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United States v. Phillip Boose , 92 F. App'x 377 ( 2004 )


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  •                      United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 03-3413
___________
United States of America,               *
*
Appellee,                  * Appeal from the United States
* District Court for the
v.                                * Western District of Missouri.
*
Phillip E. Boose,                       *      [UNPUBLISHED]
*
Appellant.                 *
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Submitted: February 9, 2004
Filed: March 25, 2004
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Before LOKEN, Chief Judge, BOWMAN and WOLLMAN, Circuit Judges.
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PER CURIAM.
Phillip Boose appeals his conviction for being a felon in possession of
ammunition. See 18 U.S.C. § 922(g)(1) (2000). Boose claims the District Court1
committed three separate errors that require the reversal of his conviction: 1) the
refusal to submit to a jury the question of Boose's status as an armed career criminal
1
The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri, adopting the report and recommendation of the Honorable
Sarah W. Hays, United States Magistrate Judge for the Western District of Missouri.
under 18 U.S.C. § 924(e), 2) the determination that Boose qualified as an armed
career criminal, and 3) the refusal to suppress the ammunition found on Boose. We
affirm.
Boose argues that the United States Supreme Court's decision in Apprendi v.
New Jersey,
    530 U.S. 466 
    (2000), requires the question whether he is an armed career
criminal to be submitted to a jury. This argument is a non-starter. As we have
previously explained in United States v. Abernathy,
    277 F.3d 1048
    , 1050 (8th Cir.),
cert. denied,
    535 U.S. 1089 
    (2002), criminal history under § 924(e) is not part of the
offense charged, but is a sentencing matter that may be determined by the sentencing
judge. See also United States v. Campbell,
    270 F.3d 702
    , 707 (8th Cir. 2001) (same),
cert. denied,
    535 U.S. 946 
    (2002). Abernathy and Campbell represent the law of the
circuit and as a three-judge panel, as distinguished from the Court en banc, we are not
at liberty to overturn them. Thus, the District Court did not err in determining
Boose's criminal history without submitting the question to a jury.
Next, Boose challenges the District Court's determination that he is an armed
career criminal under § 924(e). On June 10, 19, and 23, 1999, Boose sold crack
cocaine and was later convicted on three separate counts of selling a controlled
substance. The state court handled all three counts under one case number and
consolidated the proceedings. Boose argues that these three convictions should be
treated as a single "criminal episode" rather than as separate convictions. This
argument is unavailing. The law of this Circuit is clear that separate drug transactions
constitute distinct criminal acts. Accordingly, Boose's convictions on each of these
three counts were properly treated separately for purposes of § 924(e). United States
v. Long,
    320 F.3d 795
    , 801-02 (8th Cir. 2003), (citing United States v. McDile,
    914 F.2d 1059
    , 1061 (8th Cir. 1990), cert. denied,
    498 U.S. 1100 
    (1991)).
Finally, Boose claims that the ammunition found in his possession should have
been suppressed because the search incident to his arrest violated the Fourth
-2-
Amendment. Boose fled his car on foot when Officer Bandler attempted to make a
traffic stop. Boose made his way to the home of his cousin Joann Lagrone and hid
underneath a bed, where shortly thereafter the police found him. Boose argues that
the warrantless entry of his cousin's house violated his Fourth Amendment rights. We
find this argument to be meritless. A visitor normally does not have the personal
expectation of privacy necessary to assert a Fourth Amendment right. United States
v. Sturgis,
    238 F.3d 956
    , 958 (8th Cir.), cert. denied,
    534 U.S. 880 
    (2001). Boose's
tactic of hiding underneath a bed confirms that Boose had no expectation of privacy
in his cousin's home. Any such expectation he may have had was not reasonable,
inasmuch his only purpose in entering the home was to escape from the police. The
fact that his cousin consented to his presence in the home does not extend her Fourth
Amendment protections to Boose. Because we find that Boose had no reasonable
expectation of privacy in his cousin's home, we need not reach the alternative
reasoning of the District Court that the warrantless entry was justified by exigent
circumstances. The ammunition found on Boose was properly admitted into
evidence.
For the reasons stated, we affirm the judgment of the District Court.
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