UNITED STATES v. CORNELISON

UNITED STATES of America, Plaintiff–Appellee v. Ryan CORNELISON, Defendant–Appellant.

No. 12–2759.

-- June 21, 2013

Before RILEY, Chief Judge, LOKEN and SHEPHERD, Circuit Judges.

Angela Pitts, AFPD, Fayetteville, AR, for Appellant.David Harris, AUSA, Fort Smith, AR, for Appellee.

A jury convicted Ryan Cornelison of being a felon in possession of firearms. The district court1 sentenced him to 120 months imprisonment with 3 years of supervised release and assessed a $12,000 fine in accordance with 18 U.S.C. § 3571 and United States Sentencing Guidelines (U.S.S.G. or Guidelines) § 5E1.2. Cornelison challenges the sufficiency of the evidence, the district court's decision to admit evidence of Cornelison's prior conviction, two jury instructions, and the fine.

I. BACKGROUND

A. Facts

Starting around March of 2011, Cornelison lived in his grandfather's house on Jefferson Street in Springdale, Arkansas. Between May and August 2011, Cornelison repeatedly told his probation officer, Christina Duncan, that he lived alone in the house. On May 20, 2011, Duncan visited Cornelison at the Jefferson Street house and saw no indication anyone other than Cornelison was living there. In June 2011, a confidential informant told Detective Steven Hulsey with the Washington County, Arkansas, Sheriff's Department there were illegal items at the Jefferson Street house.

On July 13, 2011, Detective Hulsey obtained and executed a warrant to search the Jefferson Street house. Cornelison was not in the house at the time of the search. During the search, Detective Hulsey discovered one of the house's three bedrooms was locked. Detective Hulsey was able to defeat the lock in less than one minute, using only a driver's license. In the locked room, Detective Hulsey discovered six loaded firearms and a flak jacket. Detective Hulsey seized the firearms and left a receipt describing the seized items.

On August 3, 2011, officers arrested Cornelison for being a felon in possession of firearms. In an interview with Detective Hulsey, Cornelison admitted he lived at the Jefferson Street house. Detective Hulsey asked Cornelison who owned the firearms, and Cornelison said some had belonged to Cornelison's father and others had belonged to Cornelison's friend, both of whom were deceased.

B. Procedural History

On November 2, 2011, a grand jury indicted Cornelison for being a felon in possession of firearms in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The case was tried before a jury. Cornelison stipulated to being a convicted felon. Over Cornelison's objection, the government produced evidence under Federal Rule of Evidence 404(b) of Cornelison's prior conviction for unlawful possession of firearms. The district court instructed the jury to consider the prior conviction evidence only with regard to Cornelison's knowledge of or intent to possess the firearms discovered in the locked bedroom.

After the government's case, Cornelison moved for a judgment of acquittal, arguing the government had not proved its case beyond a reasonable doubt. The district court denied Cornelison's motion.

Cornelison asked the district court to instruct the jury on the meaning of reasonable doubt using the “newer” version of the Eighth Circuit Model Criminal Jury Instructions (model instructions) .2 The district court rejected Cornelison's proposed instruction and instructed the jury under the version of the model instruction in effect at the time of the trial. The district court noted the given instruction was “one that ha[d] been used commonly by [this] Court over several years and [the district court] believe[d] ha[d] been approved and not found wanting or lacking by the appellate courts during that time.”

Cornelison also requested a “theory of the defense” instruction. Cornelison's proposed instruction emphasized the government's burden of proof, stating “[i]t is the position of [Cornelison] that the government has failed to prove beyond a reasonable doubt the essential element that the defendant knowingly possessed the firearms he is charged with possessing,” and provided “it is [Cornelison's] position that the government has shown evidence merely of [Cornelison's] proximity to the firearm. Mere proximity is not enough to show constructive possession.” The district court rejected Cornelison's proposed instruction.

On March 28, 2012, the jury found Cornelison guilty. The United States Probation Office prepared a Presentence Investigation Report (PSR). The PSR noted Cornelison had an eleventh grade education and minimal technical training, and had worked in the construction field. The PSR also indicated Cornelison was disabled and unable to work because of a seizure condition; Cornelison “owed ‘several thousand dollars' in medical bills and interest” on another debt; and Cornelison “ha[d] no assets which c[ould] easily be liquidated to pay a fine.” The report concluded “[i]t is believed [Cornelison] can perform some type of work and is able to make payment toward a fine. If incarcerated, [Cornelison] could work and make payments toward a fine through the” prison work program, and Cornelison “should also be able to make payments during a period of supervised release.” Cornelison did not object to any of these findings.

At sentencing, the district court informed Cornelison “I will direct that you pay the minimum fine that's recommended, $12,500. I will not require you to pay interest, but it is a legitimate part of the sentence and I do expect you to pay it.” Cornelison again did not object.

Cornelison appeals,3 and we affirm.

II. DISCUSSION

A. Standards of Review

This court reviews the district court's denial of a motion for judgment of acquittal de novo, construing all evidence and making all reasonable inferences in favor of the jury's verdict. See United States v. Espinosa, 585 F.3d 418, 423 (8th Cir.2009). We review the district court's formulation of the “jury instructions for abuse of discretion and its interpretation of law de novo.” Kahle v. Leonard, 563 F.3d 736, 741 (8th Cir.2009). We review the district court's admission of evidence under Rule 404(b) for abuse of discretion. See United States v. Hill, 638 F.3d 589, 592 (8th Cir.2011). Because Cornelison did not object at sentencing, we review the district court's imposition of a fine for plain error. See United States v. Allmon, 500 F.3d 800, 807 (8th Cir.2007); Fed R.Crim. P. 52(b).

B. Sufficiency of the Evidence

To convict Cornelison of being a felon in possession of a firearm, the government was required to prove Cornelison knowingly possessed the weapons seized from his home. See United States v. Tindall, 455 F.3d 885, 887 (8th Cir.2006). Cornelison contends the district court should have entered a judgment of acquittal because the government failed to prove Cornelison knew weapons were stored in the locked bedroom. Contrary to Cornelison's arguments, there was sufficient evidence for a reasonable jury to determine Cornelison knowingly possessed the firearms.

Cornelison's grandfather owned the Jefferson Street house, but all of the evidence, including Cornelison's own admissions to his probation officer and Detective Hulsey, indicated Cornelison was the sole occupant of the house. Cornelison knew where the weapons had come from, claiming they belonged to his deceased father and friend. The jury heard evidence Cornelison previously had been convicted of unlawfully possessing firearms, which supports the finding Cornelison knew of and intended to possess the firearms in this case. See United States v. Strong, 415 F.3d 902, 905 (8th Cir.2005) (deciding a prior conviction for felon in possession of a firearm is relevant to prove the defendant's knowledge of and intent to possess the firearm at issue in the charged offense).

Cornelison argues his case can be distinguished from prior cases where we have upheld a conviction for felon in possession of a firearm, see, e.g., United States v. Butler, 594 F.3d 955, 964–65 (8th Cir.2010) (affirming the jury's verdict where the firearm was discovered under the mattress in the bedroom the defendant shared with the home's primary occupant), because Cornelison asserts he did not have access to the locked bedroom at the Jefferson Street house. The government suggests our decision in United States v. Mabry, 3 F.3d 244, 247 (8th Cir.1993), abrogated on other grounds by Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), is fatal to Cornelison's argument.4 The government probably is correct. In Mabry, we recognized “[i]n the absence of evidence refuting the normal inference of dominion, showing that a firearm was discovered at the defendant's residence suffices to prove constructive possession.” Id. at 247. Because “[c]onstructive possession requires knowledge of an object,” United States v. Serrano–Lopez, 366 F.3d 628, 634–35 (8th Cir.2004), Cornelison's claim that he had no knowledge of the weapons in his own residence is legally suspect in light of Mabry. Even if Mabry is not controlling in this case, the evidence taken as a whole amply supports the jury's conclusion that Cornelison knew about and had possession of the weapons. The district court did not err in denying Cornelison's motion for judgment of acquittal.

C. Prior Conviction

Cornelison contends the district court abused its discretion in admitting evidence of Cornelison's prior conviction for being a felon in possession of a firearm. We reject this contention.

District courts have discretion under Rule 404(b) to admit a defendant's prior conviction for being a felon in possession of a firearm, provided the evidence is “(1) relevant to a material issue; (2) similar in kind and not overly remote in time to the crime charged; (3) supported by sufficient evidence; and (4) higher in probative value than in prejudicial effect.” Strong, 415 F.3d at 905. Cornelison concedes the second and third prongs of the Strong test are satisfied in this case; therefore, the only issues are whether the conviction was relevant to a material issue and not unduly prejudicial.

Cornelison's past conviction for possession of a firearm was relevant to the disputed material issue of whether Cornelison knew the weapons were located in his home. In Strong, we recognized “ ‘[a] defendant denies both knowledge and intent when he asserts the ‘mere presence’ defense-that he was present but did not know of the presence of illegal [activity].' “ Id. (quoting United States v. Tomberlin, 130 F.3d 1318, 1320 (8th Cir.1997)) (second alteration in original). Cornelison's prior conviction for being a felon in possession of a firearm “address[ed] the material issue of his knowledge of the presence of the firearm and his intent to possess it.” Id. Cornelison asserts our decision in Strong was in error because a defendant's prior conviction for unlawful possession of a firearm is not relevant to any material issues. But we cannot disregard controlling precedent. See Mader v. United States, 654 F.3d 794, 800 (8th Cir.2011) (en banc) (“ ‘It is a cardinal rule in our circuit that one panel is bound by the decision of a prior panel.’ “ (quoting Owsley v. Luebbers, 281 F.3d 687, 690 (8th Cir.2002))).

Cornelison also proposes the conviction was not higher in probative value than in prejudicial effect, but this proposition also is foreclosed by Strong. See Strong, 415 F.3d at 906. In Strong, we recognized the district court has broad discretion to balance the prejudicial effect of a prior conviction for a firearm offense against its probative value, and recognized “ ‘the presence of a limiting instruction diminishes the danger of any unfair prejudice.’ “ Id. (quoting United States v. Franklin, 250 F.3d 653, 659 (8th Cir.2001)). In the instant case, the district court considered the probative value of the evidence and potential for unfair prejudice, and gave an appropriate limiting instruction. There was no abuse of discretion. See id.

Cornelison further maintains the probative value of the evidence was substantially outweighed by its prejudicial effect, and the evidence should have been excluded under Rule 403 of the Federal Rules of Evidence. Because Strong decided the prejudicial impact of substantially similar evidence did not outweigh its probative value, the evidence in Cornelison's case necessarily was admissible under Rule 403's more relaxed standard. See Strong, 415 F.3d at 906.5 The district court did not abuse its considerable discretion.

D. Jury Instructions

Cornelison challenges the district court's refusal to give two requested jury instructions. Because the district court did not err, we reject these challenges.

First, Cornelison argues the district court erred in refusing to give the updated version of the model instruction defining reasonable doubt. The model instructions “ ‘are not binding on the district courts of this circuit, but are merely helpful suggestions to assist the district courts.’ “ Bady v. Murphy–Kjos, 628 F.3d 1000, 1004 (8th Cir.2011) (quoting United States v. Norton, 846 F.2d 521, 525 (8th Cir.1988)). “ ‘[A] defendant is not · entitled to a particularly worded instruction.’ “ United States v. Spires, 628 F.3d 1049, 1053 (8th Cir.2011) (quoting United States v. Beale, 620 F.3d 856, 866 (8th Cir.2010)). We will affirm a conviction if the instructions, “ ‘taken as a whole, · fairly and adequately instruct the jurors on the applicable law.” Id. (quoting United States v. Haas, 623 F.3d 1214, 1219 (8th Cir.2010)).

“We have repeatedly upheld the use of” the reasonable doubt instruction the district court gave, id. at 1054, because it correctly and adequately conveys to the jury the meaning of reasonable doubt. The district court was not required to give any particular form of instruction, much less the draft version Cornelison proposed. See id. The district court's reasonable doubt jury instruction was not erroneous.

Cornelison also maintains the district court erred in refusing to give Cornelison's requested “theory of the defense” instruction. A defendant is entitled to a “theory of the defense” instruction if it correctly states the law, is supported by the evidence, and was timely requested. See United States v. Cantrell, 530 F.3d 684, 692 (8th Cir.2008). Such an instruction, however, is not necessary if it is merely duplicative of the district court's other instructions. See Serrano–Lopez, 366 F.3d at 637.

Cornelison relies on United States v. Manning, 618 F.2d 45, 47–48 (8th Cir.1980), to argue Cornelison was entitled to his “theory of the defense” instruction. In Manning, the defendant, Manning, was riding in an automobile with two other men when officers observed an illegal shotgun dropped in a gutter close to the vehicle. Id. at 46. Manning testified at trial, asserting he was merely a backseat passenger in the vehicle and did not know that one of the other two men possessed the firearm. Id. at 46–47. Manning requested an instruction clarifying that “[m]ere presence on the scene plus association with illegal possessors is not enough to support a conviction for illegal possession of an unregistered firearm,” but the district court declined to give the instruction. Id. at 47. Manning was convicted. Id. at 46. On appeal, we held the trial court should have given Manning's mere possession instruction, explaining that “the instructions given by the district court regarding constructive possession c[ould ]not be said to have covered the substance of Manning's ‘mere presence’ defense” because the instructions did not “acknowledg[e] Manning's defense that he was merely a backseat passenger.” Id. at 48.

In Cantrell, the defendant was arrested in a house containing methamphetamine, drug paraphernalia, and illegal firearms. See Cantrell, 530 F.3d at 687–88. Cantrell admitted to owning the drugs and paraphernalia. Id. at 688, 693. At trial, Cantrell requested a “mere presence” instruction, but the district court overruled the request. Id. at 692. We affirmed the district court, determining there was “no evidence Cantrell was ‘merely present’ “ at the house because Cantrell's possessions, including his drugs and paraphernalia, were located in close proximity to the weapons. Id. at 693. Further, we held “a ‘mere presence’ instruction was unnecessary in Cantrell's case because it ‘would have duplicated the instructions outlining the elements of the offense, the definition of possession, and the burden of proof.’ “ Id. (quoting Serrano–Lopez, 366 F.3d at 637).

Like the defendant in Cantrell, Cornelison was not merely present in the house—Cornelison resided at the house and was the sole occupant. See Mabry, 3 F.3d at 247 (recognizing there is a “normal inference of dominion” supporting constructive possession where a firearm is discovered in the defendant's residence). The district court's instructions regarding the elements of the offense, the presumption of innocence and the government's burden of proof, and the definition of possession adequately instructed the jury on the requirements to convict, including Cornelison's theory of the defense. See Cantrell, 530 F.3d at 693. Cornelison's proposed instruction was duplicative, and the district court did not err in denying the requested instruction. See id.

E. Fine

Cornelison also objects to the district court's imposition of a fine. Because Cornelison did not object at sentencing, our review is limited to plain error. See Allmon, 500 F.3d at 807. The PSR indicated, in spite of Cornelison's limited financial prospects, “[i]t is believed [Cornelison] can perform some type of work and is able to make payments toward a fine.” In imposing the fine, the district court remarked the fine was “a legitimate part of the sentence and [the district court] d[id] expect [Cornelison] to pay it.”

Section 5E1.2(a) of the Guidelines provides “[t]he [district] court shall impose a fine in all cases, except where the defendant establishes that he is unable to pay and is not likely to become able to pay any fine.” The defendant has the burden to prove he cannot pay a fine within the Guidelines range. See U.S.S.G. § 5E1.2(e); see also United States v. Walker, 900 F.2d 1201, 1206 n. 5 (8th Cir.1990) (explaining the district court may impose a lesser fine or waive the fine “even though the defendant does not establish inability to pay” (emphasis omitted)). We may vacate a fine “when the district court does not make findings regarding the defendant's ability to pay.” Allmon, 500 F.3d at 807.

The district court, with explanation, imposed the minimum fine under the Guidelines, and Cornelison did not challenge the PSR's finding that Cornelison could work to pay a fine. The district court did not commit plain error in imposing the fine.

III. CONCLUSION

We affirm.

FOOTNOTES

1.  The Honorable Jimm Larry Hendren, United States District Judge for the Western District of Arkansas.

2.  Cornelison's proposed instruction was incorporated into the 2013 amendments to the model instructions as Instruction 3.11. Cornelison contends the Eighth Circuit Judicial Committee on Model Jury Instructions had published this proposed instruction in draft form at the time of his trial, but admits the committee did not formally adopt the revised instruction until some months later.

3.  We have appellate jurisdiction under 28 U.S.C. § 1291.

4.  The government's other key case, United States v. Balanga, 109 F.3d 1299 (8th Cir.1997), is inapposite. The defendant in Balanga admitted to knowing firearms were located at his residence. Id. at 1301 & n. 2. The dispute was whether the defendant had dominion over the area where the weapons were stored. Id. at 1301.

5.  Strong arguably applied a stricter standard for the admission of Rule 404(b) evidence than is required under the Federal Rules. Compare Strong, 415 F.3d at 905 (stating 404(b) evidence must be “higher in probative value than in prejudicial effect”), with United States v. Green, 151 F.3d 1111, 1113 (8th Cir.1998) (stating such evidence is admissible if “its potential prejudice does not substantially outweigh its probative value” (emphasis added)). Green is consistent with the actual language of Rule 403—“substantially outweighed.” We need not decide the correct standard for admission of such evidence in this case, because the evidence was admissible under either standard.

RILEY, Chief Judge.

View the original article here

UNITED STATES v. FORD

UNITED STATES of America, Plaintiff–Appellee v. Samuel B. FORD, Defendant–Appellant.

No. 11–3736.

-- June 20, 2013

Before LOKEN, SMITH, and BENTON, Circuit Judges.

Leslie E. Stokke, argued, Cedar Rapids, IA, for appellant.Daniel C. Tvedt, USA, argued, Cedar Rapids, IA, for appellee.

A jury convicted Samuel Ford (“Ford”) of knowingly and intentionally distributing a mixture of heroin to Joseph Scolaro resulting in Scolaro's death, with the distribution occurring within 1,000 feet of a school, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 851, and 860(a) (“Count I”), and knowingly and intentionally distributing a mixture containing heroin and a mixture containing cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 851 (“Count II”). Ford moved for a new trial alleging that the prosecution committed a Brady1 violation. The district court2 denied Ford's motion. Ford appeals, raising three issues: (1) the evidence to sustain his conviction was insufficient; (2) the district court erroneously denied a motion for new trial based on the prosecution's alleged Brady violation; and (3) the district court erred by admitting evidence of Ford's prior convictions and bad acts. We affirm.

I. Background

Because the sufficiency of the evidence to sustain the convictions is at issue, a review of the evidence is in order. Cheryl Wells testified that Ford regularly sold her heroin in .25–gram quantities for $50.00 each in late 2010 and early 2011. On occasion, Wells purchased as much as $300.00 worth of heroin in a single day. Wells stated that she knew that Ford traveled to Chicago to obtain the drugs and would supply them to her when he returned. Wells also helped Ford package the heroin for resale in exchange for her keeping the residue wasted during the packaging process. Wells recalled delivering heroin to Lori Schneider on Ford's behalf. Schneider's nephew, Taylor Seeley, also testified that Ford sold him heroin several times during the month of February 2011.

Christi Worm (“Worm”), Scolaro's girlfriend, testified that Scolaro introduced her to Ford and obtained pills and heroin from Ford. The prosecution adduced evidence that on February 19, 2011, Ford provided Scolaro with heroin and that Scolaro died later that evening at Worm's residence. Worm testified that on the evening Scolaro died, she overheard Scolaro speaking on the phone with someone from whom Scolaro intended to purchase heroin. Scolaro asked Worm to drive him to meet this individual for a heroin pickup. She parked two blocks away from the rendezvous site. Worm believed they went to get the drugs about 11 to 11:30 p.m. Scolaro exited the vehicle and returned ten minutes later with heroin. Worm testified that the rendezvous site was a location from which Ford had sold her pills before.

Ford, on his own behalf, also testified that Scolaro came to his house on February 19th asking for drugs. Ford, however, stated that he refused to provide Scolaro with heroin. Ford acknowledged that he had gotten high on heroin with Scolaro two days before Scolaro died. Officers found heroin in Ford's coat pocket when they arrested him. During a search of Ford's apartment the same day, police found marijuana, drug paraphernalia, and plastic baggies that tested positive for cocaine residue. In a police interview, Ford admitted selling marijuana but denied selling other drugs.

According to Worm, after Scolaro purchased the drugs, he returned to the car, where Worm waited. When asked if she had ever previously seen Scolaro high on heroin, Worm described an incident “at Larry's” after which Scolaro came to her house and “had a needle stuck in his arm and was really sick.” When asked whether “[Scolaro's] behavior when he came back to the car [was] similar to the other times [she] saw him after he used heroin,” Worm replied, “Yes.” Worm and Scolaro then went to Worm's residence. Worm recalled watching Scolaro prepare the heroin for injection by putting it into a spoon with a cotton ball and water and then heating the spoon underneath with a lighter. After the heroin liquified, she saw Scolaro draw the liquid into a syringe. Scolaro injected Worm with the heroin via the syringe. Worm initially testified that Scolaro prepared two syringes but clarified by stating, “Well, the [one syringe] I can only say, because I didn't actually see him prepare the [one syringe] he had injected himself with at the time.” After receiving the heroin injection, Worm went into the kitchen to wash dishes. Scolaro remained in the living room. When she returned to the living room, she observed Scolaro and described his behavior as “[r]eally down, like chilled, laid back, wanted me to lay next to him on the couch.” Worm and Scolaro fell asleep on the couch and then went into the bedroom where they were physically intimate. Worm found Scolaro unresponsive at about 6:30 a.m. the following morning. Rescue personnel observed a possible puncture mark on the back of Scolaro's hand consistent with heroin use. Police also discovered drug paraphernalia, including syringes and a spoon.

Scolaro's death certificate listed the cause of death as “[a]cute [r]espiratory [f]ailure” as well as “[m]ethamphetamine and [h]eroin [o]verdose.” The specimen inquiry listed the cause of death as “polydrug toxicity, with methamphetamine being the major contributing drug.” The specimen inquiry also stated that Scolaro's blood had the presence of methamphetamine, amphetamine, pseudoephedrine, morphine, codeine, ethanol, alprazolam (Xanax) (an antianxiety drug), cotinine (a breakdown product of nicotine), and citalopram (an anti-depressant). Scolaro had received treatment at a hospital days before his death for neck pain, scalp sensitivity, and flu symptoms.

The emergency room physician testified that Scolaro died two to four hours before his body arrived at the emergency room. The medical examiner, Dr. Julie Netser, who observed several pinpoint marks on Scolaro's body, could not opine with confidence that they were needle marks. Dr. Netser stated, “He had several pinpoint, very subtle marks that I thought may have been needle tracks, but I was not 100 percent certain of that. I had never seen needle marks before, and his forearms and inside of his arms were heavily tattooed, which made looking for needle tracks difficult.” Dr. Netser stated that in her opinion that the possible needle mark on the back of Scolaro's hand was not consistent with medical intervention. One suspected needle track was covered in a bruise that Dr. Netser testified would have taken at least a day to develop. Dr. Netser gave the cause of death as “polydrug toxicity.”

Dr. Netser testified that methamphetamine, amphetamine, morphine, alprazolam, ethanol, citalopram, codeine, pseudoephedrine, and cotinine were found in Scolaro's blood. Dr. Netser stated the presence of the first three narcotics “would suggest methamphetamine abuse.” Dr. Netser acknowledged that finding morphine and codeine is “[one] of the more common ways you would get both drugs in a sample.” According to Dr. Netser, “Heroin breaks down into morphine, so it's [one] of the degradation products. And then when heroin is produced, a lot of times there may be codeine contaminating the manufacture process, so you may get codeine as well.” Dr. Netser also explained that typically blood is tested for 6–acetylmorphine (“6–AM”), which results from the breakdown of heroin. Dr. Netser indicated that Scolaro's blood and urine were tested for 6–AM, but that the results were negative. Dr. Netser explained that the absence of 6–AM could be because it “is a breakdown product of heroin that has a very short half-life, meaning that it degrades very quickly, so if the timing is not right, you may not find it.”

Lastly, Dr. Netser qualified her prior statement of the cause of Scolaro's death as “polydrug toxicity, with methamphetamine being the major contributing drug.” She also stated that she had “overstretched [her] area of expertise” in stating that methamphetamine was the major contributing drug. Nonetheless, she felt “confident that the cause of death was the combination of multiple drugs.” She explained, “I don't think I took into account the fact that morphine, a benzodiazapine, which is alprazolam, and alcohol combined are a very lethal combination.” Upon further research, she felt that the most significant drugs contributing to Scolaro's death were methamphetamine, morphine, alcohol, and Xanax. Dr. Netser stated, “[I]n doing more research, I think the combination of those other [three] drugs is a much more common cause of death in a multidrug toxicity than methamphetamine is.” When asked whether “[her] opinion [was] that the morphine found in [Scolaro]'s system was a contributing factor to the death,” she replied, “A contributing factor, yes.” On cross-examination, Dr. Netser acknowledged that she could not say whether Scolaro would have died without the morphine in his system.

Dr. George Behonick, a forensic toxicologist, also testified and opined that the morphine in Scolaro's blood resulted from the presence of drugs that break down into morphine, including heroin. According to Dr. Behonick,

Heroin chemically is known as diacetylmorphine. That is a chemical name for heroin. It has a very short half-life in the body. Roughly 2 to 6 minutes. Its first stage of metabolism is the loss of 1 of those groups known as an acetyl group, so it goes from being diacetylmorphine to monoacetylmorphine or sometimes it's referred to as 6–acetylmorphine. That represents an intermediate metabolite of heroin.

Dr. Behonick pointed out that 6–AM also has a “very short half-life” of between “6 to 26 minutes.” Eventually, 6–AM breaks down to morphine. According to Dr. Behonick, 6–AM can be detected in blood for up to eight hours following ingestion of heroin and 6–AM is unlikely to be found in a test of a deceased person's blood if the person lived for three to fours hours after ingesting heroin.

Dr. Behonick stated that the morphine and codeine could have entered the blood by more than one means, including (1) separately, since morphine and codeine are both pain medications, or (2) the morphine could have resulted from the breakdown of heroin with codeine present because it may have been used in the heroin manufacturing process. Dr. Behonick ruled out codeine pain medication as a source of morphine, because the morphine concentration found in Scolaro's system was much higher than the codeine concentration. He ruled out poppy seeds as well because the level of morphine found in Scolaro's system was too high. He was not, however, able to rule out morphine pain medication as a source of the morphine, but he noted that there was no evidence that Scolaro was prescribed pain killers. Dr. Behonick testified that the presence of 6–AM is “definitive toxicological evidence of heroin use,” whereas the lack of 6–AM does not rule out heroin use. Dr. Behonick concluded that heroin could have been the source of the morphine in Scolaro's blood and that a combination of the drugs found in Scolaro's system contributed to Scolaro's death. Dr. Behonick believed the results of the 6–AM tests were inconclusive because of the short half-life of heroin.

Ford's expert witness, a pathologist, Dr. Henry Carson, testified that the most common source of morphine found in a human's system is morphine pain medication. He noted that codeine medicine and heroin are also common sources of morphine. In contrast to Dr. Behonick, Dr. Carson stated that 6–AM could be detected in urine for up to three days. Dr. Carson cited a handbook of AIT Laboratories, the same entity that conducted the blood and urine tests for Scolaro, for the proposition that 6–AM can be found in the system for up to four days. Like Dr. Behonick, Dr. Carson also felt that it would be unlikely to detect 6–AM if a person lived three to four hours after ingesting heroin. He also testified that the presence of alcohol in a person's bladder would dilute the concentration of other chemicals that might also be present in the urine. Dr. Carson also opined that the absence of 6–AM in Scolaro's test results excluded heroin as a source of morphine in this case. He further asserted that the toxicology reports indicated that the morphine came from codeine. Dr. Carson concluded that methamphetamine was the major cause of death and that the presence of the combination of morphine, codeine, Xanax, ethanol, and citalopram could also have contributed to Scolaro's death.

Other evidence admitted against Ford included an undercover officer's testimony that Ford distributed cocaine base and heroin to an undercover officer during a sting operation. Several former cellmates of Ford's testified that Ford had told them he supplied Scolaro with drugs (five said heroin and a sixth did not know the type of drug) the night that Scolaro died and that Ford sold drugs to an undercover police officer. Two of these witnesses also testified that Ford told Worm to put Scolaro in a tub with ice. One inmate witness was a former white supremacist and Ford is African–American. Ford and the prosecution stipulated that the residence from which Ford was said to have distributed controlled substances was near a school.

The prosecution also introduced evidence of Ford's additional criminal acts. Eleven days prior to Scolaro's death, police found approximately $11,000 in Ford's vehicle during a traffic stop, along with dryer sheets and laundry detergent. An officer testified that these items are typically used to mask the smell of narcotics to thwart detection by drug dogs. Ford had six prior felony drug convictions—five from 2008 and one from 1993—that the government wanted to enter into evidence using certified judgments. Prior to trial, Ford filed a motion in limine to exclude his criminal history and evidence relating to the traffic stop, arguing that they were unfairly prejudicial. The district court denied this motion, stating that the felony convictions went to knowledge and intent and were more probative than prejudicial and that the traffic stop was highly relevant and not unfairly prejudicial.

The jury convicted Ford on both counts. Ford was sentenced to life in prison (a life term for Count I and a 360–month term for Count II to run concurrently), ten years of supervised release for each count to run concurrently, and an assessment of $200.

II. Discussion

On appeal, Ford argues that (1) there was insufficient evidence to support his conviction, (2) the district court erred in not granting Ford's motion for new trial based on the prosecution's alleged Brady violation, and (3) the district court erred in admitting evidence of Ford's prior convictions and bad acts.

A. Sufficiency of the Evidence

Ford argues that there was no evidence that he transferred a controlled substance to Scolaro resulting in his death because Worm—the only witness present—never saw Ford and never saw Scolaro inject himself with heroin. Ford also points to evidence that Scolaro had been hospitalized in the days prior to his death as a possible explanation for his fatal overdose. Ford attacks the credibility of the medical examiner by arguing that she was not a forensically-trained pathologist. He points out that the initial toxicology tests showed no signs of heroin in Scolaro's system. Ford also contends that the testimony that a codeine impurity in the heroin caused codeine to be present amounted to no more than conjecture because other testimony showed that the codeine could have come from other sources. Furthermore, Ford points to testimony that the absence of 6–AM excludes heroin. Ford states that he has not been able to find any cases where a defendant was convicted of distributing drugs that caused death when no medical evidence showed the presence of the drug in the decedent's body.

Ford challenges the credibility of the witnesses who had been incarcerated with him because each of them testified seeking sentence reductions. He noted that some witnesses testified that Ford told Worm to put Scolaro on ice the evening he overdosed so he would not overdose, facts that were not corroborated by other testimony showing that Scolaro was wet or cold. Ford also highlights that one witness was a known white supremacist and it was illogical that an African–American defendant would confide in a white supremacist with incriminating statements.

Ford argues that the government's case on the controlled buys fails because the purported conversation between Ford and an informant was only recorded from the informant's end, the informant was never searched after the controlled buy, and the recording equipment essentially failed. Ford also argues that the government's witness, the undercover officer, lacked credibility because he recounted that the drugs were thrown on the table in a public place, a highly unusual and indiscreet manner of drug distribution. Based on these various alleged evidentiary deficiencies, Ford avers that there was insufficient evidence to support his conviction.

We review de novo the sufficiency of the evidence and view the evidence in the light most favorable to the verdict, giving it the benefit of all reasonable inferences. We reverse only if no reasonable jury could find the defendant guilty beyond a reasonable doubt. On appeal, we do not weigh the evidence or assess the credibility of the witnesses. Instead, the jury has sole responsibility for resolving conflicts or contradictions in testimony, and we must resolve credibility issues in favor of the verdict.

United States v. Spears, 454 F.3d 830, 832 (8th Cir.2006) (citations omitted).

Verdicts may be “ ‘based in whole or in part on circumstantial evidence.’ “ United States v. Smith, 104 F.3d 145, 147 (8th Cir.1997) (quoting United States v. Alvarado–Sandoval, 997 F.2d 491, 493 (8th Cir.1993)). “If the evidence rationally supports two conflicting hypotheses, [we] will not disturb the conviction.” United States v. Burks, 934 F.2d 148, 151 (8th Cir.1991) (citing United States v. Holm, 836 F.2d 1119, 1122 (8th Cir.1988)).

Upon review, we conclude that the government presented sufficient, credible evidence to support Ford's conviction of distributing heroin that resulted in Scolaro's death and did so within a prohibited proximity of a school. The government had to prove beyond a reasonable doubt the following: (1) Ford knowingly and intentionally transferred heroin, in violation of § 841(a)(1); (2) this transfer was within 1,000 feet of a school, in violation of § 860(a); and (3) the heroin distributed resulted in Scolaro's death, in violation of § 841(b)(1)(C). See United States v. Washington, 596 F.3d 926, 944 (8th Cir.2010). As for the third element, the government needed to show that the heroin entered Scolaro's body and contributed to his death.

First, seven witnesses, six of whom testified about jailhouse conversations, testified that Ford told them he had provided heroin to Scolaro the night of his death. Ford challenged their credibility at trial and does so again on appeal. Ultimately, their credibility assessment was a task for the jury after hearing all the evidence. Spears, 454 F.3d at 832. We are not persuaded to disturb their verdict. Additionally, Scolaro's girlfriend, Worm, testified that she took Scolaro to an area a few blocks from Ford's home in order for Scolaro to procure heroin. Worm observed Scolaro return to the vehicle with heroin. Ford admitted that Scolaro came to his home seeking drugs the night Scolaro died, though Ford denied providing any drugs to Scolaro at that time. In a traffic stop prior to Scolaro's death and Ford's arrest, Ford was found with $11,000 in cash, along with dryer sheets and laundry detergent, which provide some evidence consistent with drug distribution activity. See United States v. $141, 770 in U.S. Currency, 157 F.3d 600, 604 (8th Cir.1998) (stating that the presence of large sums of cash “wrapped in scented fabric softener sheets” can be indicative of drug activity). Second, Ford and the prosecution stipulated that the residence from which Ford was said to have distributed controlled substances was within 1,000 feet of a school. While the government's proof was less than overwhelming, “[t]he jury's verdict must be upheld if there is an interpretation of the evidence that would allow a reasonable-minded jury to conclude guilt beyond a reasonable doubt.” United States v. Erdman, 953 F.2d 387, 389 (8th Cir.1992).

The more difficult element for the government to prove was that Scolaro's death resulted from the heroin that Ford distributed. The government needed to show that Ford distributed heroin to Scolaro, that the heroin entered Scolaro's body, and that this heroin contributed to Scolaro's death. As previously explained, several witnesses testified that Ford provided heroin to Scolaro the night of his death, and Ford testified that Scolaro came to his home seeking drugs. Ford admitted to the jailhouse informants that he distributed heroin to Scolaro the night Scolaro died, and their testimony corroborated Worm's statement about her accompanying Scolaro to a place near Ford's residence but remaining in the car. Worm testified that she drove Scolaro to Ford's home and saw Scolaro return to the vehicle with heroin. This testimony, if believed, is sufficient to establish that Ford distributed heroin to Scolaro on the night of his death.

Although there is no direct evidence that Scolaro actually injected the heroin or otherwise put it into his body, circumstantial evidence supports the jury's finding. Worm recalls watching Scolaro prepare the heroin he procured from Ford for injection by cooking it in a spoon with a lighter. She recalls seeing Scolaro put the heroin into a syringe and injecting the heroin into her arm. She did not see him inject himself but noted that when he returned to the car after obtaining the heroin that evening, Scolaro behaved as he did at other times when she knew he had injected heroin. When emergency personnel (EMT) arrived at the scene the following morning, Worm told at least one EMT that Scolaro had taken heroin. Scolaro's body bore pinpoint marks, which may have been needle marks, but the medical examiner could not deduce conclusively that they were upon examining the body. The presence of the marks did not prove Scolaro injected heroin or any other substance, but they were consistent with the testimony of Worm that Scolaro injected himself with heroin he acquired that evening from Ford.

The medical evidence does not by itself conclusively establish that Scolaro injected himself with heroin on the night of his death. Scolaro's specimen inquiry stated that the cause of death was “polydrug toxicity, with methamphetamine being the major contributing drug.” The specimen inquiry also showed that Scolaro did not have heroin in his system at the time tested, but his system did contain the following other substances: methamphetamine, amphetamine, pseudoephedrine, morphine, codeine, ethanol, alprazolam (Xanax) (an anti-anxiety), cotinine (a breakdown product of nicotine), and citalopram (an anti-depressant). Although the cause of death on the death certificate was acute respiratory failure and methamphetamine and heroin overdose, the medical examiner eventually testified that the most significant drugs contributing to Scolaro's death were methamphetamine, morphine, alcohol, and Xanax. Scolaro had no actual heroin remaining in his system at the time of the testing, according to the medical testimony, but his system did contain the substances codeine and morphine, which are by-products of heroin decomposition. Both Scolaro's blood and urine 6–AM tests, which test whether the morphine found in the decedent's system was the by-product of heroin, came out negative. Thus, the 6–AM tests did not definitively determine that heroin had been in Scolaro's system, but neither did it conclusively rule out its presence at some point given the passage of time from Scolaro's likely ingestion. However, the jury was presented with the testimony of Dr. Netser and Dr. Behonick, and, thus, the task of assessing the credibility and weight of their testimony.

In Washington, also a case involving a violation of § 841(a) and (b)(1)(C), the prosecution had to prove that the decedent had ingested Percocet, which was distributed to him by the defendant. 596 F.3d at 944. Percocet contains oxycodone and acetaminophen. Id. at 931 n. 3. The toxicology report on the decedent showed the presence of oxycodone but did not include a test for acetaminophen; therefore, there was no proof that acetaminophen was present in the decedent's body. Id. at 944. The expert opined that the inability to show the presence of acetaminophen did not rule out the possibility that the decedent ingested Percocet. Id. He believed it likely that by the time of the toxicology testing, any acetaminophen present would already have been metabolized. Id. Thus, acetaminophen would not appear in the decedent's system, even if testing had been done, because acetaminophen is metabolized faster than oxycodone. Id. We held that testimony that acetaminophen metabolized faster than oxycodone, which was found in the decedent's system could still support the conclusion that Percocet was present at one point. Id. The present case is similar to Washington in that the narcotic originally alleged to have been ingested—heroin—was absent in its original form from the decedent's system. A heroin by-product, morphine, was present, but tests regarding whether that morphine resulted from the break down of heroin were inconclusive. Based on all the testimony before it, the jury could have rationally concluded that Scolaro died as a result of the ingestion of multiple narcotics, including heroin distributed to him by Ford.

Viewing the evidence in a light most favorable to the jury's verdict and not re-weighing the credibility of the witnesses, we conclude that sufficient evidence supports the jury's verdict.

B. Motion for New Trial Based on Brady Disclosure Violation

Ford argues that the government violated his Fifth Amendment due process rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Specifically, he asserts that the government unfairly prejudiced his defense by not disclosing that Worm was providing testimony under the protection of an informal immunity agreement. Ford's counsel did not discover this arrangement between Worm and the government until after the trial. Ford bases his argument on the stipulated discovery order and an email from Worm's attorney stating an understanding between the U.S. Attorney and Worm. This email to Ford's counsel stated: “There was never any formal written immunity letter or agreement, so it would not have been in discovery. Our understanding between myself and the U.S. Attorneys Office is that as long as [Worm] told the truth, she would not be charged.”

Ford contends that if he had known about the informal deal, he would have had defense counsel cross-examine Worm about her motive to testify. Ford argues that (1) the “immunity agreement” referenced in the email could have been used for impeachment purposes to discredit Worm; (2) he reasonably relied on the prosecution's open-file policy that it would disclose evidence; (3) he would not have had to scavenge for undisclosed Brady material; and (4) the suppressed evidence was prejudicial because Ford lacked proof of motive for Worm's testimony. Ford argues that the failure to disclose the informal immunity agreement necessitates a new trial.

“We review the denial of a motion for a new trial based on a Brady violation for an abuse of discretion.” United States v. Ladoucer, 573 F.3d 628, 636 (8th Cir.2009). The elements of a Brady violation are as follows: “(1) the evidence was favorable to the defendant, (2) the evidence was material to guilt, and (3) the government suppressed the evidence.” Id. The Supreme Court has held that a new trial was warranted where the prosecution gave an informal immunity promise to a key co-conspirator witness, who was the only witness linking the defendant to the offense, and where the witness denied on the stand that a deal existed. Giglio v. United States, 405 U.S. 150, 153–54, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). The Court noted that the prosecution's case “depended almost entirely on [the witness's] testimony; [and] without it there could have been no indictment and no evidence to carry the case to the jury.” Id. at 154. Materiality of the undisclosed evidence is an important consideration in deciding whether a new trial is warranted. Id. at 154. The “ ‘mere possibility’ “ that the undisclosed item “might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense.' ” United States v. Bigeleisen, 625 F.2d 203, 208 (8th Cir.1980) (quoting United States v. Agurs, 427 U.S. 97, 109–10, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)). Moreover, the prosecution's failure to disclose adverse credibility findings does not necessarily warrant a new trial if there is other overwhelming evidence against the defendant. United States v. Jeanpierre, 636 F.3d 416, 423–24 (8th Cir.2011).

The district court denied Ford's new trial motion after concluding that no Brady violation occurred. First, the court found that there was no immunity agreement, informal or otherwise, to disclose. When questioned about his email to Ford's counsel, Worm's counsel could not recall an immunity agreement. The court construed the statement in the memo referencing an “understanding between myself and the U.S. Attorney's Office” that Worm should face no prosecution if she testifies truthfully as merely a warning against committing perjury and not proof of an informal immunity agreement. We agree with the district court.

We hold that the court did not abuse its discretion in denying the motion for a new trial.

C. Admission of Prior Convictions and Bad Acts

Ford argues in a supplemental brief that his criminal history was admitted into evidence at trial as inadmissible propensity evidence and should have been excluded. The government moved to strike the supplemental brief, and we now consider the government's motion. Under Federal Rule of Appellate Procedure 10(b)(1), an appellant is required to “[w]ithin 14 days after filing the notice of appeal” order a transcript regarding the appeal issue. This court cannot conduct a meaningful review without a transcript of the proceedings. See, e.g. Droste v. Julien, 477 F.3d 1030, 1034–35 (8th Cir.2007). The only documentation that Ford provides regarding transcripts from the motion in limine hearing regarding admissibility of evidence was an authorization-for-payment request to the district court dated February 9, 2012. The district court denied this request because of “no showing of necessity.” Ford asserts in his supplemental brief that his case is “virtually identical” to the Seventh Circuit case, United States v. Miller, 673 F.3d 688 (7th Cir.2012), which was decided on March 12, 2012. Ford did not renew his request for a transcript after Miller was decided, after he decided to appeal this new issue, or after he was granted leave to appeal the new issue. Since we are unable to conduct a meaningful review without the transcript and Ford has not provided a plausible justification for failing to provide it, we grant the government's motion to strike the supplemental brief.

III. Conclusion

Accordingly, we affirm the judgment of the district court.

FOOTNOTES

1.  Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

2.  The Honorable Linda R. Reade, Chief Judge, United States District Court for the Northern District of Iowa.

SMITH, Circuit Judge.

View the original article here

UNITED STATES v. WOODS

UNITED STATES of America, Plaintiff–Appellee v. Albert L. WOODS, also known as J. Rock, Defendant–Appellant.

No. 12–3075.

-- June 25, 2013

Before SHEPHERD, BEAM, and MELLOY, Circuit Judges.

Nathan S. Lab, Omaha, NE, for appellant.John Higgins, AUSA, Omaha, NE, for appellee.

Albert L. Woods pled guilty to one count of distribution of 28 grams or more of cocaine base and one count of distribution of marijuana, both in violation of 21 U.S.C. § 841(a)(1) and (b)(1). The district court1 sentenced him to the statutory mandatory minimum of 60 months imprisonment on count one, see 21 U.S.C. § 841(b)(1)(B)(iii), and to a concurrent 60 months imprisonment on count two, resulting in a total sentence of 60 months imprisonment. Woods appeals his sentence. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I.

In 2002, Woods was convicted in Nebraska state court of two counts of assault and two counts of use of a weapon to commit a felony. He remained in state custody for these convictions until March 2010, when he was released on parole. In April 2011, while Woods was still on parole for the 2002 convictions, Nebraska charged Woods with burglary, making terroristic threats, and use of a firearm to commit a felony after Woods allegedly broke into an ex-girlfriend's house and threatened her with a gun. Nebraska revoked Woods's parole in May 2011 due to these new charges, and he returned to state custody with a tentative discharge date of September 2013. Nebraska eventually dismissed the new charges, but Woods remained in Nebraska custody and continued to serve his parole revocation sentence.

Meanwhile, in October and December 2010, Woods sold drugs to cooperating witnesses. As a result of this conduct, a federal grand jury indicted him in February 2012 for one count of distributing cocaine base and one count of distributing marijuana. Woods pled guilty to these federal charges in May 2012 and was sentenced in August 2012. Because Woods was in Nebraska state custody serving his parole revocation sentence throughout the federal proceedings, Woods appeared in federal court pursuant to a writ of habeas corpus ad prosequendum.

At Woods's federal sentencing hearing, his attorney told the court that Woods was currently in state custody and asked the court to “take a look at that credit · and do whatever you think is right with it but I think you should consider that and sentence him at the low end of the guideline range.”2 Appellant's App. 32. The district court acknowledged that Woods already was in state custody and said that Woods would “not receive any credit for time served prior to the date of the imposition of this [federal] sentence.” Id. at 33. However, the district court ordered Woods's federal sentence to “run concurrent with [the remaining] portion of the [state] sentence from this date forward.” Id.

II.

Woods brings ineffective-assistance and sentencing-error claims.

A.

Woods first argues his trial counsel was ineffective for (1) failing to attempt to transition him from state to federal custody after the state charges underlying his parole revocation were dismissed and (2) failing to request credit towards his federal sentence for time previously served in state detention. “Claims of ineffective assistance of counsel, however, are usually best litigated in collateral proceedings. We will consider ineffective-assistance claims on direct appeal only where the record has been fully developed, where not to act would amount to a plain miscarriage of justice, or where counsel's error is readily apparent .” United States v. Ramirez–Hernandez, 449 F.3d 824, 826–27 (8th Cir.2006) (internal citation omitted). Here, Woods did not raise the ineffective-assistance issue below, and there was no evidentiary hearing to develop the facts relevant to these claims. Because Woods “has not shown that the record is sufficiently developed to address his ineffective assistance arguments or that a miscarriage of justice will result if we decline to do so at this juncture,” we decline to address his ineffective-assistance claims. See United States v. Wohlman, 651 F.3d 878, 887 (8th Cir.2011).

B.

Woods next argues that the district court committed procedural error by (1) failing to give him “credit” towards his federal sentence for time spent in state custody after the state charges underlying his parole revocation were dismissed; (2) presuming the guideline range was reasonable; (3) failing to adequately consider the sentencing factors set forth in 18 U.S.C. § 3553(a) and 18 U.S.C. § 3584(b); and (4) failing to adequately explain the reasons for imposing the particular sentence.

1.

Woods argues that United States Sentencing Commission, Guidelines Manual, § 5G1.3 authorized the district court to grant him “credit” for time spent in state custody. Because Woods did not raise any arguments concerning section 5G1.3 below, we review only for plain error. See United States v. Franklin, 695 F.3d 753, 757 (8th Cir.2012). To prevail under plain error review, a defendant must show (1) error (2) that was plain and (3) affected the defendant's substantial rights. Id.

Woods's argument fails because he cannot show that the district court committed any error, much less plain error. Subsection (b) of section 5G1.3 provides, in relevant part:

If · a term of imprisonment resulted from another offense that is relevant conduct to the instant offense of conviction under the provisions of subsections (a)(1), (a)(2), or (a)(3) of § 1B 1.3 (Relevant Conduct) and that was the basis for an increase in the offense level for the instant offense under Chapter Two (Offense Conduct) or Chapter Three (Adjustments) · the court shall adjust the sentence for any period of imprisonment already served on the undischarged term of imprisonment if the court determines that such period of imprisonment will not be credited to the federal sentence by the Bureau of Prisons·

USSG § 5G1.3(b).

As a threshold matter, section 5G1.3(b) does not authorize a district court to grant “credit” for time served because “[t]he Bureau of Prisons is responsible for computing the sentencing credit after the defendant has begun serving his sentence.” United States v. Tindall, 455 F.3d 885, 888 (8th Cir.2006). Rather, subsection (b) instructs a district court to “adjust” a defendant's sentence to account for undischarged terms of imprisonment under the specific circumstances identified in the guideline. See USSG § 5G1.3(b).

None of those circumstances were present here.3 At the time of Woods's federal sentencing hearing, he was in state custody serving a state parole revocation sentence. Woods was paroled in March 2010 on his 2002 Nebraska state convictions of assault and use of a weapon to commit a felony. That parole was revoked based on April 2011 charges of burglary, making terroristic threats, and use of a firearm to commit a felony. None of this is “relevant conduct” to his federal drug convictions, both of which are based on drug sales to cooperating witnesses in October and December 2010. Nor did any of this conduct serve as “the basis for an increase in the offense level for the instant offense.” Thus, subsection (b) does not apply to Woods.

The guidelines specify that “[s]ubsection (c) applies in cases in which the defendant was on federal or state probation, parole, or supervised release at the time of the instant offense and has had such probation, parole, or supervised release revoked.” USSG § 5G1 .3, comment. (n.3(C)). Woods fits squarely within this description because he committed his federal offense while he was on parole for unrelated state convictions, and the state subsequently revoked his parole. Woods argues that his parole revocation should have been dismissed when the new state charges underlying that revocation were dismissed. However, it is undisputed that this did not happen, and that Woods remained in Nebraska custody serving his parole revocation sentence. Thus, subsection (c) applies to Woods. See id.

Under subsection (c), “the sentence for the instant offense may be imposed to run concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment.” USSG § 5G1.3(c), p.s. Moreover, “[u]nlike subsection (b), subsection (c) does not authorize an adjustment of the sentence for the instant offense for a period of imprisonment already served on the undischarged term of imprisonment.” USSG § 5G1.3, comment. (n.3(E)). The district court refused to adjust Woods's sentence for time served, but did order his federal sentence to run concurrently with the remaining portion of his state sentence. In short, the district court did not err, but rather correctly followed the procedure established in section 5G1.3. Thus, Woods is not entitled to relief on his first procedural error argument.

2.

Woods further argues that the district court committed procedural error by presuming the reasonableness of the guideline range, failing to adequately consider the relevant sentencing factors, and failing to adequately explain the reasons for imposing the particular sentence. To the extent any of these challenges relate to the district court's failure to discuss section 5G1.3, we reject them for the reasons explained above. To the extent he raises more generalized challenges, we need not decide whether the district court erred because we hold that any error was harmless. A procedural error at sentencing is harmless if it “does not affect substantial rights.” United States v. Henson, 550 F.3d 739, 740 (8th Cir.2008). When a defendant brings a procedural error challenge, the government bears the burden of showing the error “did not substantially influence the outcome of the sentencing proceeding.” United States v. Woods, 670 F.3d 883, 886 (8th Cir .2012) (internal quotation marks omitted).

Woods received the statutory mandatory minimum of five years imprisonment. “In the absence of a government motion, a district court is without authority to impose a sentence below a statutory minimum.” United States v. Freemont, 513 F.3d 884, 888 (8th Cir .2008). Because section 5G1.3(c) did not authorize the district court to adjust Woods's sentence for time served, and because the district court lacked authority to sentence Woods below the mandatory minimum, Woods received the shortest sentence he possibly could have received under the circumstances of his case. Consequently, any procedural error did not affect Woods's substantial rights.

C.

Woods lastly argues his sentence is substantively unreasonable. We review the substantive reasonableness of a sentence for abuse of discretion. See United States v. Feemster, 572 F.3d 455, 461 (8th Cir.2009) (en banc).

As explained above, Woods received the statutory mandatory minimum sentence. Further, the district court was lenient in ordering Woods's federal sentence to run concurrent with the remaining portion of his Nebraska parole revocation sentence, because the guidelines recommend a consecutive sentence under these circumstances. See USSG § 5G1.3, comment. (n.3(C)). Woods's sentence is not substantively unreasonable.

III

Accordingly, we affirm.

FOOTNOTES

1.  The Honorable Lyle E. Strom, United States District Judge for the District of Nebraska.

2.  Woods's attorney also incorrectly stated at sentencing that the Nebraska “parole was violated because of this [federal drug] incident so he has received some punishment on this—on this incident.” Appellant's App. 32. On appeal, however, both Woods and the government have clarified that Woods's state parole was revoked due to the unrelated state charges filed in April 2011. See Appellant's Br. 1, 3, 9; Appellee's Br. 3–6, 12, 20.

3.  Because we conclude that section 5G1.3(b) does not apply to Woods, we need not address his argument that this section permits a district court to “adjust” a sentence downward even when a defendant is subject to a statutory mandatory minimum under 21 U.S.C. § 841(b)(1)(B).

SHEPHERD, Circuit Judge.

View the original article here

EVANCE v. TRUMANN HEALTH SERVICES LLC

Jenny EVANCE, Plaintiff–Appellant v. TRUMANN HEALTH SERVICES, LLC, also known as Trumann Health & Rehabilitation Center; Betty Begley; Gladis Cortinas, originally sued as Gladys Cortinez; Jackie Kelly; Jacky Holt, Defendants–Appellees. Harold McMickle; Dayna Shrout, Defendants.

No. 12–2654.

-- June 18, 2013

Before RILEY, Chief Judge, BRIGHT and BENTON, Circuit Judges.

Larry Joe Steele, Walnut Ridge, AR, for Plaintiff–Appellant.Elizabeth Rowe Cummings, Melissa M. Duke, Cynthia Worthing Kolb, Cross & Gunter, Little Rock, AR, for Defendants–Appellees.

Jenny Evance was a nurse at Trumann Health and Rehabilitation Center (Center), a nursing home in Trumann, Arkansas, run by Trumann Health Services, LLC (Trumann Health). After Trumann Health terminated Evance's employment, she sued Trumann Health and several of its employees—Dayna Shrout, Harold McMickle, Betty Begley, Gladis Cortinas, Jackie Kelly, and Jacky Holt (collectively, individual defendants, and with Truman Health, defendants)—in federal district court1 for (1) discrimination based on her gender, religion, and disability, in violation of due process; the Americans with Disabilities Act of 1990(ADA), 42 U.S.C. § 12101 et seq.; Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq.; and the Arkansas Civil Rights Act (ACRA), Ark.Code Ann. § 16–123–101 et seq.; and (2) defamation, in violation of Arkansas law.

The district court dismissed some of Evance's claims under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, and later granted summary judgment to the defendants on the remaining claims. Evance appeals from the district court's grant of summary judgment. We affirm.

I. BACKGROUND

A. Facts

Evance was a licensed practical nurse (LPN) at the Center. On July 23, 2010, while Evance was in the room of an eighty year old male resident, who suffered with dementia, the resident touched Evance's breast and attempted to put his hand up her skirt, and Evance had her hand between the resident's legs. Evance admits these events happened, but claims the resident initiated the contact and placed her hand between his legs.

Begley and Cortinas, who were certified nursing assistants (CNAs) at the Center, claimed they saw these events through an exterior window. Trumann Health's policy and Arkansas law require employees to report suspected abuse and neglect of residents. See Ark.Code Ann. § 12–12–1708. Begley and Cortinas reported their observations to Kelly, another nurse. Kelly conveyed Begley's and Cortinas' reports to Shrout, the Director of Nursing. Shrout, in turn, discussed the allegations with the Center's administrator, McMickle. Someone at the Center reported the allegations to the Arkansas Office of Long–Term Care (OLTC).

As part of an internal investigation, Begley; Cortinas; Kelly; Holt, another nurse at the Center; and Evance herself submitted affidavits to the OLTC addressing the allegations. Begley averred Evance and the resident spent “30 minutes or more” eating alone in the resident's room, the resident had asked Evance to marry him, and the resident had put his hand up Begley's skirt more than once. Begley claimed that, on July 23, 2010, she observed the resident's and Evance's inappropriate touching.

Shrout wrote Cortinas' affidavit at Cortinas' request, because Cortinas was “uncomfortable writing in English as Spanish is her native language.” Cortinas said she observed inappropriate touching between Evance and the resident and long periods with the two behind a closed door, and Cortinas “suspected something might be going on between · Evance and [the] resident.”

In her affidavit, Kelly reported Cortinas and Begley told her “they had witnessed some events through the window of the resident's room involving” Evance. Kelly stated she “relayed this on to [her] supervisor[, Shrout,] that she should speak to” Begley and Cortinas. Kelly asserted that “[o]n the night in question, [Evance] had been in the resident's room twice with the door shut, the first time approx[imately] 15–20 mins. Then the resident went to the East [Nursing] Station to ‘visit’ “ Evance. Kelly said Evance then took the resident back to his room, telling Kelly she was going “to tuck him in.” This time, Kelly stated, Evance spent twenty to thirty minutes in the room with the door closed. Kelly alleged this was not the first time Evance had been in the resident's room with the door closed.

Holt said in her affidavit she once saw Evance “sitting on [the resident's] bed with his arm around her and hand in her lap, she had her arms folded on her chest [and] she did not seemed [sic] alarmed by [Holt] entering the room.” Holt opined Evance did not “mean to give the wrong impression,” but did not discourage the resident's behavior because Evance did not want to hurt his feelings.

Evance, in her affidavit, stated the resident “said inappropriate things” to her and “touched [Evance] on [her] butt.” She did not discuss the conduct described by Begley and Cortinas. During her subsequent deposition Evance explained the resident touched her breast, attempted to put his hand up her skirt, and placed her hand between his legs.

Based on the reports of improper sexual contact between Evance and the resident, Shrout and McMickle decided to terminate Evance's employment, which McMickle did on August 13, 2010. The Trumann Police Department and the OLTC conducted investigations into Evance's conduct on July 23, 2011. After Trumann Health terminated Evance, the police investigators determined there was insufficient evidence to prosecute Evance for any crime, and the OLTC concluded allegations of misconduct were “unfounded.”

B. Procedural History

Evance sued Trumann Health, Begley, Cortinas, Kelly, and Holt for discrimination, in violation of due process, Title VII, the ADA, and the ACRA, and defamation, in violation of Arkansas state law, see Dodson v. Allstate Ins. Co., 365 Ark. 458, 231 S.W.3d 711, 716 (Ark.2006) (listing the elements of a defamation claim). Evance's defamation claim was based on her allegation that Begley, Cortinas (speaking through Shrout), Holt, and Kelly “gave false affidavits, stating that [Evance] initiated the sexual contact with the male resident.” In support of her discrimination claims, Evance asserted the individual defendants conspired to get her fired, in part because of animus against her based on her gender, religion (Pentecostal), and disability (cleft palate). She claimed the individual defendants' “statements and actions · should be imputed to · Trumann Health.”

1. Motion to Dismiss

The individual defendants filed separate motions to dismiss Evance's claims pursuant to Federal Rule of Civil Procedure 12(b)(6). On July 29, 2011, the district court dismissed all of the claims against Shrout and McMickle and some of the claims against the other individual defendants. The district court dismissed Evance's due process, Title VII, ADA, and ACRA claims against all individual defendants, holding that those statutes did not create individual liability.

The district court next addressed Evance's defamation claims, dismissing her slander claims against all of the individual defendants and libel claims against Shrout and McMickle. See Parkman v. Hastings, 259 Ark. 59, 531 S.W.2d 481, 482–83 (Ark.1976) (explaining libel involves written publication of defamatory material, whereas slander involves oral publication). The district court declined to dismiss Evance's libel claims against Begley, Cortinas, Kelly, and Holt.

2. Motion for Summary Judgment

The only claims that survived the district court's order of dismissal were (1) all claims against Trumann Health, and (2) Evance's libel claims against Begley, Cortinas, Kelly, and Holt. On June 18, 2012, the district court granted the defendants' motion for summary judgment on these claims.

II. DISCUSSION

Evance appeals the district court's order granting summary judgment. Evance asserts in her opening brief that she also is appealing the district court's July 29, 2011 order of dismissal. Her notice of appeal, however, mentioned only the June 8, 2012 grant of summary judgment, so the scope of our review is similarly limited. See Fed. R.App. P. 3(c)(1)(B) (requiring the notice of appeal to “designate the judgment, order, or part thereof being appealed”); USCOC of Greater Mo. v. City of Ferguson, Mo., 583 F.3d 1035, 1040 (8th Cir.2009) (“We construe notices of appeal liberally, but we only have jurisdiction when the appellant's intent to challenge a particular order or judgment is apparent and the adverse party will suffer no prejudice if review is permitted.”).

The defendants are entitled to summary judgment if “there is no genuine dispute as to any material fact and [they are] entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). We review the district court's grant of summary judgment de novo, viewing the evidence in the light most favorable to Evance. See Hill v. City of Pine Bluff, Ark., 696 F.3d 709, 711 (8th Cir.2012).

A. Discrimination Claims

Evance asserts she was terminated because of her gender, disability, and religion. Because Evance does not appeal the district court's dismissal of her discrimination claims against the individual defendants, the only issue remaining with regard to Evance's discrimination claims is whether the district court erred in granting summary judgment to Trumann Health.

Disparate treatment claims under Title VII, the ADA, and the ACRA are analyzed in the same manner. See St. Martin v. City of St. Paul, 680 F.3d 1027, 1033 (8th Cir.2012); McCullough v. Univ. of Ark. for Med. Scis., 559 F.3d 855, 860 (8th Cir.2009). “[A]n employee may survive an employer's motion for summary judgment in one of two ways.” Id. The first is to produce “direct evidence of discrimination,” which is evidence that shows “ ‘a specific link between the alleged discriminatory animus and the challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the adverse employment action.’ “ Id. (quoting Russell v. City of Kan. City, Mo., 414 F.3d 863, 866 (8th Cir.2005)). If the employee does not have direct evidence of discrimination, he or she may “show[ ] a genuine dispute for trial under the burden-shifting framework established in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802–05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).” Id. The district court granted summary judgment on Evance's discrimination claims under both the direct evidence and the McDonnell Douglas burden-shifting analysis.

Evance asserts she felt ostracized by other employees at the Center—including Shrout, Begley, Cortinas, Kelly, and Holt—because of her Pentecostal religion and cleft palate. Evance claims her termination itself was direct evidence of discrimination because the resident initiated the contact and “[n]o other nurse had ever been criticized for a resident's behavior.” This is not direct evidence, given that the record does not contain any evidence of a discriminatory attitude toward Evance, other than Evance's own uncorroborated speculation that her religion and disability made her unpopular. See Beaulieu v. Ludeman, 690 F.3d 1017, 1024 (8th Cir.2012) (explaining “ ‘speculation and conjecture are insufficient to defeat summary judgment’ ” (quoting Bloom v. Metro Heart Grp. of St. Louis, Inc., 440 F.3d 1025, 1028 (8th Cir.2006))).

Because there is no direct evidence of discrimination, we proceed to the McDonnell Douglas analysis, under which Evance

first must establish a prima facie case of discrimination. If [Evance] establishes a prima facie case, then the burden of production shifts to the [Trumann Health] to articulate a legitimate, nondiscriminatory reason for discharging [Evance]. If [Trumann Health] meets this burden, then [Evance] must show that [Trumann Health's] proffered reason for firing [her] is a pretext for unlawful discrimination.

McCullough, 559 F.3d at 860.

Assuming the existence of a prima facie case, Trumann Health has articulated a legitimate, nondiscriminatory reason for firing Evance—administrators received reports Evance engaged in inappropriate sexual contact with a resident. To establish that this reason was a pretext for unlawful discrimination, Evance must pass the “rigorous” test to show that she and more favorably treated employees were “ ‘similarly situated in all relevant respects.’ “ Bone v. G4S Youth Servs., LLC, 686 F.3d 948, 956 (8th Cir.2012) (quoting Rodgers v. U.S. Bank, N.A., 417 F.3d 845, 853–54 (8th Cir.2005), abrogated on other grounds by Torgerson v. City of Rochester, 643 F.3d 1031, 1043, 1058 app. (8th Cir.2011) (en banc)). “[T]he individuals used for comparison must have dealt with the same supervisor, have been subject to the same standards, and engaged in the same conduct without any mitigating or distinguishing circumstances.” Id. at 956 (quoting Clark v. Runyon, 218 F.3d 915, 918 (8th Cir.2000)).

Evance claims “[e]very nurse, every CNA, is a comparator. Each one had experienced [inappropriate] behavior from the resident and/or other elderly male patients,” but only Evance was accused of misconduct, investigated by police, reported to the OLTC, and discharged. Evance does not provide any evidence that any other employees who were not Pentecostal, female, or disabled were accused of the exact or similar behavior as she was. Evance stated she saw the resident inappropriately touch Begley and Cortinas. Evance admitted she did not report these observations to anyone, Begley and Cortinas were not acting inappropriately, and she did not know whether McMickle or Shrout were aware of any inappropriate behavior between other nurses and residents, such that they could have taken disciplinary action. Begley and Cortinas, as CNAs, also had different job titles and supervisors than Evance did. Evance has not introduced evidence showing any similarly situated employee was treated more favorably. See id.

Evance also complains that the investigation was not thorough and Begley and Cortinas were not credible. We are not “a ‘super-personnel department’ with the power to second-guess employers' business decisions.” Russell v. TG Mo. Corp., 340 F.3d 735, 746 (8th Cir.2003). Assuming the affidavits contained some inaccurate information, “it is not unlawful for a company to make employment decisions based upon erroneous information and evaluations.” Allen v. City of Pocahontas, Ark., 340 F.3d 551, 558 n. 6 (8th Cir.2003). The district court properly granted summary judgment on Evance's discrimination claims against Trumann Health.

B. Defamation Claims

The only defamation claims Evance properly appealed are her libel claims against Begley, Cortinas, Holt, and Kelly. The district court granted summary judgment on these claims because it determined these defendants were immune from liability under Ark.Code Ann. § 12–12–1713 and “no evidence · suggest [s] that the [individual defendants'] reports were not made in good faith.”

Evance explains her “defamation claim is based on the false affidavits of Begley, Cortinas and Shrout, and repeated by Holt and Kelly, which stated [Evance] initiated the sexual contact with the male resident. Shrout was made a defendant for writing the statement of Cortinas.” Evance admits the resident touched her breast and tried to put his hand up her skirt and her hand was between the resident's legs, but claims the resident initiated the contact, which she discouraged and rejected. Evance did not allege in her amended complaint, and does not claim on appeal, any other statement was defamatory.

None of the affidavits suggest Evance initiated this contact. Evance stated in her deposition that Cortinas implied Evance initiated the contact by saying in Cortinas' affidavit that Evance was sitting on the resident's lap. We cannot detect such an implication, nor does Evance allude to one on appeal. There is no evidence to support Evance's claim any of the defendants defamed Evance by falsely stating Evance “initiated the sexual contact with the male resident.” (Emphasis added).

Although the district court granted summary judgment on a different basis, we may affirm the district court's grant of summary judgment “on any grounds supported by the record.” Moyle v. Anderson, 571 F.3d 814, 817 (8th Cir.2009). The district court properly granted summary judgment on Evance's libel claims against Begley, Cortinas, Holt, and Kelly. Trumann Health also cannot be liable for defamation because Evance premised Trumann Health's liability upon the individual defendants' liability.

III. CONCLUSION

We affirm the district court's grant of summary judgment to the defendants. This opinion rests on Evance's failure of proof.

FOOTNOTES

1.  The Honorable James M. Moody, United States District Judge for the Eastern District of Arkansas.

RILEY, Chief Judge.

View the original article here

UNITED STATES v. CHASE

UNITED STATES of America, Plaintiff–Appellee v. Dennis Gale CHASE, Defendant–Appellant.

No. 12–2552.

-- June 25, 2013

Before SMITH, MELLOY, and BENTON, Circuit Judges.

Counsel who represented the appellant was Jennifer M. Macaulay of St. Paul, MN.Counsel who represented the appellee was Kimberly A. Svendsen, AUSA, of Minneapolis, MN.

A jury convicted Appellant Dennis Chase of three counts of transportation of child pornography in violation of 18 U.S.C. § 2252(a)(1), (b)(1) and three counts of possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B), (b)(2). On appeal, Chase argues that the district court1 improperly denied his motion to suppress because there was insufficient probable cause to support the initial warrant to search his residence. Chase also claims that the district court's denial of an entrapment-defense jury instruction deprived him of his due process right to a fair trial. Finally, Chase argues that there was insufficient evidence to support his convictions and that his sentence was unreasonable. We address, and reject, each claim in turn.

First, we hold that sufficient probable cause supported the search warrant. Chase argues specifically that the warrant failed to establish a nexus between the items to be seized—child pornography—and the location to be searched—Chase's residence. We reject this argument because “[t]he observation that images of child pornography are likely to be hoarded by persons interested in those materials in the privacy of their homes is supported by common sense and the cases.” United States v. Hyer, 498 F. App'x. 658, 660–61 (8th Cir.2013) (alteration in original) (citation and internal quotation marks omitted).

Second, we reject Chase's claim that the district court's refusal to instruct the jury on the entrapment defense violated his due process right to a fair trial. “We review the district court's denial of a proffered legal defense de novo.” United States v. Young, 613 F.3d 735, 743 (8th Cir.2010). “To the extent that the district court's legal conclusion regarding whether [Chase's] defense theory accurately reflected the law was based on factual findings, we review for clear error.” Id. at 744. Here, the district court properly held that there was insufficient evidence for a reasonable jury to find entrapment. See id. at 746 (“[A] defendant is entitled to an entrapment instruction only where ‘there is sufficient evidence from which a reasonable jury could find entrapment.’ “ (quoting Mathews v. United States, 485 U.S. 58, 62 (1988)). Chase presented no evidence to show that the government induced him, and the evidence established that Chase was predisposed to commit the offense. See Mathews, 485 U.S. at 63 (“[A] valid entrapment defense has two related elements: government inducement of the crime, and a lack of predisposition on the part of the defendant to engage in the criminal conduct.”).

Third, we conclude that the district court properly denied Chase's motion for judgment of acquittal based on the sufficiency of the evidence. Chase argues that the district court's refusal to instruct the jury on the affirmative defense of entrapment meant that the evidence presented to the jury was not constitutionally sufficient to justify a conviction. Because we determined that the entrapment instruction was properly denied, this argument has no merit. Further, the district court properly determined that sufficient evidence supports the jury's verdict. United States v. Wells, 646 F.3d 1097, 1102 (8th Cir.2011) (standard of review).

Finally, we reject Chase's claims regarding his sentence. Chase challenges his sentence on two grounds. First, he challenges a five-level enhancement under U.S. Sentencing Guidelines Manual Section 2G2.2(b)(3)(B) for “distribution [of child pornography] for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain.” The government argues that this enhancement is proper because Chase distributed child pornography on a file-sharing network with the expectation of receiving child pornography in return. “[W]hether a defendant qualifies for the five-level enhancement must be decided on a case-by-case basis, with the government bearing the burden of proving that the defendant expected to receive a thing of value—child pornography—when he used the file-sharing network to distribute and access child pornography files.” United States v. Bastian, 603 F.3d 460, 466 (8th Cir.2010) (alteration in original) (citation and internal quotation marks omitted). “The government can meet its burden with direct evidence, such as an admission by the defendant that he knew he was using a file-sharing network, and could download files from others who could download files from him.” Id. Once the government meets this burden, a defendant must “show ‘concrete evidence’ of his ignorance as to distribution in order to defeat a finding with respect to distribution.” United States v. Dolehide, 663 F.3d 343, 347–48 (8th Cir.2011) (quoting United States v. Dodd, 598 F.3d 449, 452 (8th Cir.2010)). In this case, the government met its burden by presenting evidence that Chase knew he was using a file-sharing network. Chase failed to provide concrete evidence of his ignorance as to distribution. Further, the government established that Chase expected to—or did—receive a thing of value in exchange for distributing child pornography. See id. (stating that a defendant expected to receive a thing of value “by virtue of the fact of sharing (uploading) and receiving (downloading) shared images via the file-sharing network”). Therefore, the five-level enhancement was proper.

Chase also claims that the sentence imposed is greater than necessary to achieve the objectives under 18 U.S.C. § 3553(a). Specifically, Chase argues that the district court did not give enough consideration to his age, his need to care for his ailing mother, and his health problems. However, the district court considered these factors, but determined a 292–month sentence was appropriate considering the seriousness of the offense, the lack of remorse and regret exhibited by Chase, his criminal history, and various other factors. The district court's presumptively reasonable sentence—which was at the bottom of the calculated guideline range—does not constitute an abuse of discretion. United States v. Feemster, 572 F.3d 455, 461 (8th Cir.2009) (standard of review).

For the foregoing reasons, we affirm.

FOOTNOTES

1.  The Honorable John R. Tunheim, United States District Judge for the District of Minnesota, adopting the Report and Recommendation of the Honorable Janie S. Mayeron, United States Magistrate Judge for the District of Minnesota.

PER CURIAM.

View the original article here