United States v. Kenneth Woods , 183 F. App'x 592 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-3339
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Kenneth Dale Woods, Jr., *
* [UNPUBLISHED]
Appellant. *
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Submitted: March 17, 2006
Filed: June 8, 2006
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Before COLLOTON, JOHN R. GIBSON, and GRUENDER, Circuit Judges.
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PER CURIAM.
Kenneth Dale Woods, Jr., pled guilty to two counts of unlawfully receiving a
firearm in violation of 18 U.S.C. § 922(n), and two counts of unlawful possession of
a firearm as a prohibited person, in violation of 18 U.S.C. § 922(g)(9). At sentencing,
the district court1 enhanced Woods’s offense level pursuant to USSG § 2K2.1 of the
United States Sentencing Guidelines after finding that Woods knowingly possessed
1
The Honorable Fernando J. Gaitan, Jr., United States District Judge for the
Western District of Missouri.
a sawed-off shotgun, and then sentenced Woods to 41 months’ imprisonment on each
count, to run concurrently. Woods appeals his sentence, and we affirm.
At sentencing, Woods objected to allegations in the presentence investigation
report (“PSR”) that he knowingly possessed a sawed-off shotgun, because the shotgun
was not one of the firearms he admitted possessing when he pled guilty. The
government presented the testimony of Brad Daniels, a deputy in the Taney County
Sheriff’s Department, to prove Woods’s possession of the shotgun. Daniels testified
that he initially approached Woods at his residence on August 16, 2004, because he
had received information that a stolen go-cart might be there. According to Daniels,
Woods first stated that the go-cart was not at his residence, but then told the officer
that he had a “dune buggy” that might be what the officer was seeking. Woods took
Daniels to a crawl space under the house and showed him the go-cart, which Woods
claimed to have obtained from a man named Joshua Cummings.
Daniels asked Woods if Cummings had left a firearm there as well, and Woods
replied that he had not. Daniels stated that Woods told him that Cummings had been
carrying a sawed-off shotgun in a small black bag, but that Cummings had taken it
with him. Daniels testified that Woods then went inside, purportedly to use the
restroom. Shortly thereafter, Woods returned with a black nylon case containing a
shotgun and some shells, explaining that Cummings must have left the shotgun there
without Woods knowing about it.
Daniels further testified that he interviewed Cummings the following day, and
Cummings admitted to taking the go-cart from his aunt’s house. According to
Daniels, Cummings also told him that he stole the shotgun from his mother’s gun safe,
took it to Woods’s residence because he “did not want to get caught with it,” and
“gave it directly to Mr. Woods.” (S. Tr. at 11). The district court denied Woods’s
objections to the PSR, and found specifically that Woods knew the shotgun was in his
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house and knowingly possessed the shotgun. The court then sentenced Woods to 41
months’ imprisonment, a term within the advisory sentencing guideline range.
On appeal, Woods argues that Daniels’s hearsay testimony regarding the
Cummings statements is not sufficiently reliable to support the district court’s finding
that Woods knowingly possessed the shotgun. Although Woods objected to factual
allegations in the PSR regarding his possession of the shotgun, and argued that
Cummings was not credible, he did not object to Daniels’s testimony during the
sentencing hearing. Accordingly, we review for plain error. United States v.
Sharpfish, 408 F.3d 507, 511 (8th Cir. 2005).
A district court may rely on hearsay evidence to resolve disputed facts at
sentencing when the information has “sufficient indicia of reliability to support its
probable accuracy.” USSG § 6A1.3(a). The determination of whether hearsay is
sufficiently reliable to support a sentencing determination necessarily depends upon
the particular circumstances of each case. United States v. Cassidy, 6 F.3d 554, 557
(8th Cir. 1993). When a proper objection is made to the district court’s consideration
of the hearsay evidence, we review for abuse of discretion. Id. Plain error review, of
course, is even more deferential. United States v. Olano, 507 U.S. 725, 731-32
(1993).
We conclude that there was no error, because the district court did not abuse its
discretion in relying on Daniels’s testimony. In addition to relating Cummings’s
statement that he gave the gun to Woods, Daniels also testified that after he discussed
the shotgun with Woods, Woods first claimed that Cummings left with the gun, but
then went into his house and returned with the shotgun. Even without the information
from Cummings, a reasonable factfinder could conclude that Woods knew the shotgun
was in the house all along, went into the house to retrieve it after Daniels asked about
the gun, and then sought to provide an innocent explanation for its presence. This
conduct, together with the fact that Woods initially denied knowledge of the stolen go-
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cart, provides circumstantial evidence of knowing possession that corroborates
Cummings’s statement that he gave the shotgun directly to Woods. Even
uncorroborated hearsay may be admitted at sentencing if it bears sufficient indicia of
reliability, United States v. Mahler, 984 F.2d 889, 904 (8th Cir. 1993), and we
conclude that the district court did not commit error by considering the corroborated
hearsay at issue in this case. See United States v. Morin, 437 F.3d 777, 781 (8th Cir.
2006); United States v. Knight, 96 F.3d 307, 310 (8th Cir. 1996).
The judgment of the district court is affirmed.
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