United States v. Angelo D. Dawson , 161 F. App'x 616 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-2435
___________
United States of America, *
*
Appellee, *
*
v. *
*
Angelo D. Dawson, *
*
Appellant. *
___________ Appeals from the United States
District Court for the Western
No. 04-2509 District of Missouri.
___________ *
* [UNPUBLISHED]
United States of America, *
*
Appellee, *
*
v. *
*
Ali M. Akbar, *
*
Appellant. *
___________
Submitted: December 21, 2005
Filed: January 9, 2006
___________
Before ARNOLD, FAGG, and SMITH, Circuit Judges.
___________
PER CURIAM.
A jury found Angelo D. Dawson and Ali M. Akbar guilty of conspiring to
distribute crack, in violation of 21 U.S.C. § 846; and, aiding and abetting each other,
possessing crack with intent to distribute, in violation of 18 U.S.C. § 2 and 21 U.S.C.
§ 841(a)(1). The jury also found Mr. Akbar guilty of possessing crack with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1). The district court sentenced
Mr. Dawson to 151 months in prison and 5 years of supervised release and sentenced
Mr. Akbar to 188 months in prison and 5 years of supervised release. Each appellant
now challenges his convictions and sentence. For the reasons discussed below, we
affirm the convictions but vacate the sentences and remand for resentencing.
First, we reject Mr. Dawson's argument that the evidence, viewed in the light
most favorable to the verdict, is insufficient to support his convictions. See United
States v. Sloan, 293 F.3d 1066, 1067 (8th Cir. 2002) (standard of review). The jury
was entitled to infer from the evidence presented that he was part of a conspiracy to
distribute crack: when police stopped the car in which Mr. Dawson was a passenger,
he attempted to flee; two loaded firearms and a distribution quantity of crack were
found concealed in the car; and Mr. Dawson ultimately admitted ownership of one of
the firearms after initially denying any knowledge of the contraband. See id. at
1068-69 (only slight evidence is required to connect defendant with conspiracy;
discussing when evidence is sufficient). From this evidence, the jury was likewise
entitled to infer that Mr. Dawson aided and abetted the possession of crack with intent
to distribute. See United States v. Mendoza, 421 F.3d 663, 668-69 (8th Cir. 2005)
(elements of aiding and abetting possession of crack with intent to distribute).
Second, we reject Mr. Akbar's argument that he was denied a fair trial because
he had to wear jail clothes during jury selection. The reason Mr. Akbar did not have
street clothes at the beginning of trial was his sister's failure to bring them as directed
by Mr. Akbar's lawyer. During jury selection, Mr. Akbar wore a suit jacket over his
jail clothes and was seated at the counsel table. After jury selection, his street clothes
arrived, and he wore them throughout the rest of the trial. Under these circumstances,
we conclude that Mr. Akbar's wearing of jail clothes during jury selection was
-2-
harmless. See United States v. Hurtado, 47 F.3d 577, 581 (2d Cir.) (even if defendant
is made to wear prison clothes at trial, this constitutional error is subject to harmless-
error analysis), cert. denied, 516 U.S. 903 (1995); cf. United States v. Grady, 997 F.2d
421, 424 (8th Cir.) (on facts very similar to Mr. Akbar's, concluding under plain-error
standard of review that defendant was not denied fair trial), cert. denied, 510 U.S. 958
(1993).
We conclude, however, that the district court committed plain error under
United States v. Booker, 125 S. Ct. 738 (2005), when sentencing Mr. Akbar and
Mr. Dawson. We further conclude that both appellants have met their burdens to
show a reasonable probability that they would have received more favorable sentences
but for the error. See United States v. Brown, 414 F.3d 976, 978 (8th Cir. 2005);
United States v. Fleck, 413 F.3d 883, 897 (8th Cir. 2005).
Accordingly, we affirm appellants' convictions in all respects, but we vacate
their sentences and remand their cases to the district court for resentencing in light of
Booker. We deny Mr. Akbar's pending pro se motion as moot.
______________________________
-3-