United States of America v. Keith L. Carnes
No. 20-3170
United States Court of Appeals For the Eighth Circuit
January 3, 2022
Submitted: September 24, 2021
Appeal from United States District Court for the Western District of Missouri - Kansas City
Before SHEPHERD, WOLLMAN, and KOBES, Circuit Judges.
A jury found Keith L. Carnes guilty on all counts of a 3-count indictment, and the district court sentenced him to 240 months imprisonment and 3 years supervised release. Carnes appeals his convictions and sentence. Having jurisdiction under
I.
This case arises out of Carnes‘s possession of a gun one day in 2013 and during a two-week period in 2016. “We recite the facts in the light most favorable to the jury‘s verdict.” United States v. Galloway, 917 F.3d 631, 632 (8th Cir. 2019) (citation omitted).
On February 10, 2013, a law enforcement officer stopped a vehicle driven by Carnes, who was the sole occupant, for driving 57 miles per hour in a 35-mile-per-hour zone near the intersection of East 63rd Street and Lewis Road in Kansas City, Missouri. Upon approaching the driver‘s side door, the officer smelled the odor of marijuana. The officer told Carnes, “I need your driver‘s license and your sack of weed.” Carnes responded, “I just smoked at the house” and said that he “just got done smoking.” Carnes also told the officer, “I got my gun, too.” The officer asked Carnes to exit the vehicle and subsequently recovered a handgun from Carnes‘s waistband during a pat-down search. A backup officer also smelled a strong odor of marijuana coming from within the vehicle,
Three-and-a-half years later, on August 16, 2016, a man was sitting in his parked vehicle near the intersection of East 35th Street and Wabash Avenue in Kansas City, Missouri. As the man‘s ex-girlfriend was exiting the man‘s vehicle, another vehicle pulled up alongside the left-hand side of the man‘s vehicle. The driver of the other vehicle said to the man‘s ex-girlfriend, “What‘s up, baby,” and the man said to the driver, “Do you mind, I‘m talking to my ex.” The driver then pulled out a gun and fired at the man four times before driving away. The man selected Carnes as the shooter from a photo array and also testified that his ex-girlfriend had identified Carnes as the shooter. A witness who identified himself as the front-seat passenger of the shooter‘s vehicle provided law enforcement with a phone number to contact the shooter. Law enforcement determined that Carnes was associated with the phone number. At trial, Carnes denied the shooting.
On August 30, 2016, two weeks after the shooting, Carnes was approaching a female friend‘s house in Kansas City, Missouri
A grand jury returned a three-count indictment, charging Carnes with one count of being a felon in possession of a firearm in violation of
Before trial, Carnes stipulated that, prior to August 16, 2016, he had been convicted of a felony offense punishable by a term of imprisonment exceeding one year and he knew that he had been convicted of such an offense. After the government presented its evidence, Carnes moved for a judgment of acquittal, arguing that the government failed to prove the elements of each count. The district court denied his motion. Carnes renewed his motion for a judgment of acquittal after both parties rested their cases, which the district court again denied. At the conclusion of the jury trial, Carnes was convicted on all three counts.
Prior to sentencing, the United States Probation Office prepared a Presentence Investigation Report (PSR). The PSR found a total offense level of 24 and a criminal history category of IV. It calculated Carnes‘s United States Sentencing Guidelines range as 77 to 96 months imprisonment, with a statutory maximum of 240 months. The government requested an upward variance to 240 months, citing the nature and circumstances of Carnes‘s offense, his criminal history, and his post-conviction assault of a corrections officer. At sentencing, the district court merged Counts 1 and 2 for purposes of sentencing and sentenced Carnes to 120 months imprisonment on Counts 1 and 2 as well as 120 months on Count 3, to run consecutively. This resulted in a total term of 240 months imprisonment. The district court also imposed three concurrent three-year terms of supervised release. Carnes appeals his conviction and sentence on multiple grounds.
II.
Carnes first argues that the government failed to present sufficient evidence that he was an “unlawful user of a controlled substance,” as required for Counts 2 and 3. “We review de novo the denial of a motion for judgment of acquittal based on the sufficiency of the evidence.” United States v. Fang, 844 F.3d 775, 778 (8th Cir. 2016) (citation omitted). “We review the sufficiency of the evidence de novo, considering the evidence in the light most favorable to the government and drawing all reasonable inferences in favor of the verdict.” United States v. White, 962 F.3d 1052, 1056 (8th Cir. 2020).
Counts 2 and 3 charged Carnes with being an unlawful user of a controlled substance in possession of a firearm, in violation of
In United States v. Turnbull, 349 F.3d 558, 561 (8th Cir. 2003), vacated, 543 U.S. 1099 (2005), reinstated, 414 F.3d 942 (8th Cir. 2005) (per curiam), we recognized that “[t]he term ‘unlawful user’ is not otherwise defined in the statute, but courts generally agree the law runs the risk of being unconstitutionally vague without a judicially-created temporal nexus between the gun possession and regular drug use.” In subsequent decisions, we interpreted
Without defining “regular drug use” ourselves, we have “held that a district court acted within its discretion” when giving a jury instruction that “adequately captured the ‘temporal nexus [between the proscribed act] and regular drug use’ required by the term [unlawful user].” Boslau, 632 F.3d at 430 (first alteration in original) (citation omitted). In Boslau, the district court instructed the jury: “Such use [of a controlled substance] is not limited to the use of drugs on a particular day, or within a matter of days or weeks before, but rather that the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct.” Id. at 429 (emphasis added); see also Turnbull, 349 F.3d at 561 (finding a district court did not abuse its discretion by giving an almost-identical jury instruction). “‘[A]ctively engaging’ sufficiently encompasses the requisite temporal nexus” required by
The defendant must have been actively engaged in use of a controlled substance during the time he possessed the firearm, but the law does not require that he use the controlled substance at the precise time he possessed the firearm. Such use is not limited to the use of drugs on a particular day or within a matter of days or weeks before but, rather, that the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct.
R. Doc. 144, at 101 (emphasis added).
Carnes cites case law from our sister circuits that requires proof of regular
We reject Carnes‘s expansive interpretation of “regular drug use” that would require evidence of use over an extended period. While some of our sister circuits require proof that a defendant used controlled substances regularly over an extended period, e.g., Tanco-Baez, 942 F.3d at 15; Bowens, 938 F.3d at 793; United States v. Purdy, 264 F.3d 809, 812-13 (9th Cir. 2001), when the defendant in Boslau urged a similar approach, we declined to adopt such a rigorous definition, 632 F.3d at 429-31.
Viewing the evidence in the light most favorable to the verdict and accepting all reasonable inferences that support the verdict, the government presented sufficient evidence that Carnes was actively engaged in the use of a controlled substance during the time he possessed firearms in 2013 and 2016, thereby satisfying the requisite temporal nexus between gun possession and regular drug use required under
Carnes also argues that the government failed to prove that he knew he was an unlawful user at the time of each offense. We conclude that the government presented sufficient evidence that Carnes knew his use of controlled substances (notably, marijuana) was unlawful. In a
III.
Carnes next argues that Counts 1 and 2 are multiplicitous in violation of the Double Jeopardy Clause of the Fifth Amendment and that the district court erred by imposing separate sentences for
The parties agree that at sentencing, the district court correctly merged Counts 1 and 2 for purposes of sentencing, because they were based on a single incident. See United States v. Richardson, 439 F.3d 421, 422 (8th Cir. 2006) (en banc) (per curiam) (holding that multiple counts of conviction under
“The oral pronouncement by the sentencing court is the judgment of the court.” United States v. Mays, 993 F.3d 607, 622 (8th Cir. 2021) (citation omitted). “Where an oral sentence and the written judgment conflict, the oral sentence controls.” United States v. Foster, 514 F.3d 821, 825 (8th Cir. 2008) (citation omitted). “[T]he portion of the written judgment ‘that is broader than the oral version is void.‘” Mays, 993 F.3d at 622 (citation omitted). When such a conflict exists, the appropriate remedy is to remand “to the district court with instructions for it to reconcile the written judgment with the oral pronouncement.” Id. Accordingly, we will remand for the district court to amend its written judgment to conform to its oral pronouncement of one 120-month sentence for Counts 1 and 2.
Additionally, as the government concedes, the district court plainly erred when it imposed three terms of supervised release. After properly merging Counts 1 and 2, the district court was limited to imposing one term of supervised release for these counts, in addition to the single term of supervised release imposed for Count 3, for a total of two terms of supervised release. See
IV.
Carnes finally contends that the district court imposed a substantively unreasonable sentence. We review the substantive reasonableness of a sentence for abuse of discretion. United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc). A district court abuses its discretion when, in weighing the factors set forth in
Carnes argues that the district court failed to consider mitigating factors that should have received significant weight and committed a clear error of judgment in weighing relevant factors that led the district court to impose a significant upward variance. Carnes claims that the district court gave no consideration to his gunshot wounds that caused the August 30 collision, his remorse over the fatality resulting from the collision, and his separate state charge for involuntary manslaughter.
Carnes also contends that the district court failed to consider his mental health issues that contributed to his post-conviction assault of a corrections officer. Finally, Carnes argues that, while a district court may consider factors already considered in calculating a defendant‘s Guidelines range, the heavy weight assigned to Carnes‘s criminal history led to a substantial upward variance that undermined sentencing uniformity.
Having examined the record, we conclude that the district court did not abuse its discretion by varying upward from the Guidelines range and did not impose a substantively unreasonable sentence, as the court properly considered the factors listed in
Regarding Carnes‘s claim that the district court failed to consider mitigating factors that were presented during the sentencing hearing and appeared in the PSR, “[t]he [district] court did not abuse its discretion merely by not discussing all of a defendant‘s arguments.” United States v. Delgado-Hernandez, 646 F.3d 562, 568 (8th Cir. 2011) (per curiam). We presume the district court properly considered issues argued by the parties at the sentencing hearing even though the district court itself did not discuss the issues. See United States v. Miles, 499 F.3d 906, 909-10 (8th Cir. 2007). The district court also had the PSR at its disposal, and it is evident from the record that the district court examined the PSR. Regarding the factors that influenced the district court to vary upward, as Carnes acknowledges, “factors that have already been taken into account in calculating the advisory Guidelines range can nevertheless form the basis of a variance.” United States v. Thorne, 896 F.3d 861, 865 (8th Cir. 2018) (per curiam) (citation omitted). Carnes‘s sentence is thus not substantively unreasonable.
V.
For the foregoing reasons, we vacate Carnes‘s third term of supervised release, remand for the district court to amend its written judgment to conform to its oral pronouncement regarding the merged Counts 1 and 2, and affirm the judgment of the district court in all other respects.