934 F.3d 854
8th Cir.2019Background
- On Oct. 17, 2014 Gilliam shot Scrivo with a .40 Glock at Jeffrey’s apartment, left the gun there, and fled; police recovered a shell casing at the scene.
- The firearm later was found in the attic of Bailey’s apartment on Nov. 6, 2014 after Detective Bray surveilled and then ordered evacuation; Gilliam surrendered coated in drywall/insulation.
- While jailed, Gilliam called April Calvillo and instructed her to write that she hid the gun in the attic; the call was admitted at trial.
- Gilliam was charged with two counts under 18 U.S.C. § 922(g)(1): possession at Jeffrey’s and possession at Bailey’s; jury convicted on both counts.
- At trial Detective Bray volunteered hearsay that neighbors said Gilliam had a gun; the court recognized the hearsay but declined to strike it; court adopted the PSR at sentencing which assigned a 30 offense level and a criminal history score of 13, producing consecutive 90-month terms (180 months total).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Multiplicity of §922(g) counts | Gilliam: two counts should merge because possession was continuous or he never possessed at Bailey’s | Govt: evidence showed separate possession events and possession at Bailey’s was proven | Affirmed; sufficient evidence of separate possession and no plain error in not merging |
| Admission of hearsay (Detective Bray’s volunteer statement) | Gilliam: statement was hearsay and jury should have been instructed to disregard | Govt: statement was harmless given other admissible evidence tying Gilliam to the attic and gun | Court: admitting the hearsay was abuse of discretion but harmless error; conviction stands |
| Criminal history calculation (fourth point) | Gilliam: PSR improperly added a fourth history point for what he says is a single prior sentence | Govt: PSR could have properly attributed points across concurrent convictions; no clear error | Affirmed; record does not show a plain, prejudicial error in calculation |
| Whether Missouri 2nd‑degree robbery is a crime of violence | Gilliam: his prior Missouri robbery should not count as a crime of violence for Guidelines | Govt: Swopes controls, treating Missouri second‑degree robbery as a crime of violence | Affirmed; Swopes forecloses Gilliam’s challenge |
Key Cases Cited
- United States v. Woolsey, 759 F.3d 905 (8th Cir.) (multiplicity analysis for §922(g))
- United States v. Delgado, 653 F.3d 729 (8th Cir.) (plain‑error standard)
- United States v. Battle, 774 F.3d 504 (8th Cir.) (prior firearm use probative of subsequent control)
- United States v. Jones, 403 F.3d 604 (8th Cir.) (continuous possession doctrine)
- United States v. Brett, 872 F.2d 1365 (8th Cir.) (constructive possession elements)
- United States v. Ellis, 622 F.3d 784 (7th Cir.) (directing another’s actions can show constructive possession)
- United States v. DeMarce, 564 F.3d 989 (8th Cir.) (review of evidentiary rulings; harmless error analysis)
- United States v. King, 898 F.3d 797 (8th Cir.) (cumulative evidence and harmless error)
- United States v. Pirani, 406 F.3d 543 (8th Cir.) (burden under plain‑error review for sentencing errors)
- United States v. Swopes, 886 F.3d 668 (8th Cir. en banc) (Missouri second‑degree robbery is a crime of violence)
- United States v. Shine, 910 F.3d 1061 (8th Cir.) (attempted first‑degree robbery is a crime of violence)