U.S. v. Wright

• Decision Date: 17 August 1992
• Docket Number: No. 90-3564,90-3564
• Citation: 968 F.2d 1167
• Parties: 36 Fed. R. Evid. Serv. 496 UNITED STATES of America, Plaintiff-Appellee, v. Terry LaJuan WRIGHT, Harold Lee Andreu, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1167

968 F.2d 1167

36 Fed. R. Evid. Serv. 496

UNITED STATES of America, Plaintiff-Appellee, v. Terry LaJuan WRIGHT, Harold Lee Andreu, Defendants-Appellants.

No. 90-3564.

United States Court of Appeals, Eleventh Circuit.

Aug. 17, 1992.

James H. Burke, Jr., Asst. Federal Public Defender, M. Alan Ceballos, Jacksonville, Fla., for defendants-appellants.

Mark B. Devereaux, Asst. U.S. Atty., Jacksonville, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Middle District of Florida.

Before ANDERSON and COX, Circuit Judges, and RONEY, Senior Circuit Judge.

PER CURIAM:

Appellants Wright and Andreu were convicted of bank robbery and firearms offenses. They appeal both their convictions and their sentences. For the reasons set forth below, we affirm both of their convictions, affirm Wright's sentence, and vacate Andreu's sentence and remand for resentencing.

I. FACTS AND PROCEDURAL HISTORY

On July 6, 1989, Joseph Rodney Collier, Terry LaJuan Wright, and Harold Lee Andreu discussed committing a bank robbery in Jacksonville, Florida. According to Collier, Wright and Andreu instructed him at that time on how to rob a bank. The next day, the three drove to Jacksonville and robbed the American Federal Savings Bank of fifty dollars. Collier was the only defendant who entered the bank. He was wearing a ski mask and carrying a gun when he handed a teller a Winn-Dixie bag and ordered her to fill it with money. The teller put more than $7,000 into the bag, but it ripped on the counter and Collier got away with only fifty dollars.

The three then returned to Wright's house in Middleburg, Florida. They were subsequently stopped in their automobile which was later searched by police. The search uncovered two guns, three ski masks, three pair of gloves, and four plastic Winn-dixie bags.

On December 20, 1989, Wright and Andreu were charged in a five-count indictment for their involvement in the robbery. ¹ Count I charged both with conspiracy to commit robbery in violation of 18 U.S.C. § 371. Count II charged both with armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d). In Count III, both were charged with the use of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). Count IV charged Wright with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) and 18 U.S.C. § 924(e)(1). In Count V, Andreu was charged with possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g).

In February 1990, the case was tried to a jury. Collier testified for the Government. On cross-examination, he denied ever burglarizing his high school in late 1986 or early 1987. Wright attempted to call a witness to the stand to contradict Collier's denial of this wrongdoing. The Government's objection to this witness was sustained. The jury returned a verdict of guilty as to all counts.

Based on the career offender provisions of § 4B1.1 ² of the United States Sentencing Guidelines, the presentence investigation report ("PSI") calculated a guideline range of 262 to 327 months for Wright. Wright argued that a felon in possession ("FIP") conviction is not a crime of violence under § 4B1.1. The Government objected, contending that the proper guideline range was 360 months to life, based on Wright's FIP conviction. The court sustained the Government's objection, finding that Wright's FIP conviction was a crime of violence. Wright was then sentenced to 60 months on Count I, 300 months on Count II, and 420 months on Count IV, all of which were to run concurrently. He was sentenced to 60 months on Count III, to run consecutive to the sentences imposed on Counts I, II and IV, plus 5 years supervised release.

With regard to Andreu, the PSI calculated a range of 262 to 327 months for Counts I, II, and V, after classifying him as a career offender. It found no basis for departing from the recommended range. Nor did the Government recommend departure. Andreu objected to the PSI's recommended range, arguing that he was not a career offender because his prior conviction for grand theft was not a crime of violence. After a hearing, the court overruled Andreu's objection and sentenced Andreu to a term of 60 months on Count I, 300 months on Count II, and 120 months on Count V, all of which were to run concurrently. He was sentenced to 60 months on Count III, to run consecutive to the sentences imposed on Counts I, II and V; and five years supervised release. The court further held that even if it had found Andreu's prior grand theft conviction to be a non-violent offense, it would have departed upward under § 4A1.3 and imposed the same sentence.

II. ISSUES

A. Whether the district court abused its discretion in excluding extrinsic evidence of a witness's prior misconduct under Rule 608(b) of the Federal Rules of Evidence.

B. Whether the district court erred in using Wright's felon in possession of a firearm conviction as the instant offense for purposes of § 4B1.1.

C. Whether the district court erred in classifying Andreu as a career offender based on his prior conviction for grand theft.

D. Assuming that the answer to Issue 3 is yes, then whether the district court erred in

departing upward from the range recommended by the guidelines.

III. DISCUSSION

A. 608(b) Evidentiary Ruling

Both Appellants contend that the district court erred in excluding the testimony of Mr. Mays, Dean of Students at Orange Park High School. Mays would have testified that Collier, a witness for the Government, had personally admitted to Mays his involvement in a high school burglary taking place in late 1986 or early 1987. Collier had testified that he had not committed any burglaries at that time.

Rule 608(b) provides that "[s]pecific instances of the conduct of a witness, for purposes of attacking ... [his] credibility ... may not be proved by extrinsic evidence." Mays's testimony falls squarely within this rule. It is extrinsic evidence offered to undermine the credibility of a witness by proof of a specific instance of bad conduct. ³

Appellants respond that the testimony was admissible, both because it was material and because it showed bias. It was material, the Appellants contend, because another Government witness testified that Collier was released on his own recognizance at the time of his arrest because he was a first-time offender. The Appellants assert that it might also rebut Collier's claims that he was instructed on how to commit the bank robbery by Wright.

Although Rule 608(b) prohibits the introduction of evidence merely to impeach the general credibility of a witness, "extrinsic evidence which contradicts the material testimony of a prior witness is admissible." United States v. Calle, 822 F.2d 1016, 1021 (11th Cir.1987) (quoting United States v. Russell, 717 F.2d 518, 520 (11th Cir.1983)). We reject the Appellants' argument that this evidence contradicts Collier's material testimony. Appellants also fail to explain why the prior uncharged burglary would bias Collier in favor of the Government. Therefore, the district court was correct in excluding this extrinsic evidence. See United States v. Terebecki, 692 F.2d 1345, 1351 (11th Cir.1982).

B. Wright's Felon in Possession Conviction as the Instant Offense

Before a defendant can be classified a career offender under § 4B1.1 of the guidelines, the Government must demonstrate, inter alia, that the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense. ⁴

Wright was sentenced as a career offender under § 4B1.1. He does not dispute that he is a career offender; rather, Wright challenges the court's choice of instant offense for the classification. He contends that the court should have used his armed bank robbery conviction, instead of his FIP conviction, as the instant offense. Under § 4B1.1., the switch of instant offenses would have lowered Wright's offense level from 37 to 34, and reduced his guideline range from 360 months--life to 262--327 months.

Wright argues that the use of his FIP conviction as the instant offense was error for three reasons. First, the court's use of the November 1, 1989 guidelines (specifically the reliance on § 4B1.1's definition of a crime of violence) would result in an ex post facto violation. Second, under the particular facts of this case, Wright's FIP conviction might have been "malevolent," but certainly was not "violent." Wright Brief at 15. Lastly, Wright contends that the use of the FIP conviction as the instant offense would amount to an "impermissible doubling up." Id. at 18.

We must first decide which version of the guidelines apply to Wright's convictions. Wright committed his crime in July 1989 and was sentenced in May 1990. The guidelines were amended in the interim. 18 U.S.C. § 3553(a)(4) and (5) state that courts should consider the guidelines and policy statements issued by the Sentencing Commission that are in effect on the date of sentencing. United States v. Marin, 916 F.2d 1536, 1538 n. 2 (11th Cir.1990). Therefore, the guidelines, as amended on November 1, 1989, would initially appear to apply to Wright.

Wright asserts that the application of the "new" definition of crime of violence in § 4B1.1 violates the Ex Post Facto Clause of the Constitution because the newer definition classifies "crimes that are less likely to involve harm to others" as crimes of violence. ⁵ Appellants Brief at 15. The definition of a crime of violence under the old definition included felonies that, by their nature, involved a "substantial risk that physical force ... may be used in the course of committing the offense." U.S.S.G. § 4B1.2(1) (emphasis added); See 18 U.S.C. § 16. The amended definition of crime of violence now provides that a crime of violence means any felony "that ... otherwise involves conduct that presents a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2(1) (emphasis added);...