United States v. Royce Weaver , 558 F. App'x 727 ( 2014 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 13-2698
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Royce Weaver
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
____________
Submitted: March 18, 2014
Filed: March 21, 2014
[Unpublished]
____________
Before WOLLMAN, BOWMAN, and KELLY, Circuit Judges.
____________
PER CURIAM.
Royce Weaver appeals from a judgment of the District Court1 entered upon a
jury verdict finding him guilty of being a felon in possession of ammunition. See 18
1
The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.
U.S.C. § 922(g)(1). His counsel has filed a brief under Anders v. California, 386 U.S.
738 (1967), challenging the sufficiency of the evidence to support the verdict and the
application of a sentencing enhancement for Weaver’s possession of the ammunition
in connection with another felony offense. Weaver has also filed two pro se briefs.
We review de novo the sufficiency of the evidence to sustain a guilty verdict,
viewing the evidence in the light most favorable to the verdict and resolving any
conflicts or contradictions in support of the verdict. See United States v. Spears, 454
F.3d 830, 832 (8th Cir. 2006). Testimony at Weaver’s trial established that he was
involved in an altercation with Broderick Paskel while the two were at a mutual
friend’s residence in North Little Rock, Arkansas, on June 25, 2011. Weaver left at
the resident’s request, but he returned a short time later with a firearm, and he and
Paskel exchanged gunfire while people in the vicinity took cover. Afterward Weaver,
who was injured, threw his firearm in some bushes, and another individual removed
the firearm while Weaver was being taken away by ambulance. The police retrieved
some 40 shell casings from two different firearms, neither of which was found.
Given the parties’ stipulations that Weaver had been convicted of a crime
punishable by imprisonment for more than one year and that the ammunition or shell
casings found at the scene had been transported across a state line, we conclude that
the evidence was sufficient for the jury to find Weaver guilty of being a felon in
possession of ammunition. See 18 U.S.C. § 922(g) (listing elements of felon-in-
possession of firearm or ammunition); United States v. Miner, 108 F.3d 967, 969 (8th
Cir.) (concluding that sufficient evidence supported a felon-in-possession-of-
ammunition conviction where the firearm defendant used was never located, but
police found defendant’s spent cartridges at the scene of shooting and an individual
shot by the defendant gave detailed testimony about the incident), cert. denied, 522
U.S. 904 (1997); United States v. Kelly, 436 F.3d 992, 996 (8th Cir. 2006) (finding
sufficient evidence that defendant was a felon in possession of ammunition where
-2-
shell casings were found outside house, car had bullet holes, and testimony indicated
that defendant admitted shooting at car).
We further conclude that the District Court did not err at sentencing in rejecting
Weaver’s challenge to a 4-level enhancement to his base offense level for possession
of the ammunition in connection with another felony, see United States v. Guiheen,
594 F.3d 589, 591 (8th Cir. 2010) (noting that appellate court reviews application of
Guidelines de novo and factual findings for clear error; Guidelines § 2K2.1(b)(6)
requires a 4-level enhancement “[i]f the defendant used or possessed any firearm or
ammunition in connection with another felony offense,” meaning any federal, state,
or local offense punishable by imprisonment for a term exceeding one year,
regardless of whether criminal charge was brought or conviction obtained), because
his exchange of gunfire with Paskel created substantial danger of death or serious
physical injury, see Ark. Code Ann. § 5-13-204(a)(l) (stating that “[a] person commits
aggravated assault if, under circumstances manifesting extreme indifference to the
value of human life, he . . . purposely . . . [e]ngages in conduct that creates a
substantial danger of death or serious physical injury to another person”). In addition,
we reject Weaver’s pro se arguments because (1) the holdings in Apprendi v. New
Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 133 S. Ct. 2151 (2013),
have no application to his case; and (2) he did not preserve a challenge to the jury
instruction defining “ammunition,” which in any event followed the statutory
definition and was not ambiguous, see 18 U.S.C. § 921(a)(17)(A) (“The term
‘ammunition’ means ammunition or cartridge cases, primers, bullets, or propellent
powder designed for use in any firearm.”).
Finally, we have found no other nonfrivolous issue after reviewing the record
under Penson v. Ohio, 488 U.S. 75, 80 (1988). Accordingly, we affirm the judgment
of the District Court and grant counsel’s motion to withdraw.
______________________________
-3-