22 F.4th 743
8th Cir.2022Background
- Feb. 10, 2013 stop: officer smelled marijuana, Carnes admitted he had just smoked and said he had a gun; officer recovered a handgun from his waistband; Carnes refused blood/urine testing and admitted frequent marijuana use.
- Aug. 16, 2016 shooting: victim (and another witness) later identified Carnes from a photo array as the shooter in a drive-by shooting.
- Aug. 30, 2016 incident: after an exchange of gunfire Carnes, wounded, fled by car, ran a red light and caused a three-car crash that killed a motorist; officers found a handgun and an ounce of marijuana in his vehicle; shell casing from the handgun matched casings from the Aug. 16 shooting; Carnes tested positive for marijuana, cocaine, and PCP.
- Indictment: three counts — Count 1 (felon in possession, 18 U.S.C. § 922(g)(1)), Counts 2 & 3 (unlawful user of controlled substances in possession, 18 U.S.C. § 922(g)(3)); Counts 1–2 related to the August 2016 period; Count 3 related to Feb. 2013.
- Trial and sentencing: jury convicted all counts; court merged Counts 1 and 2 at sentencing, imposed 120 months on merged Counts 1–2 and 120 months consecutive on Count 3 (total 240 months), and imposed three concurrent 3-year supervised-release terms.
- Appeal posture and disposition: Carnes appealed sufficiency (unlawful-user element and knowledge), multiplicity/written-judgment conflict, and substantive reasonableness; the Eighth Circuit affirmed convictions and sentence except it vacated the third supervised-release term and remanded to correct the written judgment to match the oral sentence.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Carnes) | Held |
|---|---|---|---|
| Sufficiency of evidence that Carnes was an "unlawful user" under § 922(g)(3) | Evidence showed recent/active drug use (odors, admissions, positive tests, baggie) establishing temporal nexus with firearm possession | Government failed to prove regular or extended-period drug use; insufficent temporal nexus; also argued lack of requisite knowledge | Court affirmed: evidence sufficient; jury instruction on "actively engaged" temporal nexus was proper and Rehaif knowledge requirement met by evidence of Carnes' awareness that his use was unlawful |
| Knowledge element under Rehaif (defendant knew he belonged to prohibited class) | Circumstantial evidence (refusal of tests, prior loss of marijuana to police, admissions) showed Carnes knew his use was unlawful | Argued lack of proof he knew his use was unlawful at time of offenses | Court held evidence sufficient for a reasonable juror to find requisite awareness under Rehaif |
| Multiplicity / merger of Counts 1 & 2 and conflict between oral sentence and written judgment | Court orally merged Counts 1 & 2 and imposed one 120-month sentence; written judgment erroneously reflected two concurrent 120-month sentences | Sought correction to match oral pronouncement and challenged multiple punishments | Court: oral pronouncement controls; written judgment portion broader than oral is void; remanded to amend written judgment to reflect one 120-month sentence for merged Counts 1–2 |
| Supervised release terms and substantive reasonableness of upward variance | District court properly considered § 3553(a) factors (offense seriousness, violent history, public protection) to justify upward variance; supervised-release terms should be limited by merger rules | Argued court ignored mitigation (wounds, remorse, pending state charge, mental-health), over-weighted criminal history, and improperly imposed three supervised-release terms | Court rejected substantive-reasonableness challenge (no abuse of discretion); vacated the third term of supervised release because merger permits only two terms and remanded to correct judgment |
Key Cases Cited
- Rehaif v. United States, 139 S. Ct. 2191 (2019) (government must prove defendant knew he belonged to a category barred from firearm possession)
- United States v. Boslau, 632 F.3d 422 (8th Cir. 2011) (jury instruction that unlawful use must be recent enough to show defendant is "actively engaged" satisfies temporal-nexus requirement)
- United States v. Rodriguez, 711 F.3d 928 (8th Cir. 2013) (government need not prove use at the exact moment of firearm discovery; use during the period of possession suffices)
- United States v. Turnbull, 349 F.3d 558 (8th Cir. 2003) (discusses need for a temporal nexus to avoid vagueness in "unlawful user")
- United States v. Richardson, 439 F.3d 421 (8th Cir. 2006) (multiple § 922(g) counts from a single possession event should be merged at sentencing)
- United States v. Mays, 993 F.3d 607 (8th Cir. 2021) (oral pronouncement is the court's judgment; conflicts between oral sentence and written judgment must be reconciled)
- United States v. Foster, 514 F.3d 821 (8th Cir. 2008) (where oral and written sentences conflict, the oral sentence controls)
- United States v. Feemster, 572 F.3d 455 (8th Cir. 2009) (standard for reviewing substantive reasonableness of a sentence for abuse of discretion)