U.S. v. Seaton

• Decision Date: 17 January 1995
• Docket Number: Nos. 94-5038,94-5213,s. 94-5038
• Citation: 45 F.3d 108
• Parties: UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Dwight Wade SEATON, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 108

45 F.3d 108

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Dwight Wade SEATON, Defendant-Appellant, Cross-Appellee.

Nos. 94-5038, 94-5213.

United States Court of Appeals Sixth Circuit.

Submitted Dec. 5, 1994.

Decided Jan. 17, 1995.

Hugh B. Ward, Jr., Office of the U.S. Atty., Knoxville, TN (briefed), for plaintiff-appellee, cross-appellant.

Kim A. Tollison, Federal Defender Services, Knoxville, TN (briefed), for defendant-appellant, cross-appellee.

Before: BROWN, RYAN, and BOGGS, Circuit Judges.

RYAN, Circuit Judge.

The defendant, Dwight Wade Seaton, appeals his conviction for possession of a firearm by a felon, 18 U.S.C. Sec. 922(g)(1), claiming insufficiency of the evidence. The government cross-appeals from the district court's refusal to count the defendant's prior state conviction for grand larceny while in possession of a firearm as a "violent felony" under a provision of the Armed Career Criminal Act (ACCA), 18 U.S.C. Sec. 924(e)(2)(B)(ii). We hold that sufficient evidence supported the conviction, and that the defendant's prior conviction was a violent felony.

I.

On November 11, 1991, Scott Finney, a member of the Pigeon Forge Police Department in Tennessee, spotted an automobile accident scene while on patrol. Finney noticed the defendant leaving the scene of the accident in his pickup truck, and stopped him. Finney suspected that the defendant was intoxicated, and administered a field sobriety test. When Seaton failed the test and tried to walk away, Finney arrested him and placed him in the back seat of the patrol car.

Before towing Seaton's truck, Finney inventoried its contents. In an unlocked tool box that ran along the back of the cab, Finney found a loaded 20-gauge pump shotgun. As Finney returned to the patrol car with the shotgun, Seaton tapped on the car's window to attract Finney's attention. According to Finney, Seaton told the officer that the shotgun belonged to Seaton and asked the officer what he was going to do with it.

Finney also testified that at the police station, he again told the officer he owned the gun and wanted to know what Finney was going to do with it. The defendant conceded that he asked Finney what would happen to the shotgun, but denied ever stating that he owned the shotgun. On cross-examination, Finney conceded that the defendant's alleged ownership assertions do not appear in Finney's arrest report.

According to Seaton, his brother, Roger Seaton, owned the shotgun. Roger Seaton testified that he owned the shotgun and claimed he purchased it from Tim McClure, who is now deceased. Roger Seaton could not, however, produce a receipt. He testified that he borrowed the defendant's truck a few days before the arrest and placed the gun in the tool box without telling the defendant. The defendant denied knowing that the shotgun was in the tool box. On cross-examination, Seaton admitted that he worked as a carpenter, and that the tool box contained carpenter tools. However, the defendant asserted that he did not drive the truck to work and he borrowed tools from other workers.

The defendant was convicted of violating 18 U.S.C. Sec. 922(g)(1), because he was a felon in possession of a firearm. Before trial, the government notified Seaton that it would seek the mandatory minimum sentence available under Sec. 924(e) because the defendant had three "violent felony" convictions. However, the district court sentenced Seaton to 108 months imprisonment, refusing to apply Sec. 924(e)'s minimum because the defendant only had two prior "violent felony" convictions. The court found that Seaton's conviction for grand larceny while in possession of a firearm was not a violent felony under Sec. 924(e). Both parties timely appealed.

II. Sufficiency of the Evidence

The defendant did not move for acquittal under Federal Rule of Criminal Procedure 29. Where a defendant fails to move for acquittal under Rule 29 at the close of the proofs, this court will review an insufficiency of the evidence claim only for manifest injustice. United States v. Morrow, 977 F.2d 222, 230 (6th Cir.1992) (en banc), cert. denied, 113 S.Ct. 2969 (1993).

In reviewing a claim of insufficient evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, (1979). Circumstantial evidence may be sufficient to support a conviction and need not remove every reasonable hypothesis of innocence. United States v. Stone, 748 F.2d 361, 362 (6th Cir.1984).

Section 922(g) prohibits "any person ... who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year ... [to] possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." Sec. 922(g)(1), (7). The parties stipulated that the defendant had prior felony convictions; that the shotgun met the statutory definition of firearm; and that the shotgun travelled through interstate commerce. The only question is whether sufficient evidence supported a finding that the defendant knowingly possessed the shotgun.

Seaton argues that he never admitted ownership of the shotgun, and that if he had made such admissions, Finney would surely have placed them in either the arrest report or the "supplemental" arrest report. The defendant contends that his brother's explanation of the shotgun's placement in the truck is unrebutted. Finally, Seaton argues that his questions to Finney are consistent with the defendant's concern for his brother's gun.

Here, put simply, the jury believed Finney's testimony regarding the defendant's assertions of ownership of the shotgun. It was justified in doing so. The jurors were entitled to conclude that both the defendant and his brother Roger lied in order to prevent the defendant's conviction. We hold that sufficient evidence supported the finding that the defendant knowingly possessed the shotgun.

III. Armed Career Criminal Act

The district court's interpretation of the Armed Career Criminal Act is reviewed de novo. United States v. Brady, 988 F.2d 664, 666 (6th Cir.), cert. denied, 114 S.Ct. 166 (1993).

a. Violent Felony under the ACCA

A felon who is in possession of a firearm violates 18 U.S.C. Sec. 922(g), exposing the felon to possible sentence enhancement. The ACCA provides in part: "In the case of a person who violates section 922(g) ... and has three previous convictions ... for a violent felony ... committed on occasions different from one another, such person shall be ... imprisoned not less than fifteen years ...." Sec. 924(e)(1) (emphasis added). The ACCA defines "violent felony" as:

any crime punishable by imprisonment for a term exceeding one year ... that ...

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another ....

Sec. 924(e)(2)(B)(i), (ii) (emphasis added). If a sentencing court finds that Sec. 924(e) applies, then the defendant's offense level is typically 33 and the criminal history category is typically IV. U.S.S.G. Sec. 4B1.4(b)(3)(B), (c)(3). Here, if Sec. 924(e) applies, Seaton's offense level would be 33, but his criminal history category is VI because that is his criminal history category without the Sec. 924(e) enhancement, and it is greater than the category with the enhancement. Sec. 4B1.4(c)(1).

When determining whether a prior felony is "violent" under Sec. 924(e)(2)(B)(ii), the sentencing court should "look only to the fact of conviction and the statutory definition of the prior offense." Taylor v. United States, 495 U.S. 575, 602 (1990). The language of Sec. 924(e) refers generally to categories of crimes, not to the particular facts underlying the convictions. Id. at 600. This categorical approach also avoids the "daunting" "practical difficulties and potential unfairness of a factual approach." Id. at 601. Accordingly, under Sec. 924(e)(2)(B)(ii), we look to the statutory definition of a felony in order to determine whether it falls into the category of those felonies that "involve[ ] conduct that presents a serious potential risk of physical injury to another." However, where a statute broadly defines a felony, the categorical approach still permits a sentencing court to examine "the charging paper and jury instructions" to determine whether the defendant was convicted of a felony with a serious potential risk of physical injury. See id. at 602.

Recently, in United States v. Kaplansky, we found Ohio's statute on attempted kidnapping by deception to be a violent felony. 42 F.3d 320 (6th Cir.1994) (en banc). The defendant in Kaplansky argued that a felony involves a serious potential risk of physical injury to another only if the felony "necessarily present[s]" such a risk. Id. at 323-24. We rejected that position, reasoning that "this view overlooks the word 'potential' in the 'otherwise' provision of clause (ii), and also misunderstands the nature of the categorical approach." Id. Under a categorical approach, "clause (ii) supplements the scope of the term 'violent felony' through its final 'otherwise' provision, by reaching other statutory and common law offenses not covered by clause (i) that generically involve a similarly serious risk." Id. We concluded: "Just because actual force or injury may not surface in a particular instance of kidnapping (i.e., in those instances initiated by deception) does not mean that it is not an undercurrent of the offense having the serious potential of rising to the surface." Id. at 324 (emphasis added).

In addition, we made clear that Taylor forbids ...