United States v. Eric Williams ( 2022 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 20-3635
___________________________
United States of America
Plaintiff - Appellee
v.
Eric Deshon Williams
Defendant - Appellant
___________________________
No. 21-1069
___________________________
United States of America
Plaintiff - Appellant
v.
Eric Deshon Williams
Defendant - Appellee
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Central
____________
Submitted: December 17, 2021
Filed: July 13, 2022
____________
Before LOKEN, SHEPHERD, and STRAS, Circuit Judges.
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SHEPHERD, Circuit Judge.
After two separate arrests stemming from two traffic stops that each yielded
significant amounts of various drugs, Eric Deshon Williams was charged with 9
conspiracy- and drug-related counts in a 19-count second superseding indictment.
The district court1 denied Williams’s motion to suppress the evidence recovered
during these stops, and a jury convicted Williams on all counts. At sentencing, the
district court varied downward from the United States Sentencing Guidelines range
of 360 months to life imprisonment and sentenced Williams to 180 months
imprisonment and 5 years supervised release. Williams appeals his conviction,
arguing that the district court erred in denying his motion to suppress, the evidence
was not sufficient to support his conviction on three of the nine counts, and the
district court gave an erroneous jury instruction. The government cross-appeals
Williams’s sentence, arguing that the district court procedurally erred when it relied
on clearly erroneous facts. Having jurisdiction under 28 U.S.C. § 1291, we affirm
in all respects.
I.
The first traffic stop giving rise to the offenses of conviction occurred on
March 12, 2015. Investigator Austin McKinness with the Pulaski County Sheriff’s
Office (PCSO), while conducting surveillance in an unmarked unit, observed a
dark-colored Honda Accord cross the line marking its lane several times.
Investigator McKinness radioed the traffic violation to other units, and Detective
Jonathan Parks, who was driving a marked unit, caught up to the vehicle, which was
being driven by Williams, and initiated a traffic stop. At the time Detective Parks
1
The Honorable Kristine G. Baker, United States District Judge for the Eastern
District of Arkansas.
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stopped Williams, Detective Parks was alone, it “was kind of dark outside,” and it
was raining. When Detective Parks asked Williams for his driver’s license, proof of
insurance, and registration, he observed that Williams was “shaking, kind of
trembling” and would not look up at him. Noticing that Williams appeared nervous,
Detective Parks asked Williams to step out of his vehicle and come to the back of
the vehicle. Williams complied, and Detective Parks noticed that Williams kept
reaching for the front pocket of his hoodie and continued to do so, despite Detective
Park’s verbal commands to keep his hands on the car. For safety purposes, Detective
Parks conducted a pat-down search for weapons, during which Williams continued
to reach for his pocket. When Detective Parks felt the pocket, he felt something
hard. Detective Parks testified that the object did not feel like a gun, but “anything
can be used as a weapon,” so he reached into the pocket and removed what he
discovered to be four bags containing golf-ball-sized amounts of suspected
methamphetamine. At this point, Detective Parks arrested Williams and placed him
in the back of his unit. Because there were no other passengers in Williams’s
vehicle, Detective Parks called a wrecker to tow the vehicle. Detective Parks
testified that, pursuant to PCSO policy, he conducted an inventory search of
Williams’s vehicle before it was towed; however, in his report that he prepared
immediately after his encounter with Williams, Detective Parks characterized this
search as a probable cause search. While searching Williams’s vehicle, Detective
Parks saw an unmarked pill bottle in plain sight that had three different types of pills
inside. Detective Parks also found suspected crack cocaine, suspected marijuana,
and three more baggies of suspected methamphetamine in Williams’s vehicle.
The second stop occurred on November 1, 2015, at which time Williams’s
co-defendant, Damian Mitchell, was the subject of an investigation involving
multiple law enforcement agencies, including the PCSO and Drug Enforcement
Administration (DEA). That day, in conjunction with that investigation, law
enforcement was conducting electronic surveillance of Mitchell’s cell phone and
physical surveillance of Mitchell’s residence. Law enforcement intercepted two
calls between Mitchell and Williams regarding narcotics activity that was to take
place later that evening, and Williams was later observed arriving at and departing
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from Mitchell’s residence in a silver Chevrolet Malibu driven by a female driver.
Surveillance units began following Williams’s vehicle, and DEA Investigator
Cardarious Walker contacted PCSO Deputy Andrew Garrison, who was driving a
marked PCSO unit and assisting the DEA. Investigator Walker told Deputy
Garrison that Williams’s vehicle was suspected of picking up “an amount of
narcotics” and instructed Deputy Garrison to locate and stop Williams’s vehicle if
he could establish probable cause. Deputy Garrison was able to locate Williams’s
vehicle and subsequently witnessed the vehicle drive left of the center line and right
of the right-hand fog line multiple times. Deputy Garrison initiated a traffic stop,
and the vehicle pulled over in front of a residence on Wooten Road. Deputy Garrison
asked the driver of the vehicle for her license and registration and asked Williams if
he had any form of identification. Williams did not have an ID but did provide his
name and date of birth. Deputy Garrison took Williams’s information back to his
patrol unit, where he confirmed that Williams had an active felony warrant. At this
point, Williams opened the passenger door of his vehicle, and when Deputy Garrison
told him to get back into the vehicle, Williams fled and ran into the nearby residence.
After opening the front door of the residence and observing Williams coming out of
the back bedroom, Deputy Garrison ordered Williams to come to the front door and
get on the ground. Williams complied and was taken into custody.
After Williams had been taken into custody, officers ordered those who
remained inside the residence to come outside, including a woman who told Deputy
Garrison and Investigator Walker that she rented the Wooten Road residence with
her boyfriend and gave consent for officers to search the residence. The woman
accompanied officers to the back bedroom and told officers that Williams came
through the front door, ran into the back bedroom with a black sack in his hands, and
returned to the front of the house without the sack. Investigator Walker searched the
bedroom and located a black plastic sack containing suspected methamphetamine
and cocaine inside of a pillowcase. At trial, the woman testified that she
“[p]robably” had methamphetamine in her house “earlier that day,” but she had
“flushed it down the toilet” and there was nothing in her house except for “some
weed and rolling papers” when she saw law enforcement outside her house. Another
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occupant of the house testified that Williams ran to the back of the house “as if he
were carrying a football.”
In a 19-count second superseding indictment charging multiple defendants,
Williams was indicted on 9 conspiracy- and drug-related charges. As relevant to
this appeal, these charges included conspiracy to possess with intent to distribute
controlled substances, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), (b)(1)(C)
and 846 (Count 1); possession with intent to distribute methamphetamine, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) (Count 14); and possession with intent
to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (Count
15). Williams filed a motion to suppress the evidence seized as a result of the March
12 and November 1 traffic stops, arguing that each violated his Fourth Amendment
right to be free from unreasonable search and seizure. The district court denied
Williams’s motion. As to the March 12 stop, the district court concluded that the
traffic stop was supported by probable cause and that Detective Parks’s pat-down
search of Williams’s person and inventory search of Williams’s vehicle did not
violate the Fourth Amendment. The district court further concluded that the
November 1 traffic stop was supported by probable cause, regardless of whether
Deputy Garrison witnessed the alleged traffic violations, because he was instructed
to stop Williams’s vehicle by Investigator Walker, who gave the instruction after
listening to the phone conversations between Mitchell and Williams and learning
from surveillance that Williams had arrived at and departed from Mitchell’s
residence shortly after the second conversation.
After a three-day trial, the jury returned a guilty verdict on all nine counts. At
sentencing, the district court calculated a total offense level of 37 and a criminal
history category of VI, resulting in a Guidelines range of 360 months to life
imprisonment. Williams asked for a downward variance to 15 to 20 years
imprisonment in light of abuse he experienced as a child. The government, however,
requested a sentence within the Guidelines range, arguing that Williams’s criminal
history was “overwhelming” and “far above and beyond” that of his co-defendants.
The district court noted that, though Williams had a lengthy criminal history and
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more criminal history points than his co-defendants, there were co-defendants in his
case that had been sentenced with a criminal history category of VI. In particular,
the district court focused on Jeremy Larry, a co-defendant who had a criminal history
category of VI and an offense level “high in the 30s” and was sentenced to 120
months imprisonment. After considering the factors set forth under 18 U.S.C.
§ 3553(a), the district court sentenced Williams to concurrent sentences of 180
months imprisonment and 5 years supervised release on each count. Williams
appeals his convictions, and the government cross-appeals his sentence.
II.
Williams argues that the district court erred by denying his motion to suppress;
that the evidence presented at trial was insufficient to support the jury’s finding of
guilt as to Counts 14 and 15 of the second superseding indictment, which charged
Williams with possession of the methamphetamine and cocaine found in a
pillowcase inside the Wooten Road residence on November 1, 2015; and that the
district court erred in not giving a jury instruction on the heightened standard in
constructive possession cases. We address each of these arguments in turn.
A.
Williams argues that the March 12 stop and accompanying pat-down and
inventory searches, as well as the November 1 stop, were unconstitutional and that
the district court erred in denying his motion to suppress the evidence recovered
pursuant to these illegal stops and searches. “A mixed standard of review applies to
the denial of a motion to suppress evidence. ‘We review the district court’s findings
of fact under the clearly erroneous standard, and the ultimate conclusion of whether
the Fourth Amendment was violated is subject to de novo review.’” United States
v. Williams, 777 F.3d 1013, 1015 (8th Cir. 2015) (emphasis omitted) (citation
omitted).
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We begin with Williams’s argument that the March 12 and November 1 traffic
stops were not supported by probable cause or reasonable suspicion because the
government failed to show that a traffic violation was committed on either occasion.
“Under the Fourth Amendment, a traffic stop is reasonable if it is
supported by either probable cause or an articulable and reasonable
suspicion that a traffic violation has occurred.” Any traffic violation,
regardless of its perceived severity, provides an officer with probable
cause to stop the driver, but the officer must have an objectively
reasonable basis for believing that the driver has committed a violation.
United States v. Walker, 840 F.3d 477, 483 (8th Cir. 2016) (citation omitted).
“Whether probable cause existed is a legal question reviewed de novo.” United
States v. Adler, 590 F.3d 581, 583 (8th Cir. 2009).
Williams argues that the evidence presented at the suppression hearing did not
establish that officers observed a traffic violation on either March 12 or November
1. Specifically, he argues that the evidence does not demonstrate that Ark. Code
Ann. § 27-51-302(1) was violated on either occasion.2 Ark. Code Ann.
§ 27-51-302(1) provides that
[w]henever any roadway has been divided into two (2) or more clearly
marked lanes for traffic, . . . [a] vehicle shall be driven as nearly as
practical within a single lane and shall not be moved from the lane until
the driver has first ascertained that movement can be made with
safety[.]
Here, the district court found credible and credited the testimony of Investigator
McKinness, who stated that, on March 12, 2015, she observed Williams’s vehicle
“cross the line of his lane several times,” R. Doc. 320, at 7, and that “if he would
have continued to do that and there would have been a vehicle next to him, he could
have struck that vehicle,” R. Doc. 320, at 11. The district court also credited the
2
We note that the district court found probable cause existed but in doing so
did not specifically identify § 27-51-302(1).
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testimony of Deputy Garrison, who stated that, on November 1, 2015, he observed
the vehicle Williams was riding in drive “[l]eft of center and right of the fog line
three times.” R. Doc. 320, at 52. Williams’s argument that the evidence at the
suppression hearing did not establish that either vehicle actually crossed over into
another lane of traffic or that there was anything dangerous or unsafe about the
vehicles’ movements is plainly foreclosed by the testimony of Investigator
McKinness and Deputy Garrison. Because “[a] credibility determination made by a
district court after a hearing on the merits of a motion to suppress is virtually
unassailable on appeal” and we discern no clear error in the district court’s credibility
findings, we conclude that this argument fails. See United States v. Stewart, 32 F.4th
691, 694 (8th Cir. 2022) (alteration in original) (citation omitted). Further, to the
extent that Williams argues that the government failed to show that he and the driver
of the silver Malibu did not ascertain the safety of their movements, we find such
argument unavailing. Even if each driver did ascertain that it was safe to cross the
lines marking their lane multiple times, Investigator McKinness’s and Deputy
Garrison’s observations provided a reasonable basis for the belief that the drivers
were violating § 27-51-302(1). See Walker, 840 F.3d at 483 (finding that even if
officer was mistaken that crack in driver’s windshield obstructed driver’s view, his
observations about the severity of the crack provided reasonable basis for belief that
driver was violating traffic law); cf. United States v. Smart, 393 F.3d 767, 771 (8th
Cir. 2005) (“The possibility that there was no violation, and the subsequent
determination that there was not, does not mean that the initial suspicion was
unreasonable.”).
Williams next argues that the pat-down search conducted by Detective Parks
during the March 12 stop violated his Fourth Amendment rights because Detective
Parks lacked reasonable suspicion to perform the pat-down search and exceeded the
boundaries of the Fourth Amendment when he reached into Williams’s pocket.
“Officers may conduct a protective pat-down search for weapons during a valid
stop . . . when they have objectively reasonable suspicion that a person with whom
they are dealing might be armed and presently dangerous . . . .” United States v.
Green, 946 F.3d 433, 439 (8th Cir. 2019) (alterations in original) (citation omitted).
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“In determining whether reasonable suspicion exists, we consider the totality of the
circumstances in light of the officers’ experience and specialized training.” United
States v. Preston, 685 F.3d 685, 689 (8th Cir. 2012) (citation omitted). “The officer
need not be absolutely certain that the individual is armed; the issue is whether a
reasonably prudent man in the circumstances would be warranted in the belief that
his safety or that of others was in danger.” United States v. Oliver, 550 F.3d 734,
738 (8th Cir. 2008) (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)). “In examining
the relevant facts and inferences, we must keep in mind that ‘minimally intrusive
weapons searches’ at traffic stops will more likely be reasonable because of the
‘inherent danger’ of traffic stops.” Preston, 685 F.3d at 689 (citation omitted).
Here, Detective Parks was alone when he pulled Williams over, and it was
getting dark outside and raining. Williams provided his license, proof of insurance,
and registration, at which time Detective Parks noticed that Williams was shaking
and would not make eye contact with him. Williams complied with Detective
Parks’s request that he exit and come to the back of the vehicle, but repeatedly
reached towards the front pocket of his hoodie despite being told several times not
to do so. Williams’s nervousness, combined with his repeated reaching towards his
front pocket despite Detective Parks’s commands not to, gave rise to reasonable
suspicion that he might be armed and presently dangerous. See United States v.
Cotton, 782 F.3d 392, 396 (8th Cir. 2015) (finding officers had reasonable suspicion
where “encounter occurred in a violent area, [defendant] reached for his waistband
as the officers were approaching, and he had a nervous look on his face”); United
States v. Ellis, 501 F.3d 958, 962 (8th Cir. 2007) (finding “combination of
[defendant’s] nervous behavior and the movement of his hand toward his pocket
after he was questioned about a weapon” during encounter in house known for drug
activity gave rise to reasonable suspicion to justify pat-down search); United States
v. Peoples, 925 F.2d 1082, 1087 (8th Cir. 1991) (considering defendant’s refusal to
comply with officers command in reasonable suspicion analysis).
Further, Detective Parks did not exceed the allowable scope of the pat-down
search when he reached into Williams’s pocket. “Because the ‘sole justification’ for
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such a search is the protection of the officer and others, its scope must be confined
to a search reasonably designed to discover concealed weapons.” United States v.
Muhammad, 604 F.3d 1022, 1026 (8th Cir. 2010) (citation omitted). “An officer
may, however, seize nonthreatening contraband detected during a pat-down search
for weapons as long as the search itself ‘stays within the bounds marked by Terry.’”
United States v. Hanlon, 401 F.3d 926, 930 (8th Cir. 2005) (quoting Minnesota v.
Dickerson, 508 U.S. 366, 373 (1993)). Still, “if an officer seizes an item of
contraband from an individual’s person after having concluded that no weapons are
present, the evidence will be suppressed.” Id. Here, there is no indication in the
record that Detective Parks had already concluded that no weapons were present
when he removed the bags of methamphetamine from Williams’s front pocket.
Though he testified that the object did not feel like a gun, he had not ruled out that
the object could have been a weapon. Thus, we conclude that Detective Parks stayed
within the bounds of Terry when he reached into Williams’s front pocket. See
Muhammad, 604 F.3d at 1026-27 (holding that pat-down search stayed within the
bounds of Terry where officer determined that four-inch by three-inch hard object
in defendant’s back pocket could be a weapon or could conceal a weapon); Hanlon,
401 F.3d at 930 (concluding pat-down search did not exceed allowable scope of
Terry where officer was concerned that “admittedly small object in [defendant’s]
coin pocket could have been a pocketknife or some other type of weapon”).
Finally, Williams argues that the inventory search of his vehicle conducted
during the March 12 stop was unconstitutional. “The Fourth Amendment proscribes
all unreasonable searches and seizures, and it is a cardinal principle that ‘searches
conducted outside the judicial process, without prior approval by judge or
magistrate, are per se unreasonable under the Fourth Amendment—subject only to
a few specifically established and well-delineated exceptions.’” United States v.
Taylor, 636 F.3d 461, 464 (8th Cir. 2011) (quoting Mincey v. Arizona, 437 U.S.
385, 390 (1978)). “Inventory searches are one of the well-defined exceptions to the
warrant requirement of the Fourth Amendment.” United States v. Morris, 915 F.3d
552, 556 (8th Cir. 2019) (citation omitted). “The inventory search
exception . . . permits law enforcement to inventory the contents of a vehicle that is
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lawfully taken into custody, even without a warrant or probable cause to search.”
United States v. Garreau, 658 F.3d 854, 857 (8th Cir. 2011). Still, “‘[a]n inventory
search must be reasonable under the totality of the circumstances’; therefore, law
enforcement may not use an inventory search as ‘a ruse for general rummaging in
order to discover incriminating evidence.’” United States v. Nevatt, 960 F.3d 1015,
1020 (8th Cir. 2020) (per curiam) (citation omitted). “The reasonableness
requirement is met when an inventory search is conducted according to standardized
police procedures, which generally ‘remove the inference that the police have used
inventory searches as “a purposeful and general means of discovering evidence of a
crime.”’” Taylor, 636 F.3d at 464 (citation omitted).
Here, though neither party introduced a written standard police procedure for
inventory searches or an inventory of the vehicle’s contents as evidence at the
suppression hearing, the district court found Detective Parks credible, that his
uncontroverted testimony was sufficient to establish that the PCSO had an inventory
search policy, and that the inventory search of Williams’s vehicle complied with that
policy. Accordingly, the district court concluded that the search of Williams’s
vehicle did not violate the Fourth Amendment. Because “[a] credibility
determination made by a district court after a hearing on the merits of a motion to
suppress is virtually unassailable on appeal,” Nevatt, 960 F.3d at 1020 (citation
omitted), and nothing in the record indicates that the PCSO did not have an inventory
search policy or that Detective Parks failed to follow that policy, we decline to
disturb the finding of the district court, see United States v. Lowe, 9 F.3d 43, 46 (8th
Cir. 1993) (finding testimony that department policy was to inventory vehicles of
persons taken into custody sufficient to establish existence of inventory search
policy). Further, the record does not indicate that Detective Parks had an
investigative motive. Detective Parks testified that, in accordance with PCSO
policy, because there were no occupants in Williams’s vehicle to take control of the
vehicle, he called a wrecker and searched Williams’s vehicle before it was loaded
on the wrecker and, despite his indication on his report that he searched the car
pursuant to probable cause, he would have conducted an inventory search regardless
of whether or not he believed there was probable cause to search the vehicle. Cf.
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Taylor, 636 F.3d at 465 (concluding inventory search was a pretext for an
investigatory search where officer “testified that she would not have arrested
[defendant], impounded his vehicle, or inventoried the contents of the truck if not
for her belief that the vehicle contained evidence of a narcotics crime”). That
Detective Parks happened upon contraband in the course of this search does not
transform an otherwise valid inventory search into a violation of the Fourth
Amendment. See Garreau, 658 F.3d at 858 (“Officers performing a lawful inventory
search ‘may keep their eyes open for potentially incriminating items that they might
discover in the course of an inventory search, as long as their sole purpose is not to
investigate a crime.’” (citation omitted)).
B.
Williams next argues that there was insufficient evidence to support the jury’s
finding of guilt as to Counts 14 and 15 of the second superseding indictment, which
charged Williams with possession of the methamphetamine found inside the
pillowcase on November 1, in violation of § 841(a)(1), (b)(1)(A), and the cocaine
found inside the pillowcase, in violation of § 841(a)(1), (b)(1)(C), respectively. He
contends that the government failed to demonstrate, and no reasonable juror could
have concluded, that he possessed these drugs. “We review ‘sufficiency of the
evidence de novo, viewing evidence in the light most favorable to the jury’s verdict,
resolving conflicts in the government’s favor, and accepting all reasonable
inferences that support the verdict.’” United States v. Cooper, 990 F.3d 576, 581
(8th Cir. 2021) (citation omitted). “The verdict will be upheld if there is any
interpretation of the evidence that could lead a reasonable jury to convict.” United
States v. Njoroge, 25 F.4th 555, 558 (8th Cir. 2022) (citation omitted).
“In order to prove that [Williams] possessed [methamphetamine and cocaine]
with the intent to distribute it, violating 21 U.S.C. § 841(a)(1), the [g]overnment
must prove that he knowingly possessed the [drugs] with the intent to distribute
[them].” United States v. Wright, 739 F.3d 1160, 1167 (8th Cir. 2014); see also
United States v. Espinoza, 684 F.3d 766, 777 (8th Cir. 2012) (“The offense of
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possession with intent to distribute consists of two elements: knowing possession of
[cocaine and methamphetamine] and the intent to distribute it.” (alteration in
original) (citation omitted)). Williams argues only that the evidence at trial was
insufficient to prove that he possessed the drugs. “Proof of actual possession or
constructive possession is sufficient to satisfy the element of knowing possession
under [§] 841(a)(1).” United States v. Johnson, 18 F.3d 641, 647 (8th Cir. 1994).
Constructive possession exists where a defendant has “knowledge of presence, plus
control over the thing.” Id.; see also United States v. Cuevas-Arrendondo, 469 F.3d
712, 715 (8th Cir. 2006) (“Constructive possession requires knowledge of an object,
the ability to control it, and the intent to do so.” (citation omitted)). Still, to prove
constructive possession, the government must “establish some nexus between a
defendant and the contraband; mere physical proximity to the contraband is
insufficient.” Johnson, 18 F.3d at 647.
Here, there is ample evidence supporting the conclusion that Williams had
constructive possession of the black sack of methamphetamine and cocaine found
inside the pillowcase at the Wooten Road residence on November 1. The evidence
at trial demonstrated that Williams was observed arriving at and departing from
Mitchell’s home shortly after Williams called Mitchell and arranged to buy
methamphetamine and cocaine from him; surveillance units followed the vehicle
Williams was riding in from the time the vehicle left Mitchell’s residence until
Deputy Garrison stopped the vehicle; while Deputy Garrison was running
Williams’s information through the police system, Williams fled into a nearby
residence; the woman who rented the house told officers that Williams burst through
the front door with a black sack in his hands, ran into the back bedroom, and came
back to the front of the house without the black sack; another occupant of the house
testified that Williams ran through the house “as if he were carrying a football”; the
woman who rented the house testified that there was no methamphetamine in her
house before Williams ran in and out of her house; and officers found a black sack
containing methamphetamine and cocaine in the back bedroom of the house.
Viewing this evidence in the light most favorable to the verdict, a reasonable jury
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could conclude that Williams knowingly possessed the black sack containing
methamphetamine and cocaine found inside the pillowcase.3
C.
Williams finally argues that the district court erred in not instructing the jury
that a heightened showing is required in constructive possession cases where
contraband is found in the home of another. Williams does not clearly explain what
exactly this “heightened showing” is, and he does not dispute that he failed to object
to the relevant instruction at trial. “We typically review a challenge to jury
instructions for an abuse of discretion. Where a party fails to timely object to an
instruction at trial, however, we review only for plain error.” United States v. Poitra,
648 F.3d 884, 887 (8th Cir. 2011) (citation omitted). “To obtain relief under
plain-error review, the party seeking relief must show that there was an error; the
error is clear or obvious under current law; the error affected the party’s substantial
rights; and the error seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” United States v. Bolman, 956 F.3d 583, 587 (8th Cir. 2020).
“The district court has wide discretion in formulating appropriate jury instructions.”
Poitra, 648 F.3d at 887 (citation omitted). “A jury instruction is plainly erroneous if
it misstates the law.” United States v. Fast Horse, 747 F.3d 1040, 1042 (8th Cir.
2014). However, “[j]ury instructions are adequate if, taken as a whole, [they]
adequately advise the jury of the essential elements of the offenses charged and the
3
In two sentences in his opening brief to this Court and by passing mention in
his reply brief, Williams seems to argue that because the evidence is not sufficient
to support his convictions on Counts 14 and 15, his conspiracy conviction under
Count 1 should be vacated as well. Because we conclude that the evidence is
sufficient to support Williams’s convictions on Counts 14 and 15, we need not
address this argument. Further, even if we were to conclude that the evidence is
insufficient to support Williams’s convictions on Counts 14 and 15, Williams fails
to meaningfully argue that such a finding necessitates vacating his conviction on
Count 1 as well. See Ahlberg v. Chrysler Corp., 481 F.3d 630, 634 (8th Cir. 2007)
(“[P]oints not meaningfully argued in an opening brief are waived.”).
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burden of proof required of the government.” Id. (second alteration in original)
(citation omitted).
Here, the instruction given to the jury was Eighth Circuit Manual of Model
Jury Instructions 8.02, which reads in relevant part: “A person who, although not in
actual possession, has both the power and the intention at a given time to exercise
dominion or control over a thing, either directly or through another person or
persons, is then in constructive possession of it.” Compare Eighth Circuit Manual
of Model Jury Instructions (Criminal) 8.02 (2018), with R. Doc. 370, at 11, and R.
Doc. 437, at 50. “A defendant is not entitled to a particularly worded instruction as
long as the instructions fairly and adequately instruct the jurors on the applicable
law,” United States v. Gilmore, 968 F.3d 883, 886 (8th Cir. 2020), and this Court
has found this instruction to be adequate, see, e.g., Espinoza, 684 F.3d at 783
(holding possession instruction that followed 8.02 “fairly and adequately submitted
the issue of possession to the jury”). Thus, we find that the district court did not
commit plain error by failing to sua sponte instruct the jury as to some unspecified
“heightened showing” required to prove constructive possession.
III.
The government cross-appeals Williams’s sentence, arguing that the district
court procedurally erred when it relied on clearly erroneous facts in imposing a
substantial downward variance. The government contends that the district court
erred when it concluded that Williams and his co-defendant, Jeremy Larry, were
similarly situated because, contrary to the district court’s statement that Larry had
an offense level in the “high 30s,” Larry’s base offense level was 32 and his total
offense level was 29. Typically, “[i]n reviewing a sentence for procedural error, we
review the district court’s factual findings for clear error and its application of the
guidelines de novo.” United States v. Ayres, 929 F.3d 581, 583 (8th Cir. 2019)
(citation omitted). However, the government failed to object to the district court’s
alleged procedural error at sentencing, and therefore, we review the district court’s
sentence for plain error. See United States v. Wise, 17 F.4th 785, 788 (8th Cir.
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2021). “To obtain relief under plain-error review, the party seeking relief must show
that there was an error; the error is clear or obvious under current law; the error
affected the party’s substantial rights; and the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Bolman, 956 F.3d at 587.
“Procedural error” includes “failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as mandatory,
failing to consider the § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the chosen
sentence—including an explanation for any deviation from the
Guidelines range.”
United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (quoting Gall
v. United States, 552 U.S. 38, 51 (2007)).
Here, the district court did mistakenly state that Larry had an offense level in
the high thirties when he actually had a total offense level of 29. However, the
district court also considered that both Williams and Larry had a criminal history
category of VI and still applied the variance after hearing the government’s
arguments that Larry accepted responsibility and Williams did not, Williams’s
criminal history score was much higher than Larry’s, and Williams’s conduct in the
case was “more” than Larry’s. Further, the district court noted the absence of
firearms and violence in the case, Williams’s traumatic childhood, and Williams’s
progress in understanding and coming to terms with himself and his history. In light
of these circumstances, we conclude that there is no reasonable probability that, but
for the district court’s error, Williams would have received a higher sentence, and
thus, the district court’s error did not affect the government’s substantial rights. See
United States v. McClendon, 609 F. App’x 488, 489 (9th Cir. 2015) (“Ordinarily, an
error affects an appellant’s substantial rights if it ‘affect[s] the outcome of the district
court proceedings.’” (alteration in original) (quoting Puckett v. United States, 556
U.S. 129, 135 (2009)); United States v. Morgan, 635 F. App’x 423, 442 (10th Cir.
2015) (explaining that an error “that affects substantial rights” is one that “affects
the outcome of the proceeding” (citation omitted)); cf. United States v. Isler, 983
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F.3d 335, 343 (8th Cir. 2020) (“To demonstrate an effect on substantial rights, [the
defendant] must show a reasonable probability that but for the error, he would have
received a more favorable sentence.” (alteration in original) (citation omitted)).
IV.
For the foregoing reasons, we affirm Williams’s conviction and sentence.
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