U.S. v. Crowell

• Decision Date: 26 June 2007
• Docket Number: No. 06-5902.,06-5902.
• Citation: 493 F.3d 744
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Antonio D. CROWELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

493 F.3d 744

UNITED STATES of America, Plaintiff-Appellee, v. Antonio D. CROWELL, Defendant-Appellant.

No. 06-5902.

United States Court of Appeals, Sixth Circuit.

Argued: May 29, 2007.

Decided and Filed: June 26, 2007.

ARGUED: Kimberly S. Hodde, Hodde & Associates, Nashville, Tennessee, for Appellant. Paul M. O'Brien, Assistant United States Attorney, Nashville, Tennessee, for Appellee. ON BRIEF: Kimberly S. Hodde, Hodde & Associates, Nashville, Tennessee, for Appellant. Philip H. Wehby, Assistant United States Attorney, Nashville, Tennessee, for Appellee.

Before: GILMAN, GIBBONS, and GRIFFIN, Circuit Judges.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

Defendant-appellant Antonio D. Crowell was convicted of being a felon in possession of a firearm. At sentencing, the district court found that Crowell had three prior convictions for violent felonies and therefore qualified for an enhanced sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (ACCA). The court calculated Crowell's range under the advisory Sentencing Guidelines to be 235 to 293 months and sentenced Crowell to 235 months imprisonment. Crowell appeals, asserting that: (1) the evidence presented at trial was insufficient to support his conviction; (2) the district court erred in confirming the existence of his juvenile adjudication for aggravated robbery; (3) the court's use of his alleged juvenile adjudication as a predicate offense for purposes of the ACCA violated his due process rights; and (4) his sentence is not reasonable under 18 U.S.C. § 3553(a). For the following reasons, we affirm the conviction and the sentence of the district court.

I.

At approximately 5:00 p.m. on August 22, 2002, Metro Nashville Police Department (MNPD) Officer Jamie Scruggs was on patrol in north Nashville when he saw a white Chevrolet Lumina matching the description of a vehicle that had reportedly been involved in an earlier incident. Officer Scruggs followed the vehicle and radioed two other MNPD officers, Sharraff Mallery and Wayne Fisher, who were in the area. Mallery and Fisher followed the vehicle and, after the suspect driver parked the car, a chase on foot ensued.

Mallery pursued Crowell, who was the driver of the Chevrolet, and his passenger, an unidentified person who was never captured, through a local public housing project. Mallery testified that during the chase he saw Crowell holding onto the waistband of his pants with his right hand which, in his experience, often indicated that a person was carrying a gun. Mallery further testified that he saw Crowell "retrieve a silver object," at which point he radioed that the defendant had a gun.¹ When Mallery saw Crowell throw the gun into a nearby bush, he was approximately five to ten feet behind Crowell. In his testimony, Mallery emphasized his certainty that Crowell discarded a gun and that no one else was observed in the area where the gun was recovered. Mallery continued to chase Crowell across the street, where after a brief struggle, he took the defendant into custody. At that point, Fisher arrived on the scene and Mallery directed Fisher to the bush — located roughly 100 feet away — where Mallery had seen Crowell throw the gun. Fisher proceeded to the bush and retrieved the gun, later identified as a Ruger P-94 nine-millimeter semiautomatic handgun.² The gun was retrieved roughly thirty seconds to a minute after Crowell was apprehended.

Fisher testified that he too witnessed Crowell discard the gun. According to Fisher, he was running in an attempt to cut off Crowell's escape when he saw the defendant pull a gun from his waistband and throw it to the ground. Fisher testified that he was approximately thirty to forty feet from Crowell at the time and that he had no difficulty "whatsoever" seeing Crowell discard the gun.

At trial, Crowell testified that, contrary to Mallery's testimony, Mallery lost sight of Crowell during the chase. Crowell asserted that he ran from the police only because he was on parole. According to Crowell, the officers never saw him with a gun but instead charged him with possession because he was the only person apprehended. Defense witness Terica Green, a friend of Crowell's cousin, testified that she was standing across the street when she saw another unidentified man run out of a building, along with Crowell and a police officer. According to Green, it was this man, not Crowell, who dropped the gun. Green did not come forward with this information for almost three years after Crowell's arrest.

On June 8, 2005, a jury found Crowell guilty of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). At his sentencing hearing, Crowell denied the existence of a 1990 juvenile conviction for aggravated robbery.³ The government responded by presenting written proof of Crowell's juvenile adjudication along with the testimony of the detective who prosecuted Crowell on the 1990 charge. The district court concluded that the government had carried its burden for proving the existence of the juvenile conviction. Including this conviction, the court found that Crowell had three prior convictions for violent felonies and therefore qualified as an armed career criminal pursuant to 18 U.S.C. § 924(e). The court also concluded that using Crowell's juvenile conviction as an ACCA predicate was not a violation of due process.

The court found Crowell to have an offense level of 33 and a criminal history category of VI, resulting in a Guidelines range of 235 to 293 months. The court denied Crowell's U.S.S.G. § 5K2.13 motion for a downward departure based on his diminished capacity and sentenced Crowell to 235 months imprisonment.

II.

A.

Crowell contends that the evidence presented at trial was constitutionally insufficient to support his conviction as a felon in possession of a firearm. In reviewing a sufficiency of the evidence claim, this court considers "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Copeland, 321 F.3d 582, 600 (6th Cir.2003) (internal quotation marks omitted). "It is not necessary that circumstantial evidence remove every reasonable hypothesis except that of guilt." United States v. Stone, 748 F.2d 361, 363 (6th Cir.1984). In assessing the sufficiency of the evidence, this court "do[es] not weigh the evidence, assess the credibility of the witnesses, or substitute our judgment for that of the jury." United States v. Jackson, 55 F.3d 1219, 1225 (6th Cir.1995) (internal quotation marks omitted). Further, this court makes all reasonable inferences and credibility decisions in support of the jury's verdict. United States v. Hughes, 895 F.2d 1135, 1140 (6th Cir.1990).

To obtain a conviction pursuant to § 922(g)(1), the government must prove beyond a reasonable doubt: "(1) that the defendant has a prior conviction for a crime punishable by imprisonment for a term exceeding one year; (2) that the defendant thereafter knowingly possessed the firearm and ammunition specified in the indictment; and (3) that the possession was in or affecting interstate commerce." United States v. Schreane, 331 F.3d 548, 560 (6th Cir.2003) (internal quotation marks omitted). Crowell challenges only the element of possession.

Crowell asserts that "[a]lthough the government's two (2) law enforcement witnesses were unwavering that the defendant had a firearm and threw it into the bushes while fleeing from the police, the defense proof contradicted this evidence." Crowell cites only his own testimony and that of Green, who testified that she observed "a little dude" drop the gun in the bushes, not Crowell. However, Crowell provides no support for his assertion that the existence of any evidence to the contrary renders a conviction constitutionally deficient. The government presented ample evidence establishing that Crowell knowingly possessed the firearm in question. In their trial testimony, Mallery and Fisher both conveyed their complete confidence in having seen the defendant discard the gun in the nearby bushes. Both officers were near the defendant at the time and their views were unobstructed. Mallery's testimony was substantiated by the radio transmission, made contemporaneously with the event, in which he reported that Crowell had thrown a gun while fleeing. Both officers identified the gun at trial and Crowell as the person who discarded the gun. Finally, Mallery testified that, after his arrest, Crowell made the statement that the gun in question "was a nice nine millimeter."

After hearing testimony from the officers at the scene of the arrest, the jury made the decision to credit this testimony over that of the contradictory testimony proffered by Crowell and Green. Review of the record reveals nothing that indicates this decision was in error. Because a rational trier of fact could have found beyond a reasonable doubt that Crowell possessed the firearm in question, we find that sufficient evidence was presented at trial to support Crowell's conviction as a felon in possession of a firearm.

B.

Crowell contests the existence of an April 1990 juvenile court adjudication that, along with two other convictions, established that Crowell was an armed career criminal under 18 U.S.C. § 924(e). Crowell denied the existence of the juvenile adjudication at his sentencing hearing and now asserts that a document indicating that he had no juvenile record "should have given the district court concern about the reliability of the information and evidence used to impose the steep enhancement [pursuant to § 924(e).]" This court reviews a district court's factual findings at sentencing for clear error. United States v. Katzopoulos, 437 F.3d 569, 578 (6th Cir.2006).

The government introduced the following certified documents related to the 1990 juvenile conviction at the sentencing hearing: (1) a...