U.S.A v. Mccraney

Decision Date22 July 2010
Docket Number09-2330.,No. 09-1943,09-1943
PartiesUNITED STATES of America, Appellee,v.Adrian Lamont McCRANEY, Appellant.United States of America, Appellee,v.Kennie Alexander Williams, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

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Mark A. Appleton, argued, of Aledo, IL, for appellant, Adrian Lamont McCraney.

Wallace L. Taylor, argued, of Cedar Rapids, IA, for appellant, Kennie Alexander Williams.

Joel W. Barrows, AUSA, argued, of Davenport, IA, Melisa K. Zaehringer, Special AUSA, on the brief, of Davenport, IA for Appellee.

Before SMITH and COLLOTON, Circuit Judges, and KORNMANN,1 District Judge.

COLLOTON, Circuit Judge.

Adrian McCraney and Kennie Williams were each convicted by a jury of possession of cocaine base with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), robbery in violation of the Hobbs Act, 18 U.S.C. § 1951, and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). The jury also found McCraney guilty of possession of a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The district court 2 sentenced Williams to a total of 225 months' imprisonment and McCraney to a total of 420 months' imprisonment.

On appeal, Williams challenges the district court's exclusion of his post-arrest statement to police, denial of his motion for severance, rejection of his proposed jury instruction on reasonable doubt, and denial of his motion for new trial. Williams also challenges his sentence, arguing that counts one and two of the indictment should have been grouped for purposes of the advisory guidelines, that facts increasing Williams's advisory sentence must be proved beyond a reasonable doubt, and that the sentence imposed by the district court is unreasonable. McCraney challenges the sufficiency of the evidence to convict him, and the district court's application of the career offender guideline at sentencing. We affirm the judgments of the district court.

I.

In late August 2007, Kennie Williams made arrangements to buy four ounces of cocaine from a drug dealer named Larry Jones. The two agreed to meet in the parking lot of the Super Wal-Mart in Coralville, Iowa, late in the evening on August 29 to conduct the transaction. Jones entered Williams's vehicle and handed Williams a one-ounce package of cocaine to inspect. Jones testified that Williams “started kind of fidgeting with [the package] ... and discussing how he didn't think that it looked right.”

As Jones tried to convince Williams to complete the deal, Adrian McCraney entered the vehicle on the passenger side and seated himself behind Jones. Jones was startled by McCraney's appearance, but Williams “said it was okay, that it was his cousin.” McCraney began to question whether Jones was an undercover police officer, and while Jones was responding to McCraney, Williams kept fidgeting with the one package of cocaine. A Motorola phone box containing the rest of the cocaine remained in Jones's lap.

Suddenly, McCraney reached over the top of the seat in front of him and put a gun to Jones's chest. While Jones was held at gunpoint, Williams rifled through his belongings. Williams took the box with the remaining cocaine and emptied Jones's pockets, seizing Jones's ID, all of his money, a pack of cigarettes, a lighter, and a cell phone.

McCraney and Williams eventually permitted Jones to leave the vehicle, and then sped out of the parking lot with Williams driving. Jones followed on his motorcycle, but soon abandoned the pursuit and called 911 to report the robbery.

Police officers located the Williams vehicle and engaged in a high-speed chase down Interstate 380 into Shueyville, Iowa. During the chase, officers saw several items thrown out of the front passenger-side window of the Williams car. Officers later searching along the route found a Motorola cell phone box containing several packages of cocaine and a handgun.

When the officers concluded that Williams would not stop voluntarily, one of the pursuing officers intentionally struck Williams's car, causing it to spin off the road and into a ditch. Police arrested McCraney and Williams. Officers searched the car and recovered one sealed package of cocaine and a clip and a bullet for a .45 caliber handgun. At the time of his arrest, Williams carried two cell phones-his own and Jones's-and $219 in cash. McCraney was carrying $137.

McCraney and Williams were both charged with possession of cocaine base with intent to distribute, Hobbs Act robbery, and possession of a firearm in furtherance of a drug trafficking crime. McCraney was also charged with possession of a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). After a trial in March 2008, a jury returned verdicts of guilty on all counts. The district court sentenced Williams to 165 months' imprisonment on both counts one and two, to be served concurrently, and 60 months on count three, to be served consecutively, for a total of 225 months' imprisonment. The court sentenced McCraney to 360 months on count one, 240 months on count two, and 120 months on count four, to be served concurrently, and 60 months on count three, to be served consecutively, for a total of 420 months' imprisonment.

II.
A.

Williams argues that the district court abused its discretion by refusing to admit into evidence a statement he made at the Coralville police station after his arrest. He argues that the statement was admissible under the residual exception to the hearsay rule. That exception, set forth in Federal Rule of Evidence 807, provides that the district court may admit testimony if it has “equivalent circumstantial guarantees of trustworthiness” and the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of [the rules of evidence] and the interests of justice will best be served by admission of the statement into evidence.” We review the district court's ruling for abuse of discretion. United States v. Thunder Horse, 370 F.3d 745, 747 (8th Cir.2004).

The disputed statement was a declaration by Williams that he did not know anything about the robbery of Jones prior to when it occurred, that he was taken by surprise when McCraney entered the car and pulled out a gun, that after the robbery McCraney instructed him to drive away from the parking lot, and that McCraney then put the gun to Williams's head and told him to keep driving while the police pursued them. Williams suggests that a statement given by an uncounseled arrestee who is under interrogation by law enforcement officers bears sufficient indicia of trustworthiness to warrant admission under Rule 807, because the very purpose of police interrogation is to obtain truthful statements that can be used to further an investigation.

The district court disagreed that the circumstances surrounding Williams's statement adequately guaranteed its reliability. The court ruled the statement identifying McCraney as the mastermind of the robbery was not admissible under Rule 807, because [i]t does not bear indicia of trustworthiness for somebody to sit down and write out a statement that essentially implicates somebody else.” We agree with this sensible conclusion. Williams was arrested after leading police on a highspeed chase. The police found a cell phone belonging to the robbery victim on his person and located cocaine and accessories to a handgun in his car. Williams could not plausibly deny altogether that he had participated in the robbery and subsequent flight, so he had clear motivation to present himself as an unwitting and unwilling participant. The district court did not abuse its discretion in ruling that a statement made under these circumstances is not sufficiently trustworthy to be admitted into evidence under Rule 807. 3

B.

Williams next argues that the district court erroneously instructed the jury on the government's burden to establish guilt beyond reasonable doubt, and should have used his proposed instruction instead. The district court used the Eighth Circuit's pattern instruction on reasonable doubt:

A reasonable doubt is a doubt based upon reason and common sense, and not the mere possibility of innocence. A reasonable doubt is the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it. However, proof beyond a reasonable doubt does not mean proof beyond all possible doubt.

Eighth Circuit Manual of Model Criminal Jury Instructions-Instruction 3.11 (2009).4

We have upheld the constitutionality of Model Instruction 3.11 see United States v. Foster, 344 F.3d 799, 802 (8th Cir.2003); United States v. Rosso, 179 F.3d 1102, 1104 (8th Cir.1999), and neither the “hesitate to act” phrase see Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 99 L.Ed. 150 (1954); Rosso, 179 F.3d at 1104, nor the “not the mere possibility of innocence” language Foster, 344 F.3d at 802, is objectionable. See also Victor v. Nebraska, 511 U.S. 1, 17, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994) (approving “not a mere possible doubt” phraseology). Williams's argument that the instruction failed to convey the level of certitude that the jury must reach is thus unavailing.

III.
A.

McCraney challenges his conviction on the grounds that there was insufficient evidence to support the jury's verdict against him. We review the sufficiency of the evidence de novo, viewing the evidence in the light most favorable to the verdict, and we will reverse only if no reasonable jury could have found the...

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