90 F.3d 260 (8th Cir. 1996), 95-3445, United States v. Ball

Docket Nº:95-3445 EM.
Citation:90 F.3d 260
Party Name:UNITED STATES of America, Plaintiff/Appellee, v. Jesse BALL, Defendant/Appellant.
Case Date:July 17, 1996
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 260

90 F.3d 260 (8th Cir. 1996)

UNITED STATES of America, Plaintiff/Appellee,

v.

Jesse BALL, Defendant/Appellant.

No. 95-3445 EM.

United States Court of Appeals, Eighth Circuit

July 17, 1996

Submitted April 9, 1996.[*]

Page 261

N. Scott Rosenblum, St. Louis, MO, argued (Susan S. Kister, on the brief), for appellant.

Thomas J. Mehan, Asst. U.S. Atty., St. Louis, MO, argued, for appellee.

Before BEAM and MURPHY, Circuit Judges and BURNS [**], District Judge.

JAMES M. BURNS, Senior District Judge.

Appellant Jesse Ball was convicted in the district court 1 of six counts charging violations of narcotics laws and attendant firearms crimes. He appeals his convictions on three counts. We affirm in part, reverse in part, and remand for further proceedings.

I. PROCEEDINGS BELOW

The grand jury returned a six count indictment charging appellant with drug trafficking and firearms crimes. Appellant pleaded not guilty and a jury convicted him on all six counts in a trial that ended on June 21, 1995. Only three of these convictions are implicated in this appeal.

Appellant challenges his convictions on Counts 2, 5, and 6. Count 2 charged appellant with using a firearm in relation to a drug trafficking crime on March 25, 1994. Counts 5 and 6 arose from events that occurred on July 9, 1992. Count 5 charged appellant with possession of crack cocaine with intent to distribute and Count 6 charged him with carrying or using a firearm in relation to that crime.

On September 13, 1995, the district court imposed a sentence of imprisonment for 481 months. With respect to the challenged convictions, this sentence included 121 months for Count 5 followed by a consecutive sentence of 10 years on the Count 2 firearm charge followed by another consecutive sentence of 20 years on the Count 6 firearm charge. In addition, appellant was charged a special assessment of $300 which represented $50 for each count of conviction.

After appellant was tried and sentenced in this case, the Supreme Court issued its opinion in Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). The government now concedes that the evidence at trial was not sufficient, under the requirements of Bailey, to support the firearms convictions on Counts 2 and 6. Accordingly, those convictions are reversed and the case must be remanded to the district court for resentencing.

The remaining issue in this appeal concerns appellant's conviction on Count 5 for possession of crack cocaine with intent to distribute on July 9, 1992. Mr. Ball appeals the district court's order denying his motions to suppress evidence seized during the warrantless entry into his house on July 9, 1992 and to suppress statements he made to police officers at that time. The district court determined that the warrantless entry into appellant's residence was justified by exigent circumstances and that the seizure of evidence found in plain view was proper.

Page 262

II. STANDARD OF REVIEW

We have traditionally employed the "clearly erroneous" standard to review the district court's denial of a motion to suppress evidence obtained by a warrantless search. U.S. v. Johnson, 28 F.3d 1487, 1494 (8th Cir.1994), cert. denied, 513 U.S. 1098, 115...

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