U.S. v. Hicks
| Decision Date | 02 November 2004 |
| Docket Number | No. 03-40655.,03-40655. |
| Citation | 389 F.3d 514 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Richard HICKS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Traci Lynne Kenner, Asst. U.S. Atty. (argued), Tyler, TX, for Plaintiff-Appellee.
Gary Alan Udashen (argued), Sorrels & Udashen, Dallas, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Eastern District of Texas.
Before KING, Chief Judge, and SMITH and EMILIO M. GARZA, Circuit Judges.
Richard Hicks, a federal prisoner, appeals his conviction and sentence for violating 18 U.S.C. § 922(g)(8) by possessing firearms and ammunition while he was subject to a domestic restraining order. He alleges that the district court improperly admitted evidence and testimony at trial, improperly sentenced him, and incorrectly concluded that his challenge to the underlying protective order was barred by Fifth Circuit precedent. He also contends that the evidence against him was insufficient for a conviction. For the following reasons, we AFFIRM Hicks's conviction and sentence.
On November 25, 2000, Officers Michael Webster and James Lamance of the Bells Police Department observed Richard Hicks leave the Dusty Saddle, a local bar in Whitewright, Texas, in a white pickup truck. While driving away from the Dusty Saddle, Hicks crossed the road's centerline. The officers activated their emergency lights and tried to pull him over. In response, Hicks pulled away, ran two stop signs, and led the officers on a high-speed chase that ended in a field. At the field, the officers' vehicles got stuck, and they could not continue pursuing Hicks.
Approximately one month later, on December 20, 2000, a white pickup truck driven by Hicks led Officer Kevin Lamance and his brother, Officer James Lamance, on a high-speed chase. The officers had observed Hicks's truck leaving the Dusty Saddle and swerving on the road, and they had activated the overhead lights of their patrol vehicle in an attempt to stop him. Instead of stopping, however, Hicks accelerated and engaged the officers in a pursuit that ended in the same field where the November chase ended. During this chase, Hicks's truck hit a bridge and slammed into the opposite shoulder of the road. Because Officer James Lamance's vehicle had become stuck in the same field a month before, the officers chose not enter the field. Later, they located the damaged truck at Hicks's residence. Approximately three days after this chase, on or about December 22, 2000, Hicks purchased a new white pickup truck.
On December 23, 2000, at around 1:00 a.m., Officers James and Kevin Lamance spotted and followed a newer-model white pickup truck leaving the Dusty Saddle. The truck was traveling at a high rate of speed and appeared incapable of remaining in its lane. The officers activated their overhead lights, but instead of stopping, the truck accelerated. The truck then turned into the same field where the November 25 and December 20 chases had ended. Because the officers' patrol vehicle was not equipped with four-wheel drive, they once again chose not to enter the field. Based on Hicks's history of leading officers on similar chases, the officers radioed that the driver they were pursuing was likely Hicks. Eventually, the white truck stopped in the field approximately 200 yards from the patrol car.
After the truck stopped in the field, Officer Kevin Lamance heard and felt a bullet whiz by his head. Officer James Lamance immediately radioed that shots had been fired. Shortly thereafter, Officer Kevin Lamance heard another shot, felt the patrol car begin to roll forward, and realized that his brother, who was driving, had been shot. Officer Kevin Lamance exited the vehicle and returned fire. The pickup truck then left the field, and Officer Kevin Lamance radioed that an officer was down. His brother, Officer James Lamance, died from a gunshot wound to the head.
Officer Kevin Lamance did not clearly see who was driving the white truck the night his brother was killed. He believed, however, that Hicks was at the wheel given the similarities to the other two chases in which Hicks had engaged the police. Additionally, Fannin County Deputy Sheriff Matt Robbins had heard Officer James Lamance's radio transmissions about the white pickup truck on December 23, 2000 and had headed to the scene of the chase to render assistance. While en route to the scene, Officer James Lamance advised him by radio that Hicks was probably the driver. As Deputy Robbins approached the scene of the shooting, he saw a pickup truck that matched the description given by Officer James Lamance entering a nearby intersection. Robbins continued driving with the pickup truck traveling behind him, and eventually the truck pulled into the private drive to Hicks's residence and entered the garage. Although Robbins followed the truck to Hicks's house, he did not get a good look at the driver and could not say for sure that it was Hicks.
Immediately following the shooting, Hicks's house was placed under surveillance. Later that evening, a SWAT team from a nearby county arrived and, after unsuccessfully trying to contact Hicks, forcibly entered the house and arrested him.
During Hicks's arrest, officers observed a .30-30 rifle on a gun rack in Hicks's son's room. This rifle was not in the same position as the other three firearms on the rack and looked to the officers as though it had been quickly thrown into place. Subsequently, the officers obtained a search warrant for Hicks's home. When they searched his house, they seized, among other things, the .30-30 rifle. They also found .30-30 shell casings in the field where Officer James Lamance was shot. John Beene, a criminalist with the Texas Department of Public Safety, performed ballistics tests on the shell casings and the rifle, and he concluded that the shell casings found at the scene of the shooting were fired from the .30-30 rifle found in Hicks's house.
Hicks was tried in state court for the capital murder of Officer James Lamance. A jury found him not guilty of capital murder and related offenses. On October 10, 2002, a federal grand jury sitting in Sherman, Texas returned an eight-count indictment against Hicks for possessing firearms and ammunition while he was subject to a domestic restraining order, in violation of 18 U.S.C. § 922(g)(8). Hicks was subject to a domestic restraining order at the time of the shooting as a result of an incident in which he fired gunshots at his ex-wife's home in Bonham, Texas. The restraining order, which his ex-wife obtained on April 25, 2000, was valid for a period of two years and prohibited Hicks from possessing either firearms or ammunition.
On November 14, 2002, Hicks filed four pre-trial motions in federal district court: (1) a motion to suppress evidence; (2) a motion to dismiss the indictment; (3) a motion to exclude the testimony of John Beene, the government's ballistics expert; and (4) a motion in limine to exclude evidence of Officer James Lamance's death. On December 17, 2002, Hicks filed a supplemental motion to dismiss the indictment, in which he stated new grounds for dismissal, including a collateral attack on the validity of the underlying protective order. Subsequently, the district court denied Hicks's motions to dismiss, motion to exclude the expert testimony of John Beene, and motion to suppress. Immediately before trial, Hicks once again attempted to limit the admission of evidence regarding Officer Lamance's death on relevancy grounds. In response to this request, the district court limited the government's use of its evidence relating to Officer Lamance and decided to instruct the jury that Hicks had been found not guilty of murder in state court.
On January 14, 2003, after approximately three hours of deliberation, the jury found Hicks guilty on all eight counts. On February 3, 2003, Hicks moved for a new trial and judgment of acquittal. The district court denied both requests.
The district court then conducted a two-day sentencing hearing where both the government and Hicks presented evidence about the cause of Office Lamance's death. At the end of the hearing, the district court found that Hicks killed Officer Lamance and, accordingly, the court applied United States Sentencing Guideline ("U.S.S.G.") § 2K2.1(c)(1)(B)'s homicide cross-reference provision, finding that Hicks's conduct was most analogous to second-degree murder. The district court then downwardly departed, arriving at a total sentence of 180 months. Specifically, the court sentenced Hicks to 120 months' incarceration for count one, sixty of which were to be served consecutively to the sentence for counts two through eight (120 months per count to be served concurrently). Hicks also received eight concurrent three-year terms of supervised release and an $800 special assessment.
The district court entered its judgment on May 2, 2003. Hicks filed a notice of appeal the same day. In his appeal, Hicks claims that the district court erred by: (1) admitting evidence of Officer James Lamance's death; (2) allowing John Beene, the government's ballistics expert, to testify at trial; (3) denying Hicks's motion to suppress evidence; (4) applying the Sentencing Guideline's second-degree murder guideline at sentencing; (5) sentencing Hicks to consecutive sentences; (6) failing to find that the evidence was insufficient for a conviction; and (7) finding that Hicks's challenge to the validity of the underlying protective order was barred by Fifth Circuit precedent. Below, the court addresses each of Hicks's allegations in turn.
Hicks begins by alleging that the district court erred by (1) allowing the government to...
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