United States v. Lashaun Perry ( 2013 )

United States Court of Appeals
For the Eighth Circuit
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No. 12-4022
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United States of America,
lllllllllllllllllllll Plaintiff - Appellee,
v.
Lashaun Maurice Perry, also known as Bishop,
lllllllllllllllllllll Defendant - Appellant.
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: June 13, 2013
Filed: August 8, 2013 (Corrected September 6, 2013)
[Unpublished]
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Before COLLOTON, GRUENDER, and BENTON, Circuit Judges.
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PER CURIAM.
A grand jury charged Lashaun Perry with unlawful possession of a firearm as
a previously convicted felon, in violation of 18 U.S.C. § 922(g). Perry filed a pretrial
motion requesting a jury instruction on a defense of entrapment by estoppel. The
district court1 denied Perry’s motion, and Perry entered a conditional plea of guilty,
reserving the right to appeal the ruling on his motion. At sentencing, the district court
concluded that Perry had sustained two prior felony convictions for a crime of
violence, see USSG § 2K2.1(a)(2), because a prior aggravated misdemeanor
conviction in Iowa was a “crime of violence” under the federal sentencing guidelines.
The court sentenced Perry to 78 months’ imprisonment, followed by three years of
supervised release. Perry appeals the denial of his pretrial motion and his sentence,
and we affirm.
I.
The relevant facts begin with an incident that occurred a year before the instant
offense. On September 14, 2010, officers from the Cedar Rapids Police Department
arrested Perry at his home. While struggling to handcuff Perry, an officer suffered an
injury to his left arm. The State of Iowa charged Perry with the aggravated
misdemeanor offense of interference with official acts causing injury, in violation of
Iowa Code § 719.1(1). In January 2011, Perry pleaded guilty to the charge.
On August 2, 2011, Perry applied to the State of Iowa for a permit to acquire
pistols or revolvers, because he hoped “to get into bounty hunting” or to become an
armed security guard. Applicants for such a permit must complete a questionnaire.
The second question on the form asks whether the applicant has “ever been convicted
in any court of a felony, or any other crime involving a firearm or explosives for
which the court could have sentenced you to imprisonment for more than one year,
even if you received a shorter sentence including probation.” Perry had sustained four
convictions in Cook County, Illinois—one for possession of a controlled substance,
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
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one for manufacturing or delivering between 15 and 100 grams of cocaine or an
analogue to cocaine, and two for burglaries involving vehicles.
Perry states that when he filled out the permit application in Iowa, he told an
unidentified employee of the Linn County Sheriff’s Office that he was unsure whether
his prior felony convictions had been expunged by an Illinois state court. Perry
asserts that the sheriff’s employee informed him that he “should still fill out the
application because an investigation would be completed by the Linn County Sheriff’s
Department,” and that Perry “would not receive a permit if he was not entitled to one.”
Perry completed the application and checked a box marked “No” next to the second
question, indicating that he had never been convicted of a felony. The Linn County
Sheriff’s Office subsequently issued Perry a permit to acquire pistols or revolvers.
On September 9, 2011, a police officer observed Perry at a gun show in Cedar
Rapids carrying what appeared to be a gun box. Several days later, law enforcement
officers determined that Perry had purchased ammunition from a local retail supplier.
On June 8, 2012, officers went to Perry’s home. Perry told the officers that he had
purchased a .40 caliber Smith & Wesson handgun at the Cedar Rapids gun show,
showed them the gun, supplied the serial number, and permitted the officers to
photograph the serial number. On June 12, officers executed a search warrant at
Perry’s home, detained Perry, and seized the gun.
A grand jury charged Perry with unlawfully possessing a firearm as a
previously convicted felon, in violation of 18 U.S.C. § 922(g). Before trial, Perry
sought a ruling that he was entitled to a jury instruction on a defense of entrapment by
estoppel. But for the county employee’s statements, Perry asserted, he would not have
applied for a permit. And but for the permit, Perry claimed, he would not have
purchased a gun.
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The district court ruled that a defense of entrapment by estoppel was
unavailable to Perry, because Perry asserted that he had relied on the statement of a
local official, rather than a federal official. In the alternative, the court concluded that
Perry’s reliance on the county representative’s statement had been unreasonable. The
district court observed that Perry had not argued that the county representative
instructed him to check “no” on the questionnaire, and held that Perry had acted
unreasonably by checking “no” despite his uncertainty about the status of his four
prior felony convictions.
Perry then entered a conditional plea of guilty. At sentencing, the parties
disputed whether Perry’s prior conviction for interference with official acts causing
bodily injury was a “crime of violence” within the meaning of § 4B1.2(a). The court
concluded that the conviction counted, citing United States v. Malloy, 614 F.3d 852(8th Cir. 2010), and that Perry’s base offense level under the advisory guidelines was
24. See USSG § 2K2.1(a)(2). The court then sentenced Perry within the advisory
guideline range to a term of 78 months’ imprisonment, followed by three years of
supervised release.
II.
Perry appeals the district court’s ruling on his defense of entrapment by
estoppel. This defense applies “when an official assures a defendant that certain
conduct is legal, and the defendant reasonably relies on that advice and continues or
initiates the conduct.” United States v. Achter, 52 F.3d 753, 755 (8th Cir. 1995)
(internal quotation omitted). The district court, however, correctly ruled that state and
local officials do not have authority to sanction a violation of federal law, id., so
Perry’s reliance on alleged advice of a county representative is unavailing. Even as
to the local official, moreover, Perry never argued in the district court that the official
instructed him to check “no” on the question about whether he had been convicted of
a felony, so any reliance was unreasonable. See United States v. Alcorn, 638 F.3d
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819, 823 (8th Cir. 2011). The district court thus correctly denied Perry’s motion to
instruct the jury on the defense.
On the sentencing issue, Perry renews his argument that the prior conviction in
Iowa for interference with official acts causing bodily injury was not a crime of
violence. A crime of violence under the guidelines includes any offense punishable
by a term of imprisonment exceeding one year that “has as an element the use,
attempted use, or threatened use of physical force against the person of another.”
USSG § 4B1.2(a)(1).
The district court correctly concluded that Perry’s prior conviction qualifies.
The maximum penalty for this offense is two years’ imprisonment. Iowa Code
§ 903.1(2). Conviction requires proof that a defendant knowingly resisted or
obstructed a person that the defendant knew to be a peace officer in the performance
of an act within the scope of that officer’s lawful authority and, in doing so, inflicted
bodily injury other than serious injury. Id. § 719.1(1). In Malloy, we held that
because a defendant must have “inflicted bodily injury” to be convicted, the offense
of interference with official acts “has as an element the use, attempted use, or
threatened use of physical force against another person.” See Malloy, 614 F.3d at 860;
USSG § 4B1.2(a)(1). Malloy forecloses Perry’s contention. Perry urges us to
consider whether the facts of his offense involved violence, but a court determining
whether a previous conviction qualifies as a crime of violence under § 4B1.2(a)(1)
must consider only the statutory elements. United States v. Wright, 957 F.2d 520, 522
(8th Cir. 1992).
Perry relies on United States v. Ossana, 638 F.3d 895 (8th Cir. 2011), and
suggests that it limits the scope of Malloy. Ossana, however, involved an Arizona
assault statute that could be violated “with any degree of contact,” even contact that
did not amount to “violent force,” and thus “would not qualify as a crime of violence
pursuant to section 4B1.2(a)(1).” Id. at 900. By contrast, the injury requirement in
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the Iowa statute under which Perry was convicted implies the use of “violent
force—that is, force capable of causing physical pain or injury to another person.”
Johnson v. United States, 559 U.S. 133, 140 (2010); see Malloy, 614 F.3d at 860.
Malloy directly addressed whether a violation of Iowa Code § 719.1(1) is a crime of
violence under § 4B1.2(a)(1), and nothing about Ossana’s conclusion concerning a
much different Arizona statute narrows the earlier precedent.
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The judgment of the district court is affirmed.
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