Blocker v. United States

• Decision Date: 08 October 2020
• Docket Number: No. 18-CF-221,18-CF-221
• Citation: 239 A.3d 578
• Parties: Denzel BLOCKER, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

239 A.3d 578

Denzel BLOCKER, Appellant,

v.UNITED STATES, Appellee.

No. 18-CF-221

District of Columbia Court of Appeals.

Argued February 7, 2020

Decided October 8, 2020

Denise D. Green for appellant.

Ann M. Carroll, Assistant United States Attorney, with whom Jessie K. Liu, United States Attorney at the time the brief was filed, Elizabeth Trosman, Chrisellen R. Kolb, and Ryan Norman, Assistant United States Attorneys, were on the brief, for appellee.

Before Glickman and Easterly, Associate Judges, and Ferren, Senior Judge.

Ferren, Senior Judge:

A jury found appellant Denzel Blocker guilty of unlawful possession of a firearm by a convicted felon (crime of violence) (FIP),¹ and possession of an unregistered firearm,² ammunition,³ and a large-capacity ammunition-feeding device.⁴ On appeal, Blocker contends that the trial court erred in relying on his prior robbery conviction to support the FIP charge; admitting the firearm in evidence; and improperly instructing the jury in several ways. For the reasons that follow, we affirm Blocker's convictions, although we remand the case for resentencing of the FIP conviction consistent with this opinion.

I. Background Facts and Trial Proceedings

According to the government's evidence, on September 2, 2017, Metropolitan Police Department (MPD) Officers Nico Scott, Ramon Moe, and Lojocano,⁵ assigned to the Narcotics Special Investigation Division (NSID), were working in the 4500 block of Quarles Street, Northeast. While in the area, Officer Scott noticed a man later identified as Blocker "ducking" between cars as if to avoid being seen. Blocker then got into a black Dodge Charger driven by a friend, Deandre Belt, and the car "sped off at a high rate of speed."⁶ Approximately ten minutes later, while scouting the area, Officer Scott spotted the Charger coming toward him in the 2100 block of Benning Road, Northeast. Officer Scott then made a U-turn onto the road in front of the oncoming Charger, in order to block it as his co-workers, driving a marked police car, were pursuing the Charger from behind, using lights and sirens. Blocked by Officer Scott's vehicle, the Charger came to a stop. Blocker jumped out of the front-passenger seat and ran up the hill leading to the 2300 block of G Street, Northeast.

Officers Scott and Moe ran up the hill after Blocker while other officers pursued the Charger after it sped off again. While the officers were chasing Blocker, he ran into a parked car and fell down. As Blocker started to fall, both officers saw Blocker reach with his right hand into the front of his pants, and Officer Scott saw him "toss a hard object" away. The officers then heard the sound of metal hitting and skidding on the pavement. Officers Scott and Moe both testified that the sound was consistent with the sound of a gun hitting the pavement. The officers caught up with Blocker, arrested him, and, while doing so, both observed a handgun on the pavement within two or three feet from Blocker. Officer Moe secured the gun.

Trial began on December 12, 2017, and a jury found Blocker guilty on all counts two days later. On appeal, Blocker seeks reversal of his FIP conviction (and related charges) on the ground that: (1) the underlying predicate felony, robbery — on appeal while Blocker was tried and convicted — was later reversed. He also claims that the trial court erred in four other ways: (2) admitting the gun in evidence, (3) instructing the jury that the government did not have to provide forensic evidence to establish guilt, (4) providing other wrong instructions to the jury, and (5) rejecting Blocker's request to inform the jury of the defense theory of the case.

II. Felon In Possession (FIP) Conviction

Blocker offers two arguments in contesting his FIP conviction. First , he argues that he was entitled to reversal because, after his FIP conviction, we overturned on appeal the felony (robbery) conviction on which his FIP conviction had been predicated. Second , Blocker maintains that even if the FIP conviction is affirmed, it should nonetheless be remanded for resentencing because enhancement no longer was legally justified. Blocker, however, did not object at trial to use of his robbery conviction to establish an essential element of FIP or as a predicate for sentencing. Therefore, we review this conviction, including sentencing, for plain error.⁷

A. The Conviction

The FIP statute prohibits any person from possessing a firearm if that person "[h]as been convicted in any court of a crime punishable by imprisonment for a term exceeding one year[.]"⁸ At the time of his arrest, Blocker had four felony convictions: robbery, receiving stolen property (over $1000), unauthorized use of a vehicle, and destruction of property (over $1000). Moreover, Blocker stipulated at trial that he had "previously been convicted of a crime punishable by a term of imprisonment exceeding one year." Thereafter, Blocker was convicted of FIP and received an enhanced forty-month sentence based on his prior robbery conviction⁹ then pending on appeal. Approximately six months after he was sentenced in this case, we reversed his robbery conviction.¹⁰

Blocker asks for reversal of his FIP conviction because the trial court used his robbery conviction to enhance his sentence, despite the fact that his robbery conviction, still pending appeal, was not final. The FIP statute, D.C. Code § 22-4503(a)(1), prohibits a person from possessing a firearm if that individual "[h]as been convicted in any court of a crime punishable by imprisonment for a term exceeding one year";¹¹ it does not require prior conviction of a crime of violence , such as robbery. Putting aside his robbery conviction, we note that Blocker had been convicted of three non-violent felonies, each of which could have been used to meet the FIP requirement of a prior felony conviction. Moreover, the indictment itself does not specify that Blocker had been convicted of a violent felony; it stated only that he had been convicted of "a crime."¹² Finally, the jury did not know that Blocker had been convicted of a robbery; it knew only that he had stipulated to conviction of "a crime punishable by a term of imprisonment exceeding one year." Accordingly, because any of Blocker's other three felonies would have satisfied the FIP requirement, the fact that his robbery conviction was reversed does not change the ultimate outcome; Blocker was not erroneously convicted of FIP — given that his sentence had not otherwise been contested at trial.

B. The Sentence

Blocker argues that if his FIP conviction is affirmed, he is nonetheless entitled to a remand for resentencing because his invalid robbery conviction had been used to justify an "illegal" sentence.

The FIP statute states that a person who violates subsection (a)(1):

shall be sentenced to imprisonment for not more than 10 years and shall be sentenced to imprisonment for a mandatory-minimum term of 1 year, unless she or he has a prior conviction for a crime of violence other than conspiracy, in which case she or he shall be sentenced to imprisonment for not more than 15 years and shall be sentenced to a mandatory-minimum term of 3 years.¹³

Following the jury's guilty finding, the trial court used Blocker's prior robbery conviction to sentence Blocker to an enhanced forty months. At the time of sentencing, this was not necessarily erroneous. We had not yet reversed his robbery conviction; Blocker therefore still had "a prior conviction for a crime of violence other than conspiracy,"¹⁴ and the trial court understandably considered itself required (absent objection to the contrary) to sentence Blocker, at the very least, to the mandatory minimum of three years.

Blocker claims, however, that even if we do "not reverse," he is entitled to resentencing because (1) "the underlying predicate felony, robbery, was reversed on direct appeal," and (2) "the sentencing court considered a prior invalid conviction, robbery, that was unconstitutionally secured."

Blocker offers no convincing authority, and elaborates no further rationale, establishing his ultimate argument that his FIP conviction had been "unconstitutionally secured."¹⁵ His lesser, more elaborate argument is a statutory contention that, to justify an enhanced sentence based on a "prior conviction for a crime of violence," the FIP statute presupposes reliance on a prior "final" conviction. According to Blocker, FIP "cannot be interpreted" to permit enhancement of sentences for "persons whose predicate convictions have been vacated or reversed on appeal" or — like Blocker's robbery conviction — were "pending direct review" when employed to enhance a sentence. The federal cases on which Blocker relies, however, expressly requiring finality of a prior conviction under differently worded felon-in-possession statutes, provide no guidance as to how our FIP statute must be read.¹⁶

In any event, we need not resolve Blocker's FIP contention because he offers still another argument for resentencing that we find persuasive: the trial court failed to follow a mandatory sentencing procedure. He stresses that, when considering a sentence enhancement, the prosecutor must file an "information" pursuant to D.C. Code § 23-111(a)(1) (2012 Repl.) stating "in writing the previous convictions to be relied on," and then must serve a copy on the defendant or counsel. Thereafter, the trial court, "before pronouncement of sentence," must also satisfy two requirements pursuant to § 23-111(b) : [1] ask the defendant "whether he affirms or denies" the convictions "alleged in the information," and [2] inform the defendant that "any challenge to a previous conviction which is not made before sentence is imposed may not thereafter be raised to attack the sentence." Blocker maintains that the court failed to satisfy these two requirements and that its failure to do so entitles him "to have his case remanded for re-sentencing."¹⁷

The government responds to Blocker's resentencing demand by arguing...