United States v. Antwain D. Smith ( 1997 )

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No. 96-1728
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United States of America, *
*
Plaintiff/Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Antwain D. Smith, *
* [UNPUBLISHED]
Defendant/Appellant. *
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Submitted: January 14, 1997
Filed: February 25, 1997
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Before BOWMAN and MURPHY, Circuit Judges, and JONES,1 District Judge.
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PER CURIAM.
Antwain Smith was convicted of two counts of illegal firearm
possession and sentenced to 138 months in prison. Smith appeals his
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conviction, claiming that the district court erred by denying his motion
for a severance and by enhancing his sentence by four levels under
Sentencing Guidelines § 2K2.1(b)(5) for possessing a firearm in connection
with the felony of possession with the intent to deliver an imitation
controlled substance. We affirm.
1
The Honorable John B. Jones, United States District Judge for
the District of South Dakota, sitting by designation.
2
The Honorable Donald J. Stohr, United States District Judge
for the Eastern District of Missouri.
Smith was charged in one indictment with three counts involving
firearms and ammunition. Count I charged Smith with being a felon
knowingly in possession of a nine millimeter pistol in violation of 18
U.S.C. §§ 922(g), 924(a)(2); count II charged knowing possession of a
sawed-off shotgun in violation of 26 U.S.C. §§ 5861(d), 5871; and count III
charged felon knowingly in possession of ammunition in violation of 18
U.S.C. § 922(g)(1). Smith's motion to sever was denied, and the counts
were tried together. A jury found him guilty on counts I and II, and not
guilty on count III.
Joinder of charges is permitted if they are of the same or similar
character. Fed. R. Crim. P. 8(a). They must involve the same types of
offenses committed over a relatively short period of time and the evidence
for each count must overlap. United States v. Lindsey, 782 F.2d 116, 117
(8th Cir. 1986). We review joinder de novo. United States v. Rodgers, 732
F.2d 625, 628 (8th Cir. 1984). Here the offenses involved illegal
possession of firearms and ammunition, and they occurred within a ten month
period which is within the range of time foreseen by the rule. See Id. at
629-30 (permitting joinder of offenses that were twenty months apart). The
evidence also overlapped. Evidence of two state firearm felony convictions
and a state conviction for the sale of crack cocaine was admitted to prove
the necessary element of a prior felony for counts I and III and to show
knowing possession for all counts.3
A court may order separate trials if the joinder of offenses
prejudices a defendant. Fed. R. Crim. P. 14. Smith sought to sever all
counts. The burden is on the defendant to make a "persuasive and detailed
showing regarding the testimony he would
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Smith has not shown that the district court clearly erred in
admitting this evidence in light of the defense offered at trial.
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give on the count he wishes severed and the reason he cannot testify on the
other counts." United States v. Possick, 849 F.2d 332, 338 (8th Cir.
1988). Smith did not meet this burden because he merely offered the
general statement that he did not want to testify regarding count III
because the testimony might be used by the state if it refiled murder
charges against him, but that he wanted to testify regarding counts I and
II. The district court did not abuse its discretion in denying Smith's
severance motion.
Smith challenges the sufficiency of the evidence supporting the four
level increase under Sentencing Guidelines § 2K2.1(b)(5) for possessing a
firearm in connection with a felony. He claims the government did not show
he intended to deliver an imitation controlled substance or that his
possession of the gun was related to the imitation drugs. A sentence
enhancement may be based on facts proved only by a preponderance of the
evidence. See United States v. Watts, 117 S. Ct. 633, 637 & n.2 (1997).
The jury concluded that Smith possessed a sawed-off shotgun and a police
officer testified in the sentencing hearing that Smith had imitation
cocaine at the time. There was also testimony that Smith and members of
his gang had sold cocaine and that it was common for drug dealers to sell
imitation drugs. It could be inferred that as an experienced cocaine
handler and dealer, Smith would not have held imitation cocaine for his own
consumption, but rather intended to deliver it. Further, the possession
of the firearm along with drugs is evidence of an intent to deliver. See
United States v. White, 81 F.3d 80, 82 (8th Cir. 1996). There was
sufficient evidence to support the district court's findings and the four
level enhancement.
The judgment is affirmed.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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