United States v. John R. Kay

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-4109
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the Eastern
v. * District of Missouri.
*
John R. Kay, * [UNPUBLISHED]
*
Appellant. *
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Submitted: October 11, 2005
Filed: March 16, 2006
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Before BYE, BEAM, and SMITH, Circuit Judges.
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PER CURIAM.
John Kay appeals his conviction and sentence for possessing pseudoephedrine,
knowing it would be used to manufacture methamphetamine, and for being a felon in
possession of a firearm.
The evidence at trial showed that members of the St. Louis County
Methamphetamine Precursor Diversion Task Force1 observed Kay purchase two boxes
1
Apparently the Task Force routinely conducts surveillance at St. Louis stores,
looking for individuals who go directly to the cold medication aisle, select the
maximum number of boxes allowed by Missouri law (without comparison shopping),
of pseudoephedrine-based cold pills from a Target store in St. Louis. He then returned
to his vehicle and left the parking lot. Members of the task force followed Kay's
vehicle to a Walgreen's store. Kay entered the store, and returned to his vehicle with
more boxes of pseudoephedrine. At this point, the task force members approached
Kay and identified the purpose of their investigation. After Kay was placed under
arrest and given his Miranda warnings, officers searched Kay and the vehicle.
Detectives found hundreds of loose pseudoephedrine pills, as well as boxes of newly
purchased pseudoephedrine. The evidence indicated that Kay had visited and
purchased pseudoephedrine from four different stores that same day. Detectives also
found a 12-gauge shotgun wrapped in a blanket together with an antique rifle during
the vehicle search.
Kay told the officers on the scene that he was a methamphetamine user, and that
he was "collecting pills," but that he was trying to stop using methamphetamine. He
also denied knowing about the 12-gauge shotgun. However, Kay admitted that he
knew about the antique rifle, and as previously noted, the two guns were wrapped
together. Further, there was 12-gauge ammunition lying in the front-seat passenger
area of the vehicle. After Kay's arrest, officers searched Kay's Potosi, Missouri, home.
They found more pseudoephedrine pills and boxes, as well as other
methamphetamine-making materials, such as anhydrous ammonia.
On appeal, Kay challenges the sufficiency of the evidence on both counts, and
also raises sentencing issues. We have no difficulty resolving the sufficiency question
in the government's favor. Viewing the evidence in the light most favorable to the
jury's verdict, United States v. Frauendorfer, 428 F.3d 1115, 1118 (8th Cir. 2005), we
have no doubt that a reasonable jury could have convicted Kay of both counts, based
on the evidence recounted in the previous paragraphs.
and then pay cash and leave.
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With regard to sentencing, Kay argues the case must be remanded for
sentencing in light of United States v. Booker, 543 U.S. 220 (2005), and that the
district court committed error by using Kay's previous felony conviction to assign his
criminal history category without having that fact determined by a jury. Turning first
to the latter contention, we reject Kay's argument because a prior felony conviction
is a sentencing factor for the court, not a factual issue that needs to be tried to the jury.
United States v. Levering, 431 F.3d 289, 295 (8th Cir. 2005).
As to Kay's Booker argument, the government concedes that the case must be
remanded for re-sentencing because Kay preserved his objection at sentencing.
Accordingly, we affirm the district court in all respects, except that we remand for re-
sentencing in light of Booker.
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