United States v. Delvonn Battle, 774 F.3d 504

Background

In January 2012 Waterloo police stopped a car with three occupants (Marshall, Battle, Hardy) and found a Ruger 9mm handgun under the front passenger seat; gun was photographed in situ and was obstructed from access from the rear seat.
Hardy fled when asked to exit; officers apprehended him; no contraband was found along his running path; police arrested all three and later transported them to the station.
Ballistics later matched the Waterloo gun to a December 2011 Des Moines shooting; a witness (Lonnie Williams) identified Battle (alias “DV”) as the shooter; other eyewitnesses gave mixed identifications.
State charges against Battle were dropped and federal prosecutors charged him under 18 U.S.C. § 922(g)(1) for being a felon in possession; at trial the district court admitted evidence of the Des Moines shooting as direct evidence of possession.
The jury convicted Battle; at sentencing the court applied a four-level enhancement under USSG § 2K2.1(b)(6)(B) for use/possession of the firearm in connection with another felony (the Des Moines shooting) and imposed the statutory maximum 120 months.
On appeal Battle challenged admissibility of the Des Moines evidence, exclusion of Hardy’s prior-bad-acts (“reverse 404(b)”) evidence, denial of judicial immunity for a witness, sufficiency of the evidence, the sentencing enhancement, and refusal to grant a downward variance; the Eighth Circuit affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admission of Des Moines-shooting evidence	Evidence was remote and constituted impermissible propensity evidence under Rule 404(b); overly prejudicial under Rule 403	Evidence was direct and highly probative of ownership/control because same gun was used in the prior shooting, so it tended to prove constructive possession	Admitted: prior-shooting evidence was direct evidence of possession (not governed by 404(b)) and not unduly prejudicial
Exclusion of Hardy’s prior-bad-acts (reverse 404(b))	Battle sought to show Hardy’s modus operandi (carrying guns, running) and knowledge to implicate Hardy as sole possessor	Court excluded as not sufficiently idiosyncratic for modus operandi, largely irrelevant to Battle’s knowing possession, and unduly time-consuming/confusing under Rule 403	Affirmed exclusion: district court did not abuse discretion in excluding the package of prior acts
Denial of judicial immunity for Marshall	Requested judicial (use) immunity so Marshall could testify about alleged contraband he found retracing Hardy’s steps	Court refused to grant judicial immunity absent recognized standard; no error in refusal	Affirmed: no abuse in denying judicial immunity
Sufficiency of the evidence for conviction	Battle argued evidence insufficient to prove knowing possession	Government relied on gun location under Battle’s seat, photos showing placement from front, Debris/tubing blocking rear access, prior use of same gun, and Battle’s lies	Affirmed: circumstantial proof and ballistics, plus inconsistencies and lies, were sufficient for a reasonable jury
Application of 4-level sentencing enhancement under USSG § 2K2.1(b)(6)(B)	Battle argued the fact finding that he committed the Des Moines shooting should have been submitted to a jury (Apprendi/Alleyne) and evidence was insufficient	Government argued enhancement is guideline factfinding (not raising statutory max/min), so court may find facts by preponderance for advisory range; court weighed credibility and found shooting occurred	Affirmed: court properly made factual findings by preponderance; Apprendi/Alleyne not triggered; enhancement supported by ballistics and credibility findings
Denial of downward variance to avoid disparity	Battle argued sentencing disparity with nonfederal co-defendants warranted downward variance	Government/court noted co-defendants were not federal defendants and not similarly situated; court considered § 3553(a) factors	Affirmed: no abuse of discretion; disparity argument fails because other defendants were not federal defendants

Key Cases Cited

United States v. Stevens, 439 F.3d 983 (8th Cir. 2006) (standard for reviewing evidence in light most favorable to verdict)
United States v. Bass, 794 F.2d 1305 (8th Cir. 1986) (when other-crimes evidence proves an element it is not governed by Rule 404(b))
United States v. Walker, 393 F.3d 842 (8th Cir. 2005) (elements and constructive-possession principles for § 922(g))
United States v. Flenoid, 415 F.3d 974 (8th Cir. 2005) (prior use of same firearm may be admissible in felon-in-possession cases)
United States v. Thomas, 398 F.3d 1058 (8th Cir. 2005) (standards for admissibility of Rule 404(b) evidence)
United States v. Cook, 454 F.3d 938 (8th Cir. 2006) (Rule 403 balancing and concerns about time, confusion, and hearsay when admitting prior-act evidence)
Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts increasing punishment beyond statutory maximum must be found by a jury)
Alleyne v. United States, 133 S. Ct. 2151 (2013) (Apprendi extended to facts that increase mandatory minimums)
United States v. Wade, 435 F.3d 829 (8th Cir. 2006) (district court may consider preponderance-supported facts when treating Guidelines as advisory)
United States v. Brown, 539 F.3d 835 (8th Cir. 2008) (deference to district court’s factual findings at sentencing)