United States v. Anthony Walker , 562 F. App'x 547 ( 2014 )

United States Court of Appeals
For the Eighth Circuit
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No. 13-2066
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Anthony Walker
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: February 14, 2014
Filed: June 24, 2014
[Unpublished]
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Before RILEY, Chief Judge, LOKEN and BYE, Circuit Judges.
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PER CURIAM.
Anthony Walker pleaded guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). At sentencing, the district court1 determined that
Walker had three prior violent felony convictions, making him subject to the penalties
1
The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.
prescribed in 18 U.S.C. § 924(e)(1). The court also applied the cross reference in
U.S.S.G. § 2K2.1(c)(1)(B), finding that Walker “used or possessed any firearm . . . in
connection with the commission . . . of another offense” that resulted in death. The
court cross referenced to the offense level for first degree murder in § 2A1.1, resulting
in an advisory guidelines range of 360 months to life in prison. The court imposed a
360-month sentence. Walker appeals, arguing the evidence at sentencing was
insufficient to establish by a preponderance of the evidence that he used or possessed
any firearm in connection with a murder offense, and he did not have three prior
violent felony convictions. Reviewing the district court’s factual findings for clear
error and legal issues de novo, we affirm. See United States v. Tunley, 664 F.3d 1260,
1264 (8th Cir. 2012) (standard of review).
Paragraphs 8-17 of the Presentence Investigation Report (PSR) summarized
facts relevant to the cross referencing issue. On January 16, 2012, police found three
victims who had died of gunshot wounds at a Kansas City residence. On January 26,
an undercover officer accompanied a confidential source (CS) to the Kansas City
residence of Walker, a nine-time convicted felon, where the CS purchased a
semiautomatic .40 caliber firearm and ammunition. Ballistic evidence indicated that
this firearm was used to kill the three homicide victims; the ammunition matched shell
casings found at the homicide scene. Investigation of cell phone records indicated that
Walker’s cell phone was used to call one victim the night of the murders and “pinged”
off a tower near the homicide scene. Walker was arrested for being a felon in
possession on February 1. The shoes he was wearing matched impressions taken
inside the residence where the triple homicide occurred. Walker claimed that the CS
tried to sell Walker the .40 caliber firearm, but he admitted agreeing to hold the gun
for the CS in exchange for crack cocaine. On February 2, police recovered a second
revolver in the rear hatch of Walker’s wife’s car, which the CS had reported seeing
on January 26. Walker’s wife had consented to the search and denied knowing the
gun was there.
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Paragraph 19 of the PSR recounted that on May 21, officers conducted a
lengthy interview of Walker’s nephew, Clint Jones. “During the interview, Jones
implicated Walker as the person who murdered the three victims . . . on January 16,
2012.” Jones also related that Walker took a revolver from the victims’ residence and
gave it to Jones. Shown a picture of the second firearm recovered from Walker’s
wife’s car, Jones said, “yep, look like it.”
Prior to sentencing, Walker objected to all the paragraphs of the PSR reciting
the above facts. At the first of two sentencing hearings, defense counsel agreed “the
court can take into account” the facts recited in paragraphs 8-17 of the PSR, which the
court described as “circumstantial stuff.” However, prompted by the court’s concern
as to the reliability of “remote hearsay,” defense counsel did not waive his objection
to Paragraph 19 because it included “a direct admission attributable to the defendant
relative to these exact crimes that the government seeks the [§ 2K2.1(c)] enhancement
on.” The court then continued the sentencing hearing.
The sentencing hearing resumed nearly three months later. Clint Jones,
appearing by subpoena and testifying as a defense witness, denied going with Walker
to the victims’ residence and seeing dead bodies and denied that Walker ever told
Jones “that he had killed those people.” After argument, the district court found by
a preponderance of the evidence “that this defendant did kill the victims and later tried
to use Jones to help search for money and drugs.” Citing specific pages from the
lengthy transcript of Jones’s interview, the court explained:
The interview of -- of Clint Jones all in all is the principal thing
that we have to rely on in my judgment. As happened today, he shifted
back and forth and he did not tell the truth much of the time. . . . I am
satisfied that the way the interview ended is the way the facts are, and
that he was in the house and saw them dead.
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On appeal, Walker argues the evidence was insufficient to support the cross-
referencing enhancement because the district court acknowledged that, without the
statements attributed to Clint Jones during his police interview, the circumstantial
evidence appeared to be insufficient to show that Walker used the firearm in
connection with a homicide offense, and “[a]t the [sentencing] hearing Clint Jones
under oath flatly contradicted and refuted his previous statements linking [Walker] to
the homicides.” The government correctly argues that this contention turns on a
credibility issue and, as we have frequently noted, a district court’s credibility findings
are “virtually unreviewable on appeal.” United States v. Candie, 974 F.2d 61, 64 (8th
Cir. 1992). Here, the credibility of nephew Jones in the interview and at the
sentencing hearing posed a difficult question that the district court was in the best
position to decide. There was no clear error.
Walker further argues that the government failed to prove that the other offense
-- the three murders -- was sufficiently related to the firearm offense of conviction to
support the § 2K2.1(c)(1)(B) enhancement. We disagree. While the term “in
connection with” no doubt requires some linking of another offense to the charged
felon-in-possession offense, the district court did not err in concluding that using the
same firearm to kill three persons ten days prior to the felon-in-possession arrest
warranted a § 2K2.1(c)(1)(B) enhancement. See United States v. Stroud, 673 F.3d
854, 858, 862 (8th Cir. 2012), cert. denied, 133 S. Ct. 1581 (2013); United States v.
Davis, 360 F.3d 901, 903-04 (8th Cir. 2004). Finally, Walker argues that he should
not have been sentenced as an armed career criminal under 18 U.S.C. § 924(e)(2)
because he merely acted as an unarmed, non-violent lookout during a predicate
conviction for second-degree robbery. Walker admits having no case law supporting
this contention, and it is contrary to our well-established “categorical” approach to
determining whether a prior conviction was for a “violent felony.”
The judgment of the district court is affirmed.
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