United States v. Gregory McCoy

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 22-2385
___________________________
United States of America
Plaintiff - Appellee
v.
Gregory Lynn McCoy
Defendant - Appellant
___________________________
No. 22-2412
___________________________
United States of America
Plaintiff - Appellee
v.
Gregory Lynn McCoy
Defendant - Appellant
____________
Appeal from United States District Court
for the District of Minnesota
____________
Submitted: May 12, 2023
Filed: June 13, 2023
____________
Before SMITH, Chief Judge, COLLOTON and BENTON, Circuit Judges.
____________
BENTON, Circuit Judge.
Gregory Lynn McCoy was convicted of being an armed career criminal in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The
district court1 sentenced him to 262 months in prison. McCoy appeals, challenging:
(1) the admission of evidence (field tests and a photograph); (2) the sufficiency of
the evidence; and (3) the sentence (an adjustment and an enhancement). Having
jurisdiction under 28 U.S.C. § 1291, this court affirms.
In 2019, police learned that McCoy, a convicted felon, had a pistol and had
sold drugs. A state judge issued a search warrant for his residence. While waiting
to begin the search, officers saw McCoy arrive in his vehicle and go inside. Entering,
police found McCoy in his upstairs bedroom. There, officers found baggies of drugs,
ecstasy pills, a digital scale, rubber gloves, and cutting agents. Field testing showed
that the baggies contained cocaine, heroin, and methamphetamine. In the living-
room closet, officers found a box of .45-caliber MagTech ammunition.
A drug dog alerted to McCoy’s vehicle. There, police found a glass pipe and
a .45-caliber semi-automatic pistol, with two fully loaded magazines of .45-caliber
MagTech ammunition. They photographed the glass pipe but later accidentally ran
over it.
A jury convicted McCoy of unlawfully possessing a firearm. Applying an
adjustment for obstructing justice under U.S.S.G. § 3C1.1 and an enhancement for
possessing a firearm in connection with a controlled substance offense under
U.S.S.G. § 4B1.4(b)(3)(A), the district court sentenced McCoy to 262 months in
prison.
1
The Honorable Nancy E. Brasel, United States District Judge for the District
of Minnesota.
-2-
I.
McCoy argues that the district court erred in admitting (1) testimony about
the field tests of the narcotics, and (2) the photograph of the glass pipe from McCoy’s
vehicle.
At trial, McCoy objected to the field testing only for relevance and lack of
foundation—neither of which he mentions on appeal. He did not object to the
photograph. This court thus reviews only for plain error. See United States v.
Pirani, 406 F.3d 543, 549-50 (8th Cir. 2005) (en banc), citing United States v.
Olano, 507 U.S. 725, 732-36 (1993). This court reverses only if there was an error,
that was plain, that affected substantial rights, and seriously affected the fairness,
integrity, or public reputation of judicial proceedings. Id.A.
On appeal, McCoy challenges only the scientific reliability of the field tests.
The officer who conducted the tests was trained and certified in using them. He
testified to the procedures and the results. See United States v. Eisler, 567 F.2d 814,
817 (8th Cir. 1977) (holding that an experienced agent familiar with field tests could
testify about the results of the test he conducted). The district did not err, let alone
plainly err, by admitting the testimony about the field tests. See United States v.
Downey, 672 Fed. Appx. 615, 616 (8th Cir. 2016) (holding that “a court may rely
on circumstantial evidence such as field tests or testimony describing the
substance”).
B.
McCoy argues that the photograph of the pipe was inadmissible because it
was (1) not inventoried or referenced in the police reports; (2) poor quality; (3) and
highly prejudicial. The contents of police reports do not govern the admissibility of
evidence. See Sosna v. Binnington, 321 F.3d 742, 744 (8th Cir. 2003) (“The Federal
-3-
Rules of Evidence govern the admissibility of evidence.”). The photograph’s quality
does not preclude its admissibility. Cf. United States v. De La Torre, 907 F.3d 581,
591-92 (8th Cir. 2018) (holding that the audio’s poor quality “did not render the
recording wholly untrustworthy”); United States v. Williams, 512 F.3d 1040, 1044
(8th Cir. 2008) (holding the court did not abuse its discretion by admitting the
recordings of drug buys—inaudible over 40 times). The evidence was not
inadmissible simply because it was prejudicial. See, e.g., United States v. Fechner,
952 F.3d 954, 958 (8th Cir. 2020) (holding that a district court has broad discretion
to admit probative evidence even when it is prejudicial).
The district court did not err, let alone plainly err, by admitting the photograph
of the pipe.
II.
McCoy believes the evidence at trial was insufficient to convict. Specifically,
he claims there is no evidence that the .45-caliber pistol was a “firearm.” This court
reviews the sufficiency of the evidence de novo. See United States v. Birdine, 515
F.3d 842, 844 (8th Cir. 2008).
To convict McCoy for possession of a firearm as a convicted felon under 18
U.S.C. § 922(g)(1), the evidence must prove that McCoy’s pistol met the definition
of a firearm under 18 U.S.C. § 921(a)(3). See United States v. Hardin, 889 F.3d
945, 947 (8th Cir. 2018). A firearm is “any weapon . . . which will or is designed to
or may readily be converted to expel a projectile by the action of an explosive.” 18
U.S.C. § 921(a)(3). Proof that a firearm was operable is not required. Hardin, 889
F.3d at 948-49.
McCoy’s pistol, retrieved from his vehicle, was admitted into evidence (with
the only objection at trial being “chain of custody,” which is not raised on appeal).
The jury saw the pistol and photographs of it. An ATF agent, testifying as an expert,
testified that it met the federal definition of a firearm. The pistol and the testimony
-4-
are sufficient to prove that the pistol was a firearm. See United States v. Dobbs, 449
F.3d 904, 911 (8th Cir. 2006) (holding that lay testimony from an eyewitness is
sufficient to determine whether an object is a firearm under 18 U.S.C. §
921(a)(3)(A)); United States v. Mullins, 446 F.3d 750, 755 (8th Cir. 2006) (finding
expert testimony from an ATF agent sufficient to determine that the defendant’s gun
met the federal definition of a firearm, even when the gun evaluated by the agent
was a model and not the original).
The evidence sufficiently proved that McCoy’s .45-caliber pistol was a
firearm under 18 U.S.C. §§ 921(a)(3) and 922(g).
III.
McCoy argues the district court erred in adjusting and enhancing his offense
level. This court reviews the district court’s factual findings for clear error and its
application of the guidelines de novo. See United States v. Beckman, 787 F.3d 466,
494 (8th Cir. 2015).
A.
The district court applied an obstruction-of-justice adjustment under U.S.S.G.
§ 3C1.1 based on McCoy’s trial testimony. This court need not address his challenge
to this adjustment because it did not affect his sentence. The adjustment raised his
base offense level to 30. But because McCoy was an armed career criminal, his base
offense level was 34. See U.S.S.G. § 4B1.2(b)(3)(A). Any adjustment under
U.S.S.G. § 3C1.1 was moot.
B.
The district court relied on the gun-possession-in-connection-with-a-drug-
offense in setting the base offense level of 34. McCoy disputes the enhancement
because the gun was found in his vehicle, while the drugs were found in his bedroom.
-5-
The district court found that McCoy was a drug dealer—not merely a drug
user—due to the packaging of the drugs, the evidence found in the search and police
investigations, and his own testimony that he intended to distribute drugs. An ATF
special agent testified about a firearm’s use in the drug trade. The pistol was in close
proximity to the drugs. See United States v. Vang, 3 F.4th 1064, 1067 (8th Cir.
2021) (“Drugs do not need to be found next to the firearms in order to establish a
nexus”; rather, “[a] nexus can exist when a firearm is in proximity to items identified
as relating to drug trafficking.”). Officers saw McCoy leave his vehicle (that had
the pistol and pipe) and enter his residence, where they found him in his bedroom
with drugs. See id. (finding sufficient evidence of a nexus where the firearm was
two stories above the drugs because the firearm was found in a room with drug
paraphernalia and there was expert testimony about drug traffickers using guns). See
also United States v. Goodrich, 739 F.3d 1091, 1098 (8th Cir. 2014) (holding that a
jury may infer that a firearm was used in connection with a drug offense if it was in
close proximity to the drugs, quickly accessible, and an expert testified about the use
of firearms in the drug trade).
The district court did not err in applying the enhancement.
*******
The judgment is affirmed.
______________________________
-6-