United States v. Bell, Adrian , 187 F. App'x 610 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued May 10, 2006
Decided June 5, 2006
Before
Hon. JOEL M. FLAUM, Chief Judge
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-2361
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the
Western District of Wisconsin
v.
No. 04-CR-165
ADRIAN BELL,
Defendant-Appellant. John C. Shabaz, Judge.
ORDER
One night in October 2004, Madison, Wisconsin, police responded to a “shots-
fired” call near the apartment of Adrian Bell. Four shell casings were found in a
driveway, and a search warrant was obtained for Bell’s apartment. Bell was
present at the time of the search, along with two other people. Three firearms were
found in the apartment: a pellet gun, a sawed-off BB rifle, and a Glock 9mm pistol
wrapped in a T-shirt under a piece of furniture.
Bell told police he had been involved earlier that evening in an argument
with a group of people in the parking lot of his building and that he had felt
threatened. He said he brandished the pellet gun at the group, then took it back to
his apartment, wrapped it in a T-shirt, and put it in a closet. He also admitted
possessing the BB rifle. When he was told police found the Glock wrapped in the
same T-shirt as the pellet gun, Bell said he thought the Glock had been brought into
No. 05-2361 2
the apartment by his brother Curtis, whom Bell had called to help defend him
during the parking lot altercation.
Bell was charged and found guilty by a jury of being a felon in possession of
two firearms, the Glock pistol and the rifle, in violation of 18 U.S.C. § 922(g)(1).
Evidence presented at trial established that the shells which had been fired earlier
in the driveway came from the Glock.
On appeal, Bell challenges the government’s introduction of evidence about
the parking lot shooting to help establish that Bell knowingly possessed the Glock.
We review the district court’s evidentiary rulings for abuse of discretion. United
States v. Gougis, 432 F.3d 735, 742 (7th Cir. 2005).
We believe the jury could have found it relevant that the pistol discovered
hidden in Bell’s apartment was the same pistol that someone had fired earlier in
the parking lot, where Bell acknowledged having been involved in an angry
altercation. Although Bell was not charged with any wrongdoing that occurred in
the parking lot, evidence of the shooting was admissible under the “intricately
related” doctrine. See Gougis, 432 F.3d at 742. The police response to the shots-
fired call led directly to the search of Bell’s apartment, where the contraband
weapon was found. Thus, it was not an abuse of discretion for the district court to
hold that evidence from the parking lot shooting was “intricately related to the facts
of the case” against Bell for being a felon illegally in possession of a firearm. See id.Nor was the probative value of the parking lot evidence outweighed by its
potential to prejudice the jury against Bell by giving them information that he may
have been involved in an additional crime with which he was not charged. See
Federal Rule of Evidence 403. “The balancing of probative value and prejudice is a
highly discretionary assessment, and we accord the district court's decision great
deference, only disturbing it if no reasonable person could agree with the ruling.”
United States v. Thomas, 321 F.3d 627, 630 (7th Cir. 2003). Informing the jury of
the parking lot shooting helped to “complete the story of the crime on trial,” Gougis,
432 F.3d at 742, and helped to “explain the circumstances surrounding” the later
discovery of the hidden Glock, id. We do not believe that giving the jury a complete
account of the evening’s events necessarily would have induced them to decide the
felon-in-possession charge on an improper basis, such as emotional reaction against
Bell as the possible shooter, rather than on the objective evidence itself. See
Thomas, 321 F.3d at 630.
Bell also argues that the district court improperly denied evidence he wanted
to offer that no fingerprints were found on the Glock. Since this meant Bell’s
fingerprints were not on the gun, he believes the evidence “would have made it
No. 05-2361 3
somewhat less likely that he possessed the gun.” In United States v. Paladino, 401
F.3d 471, 478 (7th Cir. 2005), we held that the absence of fingerprints is irrelevant
to the issue of whether someone possessed a gun, and thus a trial court may
properly exclude such evidence.
Bell contends that his situation is different than the scenario in Paladino
because, while in that case the defendant admitted that the gun was in his car
while he was driving it, Bell has not admitted possessing the Glock. While there
could be a set of facts in some other case where that distinction is meaningful, we
don’t believe it’s meaningful here. After all, Bell was not charged with firing the
weapon, but the gun was found hidden in his apartment. Whether a person’s
fingerprints are found on an object, indicating that he recently handled it, is a
different question than whether he is illegally in possession of it. The district court
did not err in applying our holding from Paladino.
Beyond the evidentiary points, Bell lodges three challenges to his sentencing.
The district court sentenced Bell as an armed career criminal because it
found he had three prior convictions for violent felonies. One of those crimes was
second degree sexual assault of a child, stemming from Bell’s intercourse with a 13-
year-old girl. In United States v. Shannon, 110 F.3d 382 (7th Cir. 1997), we held
that sexual intercourse with a 13-year-old victim is a crime of violence within the
meaning of the United States Sentencing Guidelines because it presents a serious
risk of physical injury. (The guidelines definition of a violent crime is
interchangeable with the statutory definition of a violent felony under 18 U.S.C. §
924(e)(2)(B). See United States v. Howze, 343 F.3d 919, 924 (7th Cir. 2003).) In
Shannon, we consulted medical literature to determine that intercourse with a 13-
year-old presents a serious potential risk of physical injury. Bell argues that
Shannon is no longer good law after Shepard v. United States, 544 U.S. 13 (2005).
Shepard held that in determining whether a prior conviction qualifies as a violent
felony, a court’s inquiries are limited to the terms of the charging document, the
plea agreement, or the transcript of the plea colloquy confirming the factual basis
for the offense.
Bell misinterprets Shepard. Whether a crime is a violent felony is a question
of law, not of fact. United States v. Wallace, 326 F.3d 881, 886 (7th Cir. 2003).
Shepard does not disallow the use of outside evidence on the question of whether a
particular crime presents a serious risk of physical injury and thus is properly
classified as a matter of law as a crime of violence. Shepard’s limitation on judicial
fact-finding during sentencing goes to the determination of what prior crime the
defendant actually committed. United States v. Lewis, 405 F.3d 511, 515 (7th Cir
2005) (“The list in Shepard is designed to identify documents that illuminate what
No. 05-2361 4
crime the defendant committed . . . .”). For example, the issue in Shepard turned on
what evidence the trial court could consult in determining whether the defendant
had committed a so-called “generic burglary” (i.e., a burglary within an enclosed
space such as a building), which is classified as a violent felony, or some other form
of burglary which isn’t. Shepard, 544 U.S. at 16.
Next, Bell contends he was wrongly sentenced as an armed career criminal
because the indictment did not recite his prior violent felony convictions and the
district court engaged in improper judicial fact-finding when it determined he was
subject to the enhanced penalty provisions of 18 U.S.C. § 924(e). Bell acknowledges
that Almendarez-Torres v. United States, 523 U.S. 224 (1998), approved such use of
noncharged prior convictions as “sentencing factor[s],” id. at 243, and thus we are
prevented from giving him any relief on this point. He raises the issue only “to
preserve it for possible Supreme Court review.”
Finally, Bell argues that the district court should have continued his
sentencing hearing in order to allow the probation officer to obtain his social
security disability records. Bell believes those records would have documented that
he suffers mental retardation, which might have provided mitigating evidence for
sentencing or shown that he was entitled to a competency evaluation. We review
the district court’s decision on a request for continuance for abuse of discretion,
United States v. Knorr, 942 F.2d 1217, 1221 (7th Cir. 1991).
A defendant has a due process right to a “fair sentencing procedure which
includes the right to be sentenced on the basis of accurate information.” Id.(quoting United States v. Rone, 743 F.2d 1169, 1171 (7th Cir.1984)). Requests for
continuance are subject to “case-by-case determination . . . in light of the
circumstances presented, particularly the reasons presented to the district court in
support of the continuance at the time the motion is denied.” Id.While we appreciate the district judge’s desire to run an efficient courtroom,
there is no indication that Bell’s counsel was seeking to unreasonably delay the
proceedings. The evidence of Bell’s retardation is potentially significant enough to
his due process right to fair sentencing that a limited remand is in order allowing
Bell to be resentenced after he has had the opportunity to present evidence of his
disability.
For these reasons, Bell’s judgment of conviction is AFFIRMED. His sentence,
however, is VACATED and the case is REMANDED for a new sentencing
proceeding.