736 Fed.Appx. 807 (11th Cir. 2018), 16-15073, United States v. Dukes

Docket Nº:16-15073
Citation:736 Fed.Appx. 807
Opinion Judge:PER CURIAM:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Douglas Bernard DUKES, Jose Antonio Delacruz, Defendant-Appellants.
Attorney:Angela Marie Munson, John Andrew Horn, Erin Sanders, Lawrence R. Sommerfeld, U.S. Attorney’s Office, Atlanta, GA, for Plaintiff-Appellee Adam Marshall Hames, Strickland Webster, LLC, ATLANTA, GA, for Defendant-Appellant Douglas Bernard Dukes Leigh Ann Webster, Strickland Webster, LLC, Atlanta, GA...
Judge Panel:Before WILSON, JORDAN, and FAY, Circuit Judges.
Case Date:June 04, 2018
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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736 Fed.Appx. 807 (11th Cir. 2018)

UNITED STATES of America, Plaintiff-Appellee,

v.

Douglas Bernard DUKES, Jose Antonio Delacruz, Defendant-Appellants.

No. 16-15073

United States Court of Appeals, Eleventh Circuit

June 4, 2018

Editorial Note:

DO NOT PUBLISH. (See Federal Rule of Appellate Procedure Rule 32.1. See also U.S.Ct. of App. 11th Cir. Rule 36-2.)

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Angela Marie Munson, John Andrew Horn, Erin Sanders, Lawrence R. Sommerfeld, U.S. Attorney’s Office, Atlanta, GA, for Plaintiff-Appellee

Adam Marshall Hames, Strickland Webster, LLC, ATLANTA, GA, for Defendant-Appellant Douglas Bernard Dukes

Leigh Ann Webster, Strickland Webster, LLC, Atlanta, GA, Jose Antonio DeLaCruz, USP Lewisburg— Inmate Legal Mail, Lewisburg, PA, for Defendant-Appellant

Appeals from the United States District Court for the Northern District of Georgia, D.C. Docket No. 1:14-cr-00397-RWS-JSA-3

Before WILSON, JORDAN, and FAY, Circuit Judges.

OPINION

PER CURIAM:

On January 26, 2014, half-brothers Douglas Dukes and Jose Delacruz, along with another man, drove a stolen Honda Accord through the front doors of The AR Bunker, a gun store in Newnan, Georgia. Once inside, the men stole 29 guns, loaded them into the Accord, and drove away. After abandoning the Accord nearby, the three men transferred several of the weapons into another awaiting stolen car and fled. The police located the abandoned Accord shortly after the burglary and found a

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few of the stolen firearms as well as Mr. Dukes’ cell phone, which he had left behind. On that cell phone were four "selfies" which police distributed and were able to identify as being photos of Mr. Dukes. The phone number of that cell phone also matched the number that one witness, a high school counselor, knew belonged to Mr. Dukes. As law enforcement closed in, Mr. Dukes, Mr. Delacruz, and Robert Coates sold the stolen firearms to a buyer named "D." The trio was assisted by Mr. Delacruz’s girlfriend, Tanisha Rhodes, and Mr. Coates’ girlfriend, April Fisher.

The group was eventually arrested and charged with several crimes resulting from the burglary of The AR Bunker. Mr. Coates, Ms. Fisher, and Ms. Rhodes pled guilty. Mr. Dukes and Mr. Delacruz proceeded to trial on three counts: (1) conspiracy to steal and possess firearms from a federal firearms licensee, 18 U.S.C. § 371; (2) stealing firearms from a federal firearms licensee, 18 U.S.C. § § 922(u), 924(i)(1) & (2); and (3) possession of stolen firearms, 18 U.S.C. § § 922(j), 924(a)(2). After a three-day trial, in which the government presented testimony from co-conspirators Mr. Coates and Ms. Rhodes, a jury found Mr. Dukes and Mr. Delacruz guilty on all counts. Each was sentenced to a total term of 135 months’ imprisonment.

On appeal, Mr. Dukes challenges his conviction, arguing that the introduction of these "selfies," obtained from his cell phone, was unduly prejudicial. Mr. Delacruz challenges his sentence, arguing that the district court plainly erred by considering the need for rehabilitation as a sentencing factor. See Tapia v. United States, 564 U.S. 319, 321, 131 S.Ct. 2382, 180 L.Ed.2d 357 (2011). We address each issue in turn and, for the reasons that follow, affirm in all respects.

I

Mr. Dukes argues that the district court abused its discretion in admitting three "selfies," which portrayed Mr. Dukes displaying firearms in a "provocative" manner and striking "gangster like poses." As he did before the district court, Mr. Dukes contends that these photos (although relevant)...

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