United States v. Donald Boman

United States Court of Appeals
For the Eighth Circuit
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No. 14-3312
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Donald Boman
lllllllllllllllllllll 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: September 24, 2015
Filed: January 7, 2016
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Before MURPHY, MELLOY, and SMITH, Circuit Judges.
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MELLOY, Circuit Judge.
A jury convicted Donald Boman (Boman) of possessing a firearm and
ammunition as a felon. The district court1 sentenced him to 262 months in prison. On
appeal, Boman argues the district court committed five reversible errors: the court
improperly (1) excluded the introduction of “reverse” Federal Rule of Evidence
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
404(b) evidence relating to a criminal conviction of the victim, Marcus Brown
(Brown); (2) excluded, under Federal Rule of Evidence 403, evidence relating to proof
of Brown’s motive and bias against Boman; (3) admitted Brown’s 911 phone call
under the excited-utterance exception of Federal Rule of Evidence 803(2);
(4) classified Boman as an Armed Career Criminal under 18 U.S.C. § 924(e); and
(5) applied a four-level enhancement under USSG § 2K2.1(b)(6)(B) after determining
Boman possessed a firearm in connection with the Iowa felony offense of Intimidation
with a Dangerous Weapon. We affirm.
I. Facts and Procedural History
On November 2, 2013, Cedar Rapids Police Officers responded to a 911 call
regarding a shooting. Once the officers arrived at the scene of the shooting, Officer
Zach Jeffries spoke with Brown, who was walking across the street and “thought he
had been shot.” After conducting a pat-down of Brown, Officer Jeffries determined
Brown had not been shot nor did Brown have any weapons.
Next, Officer Jeffries spoke with witnesses at the scene of the incident. From
those conversations, Officer Jeffries learned the suspected shooter, Boman, was
located inside the residence at 1800 Ridgewood Terrace Southeast. Sergeant Steven
Yardly contacted Boman, and Boman walked out of the residence. Officer Jeffries
then handcuffed Boman and placed him in the back of his squad car.
Jamie Cooper, Boman’s girlfriend, lived with Boman and arrived at the scene
shortly thereafter. At that time, Cooper consented to the police officers’ search of her
home. During the search, Cooper was cooperative and directed the officers to her
bedroom dresser, which is where she said a firearm would be located. Cooper shared
the bedroom with Boman. The officers located the firearm and two boxes of
ammunition. One box contained fifty rounds of ammunition and the other box
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contained forty rounds of ammunition. The magazine in the firearm was missing one
round.
Cooper’s daughters, Cheyenne Cinkan and Jade Hasson, also lived at the
residence, along with Cinkan’s children. Cinkan had recently moved to the residence
shared by Boman and her mother, Cooper, to avoid living with her boyfriend, Brown.
This is because Brown physically abused Cinkan. In fact, earlier on November 2,
2013, Brown and Cinkan got into an argument at Boman’s and Cooper’s home. Soon
thereafter, an argument ensued between Boman and Brown.
Sarah Michaels testified to witnessing the altercation. She said it involved two
African American men, one taller than the other. The shorter man yelled from across
the street, “Do it nigger! Do it nigger!” A taller African-American man then ran
across the street, hit the other man, reached for his hip, and pointed his hand at the
man on the ground. Michaels then heard a pop noise.2 Michaels and Cinkan called
911 following this incident. After Cinkan handed Brown the phone, Brown reported
to the 911 dispatcher that “Donnie” had shot at him.
On March 18, 2014, a grand jury returned a one-count superseding indictment
against Boman charging him with unlawfully possessing a firearm and ammunition
as a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Following
a two-day jury trial, the jury found Boman guilty of possessing a firearm as a felon in
violation of 18 U.S.C. § 922(g)(1). Ultimately, the district court sentenced Boman to
262 months, at the bottom of his 262- to 327-month advisory guideline range.
2
Two other witnesses testified at Boman’s trial that they heard a single loud
noise on the afternoon of November 2, 2013.
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II. Discussion
“We review a district court’s evidentiary rulings for clear abuse of discretion,
reversing only when an improper evidentiary ruling affected the defendant’s
substantial rights or had more than a slight influence on the verdict.” United States
v. Webster, 797 F.3d 531, 537 (8th Cir. 2015) (quoting United States v. Espinoza, 684
F.3d 766, 778 (8th Cir. 2012)). In reviewing evidentiary rulings, “we afford deference
to the district judge who saw and heard the evidence.” United States v. Donnell, 596
F.3d 913, 919 (8th Cir. 2010) (quoting United States v. Espinosa, 585 F.3d 418, 430
(8th Cir. 2009)).
In addition, “[w]e review de novo whether a prior conviction is a predicate
offense under the [Armed Career Criminal Act (ACCA)].” United States v. Abbott,
794 F.3d 896, 897 (8th Cir. 2015) (per curiam) (quoting United States v. Humphrey,
759 F.3d 909, 911 (8th Cir. 2014)). Where a defendant fails to raise an objection,
such as to the district court’s allegedly wrongful classification of the defendant’s prior
convictions as violent felonies under the ACCA, we review for plain error. See
United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005).
A. Inadmissible Reverse 404(b) Evidence
Prior to trial, Boman sought to introduce Brown’s prior convictions under Rule
404(b) to show that Brown, not Boman, possessed the firearm. The government
sought to introduce Boman’s prior convictions. The district court held that neither
party could introduce such evidence because the prior convictions were too remote in
time and violated Rule 403. On appeal, Boman argues the district court abused its
discretion in excluding the reverse 404(b) evidence relating to Brown’s prior
convictions because the district court misapplied the four-factor 404(b) test adopted
by the Eighth Circuit Court of Appeals. According to Boman, Brown’s prior
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convictions “were sufficiently proximate to this incident and their introduction bore
little risk of confusing the issues, misleading the jury or wasting court time.”
Under Rule 404(b), evidence of other “[c]rimes, [w]rongs, or [o]ther [a]cts,” are
admissible for “proving motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). “Rule
404(b) evidence is typically introduced by the prosecution to help prove the defendant
guilty of the charged crime.” United States v. Battle, 774 F.3d 504, 512 (8th Cir.
2014). By contrast, “‘[r]everse 404(b)’ is a term some courts have used to refer to
evidence of prior bad acts by a third party, introduced by the defendant and offered
to implicate the third party in the charged crime.” Id. In determining whether to
admit Rule 404(b) (or reverse 404(b)) evidence, courts are directed to consider
whether the evidence is: “(1) relevant to a material issue; (2) similar in kind and close
in time to the crime charged; (3) proven by a preponderance of the evidence; and (4)
if the potential prejudice does not substantially outweigh its probative value.” Id. at
513 (quoting United States v. Thomas, 398 F.3d 1058, 1062 (8th Cir. 2005)).
This Court has expressed its reluctance to uphold the admission of evidence of
prior offenses occurring more than 13 years prior to the charged offense. See United
States v. Strong, 415 F.3d 902, 905 (8th Cir. 2005). However, it has “approved the
admission of prior firearm convictions under Rule 404(b) where more time separated
the prior offense and the charged offense.” See United States v. Halk, 634 F.3d 482,
487 (8th Cir. 2011) (citing United States v. Walker, 470 F.3d 1271, 1275 (8th Cir.
2006) (eighteen years separated the prior and charged offense); Strong, 415 F.3d at
906 (sixteen years separated the prior and charged offense)). In Halk and Walker, this
Court was persuaded that 19-year-old and 18-year-old convictions were not so remote
in time as to render them inadmissible because the defendants spent significant
periods of time in prison between their offenses. See Halk, 634 F.3d at 487 (12 years
of incarceration); see also Walker, 470 F.3d at 1275 (10-year period of incarceration).
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Here, the district court did not abuse its discretion when it excluded the
evidence of Brown’s and Boman’s prior convictions.3 In its pre-trial order, the district
court recognized that the “potential prejudice is lessened when a defendant offers
404(b) evidence pertaining to a third party.” The court, nevertheless, held that
Brown’s prior convictions were inadmissible under reverse 404(b) for the same
reasons Boman’s prior convictions were inadmissible under Rule 404(b). Brown’s
1993 conviction was too remote in time to be admitted under reverse Rule 404(b); it
occurred approximately 21 years prior to the charged offense. Relying on Walker, the
district court also ruled that Boman’s 1992 conviction was too remote. Boman
presented no evidence that Brown was incarcerated for a significant period of time
after his 1993 offense. Without such evidence, Brown’s 21-year-old conviction goes
beyond the limits of Rule 404(b) admissibility established by Strong, Walker, and
Halk. In addition, Brown’s 2012 conviction of burglary in the third degree was not
“similar in kind” to his alleged conduct nor was it logically connected for the purposes
Boman sought to use it because his 2012 conviction did not refer to a firearm
possession. Thus, the district court did not abuse its discretion in denying the
admissibility of the reverse 404(b) evidence.
B. Inadmissible Proffered Defense Evidence As to Collateral Disputes
On the morning of the second day of trial, defense counsel sought to present
evidence of Brown’s motive and bias against Boman. To do so, defense counsel
proposed to elicit testimony from Officer Antoine Smith about whether Cinkan had
a black eye on the day of the incident and whether Brown gave her that black eye.
The district court ruled Officer Smith’s testimony was inadmissible because the trial
was not a “domestic abuse trial” or an “assault trial,” and “[a]ny relevance this has is
3
In 1992, Boman was convicted of two counts of using a firearm during the
commission of a violent crime and one count of robbery. In 1995, Boman was
convicted of assault within maritime and territorial jurisdiction. In 1993, Brown was
convicted of armed violence and aggravated battery with a firearm. In 2012, Brown
was convicted of burglary in the third degree.
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outweighed by getting into things that are not relevant, that take time and are kind of
a collateral matter.”
Additionally, defense counsel sought to ask Hasson, Cinkan’s sister, about the
subject matter of Cinkan’s and Brown’s argument on the day of the incident. Namely,
defense counsel argued that Brown planned to steal Cinkan’s government assistance
funds. The district court stated that Boman’s theory was “farfetched” and, “[t]o the
extent it has any relevance at all, it’s outweighed by waste of time, collateral matter.”
On appeal, Boman argues the district court erred in excluding the above
testimony under Rule 403. Boman further contends the evidence was relevant and
there was no danger of confusing the issues, misleading the jury, or causing undue
delay or undue prejudice to the government. According to Boman, Brown was biased
against Boman because Boman sought to prevent Brown from abusing Cinkan and
taking her government assistance funds. Thus, Boman contends, Brown had a motive
to fabricate charges against Boman. Boman further argues that the district court’s
decision to prevent him from introducing evidence of Brown’s motive and bias against
Boman was an abuse of discretion.
Rule 403 permits a court to “exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” Fed. R. Evid. 403. “Confusion of the
issues warrants exclusion of relevant evidence if admission of the evidence would lead
to litigation of collateral issues.” United States v. Condon, 720 F.3d 748, 755 (8th
Cir. 2013) (quoting Firemen’s Fund Ins. Co. v. Thien, 63 F.3d 754, 758 (8th Cir.
1995)). “In determining whether proffered evidence is misleading or confusing, the
trial court is given a great deal of discretion.” Id. (quoting United States v. Witschner,
624 F.2d 840, 846 (8th Cir. 1980)).
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At trial and in the district court’s post-trial order, filed on May 23, 2014, the
district court expressed its reservations regarding Boman’s proffered defense
evidence. In its post-trial order, the district court explained that, although it permitted
Boman “to cross-examine witnesses about the fact that Cheyenne Cinkan had a black
eye on the day of the incident,” the court “did not permit [Boman] to delve into
alleged prior abuse of Cheyenne Cinkan.” Citing Rule 403, the district court reasoned
that “[w]hat limited probative value this line of questioning might have had was
‘substantially outweighed by a danger of . . . confusing the issues, misleading the jury
[and causing] undue delay.’” Similarly, the district court concluded the subject matter
of the argument between Brown and Cinkan was inadmissible for the same reasons
under Rule 403. We conclude the district court did not abuse its considerable
discretion in deciding that Boman’s proffered evidence was inadmissible under Rule
403 for the reasons provided at trial and in its post-trial order. See Clark v. Martinez,
295 F.3d 809, 813 (8th Cir. 2002) (reviewing a district court’s ruling excluding
evidence for an abuse of discretion and finding the district court did not abuse its
“broad discretion” by excluding certain testimony).
C. Admissible 911 Recording
At trial, the district court permitted the admission of a recording of Cinkan’s
and Brown’s 911 call, finding the recording qualified as an excited utterance under
Rule 803(2). On appeal, Boman argues the district court erred because the
government did not prove the startling event took place; “Brown only acknowledged
that he heard a gunshot, nothing more.” Put differently, Boman contends the
government failed to provide an adequate foundation to prove the startling event
occurred. Boman also argues the government failed to prove the statements on
Brown’s 911 call related to the startling event. For these reasons, Boman argues the
recording “lacked sufficient indicia of truthfulness to qualify as a hearsay exception.”
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Pursuant to Rule 803(2), “[a] statement relating to a startling event or condition,
made while the declarant was under the stress of excitement that it caused” is not
excluded by the rule against hearsay. Fed. R. Evid. 803(2). “The rationale behind this
particular exception ‘derives from the teaching of experience that the stress of nervous
excitement or physical shock stills the reflective faculties, thus removing an
impediment to truthfulness.’” United States v. Graves, 756 F.3d 602, 604 (8th Cir.
2014) (quoting Brunsting v. Lutsen Mtns. Corp., 601 F.3d 813, 817 (8th Cir. 2010)).
The record supports the trial court’s holding that Brown experienced a startling
event and that Brown’s and Cinkan’s statements related to the incident. As the district
court aptly explained in its post-trial order, the government properly laid the
foundation for the underlying startling event by having Brown testify: “[Brown]
testified that the 911 call was placed immediately after he heard a gunshot and
checked himself for bullet wounds.” The characteristics of that incident would likely
cause a reasonable person to become stressed or excited. We do not disagree with the
district court’s conclusion that “Brown’s statements were made while under the stress
caused by the gunshot.” Brown also clearly described on the recording the event that
startled him—that is, “Donnie” had just shot at him. For the above reasons, we find
the district court did not abuse its discretion in admitting the 911 call under the excited
utterance exception of Rule 803(2). See United States v. Brun, 416 F.3d 703, 707 (8th
Cir. 2005); United States v. Phelps, 168 F.3d 1048, 1055 (8th Cir. 1999) (both
affirming district courts’ admissions of statements made during 911 calls, following
gunshots being fired, as excited utterances).
D. Armed Career Criminal
At sentencing, the district court found Boman was an Armed Career Criminal
because he had three prior convictions for violent felonies. See 18 U.S.C. § 924(e).
On appeal, Boman concedes his 1995 conviction for Assault within Maritime and
Territorial Jurisdiction constitutes a predicate offense under the ACCA. However, in
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his opening brief, Boman argues the district court erred in classifying his two 1992
felony convictions for Use of a Firearm During the Commission of a Violent Crime
as predicate offenses under the ACCA. According to Boman, his 1992 convictions
in violation of 18 U.S.C. § 924(c)(1) “were not meaningfully separated by time, the
government failed to meet its burden with respect to the distance between offenses,
and the offenses were similar in execution and motivation.” Thus, Boman argues his
two convictions in 1992 were, at most, one rather than two predicate offenses under
the ACCA. In his opening brief, Boman does not contest whether his 1992
convictions constituted violent felonies under the ACCA. However, in his
supplemental brief, Boman contends that his convictions in 1992 did not even qualify
as ACCA predicate offenses because they were not “violent felonies” under 18 U.S.C.
§ 924(e)(2)(B)(i).6
Under the ACCA, a defendant convicted under 18 U.S.C. § 922(g), who has
“three previous convictions by any court . . . for a violent felony or a serious drug
offense, or both, committed on occasions different from one another,” is subject to a
15-year minimum sentence of imprisonment. 18 U.S.C. § 924(e)(1). A “[v]iolent
felony” is defined as “any crime punishable by imprisonment for a term exceeding one
6
Earlier, in a Rule 28(j) letter sent to this Court, dated July 6, 2015, Boman
presented a different argument. In his Rule 28(j) letter, Boman argued the United
States Supreme Court’s recent decision in Johnson v. United States, 135 S. Ct. 2551
(2015), was relevant to whether his 1992 convictions for violations of § 924(c)(1)
qualified as violent felonies under § 924(e)(2)(B). In Johnson, the Supreme Court
held that imposing an increased sentence pursuant to the residual clause of the ACCA,
§ 924(e)(2)(B)(ii), violates due process under the Fifth Amendment. Johnson, 135 S.
Ct. at 2563. However, as we have held elsewhere, Johnson is not implicated if a
defendant’s prior conviction comes from the first definition of a “violent felony” in
the ACCA, or 18 U.S.C. § 924(e)(2)(B)(i). See Ortiz v. Lynch, 796 F.3d 932, 935 n.2
(8th Cir. 2015); see also United States v. Harris, 794 F.3d 885, 887 n.1 (8th Cir.
2015). Thus, because Boman concedes his two convictions pursuant to § 924(c)(1)
in 1992 “may only qualify as ACCA predicates under § 924(e)(2)(B)(i),” not §
924(e)(2)(B)(ii), Johnson’s invalidation of the residual clause does not change the
outcome here.
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year . . . that . . . has an element the use, attempted use, or threatened use of physical
force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). In deciding
whether a past conviction is a “violent felony” for ACCA purposes, we apply the
“categorical approach” or the “modified categorical approach.” See United States v.
Mathis, 786 F.3d 1068, 1071–72 (8th Cir. 2015).
“In the typical case, we use the ‘categorical approach’ to determine whether
prior convictions amount to violent felonies.” Id. at 1071. “This approach requires
courts to ‘look only to the fact of conviction and the statutory definition of the prior
offense.’” Id. at 1071–72 (quoting Taylor v. United States, 495 U.S. 575, 602 (1990)).
On the other hand, this Court may apply the “modified categorical approach” where
a statute is divisible, which “allows courts to examine certain documents (such as
charging papers and jury instructions) to determine under which set of alternative
elements the defendant was convicted.” Id. at 1072. As this Court recently explained
in United States v. Tucker, a statute of conviction is considered “divisible” for ACCA
purposes where the statute “sets out one or more elements of the offense in the
alternative.” 740 F.3d 1177, 1179 (8th Cir. 2014) (en banc); see also Descamps v.
United States, 133 S. Ct. 2276, 2282 (2013) (“[S]entencing courts may not apply the
modified categorical approach when the crime of which the defendant was convicted
has a single, indivisible set of elements.”).
In this case, Boman’s statute of conviction, 18 U.S.C. § 924(c) (1992), was
divisible because it criminalized the use or carrying of a firearm during and in relation
to “any crime of violence or drug trafficking crime.”7 18 U.S.C. § 924(c)(1)(A)
(1992) (emphasis added); United States v. Rodriguez-Moreno, 526 U.S. 275, 280
7
At the time Boman committed the offense and pleaded guilty, 18 U.S.C.
§ 924(c)(1) provided: “Whoever, during and in relation to any crime of violence or
drug trafficking crime . . . for which he may be prosecuted in a court of the United
States, uses or carries a firearm, shall, in addition to the punishment provided for such
crime of violence or drug trafficking crime . . . be sentenced to imprisonment for five
years . . .” 18 U.S.C. § 924(c)(1) (1992).
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(1999) (“In sum, we interpret § 924(c)(1) to contain two distinct conduct
elements—as is relevant to this case, the ‘using and carrying’ of a gun and the
commission of a kidnapping.”). Our conclusion that Boman’s statute of conviction
was divisible is bolstered because the bases for his conviction were separated by the
disjunctive “or.” United States v. Bankhead, 746 F.3d 323, 326 (8th Cir. 2014) (“The
hallmark of divisibility is the enumeration of alternative bases for conviction separated
by the disjunctive ‘or.’”). The statutory scheme was also further divisible because
“crime of violence” under § 924(c)(3) included two definitions and § 924(c)(3)
proscribed conduct occurring “against the person or property of another.” See 18
U.S.C. § 924(c)(3) (emphasis added). Thus, we apply the “modified categorical
approach” to determine the crime for which Boman was convicted and whether it was
a “violent felony.”
The modified categorical approach enables a court to “examine the trial record,
including charging documents, jury instructions, written plea agreements, transcripts
of plea colloquies, and findings of fact and conclusions of law from a bench trial.”
United States v. Vinton, 631 F.3d 476, 484 (8th Cir. 2011) (quoting Shepard v. United
States, 544 U.S. 13, 20 (2005)). Having reviewed the indictment and 1992 judgment,
it is clear Boman was charged and convicted in Counts 3 and 6 for using a firearm
during the commission of “a violent crime,” namely, the federal crimes of robbery, 18
U.S.C. § 2111, and assault with intent to commit robbery, 18 U.S.C. § 113(b). To
commit a robbery under § 2111 in 1992, a defendant had to, “within the special
maritime and territorial jurisdiction of the United States, by force and violence, or by
intimidation, take from the person or presence of another anything of value[.]” 18
U.S.C. § 2111 (1992). To commit an assault under § 113(b) in 1992, a defendant,
“within the special maritime and territorial jurisdiction of the United States,” had to
have committed “[a]ssault with intent to commit any felony.” 18 U.S.C. § 113(b)
(1992). Therefore, each of Boman’s convictions in violation of § 924(c)(1) had as an
element the “attempted use, or threatened use of physical force against the person of
another.” See 18 U.S.C. § 924(e)(2)(B)(i). Also, Boman’s convictions under §
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924(c)(1) each carried a consecutive sixty-month prison sentence. See id. Thus, the
district court did not commit plain error in holding Boman’s violations of § 924(c)
qualified as violent felonies under § 924(e)(2)(B)(i).8
For purposes of analyzing whether the district court erred in deciding Boman’s
1992 convictions were “sufficiently separate and distinct criminal episodes” to be two,
rather than merely one, predicate offenses under the ACCA, we must consider the
facts surrounding those episodes.9 On May 3, 1992, at 3:00 a.m., Boman pulled a
handgun, pointed it at a victim, and demanded money. Boman took $220.00 from the
victim and told the victim to run. As the victim ran away, he heard a gunshot and fell
and heard two more gunshots. Later that same morning, at 4:30 a.m., Boman pointed
a handgun at a different victim and demanded money. The victim gave Boman
$20.00. Boman placed the barrel of his gun to his victim’s temple, demanded more
money, and threatened the victim. As Boman walked away, he turned and shot four
times at the victim who ducked inside a truck. Boman shot the front windshield on
the driver’s side of the truck. With these facts in mind, we analyze three important
factors to decide if the criminal episodes were discrete: “(1) the time lapse between
offenses, (2) the physical distance between their occurrence, and (3) their lack of
overall substantive continuity, a factor that is often demonstrated in the violent-felony
context by different victims or different aggressions.” United States v. Willoughby,
653 F.3d 738, 742–43 (8th Cir. 2011).
8
Although we conclude a violation of 18 U.S.C. § 924(c) constitutes a “violent
felony” under the ACCA, the parties do not cite case law directly supporting that
finding. Our research has revealed, however, that we are not the first federal circuit
court to make such a finding. See, e.g., United States v. Stephens, 237 F.3d 1031,
1033 (9th Cir. 2001) (finding defendant’s conviction for carrying a gun in connection
with a drug trafficking offense in violation of 18 U.S.C. § 924(c) constituted a
“violent felony” under the ACCA); but see id. at 1034–35 (Reinhardt, J., dissenting).
9
No party suggests that we are prohibited from examining the facts involved
in the prior offenses to assess the issue of separateness. The facts we consider are
from Boman’s plea agreement in 1992.
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First, ninety minutes separated Boman’s two criminal episodes, which weighs
heavily in favor of finding the crimes were separate and distinct offenses under the
ACCA. See United States v. Gray, 85 F.3d 380, 381 (8th Cir. 1996); see also United
States v. Hamell, 3 F.3d 1187, 1191 (8th Cir. 1993) (both cases involved offenses
separated by only twenty-five minutes but the offenses were still found separate and
distinct offenses under the ACCA). Even Boman admits the first factor, which we
have found is the “most important consideration,” favors the government. See Abbott,
794 F.3d at 898 (“[T]he first factor is the most important consideration because ‘the
ACCA seems to prioritize time lapse given that its plain language stipulates that the
predicate offenses be committed on occasions different from one another.’”)
(alteration in original) (internal quotation marks and citations omitted).
Second, the two criminal episodes occurred in two different places within Fort
Carson, Colorado: one crime occurred at the base’s general commissary and another
took place at the base’s separate store for non-commissioned officers. The distance
between these locations is unclear from the record. However, Hamell suggests two
convictions can occur in close physical proximity—there, the defendant stabbed a
victim in a tavern and then shot another victim outside the tavern—and still be
deemed separate offenses under the ACCA. See Hamell, 3 F.3d at 1191. Thus, even
if Boman’s crimes occurred within a close distance of each other, they would likely
still be separate offenses under the ACCA.
Third, based upon the narrative above, the two criminal episodes committed by
Boman in 1992 involved different victims and criminal aggressions. Thus, Boman’s
1992 convictions for Counts 3 and 6 involved different victims, times, acts, and
locations. For the above reasons, the district court did not err in finding the offenses
were, in the district court’s words, “discrete criminal episodes.” Accordingly, the
district court did not plainly err in deciding Boman had three previous convictions and
qualified as an Armed Career Criminal under the ACCA.
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E. Possession of Firearm in Connection with Iowa Offense of Intimidation
At sentencing, the district court applied a four-level enhancement under USSG
§ 2K2.1(b)(6)(B). On appeal, Boman argues the district court clearly erred for two
reasons. First, the government failed to prove by a preponderance of the evidence that
Boman discharged a firearm in Brown’s direction. As Boman put it, “[I]t is at least
as likely that the ‘gunshot’ came from Brown’s discharge of a firearm, not Mr.
Boman’s.” Nor did the government disprove Boman’s justification for firing a shot
in the direction of Brown by a preponderance of the evidence. Because Boman was
sentenced as an Armed Career Criminal, we need not address his challenge to the
district court’s assessment of a four-level enhancement under § 2K2.1(b)(6)(B).
Boman’s base offense level without the enhancement was 24, but his base offense
level with the enhancement was 28. The ACCA, however, resulted in an even higher
base offense level and drove Boman’s sentence. See USSG § 4B1.4. Therefore, even
if we agreed with Boman on this issue, his base offense level would remain the same.
III. Conclusion
Based on the foregoing reasons, we find the district court did not commit
reversible error by its evidentiary rulings or sentencing decisions pursuant to the
ACCA. Therefore, we affirm Boman’s conviction and sentence.
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