U.S. v. Benton

• Citation: 627 F.3d 1051
• Decision Date: 13 December 2010
• Docket Number: No. 10-1718,10-1718
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rickey Orville BENTON, Jr., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

627 F.3d 1051

UNITED STATES of America, Plaintiff-Appellee,

v.Rickey Orville BENTON, Jr., Defendant-Appellant.

No. 10-1718.

United States Court of Appeals,

Eighth Circuit.

Submitted: Nov. 19, 2010.

Filed: Dec. 13, 2010.

Timothy S. Ross-Boon, Asst. Fed. Public Defender, on the brief, Des Moines, IA, for appellant.

John E. Beamer, Asst. U.S. Atty., argued, Des Moines, IA, for appellee.

Before MURPHY, SMITH, and BENTON, Circuit Judges.

MURPHY, Circuit Judge.

Rickey Benton's supervised release was revoked by the district court ¹ which sentenced him to 27 months imprisonment for violating Iowa's concealed weapon law and 9 months consecutive for several other offenses, to be followed by 12 months of supervised release. Benton appeals, arguing that the evidence was insufficient to find that he had violated the concealed weapon law and that the district court imposed an unreasonable sentence. We affirm.

Benton had pled guilty in 1996 to being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1), and was sentenced to 180 months and 36 months of supervised release. After serving his sentence, he began his term of supervised release on February 19, 2010. Within days the probation office became aware that Benton appeared to be violating the terms of his supervised release and it moved to revoke his release on March 8 on the grounds that he had: 1) failed to comply with required drug testing, 2) associated with known felons, 3) associated with drug users and persons engaged in criminal activity, 4) committed theft, burglary, and driving without a license, and 5) carried a concealed weapon.

The district court conducted a revocation hearing, after which it found that Benton had violated his supervised release by associating with felons and drug users, driving without a license, failing to comply with drug testing, and carrying a concealed weapon. The court concluded that the government had failed to prove that Benton had committed theft or burglary.

Altoona, Iowa police officers had responded on March 6, 2010 to a call that someone was burglarizing a house in which they knew Benton was staying. Officer Alyssa Wilson Green was the first to arrive. She saw a woman later identified as Abigail Hill loading a car parked in front of the residence. Officer Wilson Green testified at the revocation hearing that Hill told her she was helping Benton move and that he was inside the house. Wilson Green said she wanted to speak with him, and Hill took her into the house to Benton's bedroom. The bedroom door was jammed, and Hill had to push it open. When officer Wilson Green entered theroom, a woman inside told her that Benton had jumped out the window.

When two other officers arrived at the house, Wilson Green advised them that Benton had jumped out a window. Officer Josh Clark then searched the back of the house and found tracks in the snow leading to a fence and then over into another yard. A neighbor told him that he had seen a man wearing jeans and a dark sweatshirt walk from the house toward a nearby park. A few hours later Benton returned to the residence. Officer Clark testified that he saw him approach the house from the garage wearing jeans and a dark sweatshirt. When Clark asked Benton where he had been, he replied that he had been across the street at a neighbor's house. Clark and another officer patted Benton down and found two throwing stars in his pocket. Officer Clark later testified that the throwing stars had very sharp edges capable of inflicting serious injury. The district court found the testimony of officers Clark and Wilson Green credible and sufficient to establish a violation of Iowa's concealed weapon law.

The district court determined that Benton's most serious violation was for carrying a concealed weapon, Grade B under the sentencing guidelines, while the remaining violations were Grade C. Based on a criminal history category VI, the court calculated an advisory guideline range for the concealed weapon violation to be 21 to 27 months and 8 to 14 months for the remaining violations. The court sentenced Benton to 27 months for the concealed weapon violation and 9 months consecutive for the remaining violations, to be followed by one year of supervised release. Benton appeals, arguing that the evidence was insufficient to support a finding that he had violated Iowa's concealed weapon law and that the court imposed an unreasonable sentence.

We review a district court's "decision to revoke supervised release for an abuse of discretion, and we review the factual determinations underlying the court's decision to revoke for clear error." United States v. Smith, 576 F.3d 513, 515 (8th Cir.2009). "A violation of supervised release need only be established by a preponderance of the evidence." United States v. Lynch, 611 F.3d 932, 934 (8th Cir.2010) (citing 18 U.S.C. § 3583(e)(3)).

Under U.S.S.G. § 7B1.1(a)(1), a Grade B violation of supervised release includes any federal, state, or local offense that is punishable by a prison term exceeding one year. Iowa Code § 724.4(1) makes it a crime to be "armed with a dangerous weapon concealed on or about the person." An exception applies if the person remains in his own dwelling with the weapon. Iowa Code § 724.4(4)(a). Benton concedes that a violation of § 724.4(1) is a Grade B violation, but argues that the government failed to present sufficient evidence to show that the throwing stars are a dangerous weapon or that he left his own property with them.

A dangerous weapon is defined under Iowa Code as "any instrument or device designed primarily for use in inflicting death or injury upon a human being or animal, and which is capable of inflicting death upon a human being when used in the manner for which it was designed." Iowa Code § 702.7. Whether a device qualifies as a dangerous weapon under this definition is a question of fact. See State v. Dallen, 452 N.W.2d 398, 398-99 (Iowa 1990).

At the revocation hearing the government introduced into evidence the throwing stars found on Benton, as well as testimony by officers Wilson Green and Clark. Both officers testified that the throwing stars were capable of causingserious injury or death when used as intended. Officer Clark added that the stars were very sharp and could cause serious injury if used as a knife. The district court found the officers' testimony credible and sufficient to show that the throwing stars were a dangerous weapon. After examining the record, we agree and conclude that the court did not clearly err in finding that the throwing stars were dangerous weapons as defined under § 702.7.

Benton also argues that the district court's finding that he took the throwing stars onto public property is unsupported because neither Wilson Green nor Clark testified that they had seen Benton off the property of his residence. Officer Wilson Green testified that when she entered Benton's room, a woman inside told her he had jumped from the window. Officer Clark testified that he found tracks in the snow leading away from the...