United States v. Gregory L. McCall ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2760
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Gregory L. McCall, *
* [UNPUBLISHED]
Appellant. *
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Submitted: March 15, 2004
Filed: March 24, 2004
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Before MELLOY, HANSEN, and COLLOTON, Circuit Judges.
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PER CURIAM.
Gregory L. McCall appeals his conviction and the sentence imposed by the
district court1 after a jury found him guilty of possessing a firearm as a previously
convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). McCall’s
counsel has filed a motion to withdraw and a brief under Anders v. California, 386
U.S. 738 (1967), arguing the district court abused its discretion in denying McCall’s
pro se motion for a suppression hearing. In his pro se brief, McCall contends, inter
1
The Honorable Dean Whipple, Chief Judge, United States District Court for
the Western District of Missouri.
alia, that he had his civil rights restored for all his prior felony convictions; he never
knowingly possessed any firearms; his alleged possession of firearms did not affect
interstate commerce; Congress exceeded its authority under the Commerce Clause by
enacting the felon-in-possession statute; the district judge was pro-prosecution and
should have recused himself; his counsel was ineffective and his conviction should
have been vacated; and the district court erred in allowing perjured testimony at
sentencing, and in enhancing his sentence based on his alleged involvement in an
identity-theft scheme. McCall also moves to supplement the record with
miscellaneous documents, and to obtain various records and transcripts from the
district court proceedings.
We reject McCall’s argument that because his civil rights were restored, the
provisions of 18 U.S.C. § 921(a)(20) prohibit using his prior Missouri and Michigan
convictions as predicate offenses for his instant conviction. Missouri does not restore
civil rights to its felons, see Presley v. United States, 851 F.2d 1052, 1053 (8th Cir.
1988), and thus whether McCall had his civil rights restored in Michigan is of no
consequence.
We also reject McCall’s argument that there was insufficient evidence he had
knowingly possessed firearms. According to trial testimony, McCall advised the
police he had the firearms in the home for protection, and he indicated “he stayed in”
the room where the firearms were found. McCall also knew the combination to a safe
that contained two loaded firearms, and the police found his wallet in the same room
as the firearms. See United States v. Walcott, 61 F.3d 635, 638 (8th Cir. 1995)
(standard of review); United States v. Boykin, 986 F.2d 270, 274 (8th Cir. 1993)
(possession under § 922 may be constructive or joint; defendant possesses firearm if
he has dominion over premises where firearm is located, or control or dominion over
firearm).
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We do not consider McCall’s ineffective-assistance claims, which are more
appropriately raised in collateral proceedings under 28 U.S.C. § 2255. See United
States v. Jackson, 204 F.3d 812, 815 (8th Cir. 2000). Finally, we conclude that the
remaining arguments raised by McCall and his counsel are without merit. See
U.S.S.G. § 2K2.1(b)(5) & comment. (n.7) (authorizing 4-level enhancement where
defendant possesses weapon in connection with another felony offense even if
criminal charges were never brought); United States v. Shepherd, 284 F.3d 965, 969
(8th Cir. 2002) (felon-in-possession statute does not violate Commerce Clause);
United States v. Torres, 258 F.3d 791, 794 (8th Cir. 2001) (evaluation of witness
credibility at sentencing is within province of district court); United States v. Shelton,
66 F.3d 991, 992 (8th Cir. 1995) (per curiam) (under § 922 it is sufficient that
firearms have been, at some time, in interstate commerce); Harris v. Missouri, 960
F.2d 738, 740 (8th Cir. 1992) (unfavorable judicial ruling does not raise inference of
bias or require recusal); United States v. Brown, 481 F.2d 1035, 1041 (8th Cir. 1973)
(court has no authority to dismiss indictment on basis of sufficiency-of-evidence
defense which raises factual questions embraced in general issue).
We have carefully reviewed the record under Penson v. Ohio, 488 U.S. 75, 80
(1988), and have found no nonfrivolous issues. Accordingly, we grant counsel’s
motion to withdraw, and we affirm. We deny all other pending motions.
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