U.S. v. Johnson, No. 04-1839.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtGruender
Citation417 F.3d 990
Decision Date17 August 2005
Docket NumberNo. 04-1839.
PartiesUNITED STATES of America, Appellee, v. Michael W. JOHNSON, Appellant.
417 F.3d 990
UNITED STATES of America, Appellee,
v.
Michael W. JOHNSON, Appellant.
No. 04-1839.
United States Court of Appeals, Eighth Circuit.
Submitted: October 29, 2004.
Filed: August 17, 2005.

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David R. Mercer, argued, Springfield, MO, for appellant.

Michael A. Jones, argued, Asst. U.S. Atty., Springfield, MO, for appellee.

Before BYE, BEAM, and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.


Michael W. Johnson appeals his conviction of two counts of being a felon in possession of firearms in violation of 18 U.S.C. § 922(g), one count of possessing a stolen firearm in violation of 18 U.S.C. § 922(j) and one count of misdemeanor possession of methamphetamine in violation of 21 U.S.C. § 844(a). Johnson contends that the evidence was insufficient to support the jury's finding that he possessed the firearms or methamphetamine. He also contends that the district court1 erred in sentencing him pursuant to 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4 when it determined that his prior Missouri conviction for tampering in the first degree constituted a violent felony. We affirm Johnson's conviction and the sentence imposed by the district court.

I. BACKGROUND

The events of April 29, 2003 form the basis for three of the four counts of conviction. On that day, David Prine discovered that Johnson had stolen a riding lawnmower and three firearms from his residence. Prine proceeded to the Johnson trailer, where he confronted Johnson and accused him of theft. In response, Johnson produced one of the firearms, a .22 magnum caliber rifle. Johnson told Prine that the other firearm was taken by Bo Turley. The third firearm, a double-barreled shotgun, was surreptitiously returned to the Prine residence prior to Johnson's arrest.

The same day, a confidential informant informed the Douglas County, Missouri Sheriff's Department that Johnson was in possession of stolen firearms. Based on information provided by Prine as well as that of the confidential informant, a search warrant was obtained and executed at the Johnson trailer. Although the deputies were unable to locate the remaining stolen firearms, they discovered a variety of ammunition and three small plastic bags containing methamphetamine.

During the resulting investigation, law enforcement discovered Johnson's prior arrest for the January 2002 shootings at the residence of Danny and Mavis Harris in Ava, Missouri. According to evidence admitted at trial, Johnson twice fired a.30-06 deer rifle at the Harris residence in order to exact revenge for an early altercation with the Harrises' sons. Johnson was charged in state court with two counts of unlawful use of a weapon arising out of the shootings. The state charges were ultimately dismissed after Johnson was charged by federal authorities in the instant matter.

On July 8, 2003, a federal grand jury issued a four-count indictment against Johnson. Count one of the indictment, being a felon in possession of a firearm, stemmed from Johnson's firing of the .30-06 deer rifle at the Harris residence. In

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count two, Johnson was charged with being a felon in possession of the .22 magnum caliber rifle, .22 caliber bullets, 9mm bullets and .30-30 caliber bullets. His possession of the .22 magnum caliber rifle also gave rise to count three, being in possession of a stolen firearm. Finally, count four of the indictment charged Johnson with misdemeanor possession of methamphetamine. Johnson proceeded to trial, where the Government produced numerous witnesses and substantial physical evidence. A jury found Johnson guilty of all four counts.

At sentencing, the district court found that Johnson qualified for the armed career criminal enhancements in § 924(e) and § 4B1.4 based on his three previous convictions for burglary in the second degree, robbery in the second degree and tampering in the first degree. Because the district court found that Johnson's conviction for illegally possessing the .30-06 deer rifle occurred in connection with a crime of violence-the shootings at the Harris residence-the district court applied § 4B1.4(b)(3)(A) and found that Johnson's total offense level was 34. With a Criminal History Category of VI, this produced a guidelines range of 262 to 327 months. Johnson was sentenced to 262 months' imprisonment and five years' supervised release. He filed a timely notice of appeal.

II. DISCUSSION

A. Sufficiency of the Evidence

Johnson challenges the sufficiency of the evidence to convict him of possessing the two firearms identified in counts one through three. See United States v. Anderson, 78 F.3d 420, 422 (8th Cir.1996) (setting forth the elements of the offense of being a felon in possession of a firearm in violation of § 922(g)); see also United States v. Iron Eyes, 367 F.3d 781, 784 (8th Cir.2004) (listing possession of a firearm as an element of possession of a stolen firearm in violation of § 922(j)). "We review the sufficiency of the evidence de novo, viewing evidence in the light most favorable to the government, resolving conflicts in the government's favor, and accepting all reasonable inferences that support the verdict." United States v. Parker, 364 F.3d 934, 943 (8th Cir.2004) (quoting United States v. Washington, 318 F.3d 845, 852 (8th Cir.2003)) (internal quotations omitted). We will uphold the jury verdict if there is an interpretation of the evidence that would allow a reasonable jury to find the defendant guilty beyond a reasonable doubt. Id. The standard of review, therefore, is a strict one, and we will abide by the jury's verdict unless we conclude that a reasonable jury could not have found all the elements of the offense beyond a reasonable doubt. Id.

With respect to the first count of conviction, Johnson argues that the lack of direct evidence of his actual possession of the .30-06 deer rifle belies the jury's finding that he possessed the firearm used in the shootings at the Harris residence. After a careful review of the trial record, we find that there was substantial evidence upon which a reasonable jury could find Johnson knowingly possessed the .30-06 deer rifle. Multiple witnesses provided substantial direct and circumstantial evidence of Johnson's possession of the .30-06 deer rifle. For example, Jennifer Hayes testified that she saw Johnson in possession of the .30-06 deer rifle on the night of the shootings. Witness testimony also established how and when Johnson came into possession of the .30-06 deer rifle and verified its identity after he attempted to dispose of the firearm.

Similarly, Johnson challenges his convictions based on his possession of the stolen .22 magnum caliber rifle. He argues

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that the eyewitness testimony of David Prine should be discounted because of the animosity between Prine and himself. The issue of a witness's credibility is "virtually unreviewable on appeal because it is preeminently the job of the finder of fact." United States v. Beaman, 361 F.3d 1061, 1064 (8th Cir.2004) (quoting United States v. Morris, 327 F.3d 760, 761 (8th Cir.2003), cert. denied, 540 U.S. 908, 124 S.Ct. 282, 157 L.Ed.2d 197 and 540 U.S. 920, 124 S.Ct. 313, 157 L.Ed.2d 218 (2003)). Prine's testimony was corroborated by incriminating statements made by Johnson to Prine's mother and to the confidential informant. Similarly, the collection of ammunition found in Johnson's trailer was sufficient to prove constructive possession of ammunition in violation of § 922(g)(1). See United States v. Maxwell, 363 F.3d 815, 818 (8th Cir.2004), cert. denied, ___ U.S. ___, 125 S.Ct. 1293, 161 L.Ed.2d 119 (2005) ("Constructive possession of the firearm is established if the person has dominion over the premises where the firearm is located, or control, ownership, or dominion over the firearm itself."). Witness testimony, coupled with law enforcement's discovery of ammunition at Johnson's trailer, provided substantial evidence upon which a reasonable jury could find Johnson illegally possessed the stolen .22 magnum caliber rifle and assorted ammunition.

Finally, Johnson asserts that there was insufficient evidence to establish his possession of the methamphetamine found during the execution of the search warrant. The Government put into evidence the three small plastic bags of methamphetamine found in Johnson's trailer. The Government also offered substantial witness testimony establishing Johnson's control and ownership over the trailer in which the drugs were found. See United States v. Campa-Fabela, 210 F.3d 837, 839 (8th Cir.2000) ("Constructive possession of drugs can be established if a person has ownership, dominion or control over the contraband itself, or dominion over the premises in which the contraband is concealed.") (citations omitted). Viewing the evidence in a light most favorable to the Government and giving the Government the benefit of all reasonable inferences, it is not difficult to conclude that a reasonable jury could have found Johnson guilty of the misdemeanor offense of possession methamphetamine.

B. Armed Career Criminal Enhancement

Johnson also asserts that the district court erred when it found that he had committed three previous violent felonies requiring imposition of a statutory mandatory minimum sentence under § 924(e) and a sentencing guidelines enhancement under § 4B1.4(b)(3)(A).2 Specifically, Johnson argues that tampering in the first degree in violation of Mo.Rev.Stat. § 569.080.1(2) does not constitute a violent felony for purposes of § 924(e).

We review de novo the legal question of whether a prior conviction constitutes a violent felony under § 924(e). See United States v. Griffith, 301 F.3d 880, 884

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(8th Cir.2002); see also United States v. Sumlin, 147 F.3d 763, 765 (8th Cir.1998) ("We review the question of whether a prior offense constitutes a violent felony de novo."). Factual findings are reviewed for clear error. ...

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23 practice notes
  • Navarro-Lopez v. Gonzales, No. 04-70345.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 19, 2007
    ...United States v. Mobley, 40 F.3d 688, 696 (4th Cir.1994); tampering by unlawful operation of a vehicle, United States v. Johnson, 417 F.3d 990, 995-99 (8th Cir.2005); and escape, United States v. Mathias, 482 F.3d 743, 747 (4th Cir. 2007), are "violent" Expanding these categories beyond rec......
  • James v. United States, No. 05–9264.
    • United States
    • United States Supreme Court
    • April 18, 2007
    ...mandatory minimum. Indeed, this seems to be the reality of what is taking place in the lower courts. See, e.g.,United States v. Johnson, 417 F.3d 990 (C.A.8 2005) (operating a dump truck without consent of the owner is a violent felony under ACCA); United States v. Springfield, 196 F.3d 118......
  • U.S. v. McMullin, No. CR07-4011-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • September 18, 2007
    ...methamphetamine to be lesser included offense of manufacturing within 1,000 feet of a Page 981 school); United States v. Johnson, 417 F.3d 990, 998 (8th Cir.2005) (finding offense of illegally tampering with an automobile by operation to be lesser included offense of automobile theft). Stat......
  • U.S. v. Vincent, No. 07-1397.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • August 14, 2009
    ...definition of `crime of violence.'" United States v. Williams, 537 F.3d 969, 971 (8th Cir.2008), quoting United States v. Johnson, 417 F.3d 990, 996 (8th Cir.2005). While Begay's holding applies only to the ACCA, this court applies Begay analysis to U.S.S.G. § 4B1.2(a). United States v. Pea......
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23 cases
  • Navarro-Lopez v. Gonzales, No. 04-70345.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 19, 2007
    ...United States v. Mobley, 40 F.3d 688, 696 (4th Cir.1994); tampering by unlawful operation of a vehicle, United States v. Johnson, 417 F.3d 990, 995-99 (8th Cir.2005); and escape, United States v. Mathias, 482 F.3d 743, 747 (4th Cir. 2007), are "violent" Expanding these categories beyond rec......
  • James v. United States, No. 05–9264.
    • United States
    • United States Supreme Court
    • April 18, 2007
    ...mandatory minimum. Indeed, this seems to be the reality of what is taking place in the lower courts. See, e.g.,United States v. Johnson, 417 F.3d 990 (C.A.8 2005) (operating a dump truck without consent of the owner is a violent felony under ACCA); United States v. Springfield, 196 F.3d 118......
  • U.S. v. McMullin, No. CR07-4011-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • September 18, 2007
    ...methamphetamine to be lesser included offense of manufacturing within 1,000 feet of a Page 981 school); United States v. Johnson, 417 F.3d 990, 998 (8th Cir.2005) (finding offense of illegally tampering with an automobile by operation to be lesser included offense of automobile theft). Stat......
  • U.S. v. Vincent, No. 07-1397.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • August 14, 2009
    ...definition of `crime of violence.'" United States v. Williams, 537 F.3d 969, 971 (8th Cir.2008), quoting United States v. Johnson, 417 F.3d 990, 996 (8th Cir.2005). While Begay's holding applies only to the ACCA, this court applies Begay analysis to U.S.S.G. § 4B1.2(a). United States v. Pea......
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