United States v. Eric Price , 851 F.3d 824 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-1334
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Eric L. Price
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: November 14, 2016
Filed: March 21, 2017
[Published]
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Before RILEY,1 Chief Judge, SMITH and KELLY, Circuit Judges.
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PER CURIAM.
1
The Honorable William Jay Riley stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 10,
2017. He has been succeeded by the Honorable Lavenski R. Smith.
Eric Price was sentenced to 110 months’ imprisonment after pleading guilty to
possessing firearms as a felon. The district court2 calculated his base offense level as
24 because of two felony crime-of-violence convictions, and then it applied a four-
level enhancement because Price possessed the guns in connection with a felony
marijuana offense. Price appeals these enhancements. We affirm.
I. Crime of Violence
We review the crime-of-violence determination de novo. United States v.
Harrison, 809 F.3d 420, 425 (8th Cir. 2015). Section § 2K2.1(a)(2) of the Guidelines
directs a base offense level of 24 when a felon in possession has twice been convicted
of a crime of violence. “Crime of violence” means an offense punishable by more
than one year in prison that “has as an element the use, attempted use, or threatened
use of physical force against the person of another.” U.S.S.G. § 4B1.2(a)(1).
“‘[P]hysical force’ means 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).
Price argues that his 2011 attempted-aggravated-assault conviction under Kan.
Stat. Ann. § 21-3410(a) (2007) (current version at Kan. Stat. Ann. § 21-5412(b)(1)
(2011)) did not require proof that he used violent force against another. The statute
defines aggravated assault as ordinary assault committed under special circumstances,
such as with a deadly weapon. Kan. Stat. Ann. § 21-3410. A companion statute
defined ordinary assault as “intentionally placing another person in reasonable
apprehension of immediate bodily harm.” Kan. Stat. Ann. § 21-3408 (2007) (current
version at Kan. Stat. Ann. § 21-5412(a) (2011)). Price contends that we recently held
an indistinguishable Arkansas statute not to require violent force. See United States
v. Jordan, 812 F.3d 1183, 1186 (8th Cir. 2016). The Arkansas statute, though, is
distinguishable. It requires only that the defendant “create[] a substantial danger of
2
The Honorable David Gregory Kays, Chief Judge, United States District Court
for the Western District of Missouri.
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death or serious physical injury.” Id. (quoting Ark. Code Ann. § 5-13-204(a)(1)). The
Kansas statute, on the other hand, requires that the defendant make the victim
reasonably fear immediate physical harm. We recently addressed a similar Minnesota
statute requiring proof of an “act with intent to cause fear in another of immediate
bodily harm or death.” United States v. Schaffer, 818 F.3d 796, 798 (8th Cir. 2016)
(quoting Minn. Stat. § 609.2242, subd. 1(1)). The Minnesota statute, we concluded,
requires violent force. Id. at 798. The Kansas aggravated-assault statute likewise
requires violent force.
Price contends that the government did not raise this force-clause argument
below and should be unable to do so now. The government, however, is not seeking
review of the district court’s decision. Its appellate arguments are not essential to our
review. We may affirm the district court judgment for any reason the record supports.
United States v. Berger, 553 F.3d 1107, 1109 (8th Cir. 2009). Over Price’s objection,
the district court accepted the presentence report’s findings and conclusions, which
determined “that both [prior convictions] fall under the ‘force’ clause of
§ 4B1.2(a)(1).” In sum, the record supports the district court’s conclusion that Price’s
prior convictions fall under the force clause of § 4B1.2(a).
Price also argues that Kansas law defines “attempt” more broadly than does the
common law. Price did not present this argument to the district court. “To preserve
an error for appellate review, an objection must be timely and must ‘clearly stat[e] the
grounds for the objection.’ Errors not properly preserved are reviewed only for plain
error . . . .” United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005) (en banc)
(alteration in original) (citation omitted) (quoting United States v. Williams, 994 F.2d
1287, 1294 (8th Cir. 1993)). The government notes that, under our cases, if a
completed crime is a crime of violence, then an attempt to commit it “automatically
qualifies…under the binding commentary to § 4B1.2.” United States v. Sawyer, 588
F.3d 548, 556 (8th Cir. 2009), abrogated in part by United States v. Eason, 829 F.3d
633, 641 (8th Cir. 2016); see also United States v. Brown, 550 F.3d 724, 728 (8th Cir.
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2008) (Guidelines consider an aiding-and-abetting conviction to be a conviction for
the underlying offense). In light of this caselaw, Price’s asserted error is not plain. See
United States v. Anderson, 783 F.3d 727, 741 (8th Cir. 2015).
II. Marijuana Offense.
We review a possession-in-connection-with-another-felony enhancement for
clear error. United States v. Bates, 614 F.3d 490, 493 (8th Cir. 2010). Section
§ 2K2.1(b)(6)(B) of the Guidelines calls for a four-level enhancement when the
defendant “[u]sed or possessed any firearm . . . in connection with another felony
offense.”
The district court found that Price’s guns were linked to more than 600 grams
of marijuana found in the trunk of the car that he occupied. The evidence at
sentencing established that on June 13, 2014, a white Chevy Malibu backed into a
residential driveway. Price got out of the front passenger seat and went into the house.
Then someone opened the garage door from the inside, and a backseat passenger got
out of the car. The car’s trunk opened, and Price and the other passenger made three
or four trips carrying things from the trunk to the garage. The other passenger closed
the trunk and got back into the car. Price closed the garage and also got back into the
car and left. Police soon stopped the car and arrested Price. More than 600 grams of
marijuana was found in the trunk—all of it was in heat-sealed or Ziploc baggies.
Some of it was found inside a pillow case and some in white grocery bags. Four guns
were also found in the car, including a loaded MAC-10-style gun and a Beretta pistol
in the trunk. Price pleaded guilty to knowingly possessing these guns.
Price argues that the evidence does not support a finding that he constructively
possessed the marijuana. We disagree. Price knew about and exercised dominion or
control over the marijuana. See United States v. Scofield, 433 F.3d 580, 586 (8th Cir.
2006) (constructive possession arises from knowledge and control or dominion). The
only material difference between the guns in the trunk, which Price admits knowingly
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possessing, and the marijuana in the trunk, which he denies knowingly possessing,
is that the marijuana was not in plain sight but was packaged. The trained narcotics
officer, though, testified that the marijuana was in plain smell:
Q. All right. So if—if someone was just sort of looking there or casually
observing the trunk, you wouldn’t notice that marijuana until you moved
some stuff around; right?
A. Well, you could smell it.
Price transferred items from the car trunk to the house. He knowingly
possessed the guns in the trunk. And the marijuana odor in the trunk was obvious.
This is sufficient circumstantial evidence to establish by a preponderance that Price
possessed the guns in connection with a marijuana felony. This case is therefore
unlike Scofield, in which the government failed to prove constructive possession
beyond a reasonable doubt because it “presented no evidence that [the defendant]
knew the drugs were stored in the garage.” 433 F.3d at 586. The possession evidence
is not overwhelming, but it is sufficient.
III. Conclusion
Accordingly, we affirm.
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