US v. Hughes, 08-60870.

• Decision Date: 05 April 2010
• Docket Number: No. 08-60870.,08-60870.
• Citation: 602 F.3d 669
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David Earl HUGHES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

602 F.3d 669

UNITED STATES of America, Plaintiff-Appellee, v. David Earl HUGHES, Defendant-Appellant.

No. 08-60870.

United States Court of Appeals, Fifth Circuit.

April 5, 2010.

Richard Terrell Starrett, Asst. U.S. Atty. (argued), Jackson, MS, for Plaintiff-Appellee.

Clarence T. Guthrie (argued), Ridgeland, MS, for Defendant-Appellant.

Before KING, JOLLY and STEWART, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

David Earl Hughes was convicted of being a felon in possession of a firearm under 18 U.S.C. § 922(g) and sentenced to 293 months in prison in accordance with the Armed Career Criminal Act ("ACCA") on the basis that he had previously committed three violent felonies. The § 922(g) conviction raises no grounds requiring reversal and we affirm. Our opinion is primarily concerned with whether Hughes's third prior conviction for violating the federal escape statute, 18 U.S.C. § 751(a), is a violent felony, as the district court held, which qualified Hughes for enhanced sentencing under the ACCA. We hold that this previous conviction under § 751(a) was for a violent felony and consequently we affirm the sentence as well as the conviction.

I.

On February 16, 2007, Lauderdale County Sheriff's officers responded to a call that Hughes had assaulted his niece and her boyfriend with an axe and had driven away in a Nissan pickup truck to get a gun to kill them. The officers received a description of Hughes's truck and went in search of the vehicle, which they found at his mother's house. There, the officers learned that Hughes had gone to a Winn-Dixie grocery store with his sister in her gold Toyota Corolla. One officer observed the truck and remained there until summoned to assist with Hughes's arrest, which occurred after another officer stopped the Corolla. The officers arrested Hughes and confirmed that he was a felon. Hughes was carrying in his wallet the truck's title, the date of which indicated that he had purchased the truck from his brother that day. An investigator went to Hughes's mother's house. What happened next is disputed. Both sides agree that there was a .22 rifle in Hughes's truck and that the officers ultimately obtained a warrant to seize the rifle after Hughes refused permission to search the truck. The officers testified that they saw a rifle in the passenger seat, but Hughes and two of his witnesses said that the gun was not visible from outside the truck. Instead, they said the deputies opened the door and searched the car, finding the rifle under the seat. While at Hughes's mother's house, the investigator obtained a signed statement from Hughes's sister. She said she saw Hughes sitting in his truck when she arrived at the house. She later testified that she saw him sitting with a gun visible on the passenger's side of the truck while she spoke with him. In any event, the officers then had the truck impounded, at which point the officers obtained a warrant. They contend they searched the truck only after it was towed to the Sheriff's Department.

Hughes was on supervised release at the time, which was subsequently revoked. He was indicted on October 11, with his trial originally scheduled for December 17, which ended in mistrial. Hughes calls the mistrial inexplicable; the Government attributes it to a potential conflict. His second trial began on September 8, 2009, after a series of delays due to agreed-upon continuances and a motion granted after an ATF agent who was to testify for the Government was sent to Iraq.

Before trial, Hughes's attorney moved to suppress admission of the rifle into evidence. At a hearing, the district court heard testimony, including testimony from two witnesses for Hughes who said they saw the officers remove the rifle from the car before obtaining a warrant. The two officers contradicted that testimony. Ultimately, the district court ruled that the gun was admissible.

At trial, Hughes stipulated that he had been convicted of a qualifying felony under § 922(g) and that the rifle had traveled in interstate commerce. Hughes did not testify. As explained below, he sought to make his own closing argument to the jury, but the district judge ruled that he could not. The jury convicted Hughes, and the district court ordered Hughes to forfeit the rifle.

The district court sentenced Hughes under the Armed Career Criminal Act. Hughes objected, arguing that his conviction for the federal crime of escape from custody was not a qualifying violent felony. Hughes filed a pro se notice of appeal on September 11, and his current lawyer filed another notice of appeal on February 13.

II.

Hughes raises four challenges to his conviction under § 922(g); he also challenges his sentence under the ACCA. First, he argues that the weapon should have been suppressed, because officers lied to obtain a search warrant. Second, he argues that the Government violated his Sixth Amendment right to a speedy trial. Third, he argues that his trial counsel was ineffective in failing to make sure he was able to testify. Fourth, he argues there was insufficient evidence to establish that he possessed the weapon. Finally, he argues that his previous conviction for violating the federal escape statute, 18 U.S.C. § 751(a), is not a violent felony under the ACCA. We address each in turn.

A.

Hughes first argues that the district court should have suppressed the weapon in this case, because the officers lied to obtain a search warrant. We review the district court's evidentiary rulings for abuse of discretion, reviewing conclusions of law de novo and findings of fact for clear error. United States v. Fort, 248 F.3d 475, 478 (5th Cir.2001).

Hughes's argument is essentially a fact challenge. The Government contends that after seeing a rifle in plain view in Hughes's car and having Hughes deny them permission to search, officers obtained a search warrant to seize the weapon. Hughes says that the officers actually seized the weapon before obtaining a warrant and lied about not having seized it when seeking a warrant. In support of his version of events, two witnesses testified that officers entered the car, searched it, found the rifle under the seat, and placed it on the seat in plain view before seeking a warrant. Two officers testified to the contrary. In the case of contradictory testimony, the district court is entitled to decide whom to believe when both present "reasonable views of the evidence." Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). We find no error in its decision to admit the rifle.

B.

Hughes next argues that his conviction should be reversed because the government violated his Sixth Amendment right to a speedy trial. See U.S. Const. amend. VI. We review de novo. United States v. Green, 508 F.3d 195, 202 (5th Cir.2007). Although state authorities arrested Hughes on February 16, 2007, the relevant date for speedy trial purposes is the date of his indictment, October 12. Id. at 203. His first trial ended in a mistrial, and his second trial began on September 8, 2008. When the period between arrest and trial is less than one year, we will not reverse absent wilful delay by the government or extreme prejudice to the defendant. Knox v. Johnson, 224 F.3d 470, 476 (5th Cir.2000). Hughes points to no delay, but he argues that he was prejudiced by being held in a federal facility pending trial. As the Government notes, having violated the terms of his supervised release, Hughes's imprisonment was the consequence in any event. We find no extreme prejudice, and consequently, no error.

C.

Hughes next claims that his counsel was ineffective in failing to make sure he could testify at trial. To obtain relief, his lawyer's actions must have been objectively unreasonable, and he must also show prejudice. United States v. Mullins, 315 F.3d 449, 453 (5th Cir.2002). On the record before us, it appears that Hughes's attorney discouraged him from testifying because it would open him to questioning about his extensive criminal record. Although his attorney initially indicated that he wanted to testify, she later informed the court that he had reconsidered. Hughes then proposed to make his own closing argument, a request the district court rejected, because the proposed argument amounted to testimony, not argument. There is not enough in this record to rule on whether Hughes's counsel was ineffective, so he must follow the usual route of collateral attack. See United States v. Bounds, 943 F.2d 541, 544 (5th Cir.1991).

D.

Hughes's final challenge to his § 922(g) conviction is an attack on the sufficiency of the evidence. He contends that the evidence was insufficient to show he had constructive possession of the weapon. We will affirm the jury's verdict if "a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt" and the evidence will be interpreted in a light most favorable to the verdict. United States v. Stephens, 779 F.2d 232, 235 (5th Cir.1985); United States v. Bell, 678 F.2d 547, 549 (5th Cir. 1982).

Constructive possession exists when the defendant has "dominion or control over an illegal item itself, or dominion or control over the premises in which the item is found." United States v. De Leon, 170 F.3d 494 (5th Cir.1999). The record discloses ample evidence for the jury to find constructive possession, which includes testimony from Hughes's sister that she spoke with him while the gun was sitting next to him in his truck.

E.

1.

We now turn to Hughes's sentence under the ACCA. The law provides a minimum sentence of fifteen years to those who violate § 922(g) and have three prior convictions of a "violent felony" or "serious drug offense." 18 U.S.C. § 924(e)(1). Hughes acknowledges that he has three prior convictions, but he challenges the classification of the third conviction as a "violent felony" — that is, his conviction under the federal escape statute, § 751(a). Our court has...