United States v. Terrence Dean, 823 F.3d 422

On Dec. 27, 2013, Terrence Dean (a felon) allegedly fired a handgun, later assaulted his pregnant daughter Myishia Maxwell with a skillet, and she called 911; police found a loaded .32 Cobra handgun hidden in a garbage can.
Maxwell gave a 911 call, oral statements to officers (captured on body-microphone), a written statement, and grand jury testimony that Dean had a gun and had fired it; at trial she testified inconsistently, at times saying she did not see a gun or could not remember.
Dean was tried twice; after the second trial a jury convicted him of being a felon in possession of a firearm (18 U.S.C. §§ 922(g)(1), 924).
The district court admitted Maxwell’s grand jury testimony, 911 call, and body-microphone statements as substantive evidence (prior inconsistent statements and present-sense impressions/excited utterances).
At sentencing the court applied a four-level Guidelines enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for possessing a firearm "in connection with another felony," finding an aggravated-misdemeanor assault (treated as a felony for enhancement) and that the gun was present and could have facilitated the assault.
The Eighth Circuit affirmed: it held admission of Maxwell’s prior statements was not an abuse of discretion and any error in applying the § 2K2.1 enhancement was harmless because the court would have imposed the same sentence on other grounds.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of Maxwell's prior statements (grand jury, 911, body-mic)	Dean argued some prior statements were inadmissible hearsay or not sufficiently inconsistent/timely to be substantive evidence	Government argued prior grand jury testimony was admissible under Fed. R. Evid. 801(d)(1)(A); 911 and body-microphone statements admissible under Rule 803(1)/(2) as present-sense impressions/excited utterances	Court affirmed admission: grand jury testimony admissible as prior inconsistent statement; 911 and body-microphone statements admissible as present-sense impressions/excited utterances (no abuse of discretion)
Application of U.S.S.G. § 2K2.1(b)(6)(B) (firearm "in connection with" another felony)	Dean argued insufficient evidence that a separate felony occurred or that the firearm facilitated it	Government argued skillet assault and contemporaneous knowledge/presence of the gun justified enhancement	Court declined to resolve clearly erroneous question; held any error harmless because district court expressly stated it would have imposed the same 72-month sentence based on § 3553(a) factors and other findings

United States v. Thetford, 806 F.3d 442 (Eighth Circuit 2015) (standard of review for admissibility: abuse of discretion)
United States v. Wilson, 806 F.2d 171 (Eighth Circuit 1986) (prior inconsistent grand jury statements admissible as substantive evidence under Rule 801(d)(1)(A))
United States v. Matlock, 109 F.3d 1313 (Eighth Circuit 1997) (district court has discretion to determine inconsistency; evasive answers and inability to recall count)
United States v. Russell, 712 F.2d 1256 (Eighth Circuit 1983) (inconsistency may include evasive answers)
United States v. Cervantes, 646 F.3d 1054 (Eighth Circuit 2011) (Wilson controls admission of grand jury statements)
United States v. Hawkins, 59 F.3d 723 (Eighth Circuit 1995) (911 calls may be admissible as present-sense impressions depending on contemporaneity and reliability)
United States v. Holm, 745 F.3d 938 (Eighth Circuit 2014) (review for clear error whether firearm was possessed "in connection with" a felony)
United States v. Sayles, 674 F.3d 1069 (Eighth Circuit 2012) (harmless error at sentencing where court provides alternative grounds and would have imposed same sentence)
United States v. Straw, 616 F.3d 737 (Eighth Circuit 2010) (incorrect Guidelines application can be harmless when court bases sentence on valid alternative rationale)