United States v. Folse
| Decision Date | 04 May 2021 |
| Docket Number | No. 19-2065,19-2065 |
| Parties | UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KEVIN FOLSE, a/k/a "Criminal," Defendant - Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
(D. N.M.)
ORDER AND JUDGMENT*Before HOLMES, SEYMOUR, and PHILLIPS, Circuit Judges.
Following a three-day trial, a federal jury convicted Kevin Folse of carjacking and being a felon in possession of a firearm, among other offenses. The district court thereafter sentenced him to 360 months' imprisonment. He now appeals, contesting his convictions and his designation for sentencing purposes asa career offender. We reject all of Mr. Folse's challenges. Accordingly, exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court's judgment.
This appeal stems from a series of events that occurred throughout the early morning hours of July 2, 2015. The catalyst of the events began at around 2:00 a.m. While investigating a motor-vehicle incident, officers and detectives of the Albuquerque Police Department (the "APD" or the "Department") sought to find Mr. Folse. Receiving information that Mr. Folse was possibly at a residence located at 1825 Pitt Street, the officers set up a perimeter around the location; they lacked a warrant to enter.
While observing the residence, Detective Deloris Sanchez witnessed an individual through a window in one of the outer-facing rooms. The individual was Valente Estrada, a tenant of 1825 Pitt Street. Detective Sanchez spoke to Mr. Estrada through the window, informing him that the officers had reason to believe Mr. Folse was inside the residence. After some back-and-forth communication, Detective Sanchez instructed Mr. Estrada to leave the residence through the front door to speak with the officers.
Mr. Estrada agreed to do so, but after leaving his room to exit the residence, he never came outside of the front door. According to Mr. Estrada'stestimony, the front door had been barricaded with couches and chairs. After Mr. Estrada reported this to Detective Sanchez, she instructed Mr. Estrada to remove the furniture and exit through the front door. However, upon returning to the main entrance, Mr. Estrada was intercepted by Mr. Folse in the hallway, who called out to Mr. Estrada. Mr. Folse grabbed Mr. Estrada, and took him into a different bedroom, which belonged to Mr. Estrada's roommate.
Mr. Estrada testified that Mr. Folse had a knife in his hand. Fearing that Mr. Folse might stab him, Mr. Estrada did not resist Mr. Folse's directions. In addition to the knife, Mr. Estrada noted that Mr. Folse was armed with a silver and black gun, and when he entered into his roommate's bedroom, Mr. Estrada witnessed a group of people gathered there. Mr. Folse was in essence holding virtually all of the individuals in the room hostage. Mr. Folse's girlfriend, however, was also one of the individuals in the bedroom. Mr. Folse and his girlfriend confiscated the cellphones of the individuals in the room, in addition to the keys to Mr. Estrada's car, a silver Saturn. Concerned about being attacked, Mr. Estrada made no attempt to escape the room, nor did the other individuals present.
Throughout the time in the room—approximately two hours—Mr. Folse exhibited aggressive and violent behavior. Mr. Folse told at least one individual to sit down or he would "stab him," and on another occasion he broke a glasstable top over a woman's head. Supp. R., Vol II, at 247, 249 (Trial Tr., dated Oct. 6, 2015). Several photographs introduced at trial depicted the aftermath of the latter incident—specifically, a couch stained with blood and covered in glass, where the victim had been sitting. Id. 249-50, 254. During this time, the officers enforcing the perimeter outside of the residence attempted to reestablish contact with Mr. Estrada but to no avail. With no obvious signs of "duress" coming from the home, such as "screaming or yelling," and concerned that their surveillance had been "compromised," the officers remained in the area but pulled back to a point where they "could no longer monitor the activity around Pitt Street." Id. at 65, 68-69.
After the officers pulled back, a little before 11:00 a.m., Mr. Folse decided to leave the premises. Picking up Mr. Estrada's confiscated keys, and still armed with a gun and knife, Mr. Folse told Mr. Estrada, in a "very demanding" manner, "okay, you're going with me." Id. at 261. Mr. Folse and Mr. Estrada exited the residence with their respective girlfriends, and Mr. Folse got into the driver's seat of the car, with his girlfriend in the passenger seat, and Mr. Estrada seated directly behind Mr. Folse in the backseat with his girlfriend. At trial, Mr. Estrada testified that he felt scared, that he did not want anyone else to get hurt, and that he felt he had no choice but to obey Mr. Folse.
Meanwhile, detectives—who had been observing the house through binoculars—saw a silver car (which was Mr. Estrada's Saturn) pull out of the driveway at a high rate of speed. Driving in unmarked vehicles, the officers left their surveillance positions, and a chase ensued. During this pursuit, Mr. Folse ran through a stop sign and a red light, swerved around cars, and accelerated at various points to evade the officers. In the midst of this chase, Mr. Folse turned onto a street named Woodland Avenue, and according to Mr. Estrada, Mr. Folse threw a gun out of the car window. According to the testimony of Detective Sanchez, Woodland Avenue has two bends in the road, and when the officers who were pursuing Mr. Folse came around the second bend, they discovered the Saturn. It appears to have lost control and crashed. The Saturn was upside, with its wheels spinning. The four occupants exited the vehicle, apparently unharmed. Mr. Folse and his girlfriend took off running from the car, while Mr. Estrada and his girlfriend remained by the car.
A detective pursued Mr. Folse on foot, following him through an apartment complex and eventually arriving at a fence. Looking over the fence, the detective witnessed Mr. Folse backing out of a residential driveway in a dark Kia SUV. As Mr. Folse backed the SUV out of the driveway, a woman came out of the house running and screaming. A thirteen-year-old boy, identified asMichael B., was sitting in the passenger seat of the Kia while waiting for his great-grandmother to give him a ride to the store.
According to Michael's testimony, while he was waiting for his great-grandmother the car was idling in the driveway and a man got into the SUV's driver's seat, put his hand on the gearshift, and told Michael he "had three seconds to get out." Id. at 421. At trial Michael identified the man as Mr. Folse, id. at 419, and testified that Mr. Folse was acting "aggressively" and breathing "heavily," as if "he [had] just r[u]n a couple of miles." Id. at 419-20. Michael said Mr. Folse made him feel "[s]hocked" and "scared," id. at 420, and that it did not seem "like a safe or good idea" to resist Mr. Folse, id. at 432. Michael attempted to quickly exit the Kia, but before he could jump out, Mr. Folse put the vehicle in reverse, affording Michael little time to get out. Michael ended up "[j]umping, diving out" of the vehicle, and the passenger's door hit him in the shoulder, spinning him around and causing him significant injury. Id. at 422.
Michael immediately ran inside the residence and dialed 911. The dispatcher asked whether the man in the car had a weapon, to which Michael responded in the negative. However, when testifying at Mr. Folse's trial, Michael stated that Mr. Folse actually had a pistol with him and identified the piece as a "[n]ine millimeter, .45 millimeter" caliber gun. Id. at 421.
After the Kia left the driveway, the detective who had been pursuing Mr. Folse on foot remained near the scene, while other law enforcement continued the pursuit of Mr. Folse. That detective was "flagged [] down" by a maintenance employee with the Bernalillo County Water Authority who "said that he had located a firearm." Id. at 480. Specifically, around 11:00 a.m. that day (July 2), the maintenance employee had been driving on Woodland Avenue and observed a firearm on the ground. The employee picked up the gun with a rag and turned it over to the officer.
Despite their efforts to capture Mr. Folse, law enforcement came up short on July 2. Mr. Folse successfully managed to elude police. But he was arrested the next day. A federal grand jury subsequently indicted him, and returned a superceding indictment on five counts: one count of felon-in-possession-of-a-firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count 1); two counts of carjacking in violation of 18 U.S.C. § 2119 (Count 2 and Count 4); and two counts of using, carrying, possessing, and brandishing a firearm during and in relation to and in furtherance of the carjackings charged in Count 2 and Count 4, respectively, in violation of 18 U.S.C. § 924(c) (Count 3 and Count 5). After athree-day trial, in October 2015, a jury found Mr. Folse guilty of Counts 1-41. Id. at 31-34. The district court sentenced Mr. Folse to 360 months' imprisonment.
On appeal, Mr. Folse contends that the district court erred when it: (1) held there was sufficient evidence to support his felon-in-possession conviction; (2) instructed the jury on the elements of his felon-in-possession offense; (3) omitted the intent element from its jury instruction on constructive possession; (4) held there was sufficient evidence for his convictions on two counts of carjacking; (5) relied on Mr. Folse's two prior felony convictions of aggravated battery with a deadly weapon and possession of marijuana with intent to distribute to enhance his sentence under the career-offender sentencing guideline. We address Mr. Folse's five claims in turn, rejecting them all.
Mr. Folse contends that the evidence was insufficient to support his felon-in-possession conviction, and the district court...
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