United States v. Cedric Wright

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 19-3190
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Cedric Antonio Wright
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: December 18, 2020
Filed: April 16, 2021
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Before SMITH, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.
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SMITH, Chief Judge.
Cedric Antonio Wright was arrested after he robbed a cellphone store. The car
used during the robbery had been stolen by a carjacker the previous day. Wright’s
involvement in the robbery thus implicated him in the carjacking, as well as several
firearm counts. He pleaded guilty to Hobbs Act robbery and conspiracy to commit
Hobbs Act robbery. See 18 U.S.C. §§ 2, 1951. A jury convicted him of carjacking, see
18 U.S.C. § 2119(1); two counts of carrying a firearm during and in relation to a
crime of violence, see 18 U.S.C. § 924(c)(1)(A)(i)–(ii); and possession of a firearm
by a prohibited person, see 18 U.S.C. § 922(g)(1).
Wright moved for a judgment of acquittal and a new trial, arguing that there
was insufficient evidence to support the verdicts and that the district court gave
erroneous jury instructions and made erroneous evidentiary rulings. The district court1
denied both motions. At sentencing, the district court enhanced Wright’s sentence
pursuant to U.S.S.G. §§ 2K2.1(b)(1)(A) and 2B3.1(b)(5). On appeal, Wright argues
that the district court erred by (1) denying his motion for a new trial, (2) denying his
motion for a judgment of acquittal, and (3) applying the sentencing enhancements.
We affirm.
I. Background
JB, who was driving a black Honda, had her car stolen from her at gunpoint in
Cedar Rapids, Iowa, on October 22, 2017. JB identified the attacker as a black male
wearing a black mask and camouflage. The attacker had pointed a black handgun at
JB’s head and told her to exit the car. She complied, and her assailant drove away in
her car. JB’s cellphone, credit cards, purse, and personal items remained in the car.
The day after the carjacking, JB’s mother used a cellphone location app to
locate JB’s stolen phone. The app located JB’s phone at 12th Avenue and 15th Street
SE in Cedar Rapids. The same day, Wright visited a friend, Gage Rupp, at a residence
located two doors away from that address. This was the home of Cecilia Givens,
Rupp’s girlfriend.
1
The Honorable Leonard T. Strand, Chief Judge, United States District Court
for the Northern District of Iowa.
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While Wright was there, Rupp asked Derek Ford to pick him up at Givens’s
home. When Ford arrived in his white van, Rupp and Wright both entered the van.
Wright told Ford to drive across town so they could “use [his] sister’s car.” Trial Tr.,
Vol. 2, at 143:8–9, United States v. Wright, No. 1:18-cr-00015-LTS-MAR-1 (N.D.
Iowa 2019), ECF No. 282. What he called his “sister’s car” was actually JB’s stolen
Honda. Wright, Rupp, and Ford got into the Honda, and Ford then drove them to a
Sprint cellphone store in Cedar Rapids.
As the store was closing, Wright and Rupp exited the car. Ford stayed in the
car while Wright and Rupp robbed the store. Security cameras captured Wright
entering the store with his hand in the air, while Rupp kept his hand around his
waistband. The security footage did not show a gun. A Sprint employee was the only
person in the store at the time. He later testified that he “could not say for certain that
there was a gun in [either of their] hand[s],” but that Wright and Rupp were “carrying
themselves in a way that they had one.” Trial Tr., Vol. 1, at 87:9–10, 21–22, United
States v. Wright, No. 1:18-cr-00015-LTS-MAR-1 (N.D. Iowa 2019), ECF No. 281.
Wright and Rupp soon emerged from the store with stolen phones, including a “bait”
phone that allowed the police to track them.
Ford testified that when Wright and Rupp got back into the Honda, Rupp said
it was “sweet” that they did not need to use a gun. Trial Tr., Vol. 2, at 150:8. Wright
then revealed that the Honda was stolen and instructed Ford to drive back to Ford’s
van. After they reentered Ford’s van and attempted to flee, the police stopped them.
Ford testified that as he stopped the van for the police, Wright took out a handgun and
told Ford to stow it away inside the van. When Ford refused, Wright tossed the gun
towards the front of the van, where it landed behind the driver’s seat. Police
recovered a loaded black Smith & Wesson .40-caliber handgun from the floor of the
van, as well as cash and cellphones—valued at over $38,000—that had been taken
from the store.
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Wright eventually admitted his involvement in the robbery but denied
involvement in the carjacking and firearms offenses.
After determining that the car used in the robbery was JB’s car, police informed
JB’s family. JB used an app called “MobilePatrol” to try to identify the person who
carjacked her. “MobilePatrol” displays pictures of people who were recently arrested.
JB found Wright on the app and asked her mother if he was involved in the Sprint
store robbery. Her mother confirmed that he was. Around the same time, JB saw a
news story stating that two people were arrested in connection with the robbery. The
story featured pictures of Rupp, who is white, and Wright, who is black. A few days
later, police presented JB with a photo line-up that included a photo of Wright. It did
not include a photo of Ford, who is also black. JB identified Wright as the carjacker.
Investigators discovered that shortly after the carjacking, someone attempted
to purchase shoes online using JB’s stolen credit card. The shoes were to be shipped
to Indiana. The phone number associated with the attempted purchase belonged to
Rupp, and his call history included a call to an Indiana phone number. Investigators
also discovered that the handgun found in Ford’s van after the robbery was registered
to an individual named Saleem El-Amin and that El-Amin and Wright were “friends”
on Facebook.
Wright’s Facebook account contained a photo of him wearing camouflage
shorts, several photos of a black Smith & Wesson handgun, a video of Wright holding
a black handgun and counting cash, a photo of a black male wearing a black ski mask
and holding cash, photos of Wright holding a partially silver handgun, and a photo
of Wright holding one gun with three more guns at his feet. His Facebook entries also
contained conversations in which Wright discussed the Smith & Wesson handgun and
indicated that he wanted to trade it, writing that he had a “40 for trade.”
Government’s Trial Ex. 16, at 1, United States v. Wright, No. 1:18-cr-00015-LTS-
MAR-1 (N.D. Iowa 2019), ECF No. 185-25. In one conversation regarding the gun,
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El-Amin said to Wright, “Let me know before you do anything wit that b**ch.” Id.
at 2.
Wright was charged with carjacking, in violation of 18 U.S.C. § 2119(1)
(“count 1”), two counts of carrying a firearm during and in relation to a crime of
violence, in violation of 18 U.S.C. § 924(c)(1)(A)(i)–(ii) (“count 2” and “count 7”);
possession of a firearm by a prohibited person, in violation of 18 U.S.C. § 922(g)(1)
(“count 3”); interference and attempted interference with commerce by threats and
violence, in violation of 18 U.S.C. §§ 2 and 1951 (“count 5”); and conspiracy to
interfere and attempt to interfere with commerce by threats and violence, in violation
of §§ 2 and 1951 (“count 6”).
Wright pleaded guilty to counts 5 and 6, but he proceeded to trial on counts 1,
2, 3, and 7. Regarding count 3, the parties stipulated that Wright was a “prohibited”
person within the meaning of § 922(g)(1). A jury found him guilty on all counts.
Wright moved for a judgment of acquittal, arguing that there was insufficient
evidence to sustain any of the jury’s verdicts. He also moved for a new trial, arguing
that (1) the guilty verdicts were against the weight of the evidence; (2) the district
court erroneously instructed the jury regarding the “intent” requirement for carjacking
under § 2119(1) and the definition of “carrying” a firearm under § 924(c);2 and (3) the
district court erroneously admitted several prejudicial government exhibits.
The district court rejected both motions. It concluded that (1) there was
sufficient evidence to sustain each conviction; (2) even under the “more lenient
standards for a motion for new trial,” Wright failed to show that the verdicts were
2
The jury instruction for the § 2119(1) count was jury instruction 5. The
instructions for the § 924(c) counts were jury instructions 6 and 8.
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against the weight of the evidence, Order Den. Mot. Acquittal at 10, United States v.
Wright, No. 1:18-cr-00015-LTS-MAR-1 (N.D. Iowa 2019), ECF No. 219; (3) its jury
instructions properly stated the law as articulated by the Supreme Court and Eighth
Circuit;3 and (4) it did not err in admitting the challenged government exhibits.
At sentencing, the district court imposed a two-level enhancement pursuant to
U.S.S.G. § 2K2.1(b)(1)(A) because it found that Wright was responsible for three to
seven firearms in relation to his § 922(g)(1) conviction. It concluded that this
enhancement was supported by a preponderance of the evidence, including a photo
of Wright with four different handguns and his “direct involvement with other
firearms.” Sentencing Tr. at 40:7, United States v. Wright, No. 1:18-cr-00015-LTS-
MAR-1 (N.D. Iowa 2019), ECF No. 280. The district court also imposed a two-level
sentencing enhancement for carjacking pursuant to U.S.S.G. § 2B3.1(b)(5).
Wright timely appeals. On appeal, he argues that the district court erred by
(1) denying his motion for a new trial based on its erroneous admission of prejudicial
government exhibits and erroneous jury instructions; (2) denying his motion for a
judgment of acquittal based on sufficiency of the evidence; and (3) imposing
sentencing enhancements pursuant to § 2K2.1(b)(1)(A) and § 2B3.1(b)(5).
II. Discussion
A. Admissibility of Government Exhibits at Trial
We review the district court’s evidentiary rulings for an abuse of discretion,
giving “great deference to the district court’s balancing of the probative value and
3
The district court explained that it relied on Holloway v. United States, 526
U.S. 1 (1999), in crafting jury instruction 5, and on the Eighth Circuit Model Criminal
Jury Instruction 6.18.924C and United States v. Nelson, 109 F.3d 1323 (8th Cir.
1997), in crafting jury instructions 6 and 8. See Order Den. Mot. Acquittal at 11.
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prejudicial impact of the evidence.” United States v. Huyck, 849 F.3d 432, 440 (8th
Cir. 2017) (quotation omitted).
Generally, relevant evidence is admissible at trial. Fed. R. Evid. 402. “Relevant
evidence is evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than
it would be without the evidence. The threshold for relevance is quite minimal.”
United States v. Croghan, 973 F.3d 809, 823–24 (8th Cir. 2020) (quotation omitted).
Even when evidence is relevant, however, the trial court may exclude it “if its
probative value is substantially outweighed by a danger of . . . unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.” Fed. R. Evid. 403. But “Rule 403 does not offer
protection against evidence that is merely prejudicial in the sense of being detrimental
to a party’s case. The rule protects against evidence that is unfairly prejudicial.”
Huyck, 849 F.3d at 440 (quotation omitted). “Unfair prejudice means an undue
tendency to suggest decision on an improper basis, including evidence which is so
inflammatory on its face as to divert the jury’s attention from the material issues in
the trial.” Id. (cleaned up).
Under Rule 404(b), evidence of wrongful conduct other than the specific
conduct at issue is only admissible in certain circumstances. Fed. R. Evid. 404(b).
Rule 404(b)(1) prohibits using “[e]vidence of any other crime, wrong, or act . . . to
prove a person’s character in order to show that on a particular occasion the person
acted in accordance with the character.” Such extrinsic evidence is only allowed to
“prov[e] motive, opportunity, intent, preparation, plan, knowledge, identity, absence
of mistake, or lack of accident.” Id. 404(b)(2).
Rule 404(b) does not apply, however, to evidence of other wrongful conduct
if that evidence is intrinsic to the charged offense. United States v. Brooks, 715 F.3d
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1069, 1076 (8th Cir. 2013). Evidence of other wrongful conduct is intrinsic when it
is offered to “provide[] the context in which the charged crime occurred” and
“complete[] the story or provide[] a total picture of the charged crime.” Id. (quotation
omitted); see also United States v. Phelps, 168 F.3d 1048, 1057 (8th Cir. 1999) (“Bad
acts that form the factual setting of the crime in issue or that form an integral part of
the crime charged are not part of Rule 404(b)’s coverage.” (cleaned up)). “Where
evidence of other crimes is so blended or connected or tends logically to prove any
element of the crime charged, it is admissible as an integral part of the immediate
context of the crime charged.” United States v. Jackson, 913 F.3d 789, 792 (8th Cir.
2019) (cleaned up).
Wright argues that the district court abused its discretion in admitting
government exhibits 14, 16, 17, 21, and 29–32. We address his arguments in turn.
1. Exhibit 14
Exhibit 14 is a photo from Wright’s Facebook account of a black male with
arm tattoos wearing a black mask and holding cash. Wright argues that this photo was
irrelevant, cumulative, and unfairly prejudicial. However, we find that it was relevant
for two reasons: (1) the arm tattoos helped identify Wright as the subject of the photo
because the same tattoos are visible on Wright in Exhibit 21, and (2) the photo
corroborated JB’s physical description of the carjacker, including that he wore a
similar black mask. The photo’s probative value was not outweighed by the danger
of unfair prejudice; even if the presence of cash was prejudicial, it was not “so
inflammatory on its face as to divert the jury’s attention from the material issues in
the trial.” See Huyck, 849 F.3d at 440 (quotation omitted).
Wright further contends that the photo was inadmissible under Rule 404(b)
because “the Government clearly meant to imply that Mr. Wright obtained that cash
in an illegal fashion.” Appellant’s Br. at 9. But Rule 404(b) is not applicable here
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because the photo does not contain evidence of extrinsic wrongful conduct; the
government introduced it to help identify Wright as the carjacker—not as evidence
of another “crime, wrong, or act” to prove Wright’s character. See Fed. R. Evid.
404(b)(1).
2. Exhibits 16 and 17
Exhibit 16 contains Facebook conversations from September 25, 2017,
between Wright and Rupp, and Wright and El-Amin. In relevant part, Wright says he
has a “40 for trade” and is “trad[ing] only for a glizzy.” Government’s Trial Ex. 16,
at 1. El-Amin says to Wright, “Let me know before you do anything wit that b**ch,”
an apparent reference to Wright’s gun. Id. at 2. Wright also says, “You know I need
glizzy.” Id. Exhibit 17 features another Facebook conversation from the same day, in
which Wright sends several photos of a black handgun and says it is a “sdve smith
and Wesson 40.” Government’s Trial Ex. 17, at 1, United States v. Wright, No. 1:18-
cr-00015-LTS-MAR-1 (N.D. Iowa 2019), ECF No. 185-26. The other party asks if
Wright is “tryna get ah glick,” to which Wright replies, “Yea.” Id. The investigating
officer testified that “glizzy” and “glick” mean a “Glock pistol,” Trial Tr., Vol. 2, at
221:15–16, 224:5–8, and that a “40 for trade” means a .40-caliber gun for trade, id.
at 221:9–22.
Wright argues that these exhibits were irrelevant, confusing, and contained
inadmissible hearsay. We disagree. These were relevant because they showed that
Wright had a black .40-caliber Smith & Wesson handgun—the exact type of gun
found in Ford’s van after the robbery—prior to the carjacking and robbery. This is
similar to the challenged evidence in Brooks and Jackson, where images showed the
defendants with the firearms they used during their crimes. Brooks, 715 F.3d at 1077
(holding that images of the defendant holding a firearm were “highly probative as the
firearm in the photos and video matched the firearm that police recovered from the
scene of the van theft”); Jackson, 913 F.3d at 792 (holding that videos of the
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defendant with firearms recovered from the robbery were “highly probative” because
they “linked [him] to the acquisition of the firearm and ammunition days before the
robbery, [and] showed [his] knowledge of [his co-defendant’s] use and possession of
the firearm in the days leading up to the robbery”).
The fact that these conversations occurred one month prior to the carjacking
does not, as Wright contends, render them irrelevant. See, e.g., United States v.
Rembert, 851 F.3d 836, 839 (8th Cir. 2017) (finding that a video from over two years
prior to the charged offense was not “overly remote in time”); United States v.
Bassett, 762 F.3d 681, 687 (8th Cir. 2014) (finding that a prior act that occurred about
eleven years before the charged offense was admissible). And although some terms
in the conversations may have been foreign to the jury, we agree with the district
court that any confusion would have been mitigated by the testimony of the
government’s witness, who explained the meaning of the terms.
Finally, these conversations did not contain inadmissible hearsay. Statements
made by other parties in online chat conversations are not hearsay if they “were not
offered for their truth but rather to provide context for [the defendant’s] responses.”
Manning v. United States, 738 F.3d 937, 943 (8th Cir. 2014). Here, the statements of
the other persons in the conversations were not introduced for their truth but to
provide context for Wright’s statements.
3. Exhibit 21
Wright argues that Exhibit 21—a video of him with a firearm in his lap while
counting a large amount of cash—was inadmissible under Rule 403 because it was
cumulative and unnecessary. We find that this video was probative because (1) the
gun in Wright’s lap matched the gun seized by police, and (2) the visible tattoo
helped identify Wright as the masked individual in Exhibit 14. As in Exhibit 14, any
potential prejudice from the cash was not “so inflammatory” as to substantially
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outweigh the video’s probative value. See Huyck, 849 F.3d at 440 (quotation
omitted).
Wright also contends that Exhibit 21 was inadmissible under Rule 404(b). This
argument fails, however, because the video depicted a gun resembling the one seized
by the police. “Possession of a firearm is intrinsic to all of [Wright’s] charges,”
Brooks, 715 F.3d at 1077, and the video “is admissible as an integral part of the
immediate context of the crime charged,” Jackson, 913 F.3d at 792 (quotations
omitted). It qualified as intrinsic evidence tending to prove the actual commission of
the charged offense, not merely a propensity to do so.
4. Exhibits 29–32
Finally, Wright argues that the district court erred in admitting a series of
Facebook conversations between Wright and various individuals between October 18,
2017, and October 23, 2017. He argues that Exhibits 29–32 were irrelevant and
contained inadmissible hearsay. To the contrary, these were relevant to show that
Wright associated with Rupp around the time of the carjacking and robbery. Exhibit
29, for example, depicts a conversation in which Wright invites someone to “Gage
crib.”4 Government’s Trial Ex. 29, United States v. Wright, No. 1:18-cr-00015-LTS-
MAR-1 (N.D. Iowa 2019), ECF No. 185-34. And in Exhibits 30–32, Wright mentions
that he is, or has been, with Rupp. Wright’s association with Rupp around the date
of the incident was relevant—both because Rupp was his co-defendant in the robbery
and because JB’s stolen phone was traced to an address next to Rupp’s girlfriend’s
home the morning after the carjacking. These exhibits did not contain hearsay
because the other parties’ responses were not introduced for their truth but to provide
context for Wright’s statements. See Manning, 738 F.3d at 943.
4
Rupp’s first name is Gage. The investigating officer explained that “crib”
means “house.” Trial Tr., Vol. 2, at 236:7–9.
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For these reasons, we conclude that the district court did not abuse its
discretion in admitting the challenged exhibits.
B. Jury Instructions
We review jury instructions for an abuse of discretion. United States v.
Petroske, 928 F.3d 767, 772 (8th Cir. 2019). “In conducting such review, this court
must determine whether the instructions, taken as a whole and viewed in light of the
evidence and applicable law, fairly and adequately submitted the issues in the case
to the jury.” Id. (quotation omitted). “A conviction will not be reversed due to
allegedly erroneous jury instructions unless, viewed in their entirety, the instructions
fail to correctly state the law.” United States v. Paul, 217 F.3d 989, 997 (8th Cir.
2000). “Further, jury instructions are evaluated in the context of the entire charge and
a jury is presumed to follow all instructions.” Id.Wright challenges jury instruction 5, in which the district court instructed the
jury on the “intent” element of carjacking. The carjacking statute, 18 U.S.C. § 2119,
prohibits taking a motor vehicle “with the intent to cause death or serious bodily
harm.” The Supreme Court has explained this element as follows:
The intent requirement of § 2119 is satisfied when the Government
proves that at the moment the defendant demanded or took control over
the driver’s automobile the defendant possessed the intent to seriously
harm or kill the driver if necessary to steal the car (or, alternatively, if
unnecessary to steal the car).
Holloway v. United States, 526 U.S. 1, 12 (1999); see also United States v. Wright,
246 F.3d 1123, 1127 (8th Cir. 2001).
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The district court’s instruction tracked the Supreme Court’s language almost
verbatim. Therefore, it properly stated the law as articulated by both the Supreme
Court and this circuit. Wright acknowledges that the district court’s instruction was
based on current precedent but contends that Holloway was decided incorrectly.
Wright’s disagreement with the law does not render the instruction incorrect or
provide a basis for a new trial.
Wright also challenges jury instructions 6 and 8, in which the district court
instructed the jury that the phrase “carried a firearm” in 18 U.S.C. § 924(c) could
include “knowingly transport[ing] a firearm in the passenger compartment of a car.”
Jury Instrs. at 10, 16, United States v. Wright, No. 1:18-cr-00015-LTS-MAR-1 (N.D.
Iowa 2019), ECF No. 181-1. He argues that the definition of “carry” should not
include transportation of a firearm in a car. Wright is incorrect, however, because
these instructions properly stated the law.
The Supreme Court has held that “the ‘generally accepted contemporary
meaning’ of the word ‘carry’ includes the carrying of a firearm in a vehicle.”
Muscarello v. United States, 524 U.S. 125, 139 (1998) (affirming convictions under
§ 924(c) in two drug trafficking cases where officers found guns in petitioners’ trunk
or glove compartment). Before Muscarello, we held that transporting a firearm in a
vehicle meets the definition of “carry[ing] a firearm” within the meaning of § 924(c):
“[W]hen a motor vehicle is used, ‘carrying a weapon’ takes on a less restrictive
meaning than carrying on the person. The means of carrying is the vehicle.” United
States v. Freisinger, 937 F.2d 383, 387 (8th Cir. 1991) (quotation omitted),
overruling on other grounds recognized by United States v. Beaman, 361 F.3d 1061,
1064 (8th Cir. 2004)).
Furthermore, the district court’s instructions were consistent with the Eighth
Circuit Model Jury Instructions for § 924(c). The Notes on Use state that “[w]here
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‘carry’ is charged in the indictment, it should be noted, ‘carrying’ does not require
that the defendant had the weapon on his person. ‘Carries,’ within the meaning of
[§] 924(c)(1), includes carrying a weapon in a vehicle.” Model Crim. Jury Instr. 8th
Cir. 6.18.924C n.3 (2020) (emphasis added) (citations omitted).
Wright argues in the alternative that jury instructions 6 and 8 were confusing.
He maintains that the jury might have believed that in order to find Wright guilty of
§ 924(c), all it needed to find was that he transported the firearm in the car—without
any connection to the robbery itself. We are not persuaded by this theory, however,
because the district court instructed the jury that the firearm had to be carried “in
relation to the commission of” the underlying robbery and explained that this meant
the firearm had to have “some purpose or effect with respect to the robbery crime.”
Jury Instrs. at 15, 16.
C. Sufficiency of the Evidence
A district court may enter a judgment of acquittal after a jury verdict only if the
“evidence is insufficient to sustain a conviction.” Fed. R. Crim. P. 29(a). “We review
sufficiency of the evidence in a criminal case de novo, viewing the evidence in the
light most favorable to the government, resolving conflicts in the government’s favor,
and accepting all reasonable inferences that support the verdict.” United States v.
Parsons, 946 F.3d 1011, 1013–14 (8th Cir. 2020) (emphasis omitted) (quotation
omitted). This standard “is very strict, and the jury’s verdict is not to be lightly
overturned.” United States v. Hayes, 391 F.3d 958, 961 (8th Cir. 2004). “Reversal is
warranted only when no reasonable jury could find all the elements beyond a
reasonable doubt.” Parsons, 946 F.3d at 1014 (cleaned up). We address the
challenged counts in turn.
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1. Counts 1 and 2
Wright contends that JB’s identification of him as the carjacker was unreliable
and that without her identification, no reasonable jury could have convicted him of
carjacking or the related firearm count. He argues that several factors cut against the
reliability of JB’s identification testimony, such as (1) difficulty seeing her assailant
because his face was partially covered by a mask, it was nighttime, and the entire
interaction lasted only 20 seconds; (2) her distracted attention, caused by having a
gun pointed at her while her possessions were stolen; and (3) the possibility that she
was influenced by seeing Wright on “MobilePatrol” and her mother’s statement that
Wright was involved with the robbery.
The district court correctly concluded that these are all factors the jury could
have considered when reaching its verdict. “[W]e will not weigh evidence or witness
credibility[] because those jury determinations are ‘virtually unreviewable on
appeal.’” United States v. Hollingshed, 940 F.3d 410, 417 (8th Cir. 2019) (quoting
United States v. Alexander, 714 F.3d 1085, 1090 (8th Cir. 2013)). Because “[t]he jury
is the final arbiter of the witnesses’ credibility, . . . we will not disturb that
assessment.” Hayes, 391 F.3d at 961.
Furthermore, the jury’s verdict was not based solely on JB’s identification.
Other evidence also linked Wright to the carjacking: (1) Ford testified that Wright
directed him to JB’s stolen car and referred to it as his “sister’s car,” Trial Tr., Vol.
2, at 143:9; (2) JB said the carjacker used a black handgun, police seized a black
handgun from the van after the robbery, and Ford testified that the gun belonged to
Wright; (3) Facebook images showed Wright with a black handgun resembling the
one seized by police; (4) JB described the carjacker as wearing a black mask and
camouflage clothing, and Facebook photos showed Wright in a black mask and
camouflage clothing; and (5) JB’s stolen phone was traced to an address two doors
down from the home of Rupp’s girlfriend the morning after the carjacking—the same
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day that Ford picked up Wright and Rupp from that location. In addition, although
both Wright and Rupp were linked to JB’s stolen car through their involvement in the
robbery, Rupp is white and therefore did not match JB’s description of a black male.
Viewing this evidence in the light most favorable to the government and
accepting all reasonable inferences that support the verdict, we conclude that there
was sufficient evidence for a reasonable jury to convict Wright of carjacking and
carrying a firearm during and in relation to the carjacking.
2. Count 7
Wright also challenges the sufficiency of the evidence for his § 924(c)
conviction related to the Sprint store robbery, but his argument fails on several
grounds. First, he again asks us to reassess the credibility of a trial witness, arguing
that Ford’s testimony—that Wright had a gun in the van, that Rupp commented how
“sweet” it was that they did not have to use it, Trial Tr., Vol. 2, at 150:8, and that
Wright threw the gun towards the front of the van—was false. Wright’s credibility
argument is unconvincing and we decline to take on the jury’s role. See Hollingshed,
940 F.3d at 417.
Second, other evidence corroborated Ford’s testimony. Police found a black
Smith & Wesson .40-caliber handgun in the van after the robbery. Facebook photos
showed Wright with a black Smith & Wesson .40-caliber handgun, identical to the
one found in the van, and a Facebook conversation revealed that Wright attempted
to trade that gun for a Glock pistol one month before the robbery. Additionally,
Wright communicated on Facebook with El-Amin, the registered owner of the Smith
& Wesson handgun, who said to Wright, “Let me know before you do anything wit
that b**ch.” Government’s Trial Ex. 16, at 2. Regardless of Ford’s testimony, there
was sufficient evidence for a reasonable jury to conclude that Wright possessed the
handgun from the van.
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Third, Wright relies on the Sprint employee’s testimony and the store’s security
footage to argue that he did not display a gun during the robbery. This is irrelevant,
however, because Wright did not have to display, or even carry, a gun inside the store
to be found guilty of § 924(c). As noted above, the district court properly instructed
the jury that the term “carried a firearm,” as used in § 924(c), “means that, during the
commission of the crime, the defendant had a firearm on or about his person or
knowingly transported a firearm in the passenger compartment of a car.” Jury Instrs.
at 16. Therefore, the jury needed only to conclude that Wright knowingly had a gun
on him or in the van during the robbery, and there was ample evidence to support this
conclusion.
3. Count 3
Finally, Wright contends that there was insufficient evidence to convict him of
possessing a firearm as a prohibited person under § 922(g). His only argument is that
it was “Ford who actually committed the carjacking and possessed the firearm on the
evening of the robbery and as such, [] Wright could not be found guilty of possessing
that firearm.” Appellant’s Br. at 20. We disagree.
“To convict an individual of being a felon in possession of a firearm, the
government must prove the individual (1) was previously convicted of a felony and
(2) knowingly possessed a firearm, and (3) the firearm was transported in interstate
commerce.” United States v. Johnson, 745 F.3d 866, 869 (8th Cir. 2014).5 Wright
stipulated to being a prohibited person under § 922(g) and that the firearm was
5
Since Wright’s conviction, the Supreme Court has held that the government
must prove an additional element: “[I]n a prosecution under 18 U.S.C. § 922(g) . . . ,
the Government must prove both that the defendant knew he possessed a firearm and
that he knew he belonged to the relevant category of persons barred from possessing
a firearm.” Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019). Wright does not
challenge his conviction on this ground, however.
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transported in interstate commerce. Therefore, the government only had to prove the
second element, and we have already found sufficient evidence for a reasonable jury
to conclude that Wright knowingly possessed a firearm and carried it during or in
relation to the robbery of the Sprint store.
Accordingly, the district court did not err in denying Wright’s motion for a
judgment of acquittal.
D. Sentencing Enhancement under U.S.S.G. § 2K2.1(b)(1)
Wright argues that there was insufficient evidence to support a two-level
enhancement under § 2K2.1(b)(1). We review factual findings with regards to a
sentencing enhancement for clear error. United States v. Sesay, 937 F.3d 1146, 1153
(8th Cir. 2019). Section 2K2.1(b)(1) applies a sentencing enhancement for a firearm-
possession conviction “[i]f the offense involved three or more firearms.” The statute
then prescribes various levels of increase based on the number of firearms, including
a two-level increase if the offense involved three to seven firearms. U.S.S.G.
§ 2K2.1(b)(1)(A).
Wright acknowledges that “several photos show[] him holding a firearm on his
Facebook page” but argues that there is “no proof that those [photos] are not [of] the
same firearm.” Appellant’s Br. at 21. The record flatly contradicts this assertion. At
trial, the government presented photos of Wright with (1) one black-and-silver
handgun, and (2) one black Smith & Wesson .40-caliber handgun. The latter appears
to be the same weapon found in Ford’s van after the robbery. At sentencing, the
government presented another photo of Wright holding one black handgun with three
more guns at his feet—two black, and one black-and-silver. The district court did not
clearly err in concluding that he possessed between three and seven firearms.
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E. Sentencing Enhancement under U.S.S.G. § 2B3.1(b)(5)
Wright argues that the district court erred in applying the carjacking offense
characteristic under § 2B3.1(b)(5). He contends that the carjacking offense was
already factored into his base offense level and that applying the carjacking offense
characteristic constituted impermissible double counting. We review de novo the
district court’s application of the Sentencing Guidelines and the question of double
counting. United States v. Canamore, 916 F.3d 718, 720 (8th Cir. 2019) (per curiam).
“A court impermissibly double counts when precisely the same aspect of a
defendant’s conduct factors into his sentence in two separate ways.” United States v.
Mays, 967 F.3d 748, 753 (8th Cir. 2020) (cleaned up). “Double counting occurs when
one part of the Guidelines is applied to increase a defendant’s punishment on account
of a kind of harm that has already been fully accounted for by application of another
part of the Guidelines.” United States v. Hawkins, 181 F.3d 911, 912 (8th Cir. 1999)
(quotation omitted). But “double counting is permissible if the Sentencing
Commission so intended and each guideline section furthers an independent purpose
of sentencing.” Canamore, 916 F.3d at 720 (quotation omitted).
Section 2B3.1 is the relevant sentencing guideline for a carjacking conviction
under 18 U.S.C. § 2119(1). It covers sentencing guidelines for robbery, applying a
base offense level of 20 for that crime. Under § 2B3.1(b)(5), the statute prescribes a
two-level increase “[i]f the offense involved carjacking.” Because § 2B3.1 and the
corresponding base level of 20 apply to the crime of robbery generally—not
carjacking—that section does not fully account for Wright’s conduct. Carjacking is
a specific type of robbery for which the Guidelines add two levels, resulting in an
offense level of 22.
The Eleventh Circuit addressed this issue in United States v. Naves, concluding
that adding two levels under § 2B3.1(b)(5) did not constitute impermissible double
counting. 252 F.3d 1166, 1169 (11th Cir. 2001). The court explained:
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Clearly the Sentencing Commission could have added to the Manual a
separate section for carjacking with a base offense level of 22. It elected
not to do so. Instead the Commission utilized the robbery section,
§ 2B3.1, which established a base offense level of 20 for the culpability
incident to an offense involving robbery in general. The Commission
then provided a two level increase to reflect the heightened seriousness
of a robbery involving the violation of § 2119, the carjacking statute. In
doing so, the Sentencing Commission acted within its statutory
authority.
Id. The Fourth Circuit came to the same conclusion in United States v. Cunningham,
221 F. App’x 258 (4th Cir. 2007) (per curiam). We are persuaded by the reasoning
of our sister circuits. Accordingly, we conclude that the district court did not err in
applying the carjacking offense characteristic when it calculated Wright’s sentence.
III. Conclusion
For the foregoing reasons, we affirm the district court’s decision.
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