U.S. v. Lee

• Decision Date: 26 October 2009
• Docket Number: No. 08-14724.,08-14724.
• Citation: 586 F.3d 859
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Shawntrail J. LEE, a.k.a. Billy Darkside, a.k.a. Jathen Lee, a.k.a. Jermaine Wilder, a.k.a. Shawn Lee, a.k.a. Rahshaun Frost, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

586 F.3d 859

UNITED STATES of America, Plaintiff-Appellee, v. Shawntrail J. LEE, a.k.a. Billy Darkside, a.k.a. Jathen Lee, a.k.a. Jermaine Wilder, a.k.a. Shawn Lee, a.k.a. Rahshaun Frost, Defendant-Appellant.

No. 08-14724.

United States Court of Appeals, Eleventh Circuit.

October 26, 2009.

Michael W. Millians (Court-Appointed), Glover, Blount & Millians, Augusta, GA, for Lee.

James C. Stuchell, Savannah, GA, for U.S.

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

Before EDMONDSON, BIRCH and COX, Circuit Judges.

BIRCH, Circuit Judge:

Shawntrail Lee appeals his conviction for being a felon in possession of a firearm. He asserts that the district court erred in denying his motion to suppress the gun that was found in his co-defendant's car and abused its discretion in denying his motion for a new trial based upon allegedly improper jury instructions. Lee further challenges his 180-month sentence on the grounds that the district court erred in finding that his prior convictions under New Jersey law for conspiracy, eluding a police officer, and escape were violent felonies under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). We conclude that Lee lacks standing to contest the search that led to the discovery of the gun and that his challenge to the district court's denial of his motion for a new trial is without merit. Accordingly, we AFFIRM his conviction. However, because Lee's prior conviction for a "walkaway" escape is not a "violent felony" under § 924(e)(2)(B)(ii) of the ACCA, a matter of first impression after the Supreme Court's decision in Chambers v. United States, ___ U.S. ___, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009), we VACATE his sentence and REMAND to the district court for resentencing.

I. BACKGROUND

A federal grand jury returned an indictment against Lee and his co-defendant Rashon Jackson, charging them with being felons in possession of a firearm, in violation of 18 U.S.C. § 922(g). The indictment alleged that Lee previously had been convicted for, inter alia, attempting to elude the police, conspiracy to commit robbery, and escape, all felonies under New Jersey law. The government submitted a penalty certification, providing that Lee was subject to the statutory mandatory minimum sentence of fifteen years of imprisonment under 18 U.S.C. § 924(e). Lee subsequently stipulated that he was "a convicted felon as charged in the indictment." R1-67.

A. Motion to Suppress

Prior to trial, Lee moved to suppress the firearm that was discovered in the glove compartment of Jackson's Lexus on the grounds that the search of the vehicle was conducted without consent, probable cause, or a warrant, in violation of the Fourth Amendment. The magistrate judge ordered Lee to file an affidavit demonstrating that he had a legitimate expectation of privacy in the property searched. In his affidavit, Lee stated, inter alia, that the Lexus "was in the possession of Rashon Jackson." R1-36 at 1.

At the suppression hearing, Deputy David Wheeler, an agent with the Columbia County Sheriff's Department ("CCSD"), testified that on 24 June 2007, the CCSD received a call from the Lincoln County Sheriff's Department ("LCSD") in reference to a possible shooting that had occurred in Lincoln County. According to LCSD officials, shots had been fired at a residence from a white Lexus with spoked rims and New Jersey tags. Deputy Wheeler's unit was advised to "be on the lookout" for the vehicle, which LCSD officials believed was heading into Columbia County on Washington Road. LCSD officials also advised that there were two black males in the vehicle.

Deputy Wheeler stated that he was traveling on Washington Road when he received the call from dispatch and pulled into a convenience store at the intersection of Washington Road and William Few Parkway. Approximately two or three minutes later, a white Lexus matching the description of the suspect vehicle arrived at the store and pulled up to a gas pump. Jackson was driving, Lee was in the front passenger seat, and a black female, identified as a "Ms. Malone," was in the back seat. Lee and Malone went inside the store while Jackson pumped gas. When Lee and Malone returned to the car, Deputy Wheeler and the officers who had arrived on the scene approached the suspects to question them about the shooting. Both Jackson and Lee denied that there were any weapons or drugs in the car and refused to consent to a search of the car. When a check of Jackson's license revealed that it was suspended, Jackson was arrested and placed in the back of one of the patrol cars. Incident to Jackson's arrest, the officers searched the car but found no contraband or other evidence of criminal activity.

At that point, Deputy Wheeler called for a wrecker to come and remove the vehicle because Lee and Malone had been drinking that night and were unable to drive. Deputy Wheeler testified that police department policy required the officers to conduct an inventory of the vehicle, which included "go[ing] through the car and mak[ing] ... a list of everything that's in the car," before turning it over to the wrecker service. R2 at 7. Pursuant to this routine inventory search, the officers found a loaded .40 caliber Ruger pistol in the locked glove compartment. Deputy Wheeler recalled that the barrel of the gun was still warm to the touch, indicating that it had recently been fired several times. Lee was then placed under arrest and taken into custody.

The magistrate judge issued a report and recommendation finding that: (1) the officers were justified in detaining and questioning Lee, Jackson, and Malone, because they had a reasonable suspicion, based on particularized and articulable facts, that the Lexus was involved in the Lincoln County shooting; (2) the officers had probable cause to arrest Jackson after discovering that his license was suspended; (3) the impoundment of the Lexus was reasonable under the circumstances; and (4) the inventory search of the vehicle, conducted subsequent to its authorized impoundment and pursuant to standard police procedure, was lawful. Overruling Lee's objections, the district court adopted the magistrate's report and recommendation and denied Lee's motion to suppress the firearm.

B. Jury Instructions

Following a one day trial, the district court instructed the jury on, inter alia, its obligation to follow the court's instructions as a whole and consider all of the evidence, the government's burden of proof, and the elements of the felon-in-possession offense. During its deliberation process, the jury directed the following question to the court: "There are some that are completely confused [as] to what the evidence, hearsay and the law is. Please help us. Can you talk about what you can consider and what you can't. Help please." R3 at 138. After conferring with the parties on how to respond, the court called the jury back in and repeated many of its former instructions regarding the elements of the offense and the reasonable doubt standard. With respect to the elements of the offense, the court reminded the jury that the government had to prove that Lee (1) "knowingly possessed a firearm ... in or [a]ffecting interstate commerce" and (2) previously had been convicted of a felony offense. Id. at 142. The court advised the jury that because Lee had stipulated that he was a convicted felon as charged in the indictment and there was no dispute that the firearm had traveled in interstate commerce, the only determination it needed to make was whether Lee "knowingly possessed" the firearm. Id. at 142-43. The court stated that "knowingly" meant "voluntarily and intentionally and not because of mistake or accident" and explained "possession" as follows:

A person may have actual possession or constructive possession ... A person who knowingly has direct, physical control over something is then in actual possession of it. I'm holding this ruler in my hand so there is no question that I am in actual, physical possession of it.

A person who is not in actual possession, but who has the power and the intention to later take control of something either alone or together with someone else is in constructive possession of that item. Obviously, I'm holding up my car keys or I should say the keys to my life because this set of keys unlocks everything I own ... I am not holding my car and I am not ... near my truck, but I have the power and the intention to later take control of my car and I will use these keys to do so. So, I am in constructive possession over all of those items.

Id. at 140-41.

The court next addressed the jury's reference to hearsay, stating that while there may have been one objection to the testimony at trial on hearsay grounds, "there is no hearsay in this case." Id. at 145. The court informed the jury that "[e]verything [it] heard, every word [it] heard uttered by the witnesses ... was testimony," and that "there [was] no hearsay before [it]." Id. at 145-46.

After excusing the jury, defense counsel advised the court that while he believed the court's instructions constituted "a correct statement of the law," he was concerned that they "overly emphasize[d]" the elements of the offense. Eleven minutes later, the jury returned with a guilty verdict. Lee subsequently moved for a new trial, asserting, inter alia, that he "was prejudiced by the Court's answer and responses to the Jury's question about hearsay." R1-75. Finding no bases for setting aside the jury's guilty verdict, the court denied the motion.

C. Sentencing

The probation officer who prepared Lee's pre-sentence investigation report ("PSI") calculated Lee's base offense level at 33 after determining that Lee had three violent felony convictions and thus was an armed career criminal subject to the statutory mandatory minimum sentence of fifteen years of imprisonment under 18 U.S.C. § 924(e). See U.S.S.G. §§ 4B1.4 (a), (b)(3)(B) (Nov.2008); 18 U.S.C. § 924(e...