United States v. Dennis Hart

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 14-1058
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Dennis T. Hart
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Western District of Missouri - Kansas City
____________
Submitted: November 11, 2014
Filed: November 17, 2014
[Unpublished]
____________
Before BYE, SHEPHERD, and KELLY, Circuit Judges.
____________
PER CURIAM.
After one day of a jury trial, Dennis Hart entered a conditional guilty plea to
unlawfully possessing a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1).
The district court1 sentenced him to 240 months of imprisonment. Hart appeals
claiming the district court erred by overruling his objection to the jury panel (Hart is
African American and there were no African Americans on the jury panel). Hart also
claims the district court erred when it concluded he qualified as an armed career
criminal without conducting a review of his prior convictions pursuant to Descamps
v. United States, 133 S. Ct. 2276 (2013), to determine whether the convictions
qualified as serious drug offenses or violent felonies under the Armed Career Criminal
Act (ACCA), 18 U.S.C. § 924(e).
Reviewing Hart's challenge to the makeup of the jury panel de novo, see United
States v. Sanchez, 156 F.3d 875, 879 (8th Cir. 1998), we find no error because Hart's
objection was based solely on the lack of African Americans on the jury panel without
presenting any evidence as to how or why there was a systematic exclusion of that
particular distinctive group of the community. See United States v. Greatwalker, 356
F.3d 908, 911 (8th Cir. 2004) (holding the mere allegation that a jury panel includes
no members of a particular distinctive group is insufficient to establish a prima facie
violation of the Sixth Amendment right to a jury comprised of a fair cross-section of
the community).
Reviewing Hart's challenge to his status as an armed career criminal for plain
error because Hart did not raise this claim in the district court, see DeRoo v. United
States, 223 F.3d 919, 926 (8th Cir. 2000), we find no error (let alone any plain error)
because none of Hart's prior convictions were based on the type of indivisible statutes
to which Descamps applies. See, e.g., United States v. Bankhead, 746 F.3d 323, 326
(8th Cir. 2014) (explaining that Descamps only prohibits the consultation of Shepard
documents to determine whether a prior offense qualifies as a serious drug offense or
violent felony when the prior offense was based on a statute with a single, indivisible
1
The Honorable Beth Phillips, United States District Judge for the Western
District of Missouri.
-2-
set of elements); see also United States v. Premachandra, 32 F.3d 346, 349 (8th Cir.
1994) (indicating there can be no plain error where there is "no error at all").
We therefore affirm the judgment of conviction and sentence.
______________________________
-3-