United States v. Jerry Jenkins

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-3925
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United States of America, *
*
Plaintiff - Appellee, * Appeal from the United States
* District Court for the
v. * Western District of Missouri.
*
Jerry W. Jenkins, * [UNPUBLISHED]
*
Defendant - Appellant. *
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Submitted: September 25, 2009
Filed: November 27, 2009
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Before MURPHY, BRIGHT, and RILEY, Circuit Judges.
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PER CURIAM.
In 2008, a jury convicted Jerry Jenkins of unlawful possession of a firearm and
unlawful possession of ammunition in violation of 18 U.S.C. §§ 922(g), 924(e).
Jenkins challenges his convictions, arguing the district court1 erred by (1) admitting
under Fed. R. Evid. 404(b), Michelle Gordon’s testimony that he possessed a firearm
before the date of the charged offenses; (2) admitting evidence of several previous
felony convictions; and (3) imposing concurrent 327-month sentences. We affirm.
1
The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.
I.
We review the admissibility of evidence under Rule 404(b) for an abuse of
discretion. United States v. Anthony, 537 F.3d 863, 865 (8th Cir. 2008). First,
Jenkins’s argument that the evidence failed to show his previous possessions were
sufficiently close in time to the charged possession for 404(b) admissibility fails under
United States v. Drew, 894 F.2d 965, 970 (8th Cir. 1990) (“Proximity in time and
similarity of conduct are only factors . . . they are not requirements for admission.”).
We next reject Jenkins’s prejudice argument because nothing in the record overcomes
our deference to the district court’s judgment on whether the danger of unfair
prejudice substantially outweighs the evidence’s probative value. See United States
v. Franklin, 250 F.3d 653, 659 (8th Cir. 2001). Jenkins denied possessing the gun and
ammunition that led to his conviction, Gordon’s testimony addressed the relevant
material issues of Jenkins’s knowledge and intent to possess a firearm. Thus, the
district court did not abuse its discretion.
II.
We review for an abuse of discretion the district court’s admission of evidence
showing that Jenkins was a felon. See United States v. Jones, 266 F.3d 804, 811 (8th
Cir. 2001). Jenkins refused to stipulate to his status as a felon; therefore, the
government bore the burden at trial to show this element of the offense. Jenkins’s
argument that the district court should have allowed evidence of only one prior
conviction was rejected in Jones, where we allowed evidence of five prior felony
convictions to prove the defendant’s status as a felon. 266 F.3d at 811-12. Jenkins
next argues that the government’s submissions were prejudicial because they went
beyond the “limited evidence” held permissible in Jones. However, even if the district
court abused its discretion by admitting the names and natures of Jenkins’s
convictions, the overwhelming evidence of guilt convinces us that any error was
harmless. See United States v. Washington, 992 F.2d 785, 788 (8th Cir. 1993)
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(concluding any “surplusage” of information harmless where the evidence against the
defendant was overwhelming).
III.
Jenkins argues that the district court failed to acknowledge the parsimony
principle embedded in 18 U.S.C. § 3553(a) and by failing to provide an adequate basis
for his sentence. We review sentences, whether inside or outside the Guidelines
range, under a deferential abuse of discretion standard. United States v. Pepper, 518
F.3d 949, 951 (8th Cir. 2008). We first ensure that the district court has committed
no significant procedural error and then examine the sentence for substantive
reasonableness. Id. Upon a thorough review of the record, we find no procedural
error and conclude that the sentence, although harsh, cannot be ruled as unreasonable
under the sentencing laws applicable to Jenkins that exist today. Thus, we reject
Jenkins’s claims of error.
Accordingly, we affirm.
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