U.S. v. Bell, 04-1258.

• Decision Date: 21 June 2005
• Docket Number: No. 04-1258.,04-1258.
• Citation: 411 F.3d 960
• Parties: UNITED STATES of America, Appellee, v. James W. BELL, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

411 F.3d 960

UNITED STATES of America, Appellee, v. James W. BELL, Appellant.

No. 04-1258.

United States Court of Appeals, Eighth Circuit.

Submitted: September 14, 2004.

Filed: June 21, 2005.

David R. Mercer, argued, Asst. Fed. Public Defender, Springfield, MO (Raymond C. Conrad, Jr., Fed. Public Defender, Kansas City, MO, on the brief), for appellant.

James J. Kelleher, argued, Spec. Asst. U.S. Atty., Springfield, MO (Philip M. Koppe, Asst. U.S. Atty., Todd P. Graves, U.S. Atty., Kansas City, MO, on the brief), for appellee.

Before BYE, BOWMAN, and MELLOY, Circuit Judges.

BOWMAN, Circuit Judge.

James W. Bell was convicted of being a felon in possession of a firearm. He appeals the sentence of seventy-seven months imposed by the District Court.¹ Bell argues the District Court erred 1) by denying him a sentencing reduction for acceptance of responsibility and 2) by enhancing his sentence based on his use of a firearm in connection with another felony. Bell also claims his sentence is unconstitutional in light of the Supreme Court's decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).² As discussed herein, we affirm the District Court.

I.

On April 25, 2003, Bell appeared at the Missouri Hotel homeless shelter in Springfield, Missouri, and said he had an urgent matter for coordinator David Bodine. The front-desk clerk told Bell that Bodine was unavailable and directed him to the office of case manager Sandy Granger. Upon entering Granger's office, Bell asked her in a nervous manner if he could close the door, then said he wanted her to know how urgent the matter was.

Next, Bell sat down, placed a .22 caliber pistol on Granger's desk with the barrel pointing toward her chest, and asked her, "Do I have your attention now?" Trial Tr. at 8. Granger gasped and asked Bell if he would like her to call Bodine, to which Bell responded affirmatively, telling her to "let [Bodine] know how urgent this matter is." Id. at 9. Unsure of how Bell would react, Granger did as she was instructed without mentioning the gun to Bodine. In the few moments before Bodine arrived, Bell placed the gun back in his coat and told Granger, "I want to show Mr. Bodine how urgent a matter this is just like I did you." Id. Granger told Bell, "I wouldn't do that if I were you." Id. at 9-10.

Bodine then entered Granger's office and closed the door, noticing that Granger was acting nervous and looking pale. As Bodine sat down, Bell produced the gun again, aimed it directly at Bodine, this time with his finger on the trigger, and asked once more, "Now do I have your attention?" Id. at 17. Bodine, a former police officer, grabbed the gun from Bell's hand. Bell then reached into his coat and Bodine, thinking Bell might have another weapon, grabbed Bell's arm, taking from him a box of bullets. Bodine subdued Bell after a brief scuffle and told Granger to dial 911. Granger did so, and the police arrived to arrest Bell. When the police inspected the gun, they found it was not loaded.

When questioned by the police, Bell first denied ever having been arrested as an adult, but after the police checked his record, Bell admitted a previous robbery conviction. Bell told the police he did not count that conviction, for which he had been sentenced to ten years in prison, because it was very old. As for his actions, Bell stated he had taken the gun from a friend with Alzheimer's disease who had threatened to kill a third party. Bell said he feared the friend would hurt himself or the third party. Given that the friend lived at the Missouri Hotel, Bell brought the gun to Bodine because Bodine was in charge there. Bell also admitted he had been holding the gun since November 2002 — some four months.

Bell was charged with being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He pleaded not guilty and was tried by a jury on September 22, 2003. The government produced five witnesses against Bell, all of whom Bell's counsel cross-examined. Bell made two motions for judgment of acquittal based on insufficiency of the evidence, both of which the District Court denied. Bell also asked the District Court to instruct the jury on the defenses of coercion, duress, and justification based on Bell's asserted reasons for possessing the gun. Finding the defenses were not supported by the evidence, the District Court refused those instructions. The case was submitted to the jury, and the jury found Bell guilty.

At sentencing, Bell made two objections to the presentence investigation report. First, Bell objected to the failure to reduce his base offense level for acceptance of responsibility. The District Court overruled this objection, finding that Bell's pre-trial statements, his decision to go to trial, and his trial testimony were inconsistent with accepting responsibility for his actions. Second, Bell objected to an enhancement of his sentence based on his use of a firearm in connection with another felony. The District Court overruled this objection and imposed the enhancement, finding that Bell had committed a felony under Missouri law by exhibiting the firearm in a threatening manner. The District Court's application of the guidelines resulted in an offense level of 24 and a criminal history score of IV, providing for a sentencing range of 77-96 months. The District Court sentenced Bell to the low end of the guideline range, seventy-seven months, and this appeal followed.

II.

A.

Bell first argues that the District Court erred by denying him a sentencing reduction for acceptance of responsibility. Bell claims he went to trial solely to assert the defense of justification and that he was entitled to the reduction because he never challenged his factual guilt. The government contends Bell went to trial to put the government to its burden of proof and that Bell was therefore ineligible for the reduction. We review the District Court's decision to deny an acceptance-of-responsibility reduction for clear error. United States v. Patten, 397 F.3d 1100, 1104 (8th Cir.2005); United States v. Waldman, 310 F.3d 1074, 1079 (8th Cir.2002).

"The sentencing judge is in a unique position to evaluate a defendant's acceptance of responsibility[, and] the determination of the sentencing judge is entitled to great deference on review." U.S. Sentencing Guidelines Manual § 3E1.1, cmt. n. 5 (2003). The guidelines define the "acceptance of responsibility" reduction and provide notes regarding its application. For example, a defendant who falsely denies or frivolously contests his relevant conduct has not accepted responsibility. Id. cmt. n. 1(a). A defendant convicted at trial may receive the reduction, but only in "rare situations" where the defendant's purpose at trial was to assert issues unrelated to factual guilt. Id. cmt. n. 2. Specifically, the reduction is "not intended to apply to a defendant who puts the government to its burden of proof at trial ..., is convicted, and only then admits guilt and expresses remorse." Id. As simply stated at oral argument, Bell was not entitled to the reduction if his trial purpose was to "beat the rap."

After reviewing the record, we find Bell's claim that he did not challenge his factual guilt is contradicted by his trial motions and strategy. As mentioned previously, counsel for Bell made two motions for judgment of acquittal based on insufficiency of the evidence, both of which the District Court denied. Bell also cross-examined all five of the government's witnesses, including an expert who testified that the gun Bell possessed had moved in interstate commerce.³ Counsel for Bell first objected to the expert's qualifications, then asked the expert arguably irrelevant questions as to who may have imported the gun into Missouri, and finally asked the expert if counterfeit guns were ever manufactured in this country. While this strategy was consistent with Bell's right of confrontation, it was inconsistent with relieving the government of its burden of proof at trial. Such tactics were squarely aimed at challenging the government's evidence against the defendant. In addition, if Bell's only purpose at trial was to assert the justification defense, he could have pleaded guilty after the District Court disallowed the defense. Instead, Bell took his chances and let the case go to the jury.

Moreover, we have consistently refused to recognize justification as a defense where the defendant failed to pursue lawful options, particularly when violating § 922(g)(1). See, e.g., United States v. Lomax, 87 F.3d 959, 961-62 (8th Cir.1996); United States v. Taylor, 122 F.3d 685, 688-89 (8th Cir.1997). Although Bell claims he took the gun to prevent threatened harm to a third party, the District Court determined this claim was not credible, finding a lack of the requisite "immediacy" of harm. Trial Tr. at 58. Even crediting Bell's story, we agree that Bell had a number of lawful options available other than holding the gun for four months, bringing it to the Missouri Hotel, pointing it at two people, and asking if he had their attention. In these circumstances, we have no difficulty in sustaining the District Court's refusal to allow the justification defense.

Finally, Bell places great emphasis on the guidelines comment that the acceptance-of-responsibility determination is to be "based primarily upon pre-trial statements and conduct" of the defendant. U.S. Sentencing Guidelines Manual § 3E1.1, cmt. n. 2 (2003). This emphasis is misplaced. The language to which Bell refers applies only to "rare situations" in which the defendant has gone to trial for purposes other than to challenge factual guilt. Id. By contrast, the guidelines unequivocally state that the acceptance-of-responsibility reduction is not intended to apply where, as here, the defendant has put the government to its burden of proof at trial. Id. Were we to consider Bell's pre-trial conduct, however, we note that...