United States v. Carl McArthur ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-1654
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United States of America
Plaintiff - Appellee
v.
Carl McArthur
Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: January 15, 2021
Filed: April 13, 2021
[Unpublished]
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Before GRUENDER, BENTON, and STRAS, Circuit Judges.
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PER CURIAM.
Carl McArthur was convicted of one count of possession of a firearm by a
prohibited person. See 18 U.S.C. §§ 922(g)(1), 922(g)(9), 924(a)(2). He
subsequently filed a motion for a new trial, which the district court1 granted. Over
1
The Honorable C.J. Williams, United States District Judge for the Northern
District of Iowa.
the course of the two weeks preceding the scheduled retrial date, the Government
disclosed to McArthur additional witness statements from three witnesses. The
Friday before the Monday start date of the second trial, McArthur moved for a
continuance on the basis that he needed additional time to evaluate these witnesses’
statements. The district court denied this motion, the matter proceeded to trial, and
McArthur once again was found guilty. At sentencing, the district court found that
McArthur’s offense involved three to seven firearms, and it therefore increased his
offense level under the sentencing guidelines by two levels. See U.S.S.G.
§ 2K2.1(b)(1)(A). It then calculated a total offense level of 26 and a criminal-history
category of IV, yielding an advisory sentencing guidelines range of 92 to 115
months’ imprisonment, and it sentenced McArthur to 115 months’ imprisonment.
McArthur appeals, challenging the denial of his motion for a continuance and the
imposition of the two-level increase under § 2K2.1(b)(1)(A). We affirm.
First, we address McArthur’s claim that the district court abused its discretion
by denying his motion for a continuance. “We review a district court’s denial of a
request for continuance for an abuse of discretion and will only reverse if the moving
party shows prejudice by the denial.” United States v. Dukes, 758 F.3d 932, 939
(8th Cir. 2014). McArthur’s motion for a continuance was based on the
Government’s disclosure, within the last two weeks before McArthur’s second trial,
of summaries or reports of three witnesses’ interviews that occurred within the same
time period. But, despite baldly asserting that his counsel “could not be prepared
for the [new] testimony,” McArthur points to no facts showing he was prejudiced by
the denial of his motion. He does not claim, for instance, that the witness statements
were particularly long. At least one spanned only one page. Moreover, all three of
the witnesses were known to McArthur because they were identified in police reports
available to McArthur more than nine months prior to his second trial. One of the
witnesses even testified at the first trial. Because McArthur has not shown that he
was prejudiced by the district court’s denial of his motion for a continuance, we will
not reverse. See United States v. Hyles, 479 F.3d 958, 968 (8th Cir. 2007) (finding
no prejudice because defendant did “not point to anything specific that would have
been done if not for the late arrival of” certain evidence or “argue that, if the
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continuance had been granted, the result of the trial would have been different”);
United States v. Fuller, 665 F. App’x 248, 251-53 (4th Cir. 2016) (per curiam)
(“[M]ore than a general allegation of ‘we were not prepared’ is necessary to
demonstrate prejudice.”).
Next, we consider McArthur’s argument that the district court procedurally
erred by adding two levels to his offense level under U.S.S.G. § 2K2.1(b)(1)(A). “In
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).
Section 2K2.1(b)(1)(A) provides for a two-level increase to a defendant’s
offense level if the defendant’s “offense” involved three to seven firearms. “[T]he
term ‘offense’ means ‘the offense of conviction and all relevant conduct . . . .’”
United States v. Cole, 525 F.3d 656, 658 (8th Cir. 2008) (quoting U.S.S.G. § 1B1.1
cmt. n.1(H)). McArthur argues that the district court procedurally erred because it
considered as “relevant conduct” two incidents where McArthur possessed a gun
that occurred just a few months after his offense of conviction. He claims that these
incidents cannot be relevant conduct because they were not “part of the same course
of conduct or common scheme or plan as the offense of conviction.” U.S.S.G.
§ 1B1.3(a)(2).2 He does not dispute that, if these incidents are “relevant conduct,”
then his offense involved three firearms. “Whether acts are relevant conduct under
the sentencing guidelines is a factual determination [we] review for clear error,”
United States v. White, 447 F.3d 1029, 1032 (8th Cir. 2006), in doing so
“remembering that such a determination is fact-intensive and well within the district
court’s sentencing expertise and greater familiarity with the factual record.” United
States v. Hernandez, 712 F.3d 407, 409 (8th Cir. 2013).
The district court did not clearly err in finding that McArthur’s “relevant
conduct” included the two incidents where McArthur possessed a gun that occurred
2
The parties agree that U.S.S.G. § 1B1.3(a)(2) is applicable.
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just a few months after his offense of conviction. Under § 1B1.3(a)(2), acts that are
either part of a “common scheme or plan” or part of the “same course of conduct”
as the offense of conviction are relevant conduct, and acts are part of the same course
of conduct as the offense of conviction if the acts and the offense are “sufficiently
connected or related to each other as to warrant the conclusion that they are part of
a[n] . . . ongoing series of offenses.” § 1B1.3(a)(2) cmt. n.5(B)(ii). “Factors that are
appropriate to the determination of whether offenses are sufficiently connected or
related to each other to be considered part of the same course of conduct include the
degree of similarity of the offenses, the regularity (repetitions) of the offenses, and
the time interval between the offenses.” Id. “When one of the above factors is
absent, a stronger presence of at least one of the other factors is required.” Id.
Here, the offense of conviction and the two subsequent incidents were part of
an ongoing series of offenses because about three months elapsed between the
offense of conviction and the two subsequent incidents and, in each, McArthur
attempted to steal money or methamphetamine from drug users at residences other
than his own in the same geographic area while using or possessing a firearm. See
United States v. Moore, 212 F.3d 441, 446 (8th Cir. 2000) (holding that uncharged
drug quantities were part of the same course of conduct where the sale of those
quantities occurred in the same city as the charged drug offense and occurred four
to six months earlier); United States v. Geralds, 158 F.3d 977, 979 (8th Cir. 1998)
(concluding that the defendant’s possession of drugs eighteen months prior to the
distribution offense for which he was convicted was part of the same course of
conduct as the offense of conviction because both were distribution-related offenses,
involved the same type and quantity of drug, and occurred in the same geographical
area).
Because each of these subsequent incidents was part of the same course of
conduct as the offense of conviction, the district court did not clearly err in finding
that they were “relevant conduct” under § 1B1.3(a)(2). Therefore, the district court
did not procedurally err by increasing McArthur’s offense level by two levels under
§ 2K2.1(b)(1)(A).
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For the foregoing reasons, we affirm.
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