United States v. Antonio Clemmons ( 2006 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 05-4235
    ___________
    United States of America,                *
    *
    Appellee,                   *
    * Appeal from the United States
    v.                                 * District Court for the
    * Western District of Missouri.
    Antonio Clemmons,                        *
    *
    Appellant.                  *
    ___________
    Submitted: May 19, 2006
    Filed: August 29, 2006
    ___________
    Before WOLLMAN, BOWMAN, and RILEY, Circuit Judges.
    ___________
    WOLLMAN, Circuit Judge.
    Antonio Clemmons pleaded guilty to one count of being a felon in possession
    of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He appeals from
    his conviction, contending that the district court1 erred in denying his motion to
    exclude statements, that the district court imposed a sentence in violation of the Ex
    Post Facto and Due Process clauses, and that the district court erred in classifying his
    Missouri felony conviction for first degree tampering as a crime of violence. We
    affirm.
    1
    The Honorable Howard F. Sachs, United States District Judge for the Western
    District of Missouri.
    I.
    On August 30, 2002, Jamil Williams reported a burglary of his apartment to the
    Independence, Missouri, police department, stating that a Smith & Wesson .40 caliber
    semi-automatic pistol, serial number PAZ6099, was one of the items stolen. Williams
    told the police that he believed that Clemmons had burglarized his apartment and that
    he had seen Clemmons outside of the apartment, though not on the date in question.
    On October 20, 2002, Officers Steven Lester and Lawrence Cory were
    dispatched to an address in Kansas City, Missouri. When they arrived, they found
    Williams lying on the ground with a pool of blood gathering on his right leg. Officer
    Lester testified that Williams was talking on his cell phone in a calm voice. Officer
    Lester, who could tell that Williams had been shot, approached Williams and asked
    him to end the call. Williams did so, whereupon Lester asked Williams who had shot
    him. Williams answered that Antonio Clemmons had shot him and had stolen his
    Mac-11 pistol. Williams verified the identification of his assailant by telling the
    officers that Clemmons had attempted to rob him a month earlier in Independence.
    The Mac-11 pistol stolen from Williams was a Cobray, Model PM-11, 9mm semi-
    automatic pistol, serial number 940022835
    Between October 20, 2002, and October 31, 2002, Clemmons gave Eugene
    Calvert a Smith & Wesson pistol, serial number PAZ6099, in exchange for marijuana.
    After Calvert was arrested and law enforcement officers recovered the pistol, Calvert
    told the officers that he had received the gun from a man known as “40.” An
    examination of the firearm revealed that it matched two cartridge cases recovered
    from the scene of the Williams shooting. The officers learned that the moniker “40”
    corresponded to the name Antonio Clemmons and established surveillance at the
    residence where they believed Clemmons had been staying. On November 12, 2002,
    Clemmons was arrested for assault and robbery as he left the residence.
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    A detective returned to the address and asked for consent to search the
    premises. A resident consented to the search and showed the detective the room
    where Clemmons had been staying. The detective found a Mac-11 pistol, serial
    number 940022835, on the shelf.
    On December 5, 2003, Williams was murdered. Clemmons, who was
    incarcerated in the Jackson County jail at the time, was released because the only
    witness to the assault and robbery, Williams, had died.
    In a superseding indictment, Clemmons was charged with (1) being a felon in
    possession of a Cobray, Model PM-11, 9mm semi-automatic pistol, and (2) being a
    felon in possession of a Smith & Wesson .40 caliber semi-automatic pistol.
    Clemmons entered a conditional guilty plea to count one of the superseding
    indictment, reserving the right to appeal the district court’s denial of his pretrial
    motions.
    The Presentence Investigation Report (PSR) recommended a base offense level
    of 24 because Clemmons had previously sustained two felony convictions for crimes
    of violence, including a Missouri conviction for tampering in the first degree. The
    PSR also recommended a two-level enhancement because the firearm was stolen, a
    four-level enhancement because the firearm was used in connection with another
    felony offense, and a two-level reduction for acceptance of responsibility. Explaining
    the four-level enhancement, the PSR stated that:
    Clemmons was involved in the burglary of Jamil Williams’ residence (at which
    time he stole the firearm), the aggravated assault of Jamil Williams (at which
    time he shot Williams with the gun he had previously stolen from him), and the
    robbery of Jamil Williams (at which time he stole the second firearm).
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    Clemmons objected to the characterization of first-degree tampering as a crime of
    violence and to the enhancements recommended in the PSR.
    The district court ruled that Clemmons’s prior conviction for tampering
    qualified as a crime of violence and that his base offense level was 24. The district
    court applied the recommended enhancements and reduction, resulting in a total
    offense level of 28. With a criminal history category of VI, the district court
    determined that Clemmons’s sentencing range was between 140 and 175 months, but
    that the statutory maximum of 120 months controlled. The district court sentenced
    Clemmons to 120 months’ imprisonment.
    II.
    Clemmons argues that the district court erred in denying his pretrial motion to
    exclude the statements made by Williams to Officer Lester on October 20, 2002.
    A.
    We review de novo the denial of an objection to the admission of evidence
    based on the Confrontation Clause of the Sixth Amendment. United States v. Brun,
    
    416 F.3d 703
    , 706 (8th Cir. 2005).
    The Sixth Amendment states that in all “criminal prosecutions, the accused
    shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const.
    amend. VI. In Crawford v. Washington, the Supreme Court held that the
    Confrontation Clause bars the “admission of testimonial statements of a witness who
    did not appear at trial unless he was unavailable to testify, and the defendant had had
    a prior opportunity for cross-examination.” 
    541 U.S. 36
    , 53-54 (2004). The Court
    declined, however, to offer a comprehensive definition of “testimonial,” stating that
    “[w]hatever else the term covers, it applies at a minimum to prior testimony at a
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    preliminary hearing, before a grand jury, or at a former trial; and to police
    interrogations.” 
    Id. at 68.
    In Davis v. Washington, the Supreme Court revisited the Confrontation Clause
    and distinguished between testimonial and nontestimonial statements in the context
    of police interrogations. 
    126 S. Ct. 2266
    (2006). There, the trial court had admitted
    into evidence a recording of a victim’s exchange with a 911 operator. The Supreme
    Court affirmed, holding that:
    Statements are nontestimonial when made in the course of police interrogation
    under circumstances objectively indicating that the primary purpose of the
    interrogation is to enable police assistance to meet an ongoing emergency.
    They are testimonial when the circumstances objectively indicate that there is
    no such ongoing emergency, and that the primary purpose of the interrogation
    is to establish or prove past events potentially relevant to later prosecution.
    
    Id. at 2273-74.
    The Court went on to draw distinctions between the interrogations in
    Crawford and Davis, noting that the nature of the questions in Davis elicited answers
    that were necessary to be able to resolve the ongoing emergency. 
    Davis, 126 S. Ct. at 2276
    . “That is true even of the operator’s effort to establish the identity of the
    assailant, so that the dispatched officers might know whether they would be
    encountering a violent felon.” 
    Id. Viewing the
    facts in the light of the Supreme Court’s decision in Davis, we
    conclude that Williams’s statements to Officer Lester were nontestimonial. The
    circumstances, viewed objectively, indicate that the primary purpose of Lester’s
    questions was to enable him to assess the situation and to meet the needs of the victim.
    Officer Lester testified that he had parked his vehicle several houses away from the
    address to which he was dispatched “due to the fact that there could be a party armed.”
    Sentencing Tr. at 15. When the officers arrived at the scene, Williams was lying in
    front of a neighbor’s house, suffering from multiple gunshot wounds. Officer Lester
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    further testified that his purpose in speaking to the victim was, “[t]o investigate, one,
    his health to order him medical attention and, two, try[] to figure out who did this to
    him.” Sentencing Tr. at 16-17. Any reasonable observer would understand that
    Williams was facing an ongoing emergency and that the purpose of the interrogation
    was to enable police assistance to meet that emergency. Accordingly, because
    Williams’s statements were nontestimonial, they do not implicate Clemmons’s right
    to confrontation.
    B.
    The district court determined that the excited utterance exception to the hearsay
    rule applied to Williams’s statements and denied Clemmons’s motion to exclude. We
    review the district court’s evidentiary ruling for abuse of discretion. United States v.
    Water, 
    413 F.3d 812
    , 818 (8th Cir. 2005).
    Rule 803 (2) of the Federal Rules of Evidence provides that excited utterances,
    statements relating to a startling event and made while under the stress of excitement
    caused by the event, are not excluded by the hearsay rule. “For the excited utterance
    exception to apply, the declarant’s condition at the time of making the statement must
    be such that the statement was spontaneous, excited or impulsive rather than the
    product of reflection and deliberation.” Reed v. Thalacker, 
    198 F.3d 1058
    , 1061 (8th
    Cir. 1999) (internal quotation omitted). In determining whether a declarant was still
    under the stress of excitement when he made the statement, we consider “the lapse of
    time between the startling event and the statement, whether the statement was made
    in response to an inquiry, the age of the declarant, the physical and mental condition
    of the declarant, the characteristics of the event, and the subject matter of the
    statement.” 
    Id. Given the
    circumstances and nature of the conversation, we conclude that the
    district court did not abuse its discretion in ruling that the hearsay statements were
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    admissible as excited utterances. Although Officer Lester testified that Williams was
    talking on his cell phone in a calm manner, Williams had suffered five gunshot
    wounds and lay bleeding on the ground. As the district court stated, “[i]t would be
    unreasonable to conclude that someone recently suffering multiple gun-shot wounds
    and awaiting the arrival of paramedics is so nonchalant ab[o]ut his condition that he
    is likely to calculate who he might unfairly blame for his injuries.” D. Ct. Order of
    June 28, 2005, at 3. We agree, and we thus affirm the district court’s order denying
    Clemmons’s motion to exclude Williams’s statements.
    III.
    Clemmons next argues that his sentence violates his right to fair warning under
    the Ex Post Facto and Due Process clauses. He contends that the district court erred
    in applying Booker’s remedial holding to an offense that predated the Supreme
    Court’s decisions in Blakely v. Washington, 
    542 U.S. 296
    (2004), and United States
    v. Booker, 
    543 U.S. 220
    (2005), and that the resulting sentence was unforeseeable.
    Clemmons argues that the Sixth Amendment requires that the district court sentence
    him under the mandatory guidelines based on facts found by the jury or admitted by
    him and that the district court erred in applying sentencing enhancements (1) for the
    use of the firearm in connection with another felony offense and (2) for the stolen
    nature of the firearm. We review de novo Clemmons’s constitutional challenges.
    United States v. Wade, 
    435 F.3d 829
    , 831 (8th Cir. 2006) (per curiam).
    After Clemmons filed his appeal, we rejected these exact arguments in United
    States v. 
    Wade. 435 F.3d at 832
    . First, the Ex Post Facto Clause does not apply here
    because the changes wrought by Booker were by judicial decision, not by statute. 
    Id. Although due
    process concerns require that the application of judicial decisions to a
    pending case complies with the “concepts of notice, foreseeability, and, in particular,
    the right to fair warning,” Rogers v. Tennessee, 
    532 U.S. 451
    , 459 (2001), the
    Supreme Court directed the courts below to apply the Booker holdings—“both the
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    Sixth Amendment holding and [the] remedial interpretation of the Sentencing Act—to
    all cases on direct review.” 
    Booker, 543 U.S. at 268
    . We thus reject Clemmons’s
    constitutional claims and reiterate the conclusion reached in Wade, “the Supreme
    Court would not direct us to violate the Constitution.” 
    Wade, 435 F.3d at 832
    .
    IV.
    Finally, Clemmons argues that the district court erred in finding that his 1990
    Missouri state conviction for tampering in the first degree was a crime of violence.
    We review de novo whether a prior conviction constitutes a crime of violence under
    the sentencing guidelines. United States v. Bockes, 
    447 F.3d 1090
    , 1092 (2006).
    Under Missouri law, a person commits the crime of tampering if he “knowingly
    receives, possesses, sells, alters, defaces, destroys or unlawfully operates an
    automobile . . . without the consent of the owner thereof.” Mo. Rev. Stat. § 569.080.1
    (2). The statute thus criminalizes both tampering by operation and tampering by
    possession. In United States v. Bockes, we held that tampering by operation in
    violation of Missouri law constituted a crime of violence under § 4B1.2 of the U.S.
    Sentencing 
    Guidelines. 447 F.3d at 1092-93
    .
    Clemmons does not argue that he was tampering by possession, but rather urges
    us to reconsider our holding that tampering by operation is a crime of violence.
    Appellant’s Br. at 26 (“Clemmons’s offense involved knowingly and without the
    consent of the other unlawfully operating an automobile.”) This panel, however,
    cannot overrule the decision of a prior panel, United States v. Sun Bear, 
    307 F.3d 747
    , 753 (8th Cir. 2002), and Clemmons’s state conviction thus qualifies as a crime
    of violence.
    The judgment is affirmed.
    ______________________________
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