United States v. Joseph McDonald ( 2016 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-14532
Non-Argument Calendar
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D.C. Docket No. 9:15-cr-80031-DMM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH MCDONALD,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(September 28, 2016)
Before TJOFLAT, JULIE CARNES, and JILL PRYOR, Circuit Judges.
PER CURIAM:
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Defendant Joseph McDonald appeals his convictions and 240-month
sentence after a jury convicted him of two counts of being a felon in possession of
a firearm, in violation of 18 U.S.C. § 922(g)(1). He raises three arguments on
appeal. First, he asserts that the district court abused its discretion by admitting
evidence of his previous conviction for being a felon in a possession of a firearm.
Next, he argues that his constitutional rights were violated by the imposition of a
sentencing enhancement based on his prior convictions that were not alleged in the
indictment or found by a jury. Finally, he contends that the district court erred by
imposing a two-level sentence enhancement under U.S.S.G. § 3C1.2 for reckless
endangerment during flight. After careful review, we affirm.
I. BACKGROUND
A. Factual Background
On July 28, 2013, officers with the Palm Beach Gardens Police Department
responded to a call about a stolen vehicle in progress. Officer Robert Boschen
arrived at the scene and saw a suspicious vehicle travel through the same
intersection twice. Officer Boschen decided to conduct an investigatory stop and
when he turned on the lights of his patrol car, the vehicle sped up and fled on to the
highway.
At this point, another officer, Sergeant Randy Buntin joined the pursuit. The
vehicle eventually stopped and Defendant exited the rear passenger door.
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Defendant had his hands at his waistline. Sergeant Buntin ordered Defendant to
stop, and when Defendant did not comply, Sergeant Buntin tased him. As he was
being tased, Defendant dropped a white plastic bag on the ground. Officers
eventually placed Defendant under arrest and recovered a Smith & Wesson
semiautomatic pistol from the white bag.
Subsequently, on December 17, 2013, Corporal Brian Cullen received
information about a potential stolen vehicle being driven by Defendant near a
residential community. Corporal Cullen went to the area and observed Defendant
driving the stolen vehicle. After Defendant parked the car, Corporal Cullen
activated his patrol lights, which caused Defendant to drive over a parking hump
and flee. Corporal Cullen pursued Defendant, but because Defendant was passing
cars and driving at a high rate of speed, Corporal Cullen’s supervisor called off the
pursuit to avoid endangering the public. Corporal Cullen eventually found the
vehicle unoccupied and parked in the residential community. As Corporal Cullen
waited near the vehicle, he observed Defendant exit a stairwell. Upon being
approached by Corporal Cullen and his partner, Defendant immediately fled and
dropped the plastic bag that he was holding. Defendant refused the officers’
commands to stop, so Corporal Cullen tased him. Defendant was later placed
under arrest. Another officer canvassed the area where Corporal Cullen had
observed Defendant and found a briefcase which contained a MAC-10 firearm and
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several rounds of ammunition. Forensic investigators later found Defendant’s
DNA on the firearm.
B. Procedural History
A federal grand jury returned an indictment against Defendant, charging him
with two counts of being a felon in possession of a firearm, in violation of 18
U.S.C. §§ 922(g)(1), 924(e). Defendant pleaded not guilty and proceeded to trial.
Prior to trial, the Government provided Defendant with written notice of its
intent to introduce Defendant’s 2013 conviction for being a felon in possession of a
firearm, pursuant to Federal Rule of Evidence 404(b), for the purpose of showing
Defendant’s intent, knowledge, absence of mistake, or lack of accident. The
Government later filed a motion in limine to formally introduce this evidence.
Defendant responded that the introduction of his prior conviction for being a felon
in possession was inadmissible because he was not seeking a defense of mistake or
accident and introduction of that evidence would be unduly prejudicial.
At trial, after the Government presented its case, it sought to formally
introduce evidence of Defendant’s prior conviction for being a felon in possession
of a firearm. Defendant argued that the introduction of such evidence would be
unduly prejudicial and that a limiting instruction would not provide an adequate
remedy. The district court permitted the evidence of Defendant’s prior conviction,
but excluded the underlying nature of the offense as unfairly prejudicial. After the
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district court provided a limiting instruction to the jury, the Government introduced
a certified judgment showing that Defendant had a prior conviction for being a
felon in possession of a firearm.
Defendant presented the testimony of one witness and then rested his case.
In its closing argument, the Government relied on Defendant’s prior conviction to
argue that the jury may consider the fact that Defendant knowingly possessed a
firearm before to conclude that he knowingly possessed the firearms in the present
case. The jury returned a guilty verdict on both counts.
In anticipation of sentencing, the probation officer prepared a Presentence
Investigation Report (“PSR”). The PSR assigned Defendant a base offense level of
22 pursuant to U.S.S.G. § 2K2.1(a)(3) because Defendant committed the present
offense subsequent to sustaining at a felony conviction for a controlled substance
offense. Defendant received various enhancements, including a two-level
enhancement under U.S.S.G. § 3C1.2 for reckless endangerment during flight.
Defendant’s adjusted offense level was 30, but because he was armed career
criminal under 18 U.S.C. § 924(e) based on his prior convictions for serious drug
offenses, Defendant’s total offense level was 33. Based on a total offense level of
33 and a criminal history category of V, Defendant’s advisory guideline range was
210 to 262 months’ imprisonment.
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Defendant filed objections to the PSR. Of relevance, he argued that the two-
level enhancement under § 3C1.2 that he received for creating a substantial risk of
death or serious bodily injury should not be applied because Defendant was not the
driver of the vehicle during the November 28, 2013 incident. He also objected to
the Armed Career Criminal (“ACCA”) enhancement because the prior convictions
used to support that enhancement were not alleged in the indictment or proven to
the jury beyond a reasonable doubt.
At sentencing, the district court overruled Defendant’s objection to use of
his prior convictions to support the ACCA enhancement in light of binding
precedent. As to his objection to the reckless endangerment enhancement, the
Government called Corporal Cullen who reiterated that Defendant sped away as
Corporal Cullen attempted to initiate a traffic stop on December 17, 2013. He
described that Defendant’s vehicle reached speeds of 80 miles per hour, passed
other vehicles in a no-passing zone, and entered an intersection from the wrong
lane of traffic. The court determined that the reckless endangerment enhancement
was appropriate because of Defendant’s reckless driving, which caused officers to
call off their pursuit rather than endanger others. The district court determined that
Defendant’s advisory guideline range was 210 to 262 months’ imprisonment based
on his status as an armed career criminal. After considering the 18 U.S.C.
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§ 3553(a) factors, the district court sentenced Defendant to 240 months’
imprisonment. This appeal followed.
II. DISCUSSION
A. Admission of Evidence of Prior Conviction
Defendant argues first that the district court erred under Rule 404(b) by
permitting the Government to introduce evidence of his prior conviction for being
a felon in possession of a firearm.
We review the district court’s admission of evidence under Rule 404(b) for
an abuse of discretion. United States v. Giordano, 261 F.3d 1134, 1140 (11th Cir.
2001). Rule 404(b) provides that “[e]vidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that on a particular
occasion the person acted in accordance with the character.” Fed. R. Evid. 404(b).
However, the “evidence may be admissible for another purpose, such as proving
motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident.” Id. “Rule 404(b) is a rule of inclusion” and thus
“like other relevant evidence, should not lightly be excluded when it is central to
the prosecution’s case.” United States v. Jernigan, 341 F.3d 1273, 1280 (11th Cir.
2003).
Here, the district court did not abuse its discretion by admitting evidence of
Defendant’s prior conviction for being a felon in possession of a firearm. To be
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admissible under Rule 404(b): “1) the evidence must be relevant to an issue other
than the defendant’s character; 2) sufficient evidence must be presented to allow a
jury to find that the defendant committed the extrinsic act; and, 3) the probative
value of the evidence must not be substantially outweighed by its undue
prejudice.” United States v. Sterling, 738 F.3d 228, 238 (11th Cir. 2013).
Defendant’s argument centers on the first and third prongs.1
As to the first prong, the evidence was relevant to an issue other than
Defendant’s character, namely whether Defendant knowingly possessed the
firearm. Id. Because Defendant did not admit or stipulate to having possessed the
firearm, the Government was required to prove this element and attempted to do so
by introducing evidence of Defendant’s prior conviction for unlawful possession of
a firearm. See United States v. Taylor, 417 F.3d 1176, 1182 (11th Cir. 2005)
(concluding that the district court did not abuse its discretion by admitting
evidence of defendant’s prior conviction to show that defendant “knowingly
possessed a firearm at another point in time”); 18 U.S.C. § 922(g)(1).
Defendant asserts that the district court improperly relied on Jernigan to find
the evidence admissible under Rule 404(b) because Defendant’s defense was not
that he lacked knowledge of the firearms, but that he never possessed the firearms
1
Although Defendant presents no argument related to the second prong, this prong is met
because the Government submitted a certified judgment of Defendant’s prior conviction. See
Jernigan, 341 F.3d at 1282 (stating that a conviction is adequate proof to show that a defendant
committed a prior act).
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at all. Defendant’s attempt to distinguish the circumstances of the present case
from Jernigan is misplaced. In Jernigan, we held that the district court did not
abuse its discretion by admitting evidence of the defendant’s prior conviction for
being a felon in possession of a firearm. See Jernigan, 341 F.3d at 1281(explaining that there is a “logical connection” between knowingly possessing a
firearm on one occasion and knowledge of the firearm on a subsequent occasion).
Like Defendant, the defendant in Jernigan also disputed having actually possessed
the firearm at issue and not merely having knowledge or intent regarding the
proximity of the firearm. See Jernigan, 341 F.3d at 1276 (stating defendant’s
claim that the firearm “was not his”).
Finally, as to the third prong, the evidence of Defendant’s prior conviction
was more probative than prejudicial because it was the same offense as the
offenses charged in the present case. See United States v. Ramirez, 426 F.3d 1344,
1354 (11th Cir. 2005) (“A similarity between the other act and a charged offense
will make the other offense highly probative with regard to a defendant’s intent in
the charged offense.”). “Whether the probative value of Rule 404(b) evidence
outweighs its prejudicial effect depends upon the circumstances of the extrinsic
offense.” United States v. Edouard, 485 F.3d 1324, 1345 (11th Cir. 2007)
(alteration and quotations omitted). The district court recognized the potential
prejudice of introducing the nature of Defendant’s prior conviction—shooting into
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an occupied vehicle—and therefore excluded that information. The district court
also instructed the jury twice that it may consider the evidence of Defendant’s prior
conviction only for the limited purpose of determining whether Defendant had the
state of mind necessary to commit the crimes charged in the indictment. See
Jernigan, 341 F.3d at 1282 (concluding that the probative value of the evidence
regarding defendant’s prior convictions was not substantially outweighed by its
prejudicial impact in part because the district court gave limiting instructions and
excluded the potentially prejudicial aspects of defendant’s convictions).
Accordingly, we cannot conclude that the district court abused its discretion by
admitting this evidence.
B. Use of Prior Convictions for Enhancement Purposes
Defendant further contends that his sentence was improperly enhanced under
the ACCA based on prior convictions that were not charged in the indictment or
proven to a jury beyond a reasonable doubt.
In Almendarez-Torres v. United States, the Supreme Court held that, in the
context of § 1326(b)(2)’s penalty provision, a defendant’s prior conviction is not
an element of the offense, and therefore, it need not be charged in an indictment or
proven to a jury beyond a reasonable doubt. 523 U.S. 224, 226–27, 244 (1998).
We have explicitly stated that Almendarez-Torres remains binding precedent
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unless and until the Supreme Court overrules it. United States v. Harris, 741 F.3d
1245, 1250 (11th Cir. 2014).
As Defendant concedes, his argument is foreclosed by Almendarez-Torres.
See Almendarez-Torres, 523 U.S. at 226–27. We are bound by that holding unless
and until it is overruled by the Supreme Court. See Harris, 741 F.3d at 1250.
C. U.S.S.G. § 3C1.2 Enhancement
Defendant also argues that the district court erred by imposing the two-level
enhancement under § 3C1.2 because the circumstances surrounding his flight from
police did not create a substantial risk of death or bodily injury.
We review the district court’s findings of facts for clear error and its
application of the Guidelines to those facts de novo. United States v. Martikainen,
640 F.3d 1191, 1193 (11th Cir. 2011). Section 3C1.2 of the Sentencing Guidelines
provides for a two-level increase in a defendant’s offense level if “the defendant
recklessly created a substantial risk of death or serious bodily injury to another
person in the course of fleeing from a law enforcement officer.” U.S.S.G. § 3C1.2.
The term reckless “refers to a situation in which the defendant was aware of the
risk created by his conduct and the risk was of such a nature and degree that to
disregard that risk constituted a gross deviation from the standard of care that a
reasonable person would exercise in such a situation.” United States v. Matchett,
802 F.3d 1185, 1197 (11th Cir. 2015) (quotations omitted).
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Because Defendant’s total offense level was determined by his ACCA
status, his challenge to the two-level reckless endangerment enhancement will
make no difference to his guideline range given that his argument regarding the use
of his prior convictions to support the ACCA enhancement is foreclosed by
binding precedent. In any event, the district court did not err by imposing the two-
level enhancement for reckless endangerment during flight. As noted by the
district court, Corporal Cullen testified that Defendant traveled at 80 miles per hour
in a 60 mile-per-hour zone, he passed other vehicles in a no-passing zone, and
entered an intersection in the wrong lane of traffic. Defendant’s actions while
fleeing police represented a gross deviation from the standard of care that a
reasonable person would have exercised. See id. Indeed, Defendant’s actions were
such that officers had to call off their pursuit out of fear that someone would be
injured during the chase. Cf. United States v. Washington, 434 F.3d 1265, 1268
(11th Cir. 2006) (“Driving a car at high speed in an area where people are likely to
be found constitutes reckless disregard for others’ safety.”). In short, the district
court properly applied the two-level enhancement under § 3C1.2.
III. CONCLUSION
For the foregoing reasons, Defendant’s convictions and sentences are
AFFIRMED.
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