See United States v. Raynor, 939 F.2d 191, 194 (4th Cir. 1991) (rejecting a 

comparable challenge to § 924(c) and recognizing “the clear intent of § 924(c) to deter the use of 

firearms in the commission of crimes and to increase the cost of committing a second offense”). 

Richardson has failed to demonstrate that this governmental purpose is illegitimate and that 

§ 924(c) is not rationally related to achieving this purpose. Thus, he has failed to establish that 

his mandatory minimum sentences under § 924(c) infringe upon his right to equal protection of 

the law. 

4. Cruel and Unusual Punishment 

Finally, Richardson argues that his 1,494 month sentence violates the Eighth 

Amendment’s ban on cruel and unusual punishment inasmuch as it is “grossly disproportionate” 

to his criminal conduct. Richardson’s Br. at 42. “The Eighth Amendment does not require strict 

proportionality between crime and sentence. Rather, it forbids only extreme sentences that are 

‘grossly disproportionate’ to the crime.” Harmelin v. Michigan, 501 U.S. 957, 1001 (1991). 

Sentences are not deemed cruel and unusual simply by virtue of being mandatory. United States 

v. Wimbley, 553 F.3d 455, 463 (6th Cir. 2009). 
Nos. 13-2655/2656 United States v. Richardson Page 26

We have regularly upheld sentences exceeding 1,494 months for § 924(c) violations 

related to armed robberies. For example, in United States v. Watkins, we upheld a 1,772 month 

sentence for a defendant who had been convicted of six § 924(c) violations associated with the 

commission of robberies. 509 F.3d 277, 283 (6th Cir. 2007). Despite acknowledging that “the 

Eighth Amendment places an outer limit on criminal penalties that are grossly disproportionate 

to the offense,” we concluded that due to the “numerosity and seriousness of the offenses, the 

comparable sentences imposed by this circuit in similar circumstances, and the requirement that 

sentences for § 924(c) firearms convictions run consecutively to all other sentences, [the 

defendant’s] sentence [was] not grossly disproportionate to the offenses.” Id. at 283; see also

United States v. Clark, 634 F.3d 874, 878 (6th Cir. 2011) (finding that a 2,269 month sentence 

for six robberies did not violate the Eighth Amendment); United States v. Willis, 232 F. App’x 

527, 539 (6th Cir. 2007) (finding that a 1,920 month sentence for seven armed robberies was not 

cruel and unusual); United States v. Wiley, 132 F. App’x 635, 643 (6th Cir. 2005) (finding that a 

3,184 month sentence for eleven armed robberies did not violate the Eighth Amendment); United 

States v. Marks, 209 F.3d 577, 583 (6th Cir. 2000) (finding that a 2,242 month sentence for nine 

robberies did not violate the Eighth Amendment). 

In light of this Circuit’s consistency in upholding similar sentences for § 924(c) 

convictions in comparable circumstances, Richardson’s 1,494 month sentence cannot be deemed 

grossly disproportionate and therefore does not constitute an Eighth Amendment violation. 

CONCLUSION

For the foregoing reasons, we AFFIRM the judgments of the district court.