United States v. Boysaw

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4515
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DONALD MILTON BOYSAW,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior District
Judge. (CR-03-128)
Submitted: August 2, 2006 Decided: September 6, 2006
Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Barry L. Proctor, Abingdon, Virginia, for Appellant. John L.
Brownlee, United States Attorney, R. Andrew Bassford, Assistant
United States Attorney, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Donald Milton Boysaw appeals his convictions for felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1)
(2000), and felon in possession of ammunition in violation of 18
U.S.C. § 922(g)(1) (2000). We affirm Boysaw’s conviction, but we
vacate his sentence and remand for resentencing in light of United
States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005).
Boysaw first contends that the district court erred in
denying his motion for a judgment of acquittal. We review the
denial of a motion for judgment of acquittal de novo. United
States v. Gallimore, 247 F.3d 134, 136 (4th Cir. 2001). A verdict
must be sustained if there is substantial evidence, taking the view
most favorable to the Government, to support it. Glasser v. United
States, 315 U.S. 60, 80 (1942). Substantial evidence is defined as
“that evidence which ‘a reasonable finder of fact could accept as
adequate and sufficient to support a conclusion of a defendant’s
guilt beyond a reasonable doubt.’” United States v. Newsome, 322
F.3d 328, 333 (4th Cir. 2003) (quoting United States v. Burgos, 94
F.3d 849, 862-63 (4th Cir. 1996)). In resolving issues of
substantial evidence, we do not weigh evidence or reassess the
factfinder’s assessment of witness credibility. United States v.
Sun, 278 F.3d 302, 313 (4th Cir. 2002).
The elements of a violation of § 922(g)(1) are that:
(1) the defendant previously had been convicted of a crime
- 2 -
punishable by a term of imprisonment exceeding one year; (2) the
defendant knowingly possessed the firearm or ammunition; and
(3) the possession affected commerce because the firearm or
ammunition had traveled in interstate or foreign commerce. United
States v. Langley, 62 F.3d 602, 606 (4th Cir. 1995). Boysaw
stipulated to a prior felony conviction and to the interstate
commerce element, leaving only the knowing possession element in
dispute. Possession may be actual or constructive. United
States v. Rusher, 966 F.2d 868, 878 (4th Cir. 1992). A person has
constructive possession of an item if he knows of its presence and
exercises or has the power to exercise dominion and control over
it. United States v. Scott, 424 F.3d 431, 435 (4th Cir. 2005).
Possession may be established by circumstantial evidence. United
States v. Nelson, 6 F.3d 1049, 1053 (4th Cir. 1993).
Federal agents found a firearm on a tray next to the bed
in the front upstairs bedroom of Boysaw’s house. Boysaw
demonstrated knowledge of the firearm when he told agents that the
gun belonged to his son Donald Eugene Boysaw (“Little Donald”).
Before Boysaw was taken from the house, he requested a pair of
shoes and cigarettes, which agents found next to the tray where the
gun was found. Boysaw contended that he did not spend much time in
that bedroom or upstairs, but Boysaw had many possessions in the
upstairs bedrooms. The federal agents also found ammunition in
various places in the house, including prescriptions and bills in
- 3 -
Boysaw’s name in a drawer in a bedroom, and in drawers in the
kitchen, and plainly visible in a jar in the basement. Taking the
view most favorable to the Government, the evidence demonstrates
that Boysaw had the knowledge and the power to exercise dominion
and control over the firearm and ammunition and possessed the
items. There was sufficient evidence for the jury to conclude
defendant’s guilt beyond a reasonable doubt.
Boysaw next contends that his trial counsel was
ineffective for agreeing to stipulations, not calling witnesses,
calling Little Donald to testify while incompetent, and for not
having a trial strategy. Claims of ineffective assistance of
counsel are not cognizable on direct appeal unless the record
conclusively establishes ineffective assistance. United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999). Our review of the
record reveals that Boysaw has failed to meet the high burden
necessary to raise ineffective assistance of counsel on direct
appeal.1
1
Boysaw contends the district court abused its discretion when
it denied his motion for a new trial because his trial counsel was
ineffective. Pursuant to Rule 33 of the Federal Rules of Criminal
Procedure, a district court may grant a defendant’s motion for a
new trial “if the interest of justice so requires.” Fed. R. Crim.
P. 33(a). This court reviews the denial of a Rule 33 motion for
abuse of discretion. United States v. Adam, 70 F.3d 776, 779 (4th
Cir. 1995). As the record does not establish that any of counsel’s
actions were unreasonable and resulted in ineffective assistance,
Boysaw failed to establish grounds for a new trial. The district
court did not abuse its discretion in denying the motion.
- 4 -
Boysaw also contends that the prosecutor improperly
persuaded his counsel into accepting the stipulations and that the
stipulations were inaccurate. To prevail on a claim of
prosecutorial misconduct, Boysaw must establish that the
prosecutor’s conduct was improper and prejudicially affected his
substantial rights so as to deprive him of a fair trial. United
States v. Golding, 168 F.3d 700, 702 (4th Cir. 1999). A forensics
report verified the accuracy of the stipulations and that the
Government could prove the facts contained in the stipulations.
The prosecutor properly agreed to the stipulations and his conduct
did not affect Boysaw’s substantial rights.
Boysaw further contends that the district court committed
judicial misconduct by allowing Little Donald to testify because
Boysaw asserts Little Donald was not competent to testify. All
witnesses are presumed competent to testify. United States v.
Odom, 736 F.2d 104, 112 (4th Cir. 1984); see also Fed. R. Evid.
601. “Whether the witness has such competency is a matter for
determination by the trial judge after such examination as he deems
appropriate and his exercise of discretion in this regard is to be
reversed only for clear error.” Id. at 112-13.
The district court had ample opportunity to observe
Little Donald on the witness stand. Little Donald answered every
question completely and when asked if he understood his rights he
replied that he did. The district court stated that Little Donald
- 5 -
may have been asleep in the witness room prior to testifying, but
when he took the stand as a witness he seemed to know what he was
doing in the courtroom. The district court did not clearly err by
allowing Little Donald to testify.
Boysaw next contends that during sentencing the district
court erred when it designated him an armed career criminal. A
defendant convicted of violating § 922(g)(1) qualifies as an armed
career criminal under 18 U.S.C. § 924(e) if he has three prior
convictions for a serious drug offense. The term “serious drug
offense” includes “an offense under State law, involving
manufacturing, distributing, or possessing with intent to
manufacture or distribute, a controlled substance . . . for which
a maximum term of imprisonment of ten years or more is prescribed
by law.” 18 U.S.C. § 924(e). In 1983, Boysaw had three separate
Virginia convictions for distribution of cocaine under Va. Code
Ann. § 18.2-248. Each of those convictions carried a maximum
penalty of forty years’ imprisonment, satisfying the statutory
requirement under 18 U.S.C. § 924(e). Boysaw claims the drug
offenses should not have been considered due to their age; however,
we have held that there is no temporal restriction on prior
felonies for the purposes of the Armed Career Criminal Act. United
States v. Presley, 52 F.3d 64, 69-70 (4th Cir. 1995) (upholding the
district court’s consideration of a conviction that occurred over
- 6 -
twenty years previously). The district court properly determined
that Boysaw qualified as an armed career criminal.
Boysaw further contends that the district court enhanced
his sentence with judicially found facts in violation of Booker.
Boysaw did not object to the use of judicially found facts during
his sentencing. When a Booker sentencing claim is raised for the
first time on appeal, this court reviews for plain error. United
States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005). To meet the
plain error standard: (1) there must be an error; (2) the error
must be plain; and (3) the error must affect substantial rights.
United States v. Olano, 507 U.S. 725, 732-34 (1993). If the three
elements of the plain error standard are met, the court may
exercise its discretion to notice error only if the error seriously
affects “the fairness, integrity, or public reputation of judicial
proceedings.” Id. at 736 (citation omitted).
In Booker, the Supreme Court concluded the mandatory
manner in which the federal sentencing guidelines required courts
to impose sentencing enhancements based on facts found by the judge
by a preponderance of the evidence violated the Sixth Amendment.
Booker, 125 S. Ct. at 746, 750. The Court remedied the
constitutional violation by severing two statutory provisions, 18
U.S.C.A. § 3553(b)(1) (West Supp. 2005) (requiring sentencing
courts to impose a sentence within the applicable guideline range),
and 18 U.S.C.A. § 3742(e) (West 2000 & Supp. 2005) (appellate
- 7 -
standards of review for guideline issues), thereby making the
guidelines advisory. Booker, 125 S. Ct. at 756-57.
Boysaw claims that Booker was violated in two respects.
He first contends the district court erred when it enhanced his
sentence with his prior convictions that were not charged in his
indictment nor admitted by him in his guilty plea. In
Almendarez-Torres v. United States, 523 U.S. 224, 245 (1998), the
Supreme Court held that the government need not allege in its
indictment and need not prove beyond reasonable doubt that a
defendant had prior convictions for a district court to use those
convictions for purposes of enhancing a sentence. See United
States v. Cheek, 415 F.3d 349, 351-53 (4th Cir. 2005)
(Almendarez-Torres was not overruled by Apprendi or Booker). We
have ruled that the nature and occasion of prior offenses are facts
inherent in the convictions and that the government does not have
to allege prior convictions in the indictment or submit proof of
them to a jury. United States v. Thompson, 421 F.3d 278, 285-87
(4th Cir. 2005). The district court did not err when it used
Boysaw’s prior convictions in calculating his sentence.
Boysaw also contends that the district court committed
Booker error when it sentenced him under the mandatory sentencing
guidelines. In United States v. White, 405 F.3d 208, 215 (4th Cir.
2005), this court determined that imposing a sentence under the
guidelines as mandatory was error that was plain. White, 405 F.3d
- 8 -
at 217. In determining whether an error affected the defendant’s
substantial rights, we reasoned that “the error of sentencing a
defendant under a mandatory guidelines regime” was not an error for
which prejudice would be presumed. Id. at 221. Rather, the
defendant bears the burden of showing that this error “affected the
outcome of the district court proceedings.” Id. at 223 (quoting
Olano, 507 U.S. at 734). In White, we relied on the absence of any
statement by the sentencing court “that it wished to sentence White
below the guideline range but that the guidelines prevented it from
doing so,” to find there was “no nonspeculative basis” for finding
prejudice, and affirmed White’s sentence. Id. at 223-24. Boysaw
had a statutory minimum sentence of 180 months’ imprisonment and a
sentencing guidelines range of 188-235 months’ imprisonment. When
the district judge imposed a 188-month prison sentence, the court
stated that “I would like to go below the Guidelines, but I don’t
know of any legal justification the court has for going below the
Guidelines.” Because the district court clearly indicated that it
would have gone below the guidelines range if it was operating
under an advisory guidelines scheme, we conclude that the court
committed statutory error when it sentenced Boysaw, and Boysaw must
be resentenced.2 See United States v. Rodriguez, 433 F.3d 411,
414-15 (4th Cir. 2006).
2
We, of course, imply no criticism of the able district judge,
who sentenced Boysaw in accordance with the law and procedures in
effect at the time of the sentencing.
- 9 -
Although the sentencing guidelines are no longer
mandatory, Booker makes clear that a sentencing court must still
“consult [the] Guidelines and take them into account when
sentencing.” 125 S. Ct. at 767. On remand, the district court
should first determine the appropriate sentencing range under the
guidelines, making all the factual findings appropriate for that
determination. See Hughes, 401 F.3d at 546. The court should
consider this sentencing range along with the other factors
described in 18 U.S.C. § 3553(a) (2000), and then impose a
sentence. Id. If that sentence falls outside the guidelines
range, the court should explain its reasons for the departure as
required by 18 U.S.C. § 3553(c)(2) (2000). Id. The sentence must
be “within the statutorily prescribed range and . . . reasonable.”
Id. at 546-47.
Accordingly, we affirm Boysaw’s conviction, vacate his
sentence, and remand for resentencing in light of Booker. We also
deny Boysaw’s motion to relieve his appellate attorney, and grant
Boysaw’s motion to file a pro se supplemental brief, the contents
of which we have fully considered. We dispense with oral argument
because the facts and legal contentions are adequately presented in
the materials before the court and argument would not aid the
decisional process.
AFFIRMED IN PART,
VACATED IN PART, AND REMANDED
- 10 -