415 F.3d 790 (8th Cir. 2005), 04-2469, United States v. Claybourne

Docket Nº:04-2469.
Citation:415 F.3d 790
Party Name:UNITED STATES of America, Appellee, v. Anthony Thomas CLAYBOURNE, Appellant.
Case Date:August 01, 2005
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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415 F.3d 790 (8th Cir. 2005)

UNITED STATES of America, Appellee,


Anthony Thomas CLAYBOURNE, Appellant.

No. 04-2469.

United States Court of Appeals, Eighth Circuit.

August 1, 2005

Submitted: Dec. 15, 2004.

Rehearing and Rehearing En Banc Denied Sept. 14, 2005. [*]

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Southern District of Iowa.

Timothy S. Ross-Boon, argued, Asst. Federal Public Defender, Des Moines, IA, for appellant.

Shannon L. Olson, argued, Asst. U.S. Atty., Des Moines, IA (Clifford D. Wendel, Asst. U.S. Atty., on brief), for appellee.

Before LOKEN, Chief Judge, MORRIS SHEPPARD ARNOLD and RILEY, Circuit Judges.

RILEY, Circuit Judge.

After a two-day jury trial, Anthony Claybourne (Claybourne) was convicted of being a felon in possession of a firearm, in

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violation of 18 U.S.C. § 922(g)(1). Finding Claybourne was an armed career criminal, see 18 U.S.C. § 924(e), U.S.S.G. § 4B1.4, the district court [1 sentenced Claybourne to 235 months' imprisonment. On appeal, Claybourne claims (1) insufficient evidence supports his conviction, (2) the district court abused its discretion in admitting drug-related evidence, (3) the United States Sentencing Guidelines (Guidelines) are unconstitutional, and (4) the district court unconstitutionally enhanced Claybourne's sentence based on the court's findings that Claybourne had three prior felony convictions. We affirm Claybourne's conviction and sentence.


On May 28, 2003, members of the Mid-Iowa Narcotics Task Force executed a search warrant of Claybourne's residence. Before police officers entered the residence, Officer Joseph Torruella (Officer Torruella) looked through a window and noticed someone moving inside the residence. Upon entering the residence, the officers encountered Claybourne, who was the only person in the residence. The officers also discovered the residence had only two small bedrooms. When officers searched the bedroom where Officer Torruella had seen movement, they discovered (1) an Iowa nondriver identification card for Claybourne; (2) Claybourne's Social Security card; (3) a wireless telephone bill in Claybourne's name inside a shoe box; (4) another identification card for Claybourne inside a box on the top shelf of the closet; (5) a hand scale inside the closet; (6) a box of sandwich baggies; (7) a digital scale buried under some socks inside a dresser drawer; and (8) $950 in cash wrapped in a rubber band inside a sock in a clothes basket.

The police also discovered a double extra large man's t-shirt on the top shelf of the closet. Concealed inside the t-shirt were an Intratec, Model TEC-9, 9mm, semiautomatic pistol, its barrel, and its magazine containing twenty-nine rounds of ammunition.2 No identifiable prints were discovered on the firearm.

The government charged Claybourne with being a felon in possession of a firearm and ammunition. Claybourne pled not guilty. Granting, in part, Claybourne's motion in limine to exclude drug-related evidence, the district court allowed the government only to submit evidence that the firearm "was found in the presence of drug material, drug paraphernalia." Evidence of other drug activities and related investigations was not allowed.

At trial, Claybourne called two witnesses-Nicole Cratty (Cratty) and Angel Ball (Ball). Cratty, who had known Claybourne only since May 2003, testified the firearm found in the closet did not belong to Claybourne: "I know that the weapon was not his. . . . Because I'm the one that put it at the top of the cupboard in the house." Cratty testified she first discovered the firearm while she was packing to move on May 4 or 5. Cratty said she found the firearm wrapped inside a gray t-shirt above the kitchen cupboard at her apartment. Cratty said Claybourne had never been to her apartment, but she had allowed a man from Omaha to stay at her apartment from the end of April to the beginning of May. Cratty testified she did

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not know the man's full name, address or phone number. After consulting Ball, who was helping her move, Cratty decided to take the firearm with her to her next residence. Cratty did not stay long at that residence, and decided to move to another apartment on May 28. Before she moved into the apartment, Cratty stayed with Claybourne in his bedroom on May 26 and 27. Cratty testified that, on May 27, she decided she wanted to go to the bar and "didn't want to get pulled over with [the firearm] in [her] vehicle," so she "put [the firearm wrapped inside the t-shirt] in the cupboard above the closet in the first bedroom at [Claybourne] 's." Cratty said she put the firearm and the t-shirt in the closet about 9:00 p.m. Cratty testified "[n]obody was there when I did it," and she never told Claybourne she put the firearm in his closet. At approximately 3:00 or 4:00 a.m. on May 28, Cratty, Claybourne and another friend returned to Claybourne's residence. After leaving the apartment on the morning of May 28, Cratty never returned to Claybourne's residence, never showed the firearm to Claybourne, and never talked to Claybourne about the firearm.

Ball testified she has known Cratty since elementary school, but had never met Claybourne. Ball testified she was the only person who helped Cratty move in early May 2003, but had not talked to Cratty "for a long time" before that day. Ball stated that, while she was in another room packing, Cratty "hollered for me to come into the kitchen and had me get up on the counter to look, and there was a gun there." Ball identified the firearm at trial as the one she saw when she was helping Cratty move. Ball also stated the firearm was wrapped in a gray t-shirt, but did not know if the t-shirt produced at trial was "the exact one." Although Ball first testified she had never met Claybourne and did not visit Claybourne in jail, Ball later admitted-after the government produced jail visitation records with Ball's handwriting-she had visited Claybourne while he was in jail.

At the close of the government's case and again at the close of all of the evidence, Claybourne moved for judgment of acquittal. The district court denied the motion both times. After the two-day trial, a jury convicted Claybourne on the felon-in-possession charge.

The United States Probation Office prepared a presentence investigation report (PSR), which contained ten pages listing Claybourne's adult convictions. The PSR calculated a criminal history category of VI. Based on Claybourne's prior convictions for second-degree burglary, third-degree burglary, escape, and assault with intent to inflict serious injury (two convictions for this offense), the PSR concluded Claybourne should be sentenced as an armed career criminal under 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4. Claybourne lodged an objection to the PSR, contending "he is not an armed career criminal,"...

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