United States v. Kenneth Still ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-3103
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Kenneth Jay Still
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Western
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Submitted: May 14, 2021
Filed: July 27, 2021
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Before COLLOTON, WOLLMAN, and KOBES, Circuit Judges.
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WOLLMAN, Circuit Judge.
Kenneth Jay Still entered a conditional plea of guilty to being a felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 922(g)(9), and
924(a)(2). The district court1 sentenced him to 120 months’ imprisonment, the
statutory maximum. Still argues that the district court erred in excluding his
justification defense and in imposing an unreasonable sentence. We affirm.
I. Background
Still shared a Council Bluffs, Iowa, apartment with his common-law wife and
her two grandchildren. Devon Theisen, the children’s father, routinely stored his
personal belongings in the apartment and occasionally stayed there. The apartment
was located in a fourplex. Residents enter the fourplex through an outer door leading
into a vestibule from which they can access either of two ground-floor apartments or
ascend the stairs to access the two second-floor apartments.
Theisen was visiting with friends in a second-floor apartment in the fourplex
on the morning of October 7, 2018, while Still and Lesley Cox, a fellow apartment
complex resident, were outside loading Theisen’s children into a vehicle. Theisen
yelled down to Still through the apartment window, asking to retrieve certain
belongings from Still’s unit. Still denied the request. Theisen then descended from
the second-floor apartment, accompanied by two friends. Following a heated
exchange between Still and Theisen, Still told Theisen that he would gather Theisen’s
belongings and give them to Cox to pass on to Theisen. Still and Cox then entered
Still’s apartment and began gathering Theisen’s property.
According to Still, Theisen forced open the door to Still’s unit while Still and
Cox were inside. Thereafter, Theisen grabbed softball-sized chunks of concrete from
a flower bed located just outside the building. Theisen hurled two chunks at Still, at
least one of which flew through the outer door before crashing into the interior walls
1
The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa.
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of Still’s apartment. Neither rock struck Still. Still subsequently obtained a 12-gauge
shotgun, which he pointed toward the outer door. Theisen grabbed a third chunk of
concrete and prepared to throw it. Still then pulled the shotgun’s trigger and shot
Theisen in the face, killing him. Still asserts that he intended to fire only a “warning
shot” and that he was not aiming at Theisen when he fired. Still thereafter drove
away from the scene with the children and shotgun in-tow while witnesses called law
enforcement and emergency services.2
Still drove approximately 0.8 miles to the home of his nephew Mark Jones, a
convicted felon. Still dropped off both the children and the shotgun. Jones
subsequently transferred the shotgun to another convicted felon, Jimmie Aherns.
Aherns transported the shotgun, encased in a camping chair sheath, via bicycle to yet
another man. Aherns eventually regained possession of the shotgun, which he
surrendered to law enforcement.
Still later surrendered himself to the police. Because Still had previous felony
convictions, he was charged with the unlawful possession of a firearm. Still sought
to raise a justification defense, which the government moved to exclude from trial.
At the motion hearing, both Still and the government offered professional statements
describing the evidence they planned to offer on the justification defense. The district
court granted the motion to exclude, ruling that Still “was not under an unlawful and
present imminent and pending threat” following the shooting that would justify his
2
Some facts are disputed. The government contends that Still or Cox failed to
latch the apartment door, which then opened, giving Theisen and his friends some
access to the unit. The parties also dispute how Still obtained the shotgun. Still
asserts that he wrested the firearm away from Theisen; the government avers that the
shotgun had been in Still’s possession for a number of months and was stored in his
living room at the time of the fatal confrontation.
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continued possession of the shotgun.3 The district court also concluded that there
were other legal alternatives available to Still at the time. As set forth above, Still
subsequently entered a conditional guilty plea.
In calculating Still’s sentencing range under the United States Sentencing
Guidelines (Guidelines or U.S.S.G.), the district court applied the cross-reference to
Section 2A1.3(a) pursuant to Section 2K2.1(c)(1)(B), based on Still’s possession of
the firearm in connection with another offense in which death resulted. The district
court determined that Still committed voluntary manslaughter, resulting in a base
offense level of 29. See U.S.S.G. § 2K2.1(c)(1)(B); id. § 2A1.3(a). The district court
then adopted the Presentence Report’s two-level increase for obstruction of justice,
id. § 3C1.1, and three-level reduction for acceptance of responsibility, id. § 3E1.1.
With a total offense level of 28 and a criminal history category of V, Still’s
sentencing range was 130 to 162 months’ imprisonment. The district court indicated
that it would have varied upward had it concluded that the manslaughter cross-
reference did not apply. The district court noted that the statutory maximum for the
offense was 120 months’ imprisonment and stated that the “seriousness of the offense
[was] overwhelming under the circumstances.” The district court therefore sentenced
Still to 120 months’ imprisonment.
II. Discussion
A. Justification Defense
We review de novo the district court’s conclusion that there was insufficient
evidence to submit an affirmative defense to the jury. United States v. Hudson, 414
F.3d 931, 933 (8th Cir. 2005). This circuit has not recognized an affirmative defense
3
The district court based its decision on only the events following the shooting,
acknowledging dispute surrounding the events leading up to the shooting.
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of legal justification to a violation of 18 U.S.C. § 922(g). Id. Were the defense
available, however, the defendant would be required to establish, in relevant part,
“that he had no reasonable, legal alternative to violating the law.” Id. (citation
omitted). To be “entitled to a jury instruction concerning an available justification
defense,” the defendant must show “an underlying evidentiary foundation as to each
element of the defense, regardless of how weak, inconsistent or dubious the evidence
on a given point may seem.” Id. (internal quotation marks and citation omitted); see
also United States v. Penn, 969 F.3d 450, 455–56 (5th Cir. 2020) (collecting cases
and noting that defendants are entitled to a justification instruction only when the
circumstances of their offense are extraordinary).
We conclude that Still’s professional statement failed to show that he lacked
a reasonable, legal alternative to violating the law. We agree with our sister circuits
that have held that “[c]orollary to the requirement that the defendant have no
alternative to possession of the firearm is the requirement that the defendant get rid
of the firearm as soon as a safe opportunity arises.” See United States v. Poe, 442
F.3d 1101, 1104 (8th Cir. 2006) (parenthetically quoting United States v. Singleton,
902 F.2d 471, 473 (6th Cir. 1990)); see also United States v. Ricks, 573 F.3d 198, 203
(4th Cir. 2009) (“We agree with the government that a defendant seeking a
justification instruction must produce evidence that he took reasonable steps to
dispossess himself of the weapon once the threat entitling him to possess it abated.”
(internal quotation marks omitted)); cf. Penn, 969 F.3d at 456 (defendant must prove
“that he possessed the firearm only during the time of danger,” meaning that he must
have “act[ed] promptly to rid himself of the firearm once the circumstances giving
rise to the justification subside[d]”).
Still had the opportunity to safely and lawfully dispossess himself of the
firearm after the alleged threat dissipated. Accepting as true Still’s assertion that
Theisen’s associates remained in or around the apartment building and that remaining
on-site to wait for the police was thus not reasonable, Still nonetheless could have
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called the police upon driving away from the apartment building. Cf. United States
v. Green, 835 F.3d 844, 856 (8th Cir. 2016) (when a defendant could easily have
called the police, he has not shown that he lacked a legal, reasonable alternative).
Although the government did not present evidence that Still himself owned a cell
phone, it appears that most Americans own some variety of cell phone. See Stephen
J. Blumberg & Julian V. Luke, Nat’l Ctr. for Health Stats., Wireless Substitution:
Early Release of Estimates from the National Health Interview Survey,
J u l y – D e c e m b e r 2 0 1 8 5 ( 2 0 1 9 ) ,
https://www.cdc.gov/nchs/data/nhis/earlyrelease/wireless201906.pdf (concluding that
92.9% of noninstitutionalized American adults owned some form of cell phone in the
last half of 2018). Regardless of whether he could have called on a phone of his own,
Still could have stopped and used a phone at a gas station, a restaurant, or some other
business open to the public, asked someone there to call the police, or inquired
therein about the nearest police station’s location. A phone call to the police would
presumably have yielded information about the nearest police station—located only
0.7 miles away from the apartment complex. Had Still then surrendered the weapon
at the station, “perhaps we might have been forced to weigh the relative merits of
greater expediency versus greater safety.” Gov’t of V.I. v. Lewis, 620 F.3d 359, 369
(3d Cir. 2010).
Still did not avail himself of this alternative, however. Instead, he continued
to possess the firearm so that he could deliver it to Jones’s house, suggesting that Still
may have been attempting to conceal it. Cf. id. at 367 (“[The defendant’s] own
testimony demonstrated that he maintained possession of the firearm in order to hide
it and avoid responsibility for the shooting . . . .” (internal quotation marks omitted)).
We cannot conclude that Still lacked any reasonable, legal alternative to possessing
the shotgun in-transit to his felon-nephew’s house. See United States v. Gant, 691
F.2d 1159, 1163 n.9 (5th Cir. 1982) (“[C]ontinued possession beyond the time that
the emergency exists will defeat the [justification] defense[].”). Still’s continued
possession of the shotgun and failure to properly dispose of it is therefore fatal to his
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would-be justification defense. See United States v. Lomax, 87 F.3d 959, 962 (8th
Cir. 1996) (“Moreover, a defendant cannot claim justification as a defense for an
illegal action that he chose to pursue in the face of other potentially effective, but
legal, options.”).
Assuming without deciding that a justification defense to prosecution under
18 U.S.C. § 922(g) is available, we agree with the district court that Still failed to
present evidence sufficient to warrant denying the government’s motion to exclude
the justification defense. See Hudson, 414 F.3d at 934.
B. Sentencing
We proceed in two steps when reviewing a sentence. We first review for
procedural error, and then, if there is none, we consider the substantive
reasonableness of the sentence imposed. Gall v. United States, 552 U.S. 38, 51
(2007).
1. Procedural Error
Procedural errors include “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.” Id. When reviewing for procedural error, we review de
novo the district court’s interpretation and application of the Guidelines, and we
review for clear error its factual findings. United States v. Godfrey, 863 F.3d 1088,
1095 (8th Cir. 2017).
Still argues that the district court committed procedural error when it concluded
that he had committed voluntary manslaughter and when it therefore applied the
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cross-reference. See U.S.S.G. § 2K2.1(c)(1)(B); id. § 2A1.3(a). Guidelines
Section 2K2.1(c)(1)(B) directs the district court, in relevant part, to apply “the most
analogous offense guideline” from Section 2A1 “[i]f the defendant used or possessed
any firearm . . . cited in the offense of conviction in connection with the commission
or attempted commission of another offense” and “death resulted.” Section 2A1.3(a)
provides that voluntary manslaughter results in a base offense level of 29. “In the
absence of a conviction for another felony offense, the government must prove by a
preponderance of the evidence all of the essential elements of the underlying felony
offense, including the absence of any defenses.” United States v. Tunley, 664 F.3d
1260, 1262 (8th Cir. 2012) (citation omitted).
Even if applying the voluntary manslaughter cross-reference was procedural
error, we conclude that such error was harmless because the district court stated that
it would have varied upward had it not applied the cross-reference. See United States
v. Martinez, 821 F.3d 984, 988–89 (8th Cir. 2016) (district court’s incorrect
application of the Guidelines is harmless error when the court “specifies the
resolution of a particular issue did not affect the ultimate determination of a sentence,
such as when the district court indicates it would have alternatively imposed the same
sentence even if a lower guideline range applied” (internal quotation marks and
citations omitted)). The district court noted at sentencing that “had the Court not
concluded that the cross-reference would apply, then the Government would have
been appropriate in asking the Court to vary upward in order to go to the statutory
maximum because of the seriousness of the offense and because of the serious effects
of what happened that day.” The district court further concluded that “a variance
upward would be appropriate if the Court had not already concluded that the cross-
reference to manslaughter applie[d] under the circumstances of this case.” See United
States v. Goldsberry, 888 F.3d 941, 944 (8th Cir. 2018) (“We need not address the
substance of [the defendant’s] claim because the district court specifically noted that
it would not have changed the overall sentence even had the second assault
conviction been a non-qualifying offense . . . .”).
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Still next argues that the district court committed procedural error when it
relied on Jones’s grand jury testimony to conclude that an obstruction of justice
enhancement was appropriate. “We have repeatedly upheld the consideration of
grand jury testimony at sentencing; it ‘has indicia of reliability because it was given
under oath and subject to the penalties of perjury.’” United States v. Cross, 888 F.3d
985, 993 (8th Cir. 2018) (quoting United States v. Morin, 437 F.3d 777, 781 (8th Cir.
2006)). Jones testified before the grand jury that Still gave him the shotgun with
instructions “to get rid of it.” The district court reviewed the transcript of that
testimony at sentencing. Although Jones was a felon and Still lacked the opportunity
to cross-examine him, “the Confrontation Clause does not apply at sentencing
hearings.” Id. (citation omitted). Moreover, Jones’s testimony was corroborated in
part by Still’s own admission that he took the shotgun to Jones and “told [him] to get
the gun out of the house” because of the children’s presence. Still did not call any
witnesses at sentencing and did not offer any evidence to rebut Jones’s statements.
We therefore conclude that it was not clear error for the district court to find that Still
had attempted to destroy or conceal evidence and thereby to apply the obstruction of
justice enhancement.
2. Substantive Reasonableness
In the absence of procedural error below, we then review the sentence for abuse
of discretion. Gall, 552 U.S. at 51. “A district court abuses its discretion when it
(1) fails to consider a relevant factor that should have received significant weight;
(2) gives significant weight to an improper or irrelevant factor; or (3) considers only
the appropriate factors but in weighing those factors commits a clear error of
judgment.” United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc)
(internal quotation marks and citation omitted). The district court possesses broad
discretion “to weigh the § 3553(a) factors and assign some factors greater weight than
others.” Cross, 888 F.3d at 993 (citation omitted).
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Still argues that his 120-month, statutory-maximum sentence was substantively
unreasonable because the district court gave insufficient weight to the circumstances
of the shooting, his age and health, and his acceptance of responsibility. We disagree.
The district court considered all relevant factors and adequately explained its
sentence. See 18 U.S.C. § 3553(a). The court described the case’s circumstances as
“unique” and stated, “if [Still] had not had a firearm that day, then all of these terrible
things that happened that day would not have happened, at least as it turned out.”
The court characterized Still as “a classic example of someone that should not have
been in possession of a firearm under any circumstances.” The court then
acknowledged that Still was likely under some duress, but determined that “it [was]
a level of duress that doesn’t match what happened, and so the seriousness of the
offense is overwhelming under the circumstances of this particular case.”
The district court also concluded that deterrence concerns outweighed any
age- or health-related considerations: “I would hope at this point you’re aging out of
all of that [criminal conduct], but your record suggests that [adequate future
deterrence] is a serious consideration.” See United States v. King, 898 F.3d 797, 810
(8th Cir. 2018) (“The district court’s decision not to weigh mitigating factors as
heavily as [the defendant] would have preferred does not justify reversal.” (quotation
marks and citation omitted)). We find no abuse of discretion in the district court’s
ultimate conclusion that the statutory maximum sentence was appropriate because of
the “seriousness of the offense” and the “serious effects of what happened that day.”
Conclusion
The judgment is affirmed.
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