9 F.4th 718
8th Cir.2021Background
- A confidential informant (DeAnthony Smith) arranged to buy a Glock from co-defendant Maurice Jefferson and found Jefferson and Jose Drew in a parked car; Smith testified the gun was on the center console and that Drew eventually held it. Drew was indicted under 18 U.S.C. § 922(g)(1) and had six prior felony convictions (robbery and armed-criminal-action).
- The government presented eyewitness testimony (Smith), Special Agent Waggoner (who testified about Drew’s six prior felonies and that Drew had possessed a handgun in connection with those offenses), and DNA analysis identifying Drew as a "possible contributor" to DNA on the gun.
- Before admitting the priors, the district court gave a limiting instruction telling jurors to consider the convictions only if they found them more likely true than not and only for knowledge/intent.
- The district court refused Drew’s proposed mere-presence instruction, instead instructing on actual, constructive, and joint possession; the jury convicted Drew.
- At sentencing the PSR included Drew’s mental-health history and alleged in-custody violent conduct; the Guidelines range was 235–293 months but the court imposed a 360‑month sentence after emphasizing in-custody conduct, criminal history, parole status, public safety, and respect for the law.
- On appeal Drew challenged (1) admission of his six prior felonies under Rule 404(b)/403, (2) denial of a mere-presence instruction, and (3) the substantive reasonableness of the upward variance (a fourth challenge—sufficiency—was abandoned).
Issues
| Issue | Plaintiff's Argument (Drew) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Sufficiency of the evidence (abandoned) | Insufficiently developed; effectively abandoned on appeal | Evidence supported conviction | Not reviewed (abandoned) |
| Admission of six prior felony convictions under Rule 404(b) | Priors were impermissible propensity evidence, cumulative, and unfairly prejudicial under Rules 404(b)/403 | Priors were relevant to knowledge/intent in a felon-in-possession case and limiting instruction mitigated prejudice | Affirmed: district court did not abuse discretion in admitting priors; concurrence would hold admission erroneous but harmless given strong other evidence |
| Denial of mere-presence jury instruction | Jury should be instructed mere presence at scene is insufficient to prove knowing possession | Constructive- and joint-possession instructions already make that point; requested instruction would be duplicative | Affirmed: instructions as a whole adequately required more than mere proximity |
| Substantive reasonableness of 360‑month upward variance | Variance was unreasonable and double-counted criminal-history factors already reflected in the Guidelines | District court relied on §3553(a) factors, in-custody conduct, parole status, and public safety—supporting variance | Affirmed: variance not substantively unreasonable or an abuse of discretion |
Key Cases Cited
- Old Chief v. United States, 519 U.S. 172 (1997) (limits admission of prior convictions to avoid unfair propensity inferences)
- United States v. Walker, 470 F.3d 1271 (8th Cir. 2006) (prior firearm convictions relevant to knowledge/intent in felon-in-possession prosecutions)
- United States v. Smith, 978 F.3d 613 (8th Cir. 2020) (articulates Rule 404(b) admissibility framework)
- United States v. Cotton, 823 F.3d 430 (8th Cir. 2016) (requires case-specific analysis tying prior-act evidence to a non-propensity purpose)
- United States v. Caldwell, 760 F.3d 267 (3d Cir. 2014) (government must show how prior-act evidence connects to a permissible inference)
- United States v. Aldridge, 664 F.3d 705 (8th Cir. 2011) (admission of multiple priors can be harmless when other evidence strongly supports conviction)
- United States v. Wright, 866 F.3d 899 (8th Cir. 2017) (limiting instructions reduce risk of unfair prejudice from prior-act evidence)
- United States v. Martinez, 821 F.3d 984 (8th Cir. 2016) (discourages substantial variances based on factors already accounted for in the Guidelines)