United States v. Pierre

Case: 22-30086 Document: 00516683896 Page: 1 Date Filed: 03/21/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-30086
Summary Calendar FILED
____________ March 21, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Jarvis Pierre,
Defendant—Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:19-CR-286-1
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Before King, Higginson, and Willett, Circuit Judges.
Per Curiam: *
Jarvis Pierre was convicted by a jury of (1) two counts of possession of
a firearm and ammunition after a felony conviction, in violation of 18 U.S.C.
§ 922(g)(1), and (2) one count of possession of a firearm in furtherance of a
drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). He was
sentenced to concurrent 288-month terms of imprisonment for the § 922(g)
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-30086 Document: 00516683896 Page: 2 Date Filed: 03/21/2023
No. 22-30086
convictions and a consecutive 60-month term of imprisonment for the
§ 924(c) conviction. On appeal, Pierre contends the evidence was insufficient
to support his convictions, the district court erred in admitting evidence of a
traffic stop that occurred in Texas, he was denied the right to confront
witnesses against him, and the district court erred in determining that he was
an armed career criminal.
Pierre first argues that the Government failed to demonstrate he
knowingly possessed a firearm in violation of § 922(g). Because he did not
preserve this argument below, we review for plain error only. United States v.
Suarez, 879 F.3d 626, 630 (5th Cir. 2018). To show plain error, Pierre must
show a forfeited error that is clear or obvious and that affects his substantial
rights. Puckett v. United States, 556 U.S. 129, 135 (2009). When reviewing the
sufficiency of the evidence, “an error is clear or obvious only if the record is
devoid of evidence pointing to guilt” or “the evidence on a key element of
the offense is so tenuous that a conviction would be shocking.” Suarez, 879
F.3d at 630–31 (cleaned up).
Here, the evidence included testimony that when Pierre was arrested
in October 2018, police found a firearm beneath his seat when he was the
driver and only occupant of the vehicle. Additionally, when he was pulled
over in December 2018, police found another firearm wedged between
Pierre’s seat and the central console when again he was the driver and sole
occupant of the vehicle. Because constructive possession may be
demonstrated by showing dominion over the vehicle in which the contraband
is located, Pierre is unable to demonstrate clear or obvious error. See id.; see
also United States v. Meza, 701 F.3d 411, 419 (5th Cir. 2012); United States v.
Polk, 56 F.3d 613, 631 (5th Cir. 1995).
Pierre also argues that there is insufficient evidence to support his
conviction under § 924(c) for possession of a firearm in furtherance of a drug-
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trafficking crime because the Government failed to demonstrate that he had
an agreement with another individual to engage in a drug-trafficking crime.
Because Pierre filed a motion for a judgment of acquittal challenging the
sufficiency of the evidence for his § 924(c) conviction, we review this issue
de novo. See Fed. R. Crim. P. 29(c)(3); United States v. Allison, 616 F.2d
779, 784 (5th Cir. 1980). We must determine whether a reasonable jury could
have found that the evidence established his guilt beyond a reasonable doubt.
United States v. Barnes, 803 F.3d 209, 215 (5th Cir. 2015).
While Pierre asserts that there was no evidence he was engaged in
drug trafficking, when he was arrested following the October 2018 traffic
stop, police found a set of notebooks that contained records of drug sales and
approximately $11,000. Moreover, evidence was put forth that Pierre
discussed the distribution of drugs in recorded jail conversations, along with
evidence that following an earlier traffic stop in Texas, police recovered 400
oxycodone pills and over $11,000 in cash from Pierre’s vehicle. Finally, the
firearm found during the October traffic stop was loaded, was easily
accessible as it was under Pierre’s seat, was in close proximity to large sums
of money, and was illegally possessed in light of Pierre’s earlier felony
convictions. Viewing this evidence in the light most favorable to the
Government, a reasonable jury could find beyond a reasonable doubt that
Pierre possessed a firearm in furtherance of conspiracy to possess with intent
to distribute a controlled substance or possession of a controlled substance
with intent to distribute. See id.; see also United States v. Masha, 990 F.3d 436,
442 (5th Cir. 2021); United States v. Moya, 18 F.4th 480, 483 (5th Cir. 2021).
Next, Pierre argues that evidence of other acts should have been
excluded. We review a district court’s evidentiary rulings for an abuse of
discretion, but the standard is “heightened” when evidence is admitted
pursuant to Federal Rule of Evidence 404(b) “because evidence in criminal
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trials must be strictly relevant to the particular offense charged.” United
States v. Ramos-Rodriguez, 809 F.3d 817, 821 (5th Cir. 2016) (cleaned up).
Pierre claims that the district court abused its discretion in admitting
evidence from the Texas traffic stop under Federal Rule of Evidence 404(b)
because it was not relevant to proving his alleged motive, opportunity, intent,
or preparation. Despite Pierre’s assertions to the contrary, the evidence from
the Texas traffic stop was relevant to demonstrate his motivation in
possessing a gun. See United States v. Kinchen, 729 F.3d 466, 472 (5th Cir.
2013) (holding that evidence of other act is relevant to establishing motive
where the prior conduct helps establish why the defendant committed the
charged offense). Moreover, the evidence that Pierre had previously been
arrested with a large quantity of oxycodone was relevant to demonstrate his
intent to engage in a drug conspiracy. See United States v. Jones, 930 F.3d 366,
373–74 (5th Cir. 2019) (holding that evidence of a prior conviction was
relevant in determining intent when defendant argued that he was merely
obtaining drugs for personal use). Finally, because Pierre merely asserts in a
conclusory fashion that evidence from the Texas traffic stop tainted the
jury’s perception of him, he has abandoned any argument that the probative
value of the evidence was outweighed by its prejudicial effect. See United
States v. Davis, 609 F.3d 663, 698 (5th Cir. 2010).
Next, Pierre argues that the introduction of certain evidence violated
his right to confront witnesses against him. We generally review the district
court’s admission of evidence that potentially implicates the Confrontation
Clause for an abuse of discretion, subject to harmless-error review. United
States v. Jackson, 636 F.3d 687, 692 (5th Cir. 2011).
Pierre asserts that he was deprived of the opportunity to confront
witnesses against him when a police officer testified that a tow truck operator
discovered drugs in Pierre’s vehicle following the Texas traffic stop.
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However, because Pierre did not object to the officer’s testimony as being a
violation of the Confrontation Clause, we review this argument for plain error
only. See United States v. Sharp, 6 F.4th 573, 581 (5th Cir. 2021), cert. denied,
142 S. Ct. 1124 (2022). In this case, the statements made by the police officer
do not violate the Confrontation Clause because officers may refer to out-of-
court statements in order to provide context for their investigation or to
explain its background. See United States v. Kizzee, 877 F.3d 650, 657–59 (5th
Cir. 2017).
Pierre also argues that the district court abused its discretion in
admitting recordings of phone conversations between Pierre and other
individuals that took place while he was in jail in Calcasieu Parish. See United
States v. Cheramie, 51 F.3d 538, 540–41 (5th Cir. 1995). Although he argues
that there was no evidence that he was one of the individuals on the recorded
calls, the record shows that the calls were made or received with his unique
inmate code at the jail, and Pierre stipulated that if a Calcasieu Parish
Sheriff’s employee were to testify, he would state that he put Pierre’s jail call
recordings on the thumb drive that was used at trial. Also, the recordings
themselves belie Pierre’s contention that the Government did not show that
the other person on the calls was his mother. Pierre fails to brief, and has thus
waived, any other alleged Confrontation Clause problem with the admission
of these calls. See Davis, 609 F.3d at 698.
Finally, Pierre argues that his sentence was improperly enhanced
when he was designated an armed career criminal. We review this issue de
novo. United States v. Schmidt, 623 F.3d 257, 260 (5th Cir. 2010).
At the time of Pierre’s offense, a defendant convicted of violating
§ 922(g) was generally subject to a statutory maximum prison sentence of 10
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years. § 924(a)(2) (2021). 1 However, if the defendant had three or more prior
convictions for a serious drug offense or a violent felony, he qualified as an
armed career criminal and was subject to a minimum sentence of 15 years of
imprisonment. § 924(e)(1). The district court determined that Pierre
qualified as an armed career criminal based on his Louisiana convictions for
possession of cocaine with intent to distribute, distribution of cocaine, and
aggravated assault with a firearm. In light of our recent decision in United
States v. Garner, 28 F.4th 678, 683 (5th Cir. 2022), Pierre was improperly
designated as an armed career criminal because his conviction for aggravated
assault with a firearm does not qualify as a violent felony. Therefore, the
maximum term of imprisonment that could be imposed for each of Pierre’s
§ 922(g) convictions was 120 months. See § 924(a)(2) (2021). Because
Pierre’s concurrent 288-month prison terms for his § 922(g) offenses exceed
the statutory maximum, they must be vacated. See 18 U.S.C. § 3742(f)(1).
Pierre’s convictions are AFFIRMED, the sentence is VACATED,
and the case is REMANDED for resentencing.
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1
The pre-2022 version of the statute applies in Pierre’s case. A higher range
applies after an amendment effective in 2022. See § 922(a)(8).
6