United States v. Wilson, Nos. 17-12379

• Decision Date: 27 October 2020
• Docket Number: 18-14680,Nos. 17-12379
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Adrian Tremayne WILSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

979 F.3d 889

UNITED STATES of America, Plaintiff-Appellee,

v.Adrian Tremayne WILSON, Defendant-Appellant.

Nos. 17-12379

18-14680

United States Court of Appeals, Eleventh Circuit.

October 27, 2020

Kiran Narayan Bhat, Assistant U.S. Attorney, U.S. Attorney's Office, Emily M. Smachetti, Jason Wu, Assistant U.S. Attorney, U.S. Attorney Service-Southern District of Florida, U.S. Attorney Service-SFL, Miami, FL, for Plaintiff-Appellee.

Sheryl Joyce Lowenthal, Law Offices of Sheryl Lowenthal, Miami, FL, for Defendant-Appellant.

Adrian Tremayne Wilson, FCI Coleman Low-Inmate Legal Mail, Coleman, FL, Pro. Se.

Before WILLIAM PRYOR, Chief Judge, TJOFLAT and HULL, Circuit Judges.

HULL, Circuit Judge:

After a jury trial, Adrian Tremayne Wilson appeals his conviction and 63-month sentence for possession of an unregistered, sawed-off shotgun, 26 U.S.C. §§ 5861(d), 5871. As to his conviction, Wilson argues that: (1) the federal district court lacked subject matter jurisdiction, or constitutional authority under the Second and Tenth Amendments, to hear his case; (2) the government presented insufficient evidence that he knew his possession of the sawed-off shotgun was unlawful; (3) the district court erred in denying his motion to suppress; and (4) the district court erred in forcing Wilson to represent himself without standby counsel present. As to his sentence, Wilson contends that the district court erred in calculating his base offense level under U.S.S.G. § 2K2.1(a)(4)(B). After review, we affirm.

I. FACTUAL BACKGROUND

The trial evidence established these events.

A. June 12, 2016 Incident & Wilson's Arrest

On June 12, 2016, Officer Jason Palant of the Pembroke Pines Police Department ("Pembroke PD") was on routine patrol in Broward County, Florida. Officer Palant began following a white car that had illegally tinted windows and was speeding with the driver's side door slightly ajar. As the car headed for a gas station, Palant called Officer Timothy Kincanon (who was at the gas station already) to advise that he wanted to speak to the driver of the white car.

Once parked, Wilson exited the white car and went into the gas station. Officers Kincanon and Palant—wearing police uniforms—tried to speak with Wilson, who cursed at and refused to talk to them. Officer Palant told Wilson that they were stopping him for traffic infractions—speeding, driving with the door open, and illegal window tint—and repeatedly asked for his driver's license. Wilson continued to curse and refused to comply. When ordered either to show his driver's license or be arrested, Wilson said "arrest me."

Officer Palant arrested Wilson for failure to obey a lawful command of a police officer, in violation of Fla. Stat. § 316.072(3). A search of Wilson's person revealed a valid Florida driver's license in his pocket. Once in the patrol car, Wilson yelled, moved and jumped around, and threatened Palant.

B. Towing and Inventory Search

Because Wilson's car was blocking a gas pump, the officers arranged for a towing and conducted an inventory search pursuant to department policy. Officer Palant spotted a towel between the driver's and passenger's seats; when he lifted up the corner of the towel, he noticed "a shotgun." Palant took pictures of the shotgun where he found it in the car. Officer Kincanon removed the shotgun, which was loaded with four rounds of 12-gauge double aught buck shotgun shells. The officers took more pictures of the shotgun and the ammunition. Later, Wilson told another officer that a friend gave him the shotgun, that he did not want to be without a gun in his neighborhood, and that he wanted to clean and refurbish the gun.

Before Wilson's car was towed, Officer Palant verified that the windows were illegally tinted and wrote Wilson citations for: (1) unlawfully speeding at 56 miles per hour in a 40-mile-per-hour zone, in violation of Fla. Stat. § 316.189 ; (2) careless driving by opening the driver's side door while driving, in violation of Fla. Stat. § 316.1925(1) ; (3) illegally tinted windows, in violation of Fla. Stat. § 316.2952(2) ; and (4) failing to obey a police officer by refusing to provide a driver's license, in violation of Fla. Stat. § 316.072(3). Palant was trained in speed measurement. His speedometer, radar gun, and tint meter were tested and certified accurate between August 2015 and June 1, 2016.

C. Forensic Examination of Firearm & Federal Arrest

The crime lab of the Broward County Sheriff's Office tested the shotgun and confirmed that it was operational. Using a standardized firearm ruler, the crime lab measured the shotgun and found that its barrel length was 14.25 inches and that its overall length was 25 inches, which indicated that it had been sawed off. Officer Palant referred the case to the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") for federal prosecution.

An ATF firearms specialist analyzed Wilson's sawed-off shotgun and determined that it was not an "antique" or a "replica of an antique" firearm exempted from registration with the National Firearms Registration and Transfer Record ("NFRTR"). To be an "antique firearm," a weapon must have one of these characteristics: (1) the weapon was manufactured in or before 1898 and was not designed or redesigned for using rim fire or conventional center fire ignition with fixed ammunition; (2) the weapon is a replica of a matchlock, flintlock, percussion cap, or similar type of ignition system, whether actually manufactured before or after 1898; or (3) the weapon used fixed ammunition manufactured in or before 1898 for which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade. 26 U.S.C. § 5845(g). Contrastingly: (1) Wilson's sawed-off shotgun was manufactured in Westfield, Massachusetts after 1961; (2) his shotgun was not a replica of any antique ignition system; (3) his shotgun fired modern, fixed ammunition that is readily available in the United States in the ordinary channels of commercial trade; and (4) the ammunition was not loaded like an antique. Wilson had his shotgun loaded with powerful "man-stopper" rounds typically used by law enforcement.¹

Further, Wilson's shotgun had been modified and thus was of the type that must be registered under the National Firearms Act. A search of the NFRTR database revealed that neither Wilson, nor his company Florida Boys Elite, LLC ("FBE"), had registered the sawed-off shotgun as required. In early August 2016, ATF agents arrested Wilson on a federal charge.

D. Wilson's Defense at Trial

At trial, Wilson testified and admitted that he owned, and was in possession of, the shotgun found in his car on June 12, 2016.² Wilson claimed that: (1) he purchased the shotgun at a flea market on the side of the road ten days before his state arrest; and (2) the seller (whose name he did not know) told him it was a replica of an antique 1911 to 1916 shotgun. Wilson had a purported receipt, or a "bill of sale," for the shotgun.³ While "[n]obody gets a receipt in the flea market," Wilson got one for the shotgun so he would not be "up the creek without a paddle."

The bill of sale showed a sale date of June 2, 2016, listed Wilson's FBE company as the buyer, and stated that the shotgun was an "antique short-barrel rifle pump" and a "replica 1911 through 1916." Wilson conceded that his FBE company was not incorporated until July 21, 2016, over a month after his state arrest. Wilson, however, denied incorporating his FBE company and forging the bill of sale to support his story.

After some research, Wilson concluded that he did not need to register or get a license for the replica, and thus he did not do it. Wilson had no knowledge of "the length, width, or any legalities of what was going on." Wilson's only plans were to restore the shotgun, see if it worked, and hang it on a wall in his office. Wilson denied ever saying that he bought the shotgun for protection in his neighborhood.

As to his June 12 arrest, Wilson admitted that he had the shotgun in his car and claimed that he was taking it to the shooting range to see if it worked. Wilson bought ammunition for the shotgun based on a store employee's recommendation for 12-gauge shells, the type of ammunition the replica required. Wilson did not know how powerful the ammunition was and was not a firearms expert. Wilson alleged that he put the shotgun ammunition in his driver's side door and that the shotgun was not loaded. He did not make it to the range because he got arrested.

Wilson believed Officer Palant was a racist officer following and harassing him because Palant had pulled him over and given him tickets in the past. As for this offense, Wilson asserted that Palant: (1) pulled him over for no reason; (2) never explained why he needed to see Wilson's license; and (3) made racist comments to Wilson in the back of the patrol car after his arrest.⁴ Wilson denied breaking any laws or traveling on the streets that Palant claimed. Believing he did not need to provide his license when he did nothing wrong, Wilson responded "then arrest me" to Officer Palant's ultimatum. Wilson "kn[e]w for a fact that [the shotgun] was not loaded," meaning that Officer Palant lied when he said the shotgun was loaded. Wilson also denied threatening Palant. Wilson told the jury that, because of this arrest, he was in jail for six months, away from his family and job for months, and was still in jail. Wilson stressed that he had a wife, kids, and a steady job, he was not a convicted felon or a danger to society, and he was innocent and should be set free.

II. PROCEDURAL HISTORY

A. Indictment and Plea

Wilson's indictment charged that, on or about June 12, 2016, Wilson "knowingly possessed a firearm, that is, a weapon made from a shotgun which, as modified, had an overall length of less than twenty-six (26) inches and a barrel of less than eighteen (18) inches in length" that was "not registered to him in the National Firearms Registration...