United States v. Shavers

• Decision Date: 06 April 2020
• Docket Number: No. 18-2810,18-2810
• Citation: 955 F.3d 685
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marcell SHAVERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

955 F.3d 685

UNITED STATES of America, Plaintiff-Appellee,

v.Marcell SHAVERS, Defendant-Appellant.

No. 18-2810

United States Court of Appeals, Eighth Circuit.

Submitted: November 13, 2019

Filed: April 6, 2020

Rehearing and Rehearing En Banc Denied June 11, 2020

John G. Gromowsky, The Gromowsky Law Firm, LLC, Kansas City, MO, argued, for appellant.

J. Benton Hurst, Asst. U.S. Atty., Kansas City, MO, argued (Timothy A. Garrison, U.S. Atty., Kansas City, MO, on the brief), for appellee.

Before SHEPHERD, GRASZ, and KOBES, Circuit Judges.

SHEPHERD, Circuit Judge.

Following a jury trial, Marcell Shavers was found guilty of one count of conspiracy to possess with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846, and was acquitted of one count of using a firearm during a drug trafficking offense to commit murder, in violation of 18 U.S.C. §§ 2, 924(c), and 924(j)(1). He was sentenced to the statutory maximum of 480 months imprisonment. On appeal, Shavers challenges the sufficiency of the evidence, the district court’s¹ jury instructions, the admission of evidence showing that he was previously incarcerated, and his sentence. Having jurisdiction under 28 U.S.C. § 1291, we affirm.

I.

On the morning of January 1, 2014, James Roberts and Ronald Wilson drove around together in a silver Hyundai Sonata selling drugs in Kansas City, Missouri.² In the early afternoon, they drove to Discount Smokes & Liquor. While there, Matthew Milton also entered the store. Roberts approached Milton, who had never met Roberts or Wilson prior to this encounter, and asked whether Milton had, or knew where Roberts could purchase, methamphetamine. Milton informed Roberts that he knew where to purchase it. The two exchanged phone numbers and left separately. After returning to the silver Hyundai, Roberts reported to Wilson that he found someone from whom he could purchase drugs.

Milton later called his friend Jose Medellin to arrange a sale of methamphetamine to Roberts. Medellin told Milton to meet him later that day at Medellin’s apartment building to complete the deal. Milton then called Roberts to inquire how much methamphetamine Roberts would like to purchase and to negotiate a price. Roberts initially requested one ounce, and the parties discussed a sale price of $800 to $1,000. Roberts later inquired whether he could purchase two ounces instead of one ounce, and they agreed to meet that evening at Discount Smokes & Liquor.

Later that evening, Wilson drove the silver Hyundai to his mother’s house to pick up the defendant, Marcell Shavers, who was living with Wilson’s mother at the time. Shavers was also acquainted with Roberts, as the two had spent just under 17 months together in a Missouri state prison, and Roberts had helped Shavers while the two were incarcerated. Before leaving the residence, Shavers told Wilson’s mother that Roberts was "blowing up his phone" and that he was leaving to meet Roberts. Shavers, who was armed with a handgun, left with Wilson. Wilson and Shavers then picked up Roberts. At some point, Roberts asked Wilson to drive him back to Discount Smokes & Liquor so Roberts could "holler at the dude from earlier." Wilson interpreted this to mean that Roberts had set up a drug deal, and, at approximately seven in the evening, Wilson drove back to Discount Smokes & Liquor and dropped off Roberts.

Milton met Roberts at the liquor store and told Roberts that they would go together to the Sterling Court apartments, where Medellin lived, to finish the deal. After meeting Milton, Roberts told Wilson and Shavers to follow him as he purchased drugs that evening and to provide him with "backup" at the deal. Roberts accompanied Milton in Milton’s vehicle, and Wilson and Shavers followed them in Wilson’s silver Hyundai. On the way to the apartment building, Milton and Roberts stopped at a gas station so that Milton could purchase gas. As Milton finished paying for gas, he observed Roberts walking away from a silver Hyundai. Milton and Roberts continued towards the apartment building. Milton pulled into the parking lot of a QuikTrip convenience store adjacent to the apartment building and told Roberts he was going to walk to the apartment building to get the drugs and bring them back to Roberts. Roberts, however, insisted that the two continue to drive to Medellin’s apartment building and complete the deal there.

In the meantime, Wilson and Shavers also arrived at the QuikTrip in Wilson’s silver Hyundai while Milton and Roberts were still there. At some point that evening, Roberts had told Wilson to leave Shavers at the QuikTrip. Shavers exited the vehicle, still carrying the handgun, while Wilson left the QuikTrip and returned to his home. Wilson understood that he was leaving Shavers to serve as Roberts’s "backup."

Milton and Roberts arrived at Medellin’s apartment building and initially parked to the side of the building. Milton went into the front entrance of the building, where he encountered Medellin and told Medellin that he had a buyer for the methamphetamine. Medellin asked Milton to wait while he went upstairs. Milton returned to his vehicle and pulled around to the back of the apartment building. A man wearing an olive green coat and a scarf covering his face approached Milton and Roberts and said something to Roberts. Milton and Roberts told this man to leave, and the man complied. Medellin subsequently appeared at the rear door of the apartment building. Milton instructed Roberts to give him the money for the methamphetamine, but Roberts refused. Milton then went inside and asked Medellin to give him the methamphetamine to give to Roberts, but Medellin refused. Roberts went inside to talk to Medellin.

Once inside, Roberts, Milton, and Medellin went into the nearby laundry room to discuss the deal. Milton brought scales, which he placed on a dryer, and Medellin produced the methamphetamine. Roberts pulled out some money, but initially hesitated and asked about the quality of the methamphetamine that he was about to purchase. Medellin offered to let Roberts sample it and pulled out a glass smoking pipe, but Roberts declined the offer and told Medellin, "No, I don’t smoke." Roberts then exited the building to urinate. While Roberts was outside, Medellin and Milton weighed two bags of methamphetamine, and Medellin instructed Milton to sell Roberts the lighter of the two bags, if Roberts would only purchase one, at a price of $1,000.

After Roberts returned to the door of the building, Milton let Roberts back inside, and the two returned to the laundry room to continue negotiating. Milton’s vehicle alarm then started sounding, and he left the building to investigate. As Milton walked outside, he noticed the man wearing an olive green coat and a scarf over his face walk into the building. After checking on his vehicle, Milton returned to the back door of the building, which was locked. Inside, he saw Medellin with his hands in the air and the man wearing the olive green coat pointing a handgun at Medellin. Roberts was searching Medellin’s pockets. Milton banged on the door and demanded to be let inside. Roberts backed away from Medellin, and the man wearing the olive green coat shot Medellin twice. Medellin fell to the floor. Milton fled, and after briefly being pursued by Roberts and the man wearing the olive green coat, he escaped to the QuikTrip, where a clerk alerted the police.

Roberts subsequently called Wilson and told him to drive to a nearby IHOP restaurant to pick up him and Shavers. When Roberts and Shavers entered the car, Roberts said "Celly did something stupid, Celly did something stupid." Shavers later told Wilson that he was with Medellin, Milton, and Roberts in the apartment building and that he shot Medellin after he observed Medellin reaching into his pocket for a gun. After Wilson dropped off Roberts at home, Wilson asked Shavers what happened to the handgun. Shavers responded that he dropped it when he hopped a fence near the IHOP. Although Shavers wanted to recover the weapon, Wilson drove Shavers back to Wilson’s mother’s residence.

Police and paramedics were dispatched to Medellin’s apartment building. Paramedics confirmed Medellin had died at the scene—three bullets caused seven wounds

, resulting in Medellin’s death. The police recovered seven shell casings around the laundry area and two baggies containing 55.3683 grams of 80 percent pure methamphetamine from Medellin’s pockets. They also found a glass pipe with methamphetamine and amphetamine residue in Medellin’s hand.

The following day, Shavers told Wilson’s mother that "it all went bad" and that "We didn’t get no money. We didn’t get no drugs ... it just all went bad, Ms. Jackson ... I should have listened to you and not went with him." Moreover, he mentioned to Wilson’s sister that he and Roberts went on a "mission" to rob a "Mexican guy," but that his mission failed and that he had to shoot an individual after observing the man pull out a weapon. Shavers later left Kansas City for Detroit.

Investigators later recovered a handgun on a hill near the IHOP that was close to Medellin’s apartment building. The bullets and cartridges found at the murder scene were determined to have been fired from that handgun. Moreover, DNA found on the weapon matched that of Shavers and excluded Milton, Roberts, and Wilson as contributors.

Shavers and Roberts were subsequently charged by superseding indictment with one count of conspiracy to possess methamphetamine with intent to distribute and one count of using a firearm during a drug trafficking offense to commit murder. Roberts pled guilty to the drug conspiracy charge and was sentenced to 282 months imprisonment. Following a jury trial, Shavers was convicted on the drug conspiracy charge and acquitted of the firearm charge. The district court sentenced him to 480 months imprisonment. This appeal follows.

II.

Shavers argues that the district court erred by denying his motions for...