United States v. Perry

• Decision Date: 15 November 2018
• Docket Number: No. 17-3236,17-3236
• Citation: 908 F.3d 1126
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Quentin Lamont Lavell PERRY, Defendant - Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

908 F.3d 1126

UNITED STATES of America, Plaintiff - Appellee

v.Quentin Lamont Lavell PERRY, Defendant - Appellant

No. 17-3236

United States Court of Appeals, Eighth Circuit.

Submitted: June 12, 2018

Filed: November 15, 2018

David Genrich, Nathan Hoye Nelson, Surya Saxena, Assistant U.S. Attorneys, U.S. ATTORNEY'S OFFICE, District of Minnesota, Minneapolis, MN, for Plaintiff-Appellee.

Rachel K. Paulose, DLA PIPER US LLP, Minneapolis, MN, for Defendant-Appellant.

Quentin Lamont Lavell Perry, Florence, CO, Pro Se.

Before BENTON, KELLY, and STRAS, Circuit Judges.

BENTON, Circuit Judge.

Quentin Lamont Lavell Perry appeals his conviction and 15-year sentence for possessing a gun and ammunition as a felon. See 18 U.S.C. § 922(g)(1). He argues that the police did not have probable cause to arrest him, that constraints on his ability to represent himself at trial violated his constitutional rights, and that he does not qualify for a heightened sentence under the Armed Career Criminal Act. With jurisdiction under 28 U.S.C. § 1291, this court affirms the judgment of the district court.¹

I.

A 911 caller reported "shots fired" outside a bar. The caller described the shooter as a "taller" black man with a goatee, wearing a white shirt and dark pants. A few blocks from the bar, police officers saw Perry and another man crossing the street. Perry—the taller of the two—appeared to have a goatee and to be wearing a white shirt and dark pants. After briefly making eye contact with the police, the two men split up.

Perry walked between some buildings to a parking lot. The police circled around the block. They found him standing next to a car, on the passenger side. They could then see that although the back and sleeves of his shirt were white, the front was dark blue or black. They could also see he had a full beard that was longer around his chin, not a goatee. One officer went to talk to Perry. The other began checking the area for evidence. Through the windshield of the car Perry was standing next to, he saw a handgun and two magazines under the passenger seat. The officers handcuffed and arrested Perry. He was charged with possessing the handgun from the car and three bullets the police found in his pockets.

Perry argues the district court should have suppressed the bullets because the police did not have probable cause to arrest him, making the search of his pockets illegal. See Minnesota v. Dickerson , 508 U.S. 366, 372–73, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). This court reviews legal conclusions de novo, and factual findings for clear error. See, e.g. , United States v. Gunnell , 775 F.3d 1079, 1082–83 (8th Cir. 2015). "[P]robable cause exist[s] at the time of [an] arrest when the available facts and circumstances are sufficient to warrant a person of reasonable caution to believe that an offense was being or had been committed by the person to be arrested." United States v. Adams , 346 F.3d 1165, 1169 (8th Cir. 2003). Probable cause "requires only a probability or substantial chance of criminal activity, not an actual showing of such activity"; it "is not a high bar." District of Columbia v. Wesby , ––– U.S. ––––, 138 S.Ct. 577, 586, 199 L.Ed.2d 453 (2018) (citations omitted).

Perry insists the police did not have probable cause because his appearance was "not that similar" to the 911 caller’s description. The district court, adopting the magistrate judge’s report and recommendation, did not clearly err in finding: "While there are some inconsistencies, [Perry] matched the material aspects of the shooter’s description." Perry emphasizes his actual height is over six feet, while the 911 caller’s estimate was "5'8? to 5'9?." But the caller gave that specific measurement only in a follow-up interview after Perry had been arrested. At the time of the arrest, which controls the probable-cause inquiry, see Adams , 346 F.3d at 1169, the only description to the police was that the shooter was "taller." That term aptly describes Perry. He is a taller black man, had a beard that was noticeably longer at his chin than on his cheeks, wore a shirt that looked white from the back, and had dark pants. Further, the police found him standing next to a car where a handgun and magazines were plainly visible, just a few blocks from where someone had reported "shots fired" minutes earlier. In the circumstances, a reasonable officer could have concluded that Perry was the shooter from the bar. See United States v. Oakley , 153 F.3d 696, 697–98 (8th Cir. 1998) ; see also Wesby , 138 S.Ct. at 588 (explaining that it is a mistake to assess probable cause "view[ing] each fact in isolation, rather than as a factor in the totality of the circumstances" (internal quotation marks and citation omitted) ).

Perry tries to draw the opposite conclusion from the fact that the police encountered him only blocks from the bar "some eight-to-ten minutes after the shots were fired." In Perry’s view, a guilty person would be long gone by then, or at least would have fled, hid, or otherwise acted suspiciously when seeing the police. Because he remained calm and polite, even when the officers approached, Perry thinks they were compelled to conclude he was just an innocent passerby, not the shooter. "But probable cause does not require officers to rule out a suspect’s innocent explanation for suspicious facts." Wesby , 138 S.Ct. at 588. Perry’s possible innocent explanation did not require the officers to disregard other, less innocent possibilities or to ignore the other circumstances indicating guilt. Id. at 588–89.

II.

At trial, Perry represented himself with standby counsel. He was in custody before and during trial. After getting in a dispute with a sergeant at the jail, he was placed in segregation. This interfered with his ability to access a computer and legal materials and, in Perry’s view, violated his constitutional right to mount a defense.

Perry did not raise this issue to the district court and does so only conclusorily on appeal, with no meaningful explanation or argument. He has likely forfeited any entitlement to relief. See, e.g. , United States v. Zavala , 427 F.3d 562, 564 n.1 (8th Cir. 2005). In any event, he makes no showing that his inability to access the law library "hindered his efforts to pursue a legal claim" at trial, so his claim also fails on the merits. Lewis v. Casey , 518 U.S. 343, 351, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) ; see also United States v. Knox , 950 F.2d 516, 519–20 (8th Cir. 1991) (explaining that pro se defendants have a right to either law-library access or adequate assistance from someone trained in the law, such as standby counsel).

Perry also claims his rights were violated during the trial itself. He focuses on one instance where the district court sustained a relevancy objection to his questioning of the government’s DNA expert about forensic concepts and terminology. Perry asserts, again without meaningful explanation or argument, that his cross-examination "was hindered by the court during trial, despite the seemingly relevant nature of his inquiries."

Perry questioned the expert extensively about her analysis. Before ruling on the objection, the district court discussed with Perry at length the relevance of the particular piece of information he sought to elicit. On appeal, Perry cannot say how the expert’s answer to the question he was prevented from asking—"what is a ‘blob’?"—would have contributed to his defense. The minimal constraint the court placed on Perry’s ability to confront the government’s witness posed no constitutional problem, and the court did not abuse its discretion by its evidentiary rulings. See United States v. Brown , 788 F.3d 830, 833 (8th Cir. 2015) ("Courts ‘retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, ... interrogation that is repetitive or only marginally relevant.’ "), quoting Delaware v. Van Arsdall , 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986).

III.

Perry argues he should not have been sentenced under the Armed Career Criminal Act ("ACCA"). ACCA mandates a sentence of at least 15 years for felons-in-possession "who ha[ve] three previous convictions ... for a violent felony ... committed on occasions different from one another." 18 U.S.C. § 924(e)(1). The district court held that Perry qualified based on (1) his convictions for first-degree aggravated robbery, simple robbery, and second-degree assault, all arising out of a holdup of a gas station; (2) another conviction for second-degree assault, following the gas-station robbery; and (3) a conviction for felony domestic assault. All of these convictions were under Minnesota law.

A.

Perry argues his conviction for first-degree aggravated robbery is not a "violent felony." This court recently rejected Perry’s argument. See United States v. Libby , 880 F.3d 1011, 1014–16 (8th Cir. 2018) ("[T]he elements of Minn. Stat. § 609.245, subd. 1 categorically present a ‘violent felony’ under the ACCA."). See generally Mader v. United States , 654 F.3d 794, 800 (8th Cir. 2011) (en banc).

B.

Perry’s second argument presents a closer question. He argues that the conduct underlying his robbery and assault convictions all took place on the same "occasion," so they should not be counted separately for ACCA purposes. If correct, he would have at most two qualifying "violent felony" convictions, not the necessary three.

Perry entered a gas station, pointed a gun at the cashier, and took money from the register. That conduct led to Perry’s robbery convictions and the first of his second-degree-assault convictions, all of which the district court treated as a single ACCA predicate. Grabbing the cash, Perry ran outside, still holding the gun. Someone saw him. As Perry fled, this witness drove after him. Perry then shot toward the witness’s vehicle, close enough that the witness heard a "zing" and smelled gunpowder....