United States v. Pate

• Decision Date: 06 June 2014
• Docket Number: No. 13–1207.,13–1207.
• Citation: 754 F.3d 550
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Lewis PATE, True Name Lewis Antwhane Pate, III, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

754 F.3d 550

UNITED STATES of America, Plaintiff–Appellee

v.Lewis PATE, True Name Lewis Antwhane Pate, III, Defendant–Appellant.

No. 13–1207.

United States Court of Appeals, Eighth Circuit.

Submitted Dec. 13, 2013.

Filed June 6, 2014.

Katherine M. Menendez, FPD, of Minneapolis, MN (Douglas Olson, AFPD, of Minneapolis, MN, on the brief), for Appellant.

Lisa D. Kirkpatrick, AUSA, of Saint Paul, MN (Jeffrey S. Paulsen, AUSA, of Minneapolis, MN, on the brief), for Appellee.

Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.

RILEY, Chief Judge.

Minnesota federal jurors convicted Lewis Pate of being a felon in possession of a firearm, and the district court ¹ sentenced him pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), to serve 200 months in prison. In this appeal, Pate challenges (1) his conviction, arguing insufficiency of the evidence; and (2) his sentence, asserting a Minnesota conviction for fleeing a police officer in a motor vehicle, seeMinn.Stat. § 609.487, subd. 3, is not a violent felony within the meaning of the ACCA's residual clause.

Since the parties filed their original briefs, the Supreme Court issued an intervening ACCA decision in Descamps v. United States, 570 U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), and we requested supplemental briefing to address the applicability of Descamps to this case. Suggesting Minn.Stat. § 609.487, subd. 3, is textually indivisible under Descamps, Pate maintains his Minnesota motor vehicle flight convictions are no longer violent felonies. After careful review, we conclude Descamps does not alter our earlier holding that fleeing a police officer in a motor vehicle in violation of Minn.Stat. § 609.487, subd. 3, qualifies under the ACCA's residual clause, see United States v. Bartel, 698 F.3d 658, 662 (8th Cir.2012). Accordingly, we affirm.

I. BACKGROUND

Pate's case began with an exchange of gunfire on a Tuesday afternoon in St. Paul, Minnesota. Two men in black hoodies fired shots at another man, who returned fire. After the men ran away, police officers arrived at the scene, and followed a tracking dog to a residence approximately two blocks away. Officers discovered one shooting suspect sitting in a parked car. Having reason to believe one of the shooters, still armed, was inside the residence, the officers entered with the tracking dog to conduct a security sweep. Pate then gave himself up, claiming “I'm the one that was being shot at.” After receiving a search warrant for the residence, officers located a .38 caliber revolver wrapped in a towel hidden inside a hamper. Officers also found a black hoodie hidden behind a couch.

Later that evening, Pate (apparently unaware the police had already found the gun) called various individuals from jail and asked them to “get [his] money ” out of the residence. (Emphasis added). Despite his effort to speak in code, Pate repeatedly gave away his intent. For example, trying to clarify what he meant by “money,” he explained on one call, “They tryin' to charge me wit' a firearm, man.... You feel what I'm sayin', though?” In an interview with law enforcement personnel the following day, Pate admitted the gun was his. He said he recently purchased the gun for $100, but insisted he was not carrying the firearm at the time of the shooting. Pate's story—that he was driving a car when a single shooter opened fire on him—was inconsistent with eyewitness testimony and physical evidence.

After a three-day trial, the jury found Pate guilty of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Relying in part on Pate's prior convictions for fleeing a police officer in a motor vehicle, seeMinn.Stat. § 609.487, subd. 3, the government asked the district court to sentence Pate as an armed career criminal. Pate objected, maintaining the fleeing convictions did not qualify under the ACCA's residual clause, 18 U.S.C. § 924(e)(2)(B)(ii), and contending the residual clause is unconstitutionally vague. The district court overruled Pate's objections, found him an armed career criminal, and calculated an advisory guidelines range of 262 to 327 months, which was higher than the statutory minimum prison sentence of 180 months (the ACCA's 15 year minimum). The district court ultimately granted a downward variance to 200 months based on Pate's youth (age 24) and difficult upbringing.

Pate timely appeals both his conviction and sentence, invoking our 28 U.S.C. § 1291 jurisdiction.

II. DISCUSSION

Pate raises several issues on appeal. Because Pate was represented by counsel and “[a] district court has no obligation to entertain pro se motions filed by a represented party,” Abdullah v. United States, 240 F.3d 683, 686 (8th Cir.2001), we preliminarily and promptly reject Pate's claim that the district “court erred by not ruling on [his] pro se motions.” Next, we consider Pate's challenge to the conviction, before concluding with consideration of his ACCA arguments.

A. Firearm Conviction

Although our standard of review is de novo, we will not lightly overturn a jury's verdict. See, e.g., United States v. Causevic, 636 F.3d 998, 1005 (8th Cir.2011). We view the evidence in the light most favorable to the verdict and “may not reverse unless no reasonable jury could have found” Pate “guilty beyond a reasonable doubt.” Id. In Pate's case, the evidence amply supports the jury's guilty verdict.

Having charged Pate with being a felon in possession of a firearm, the government had to prove, among other elements, “that he knowingly possessed a firearm.” United States v. Abfalter, 340 F.3d 646, 654 (8th Cir.2003). Pate admitted in a recorded interview with law enforcement personnel that the gun was his, and now concedes “the jail conversations demonstrate ... his knowledge that there was a gun in the bathroom at [the residence] and that he wanted it out of there.” Although the jury heard recordings of Pate's confessions and calls from the jail, Pate still argues the evidence did not specifically link him to the .38 caliber revolver. But these recordings support the imminently reasonable inference that the gun he owned and wanted out of the residence was the same gun found by police shortly after his arrest, and we accept any reasonable inference that supports the jury's verdict. See, e.g., Causevic, 636 F.3d at 1005. Pate fails to clear the high bar required for us to reverse the conviction.

B. ACCA Sentence

Generally, we review whether a district court's sentencing decision represents an abuse of discretion, following the Supreme Court's prescription in Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Whether a prior conviction counts as a “violent felony”under the ACCA's residual clause is a legal question, however, which we review de novo. See, e.g., United States v. Chappell, 704 F.3d 551, 552 (8th Cir.2013). Pate claims he is not an armed career criminal for three reasons, which we consider and reject in turn.

1. Descamps

First, following our request for supplemental briefing, Pate now relies on Descamps to support his previously cursory claim that Sykes v. United States, 564 U.S. ––––, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011), and Bartel were wrongly decided. We cannot for even a moment entertain Pate's theory that the Supreme Court “wrongfully decided” Sykes. “If the [Supreme Court's] decision in [a] case is to be modified, overruled or disregarded, that will have to be done by the Supreme Court.” Bakewell v. United States, 110 F.2d 564, 564 (8th Cir.1940) (per curiam). On the other hand, Pate's request that we reconsider our Bartel decision in light of Descamps merits careful consideration.

When determining whether a state-law conviction qualifies as a violent felony under the ACCA, sentencing courts must look “to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions.” Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Only “in a narrow range of cases,” id. at 602, 110 S.Ct. 2143, may a sentencing court consider the underlying “trial record—including charging documents, plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from a bench trial, and jury instructions and verdict forms,” Johnson v. United States, 559 U.S. 133, 144, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). In Descamps, evaluating the enumerated-crimes clause of the ACCA, the Court clarified, “A court may use the modified approach only to determine which alternative element in a divisible statute formed the basis of the defendant's conviction.” Descamps, 570 U.S. at ––––, 133 S.Ct. at 2293 (emphasis added). We recently extended Descamps to the ACCA's residual clause. See United States v. Tucker, 740 F.3d 1177, 1182 (8th Cir.2014) (en banc).

In accordance with Tucker, we view Minn.Stat. § 609.487, subd. 3, through the lens of Descamps:

Whoever by means of a motor vehicle flees or attempts to flee a peace officer who is acting in the lawful discharge of an official duty, and the perpetrator knows or should reasonably know the same to be a peace officer, is guilty of a felony and may be sentenced to imprisonment for not more than three years and one day or to payment of a fine of not more than $5,000, or both.

(Emphasis added). The statute defines the term “flee” in a disjunctive manner:

For purposes of [§ 609.487], the term “flee” means to increase speed, extinguish motor vehicle headlights or taillights, refuse to stop the vehicle, or use other means with intent to attempt to elude a peace officer following a signal given by any peace officer to the driver of a motor vehicle.

Id. § 609.487, subd. 1. Yet the statute “does not require the factfinder (whether jury or judge) to” determine how the defendant fled (i.e., the means of flight), Descamps, 570 U.S. at ––––, 133 S.Ct. at 2293, because the method “used to flee the peace officers is not an element of the crime,” State v....