United States v. Myron Shackelford

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-2358
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Myron Westley Shackelford, *
* [PUBLISHED]
Appellant. *
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Submitted: March 13, 2006
Filed: September 5, 2006
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Before ARNOLD, JOHN R. GIBSON, and SMITH, Circuit Judges.
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PER CURIAM.
Myron Shackelford pleaded guilty to being a felon in possession of a firearm.
See 18 U.S.C. § 922(g)(1). At sentencing, the district judge1 imposed a four-level
enhancement for using or possessing a firearm in connection with another felony, see
U.S.S.G. § 2K2.1(b)(5), namely threatening another person with a firearm, see Mo.
Rev. Stat. § 571.030.1(4). Mr. Shackelford challenges the enhancement, asserting that
the evidence supporting it was insufficient. We affirm.
1
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
At Mr. Shackelford's sentencing hearing, he renewed his written objections to
the sections of his presentence report (PSR) that indicated that one of the firearms that
he had pleaded guilty to possessing had been used or possessed in connection with
another felony. The PSR stated that Mr. Shackelford had pointed the gun at his
brother, Dennis, in a threatening manner. In response to Mr. Shackelford's objections,
Officer Mike Rodgers of the Missouri State Highway Patrol took the stand. Officer
Rodgers, a member of a Bureau of Alcohol, Tobacco and Firearms task force, testified
that while gathering information for the § 922(g)(1) charge against Mr. Shackelford,
he obtained evidence from the Texas County Sheriff's Department regarding the
alleged brandishing incident. He discussed the case with the primary investigating
officer, Deputy Matt Thompson, on two occasions and reviewed Deputy Thompson's
report of the occurrence. Based on that information, Officer Rodgers testified that
when law enforcement officers arrived at the Shackelford residence in response to a
domestic disturbance call, Dennis said that he had slammed a bedroom door on his
brother's fingers and that afterward Mr. Shackelford had retrieved a firearm from his
bedroom and pointed it at him. According to Officer Rodgers, Mr. Shackelford's
statements to Deputy Thompson corroborated Dennis's account.
Although both brothers were apparently intoxicated during the alleged
confrontation and while talking with police, and even though some of Officer
Rodgers's testimony may have been double hearsay, the district court determined that
the accounts of Mr. Shackelford pointing his gun at his brother were sufficiently
reliable to support an enhancement to Mr. Shackelford's sentence. Mr. Shackelford
challenges that determination.
Hearsay evidence, even double hearsay, can be used at sentencing proceedings
if it bears " 'sufficient indicia of reliability to support its probable accuracy,' " United
States v. Wise, 976 F.2d 393, 402 (8th Cir. 1992), cert. denied, 507 U.S. 989 (1993)
(quoting U.S.S.G. § 6A1.3(a)). Here, the brothers' statements about the part each of
them played in the incident were statements against their penal interests, which places
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the statements within an exception to the hearsay rule. See Fed R. Evid. 804(b)(3).
In addition, what they told the police about the occurrence may well have qualified
as excited utterances made without the opportunity for reflection, another hearsay
exception. See Fed. R. Evid. 803(2). The fact that the brothers' statements qualified
for at least one exception from the hearsay rule renders them more reliable than they
otherwise would have been. In addition, the brothers independently provided the
police with consistent accounts of Mr. Shackelford pointing a gun at Dennis.
Furthermore, nearly all of Officer Rodgers's testimony about what Deputy Thompson
told him is corroborated by the deputy's report. We have no reason to believe that
Officer Rodgers would have been mistaken about the contents of Deputy Thompson's
report or misrepresented it, or that the deputy would have inaccurately conveyed the
brothers' statements to Officer Rodgers in their conversations. Given these
circumstances, we hold that Officer Rodgers's testimony about Mr. Shackelford
pointing the firearm at his brother bore sufficient indicia of reliability to support its
use in Mr. Shackelford's sentencing.
Affirmed.
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