UNITED STATES of America, Plaintiff-Appellee v. Lewis PATE, True Name Lewis Antwhane Pate, III, Defendant-Appellant.
No. 13-1207.
United States Court of Appeals, Eighth Circuit.
Submitted Dec. 13, 2013. Filed June 6, 2014.
754 F.3d 550
Lisa D. Kirkpatrick, AUSA, of Saint Paul, MN (Jeffrey S. Paulsen, AUSA, of Minneapolis, MN, on the brief), for Apрellee.
Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.
RILEY, Chief Judge.
Minnesota federal jurors convicted Lewis Pate of being a felon in possession of a firearm, and the district court1 sentenced him pursuant to the Armed Career Criminal Act (ACCA),
Since the parties filed their original briefs, the Supreme Court issued an intervening ACCA decision in Descamps v. United States, 570 U.S. ___, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), and we requested supplemental briefing to address the applicability of Descamps to this case. Suggesting
I. BACKGROUND
Pate‘s case began with an exchange of gunfire on a Tuesday afternoon in St. Paul, Minnesota. Two men in black hoodies fired shots at another man, who returned fire. After the men ran away, police officers arrived at the scene, and followed a tracking dog to a residence approximately two blocks away. Officers discovered one shooting suspect sitting in a parked car. Having reason to believe one of thе shooters, still armed, was inside the residence, the officers entered with the tracking dog to conduct a security sweep. Pate then gave himself up, claiming “I‘m the one that was being shot at.” After receiving a search warrant for the residence, officers located a .38 caliber revolver wrapped in a towel hidden inside a hamper. Officers also found a black hoodie hidden behind a couch.
Later that evening, Pate (apparently unaware the police had already found the gun) called various individuals from jail and asked thеm to “get [his] money” out of the residence. (Emphasis added). Despite his effort to speak in code, Pate repeatedly gave away his intent. For example, trying to clarify what he meant by “money,” he explained on one call, “They tryin’ to charge me wit’ a firearm, man.... You feеl what I‘m sayin‘, though?” In an interview with law enforcement personnel the following day, Pate admitted the gun was his. He said he recently purchased the gun for $100, but insisted he was not carrying the firearm at the time of the shooting. Pate‘s
After a three-day trial, the jury found Pate guilty of being a felon in possession of a firearm in violation of
Pate timely appeals both his conviction and sentence, invoking our
II. DISCUSSION
Pate raises several issues on appeal. Because Pate was represented by counsel and “[a] district court has no obligation to entertain pro se motions filed by a represented party,” Abdullah v. United States, 240 F.3d 683, 686 (8th Cir.2001), we preliminarily and promptly reject Pate‘s claim that the district “court erred by not ruling on [his] pro se motions.” Next, we consider Pate‘s challenge to the conviction, before concluding with consideration of his ACCA arguments.
A. Firearm Conviction
Although our standard оf review is de novo, we will not lightly overturn a jury‘s verdict. See, e.g., United States v. Causevic, 636 F.3d 998, 1005 (8th Cir. 2011). We view the evidence in the light most favorable to the verdict and “may not reverse unless no reasonable jury could have found” Pate “guilty beyond a reasonable doubt.” Id. In Pate‘s case, the evidence amply supports the jury‘s guilty verdict.
Having charged Pate with being a felon in possession of a firearm, the government had to prove, among other elements, “that he knowingly possessed a firearm.” United States v. Abfalter, 340 F.3d 646, 654 (8th Cir.2003). Pate admitted in a recorded interview with law enforcement personnel that the gun was his, and now concedes “the jail conversations demonstrate his knowledge that there was a gun in the bathroom at [the residence] and that he wanted it out of there.” Although the jury heard recordings of Pate‘s confessions and calls from the jail, Pate still argues the evidence did not specifically link him to the .38 caliber revolver. But these recordings support the imminently reasonable inference that the gun he owned and wanted out of the residence was the same gun found by police shortly after his arrest, and we accept any reasonable inference that supports the jury‘s verdict. See, e.g., Causevic, 636 F.3d at 1005. Pate fails to clear the high bar required for us to reverse the conviction.
B. ACCA Sentence
Generally, we review whether a district court‘s sentencing decision represents an abuse of discretion, following the Supreme Court‘s prescription in Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Whether a prior conviction counts as a “violent felo-
1. Descamps
First, following our request for supplemental briefing, Pate now reliеs on Descamps to support his previously cursory claim that Sykes v. United States, 564 U.S. 1, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011), and Bartel were wrongly decided. We cannot for even a moment entertain Pate‘s theory that the Supreme Court “wrongfully decided” Sykes. “If the [Supreme Court‘s] decision in [a] case is to be modified, overruled or disregarded, that will have to be done by the Supreme Court.” Bakewell v. United States, 110 F.2d 564, 564 (8th Cir.1940) (per curiam). On thе other hand, Pate‘s request that we reconsider our Bartel decision in light of Descamps merits careful consideration.
When determining whether a state-law conviction qualifies as a violent felony under the ACCA, sentencing courts must look “to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictiоns.” Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Only “in a narrow range of cases,” id. at 602, 110 S.Ct. 2143, may a sentencing court consider the underlying “trial record—including charging documents, plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from a bench trial, and jury instructions and verdict forms,” Johnson v. United States, 559 U.S. 133, 144, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). In Descamps, evaluating the enumerated-crimes clаuse of the ACCA, the Court clarified, “A court may use the modified approach only to determine which alternative element in a divisible statute formed the basis of the defendant‘s conviction.” Descamps, 570 U.S. at ___, 133 S.Ct. at 2293 (emphasis added). We recently extended Descamps to the ACCA‘s residual clause. See United States v. Tucker, 740 F.3d 1177, 1182 (8th Cir.2014) (en banc).
In accordance with Tucker, we view
Whoever by means of a motor vehicle flees or attempts to flee a peace officer who is acting in the lawful discharge of an official duty, and the perpetrator knows or should reasonably know thе same to be a peace officer, is guilty of a felony and may be sentenced to imprisonment for not more than three years and one day or to payment of a fine of not more than $5,000, or both.
(Emphasis added). The statute defines the term “flee” in a disjunctive manner:
For purposes of [§ 609.487], the term “flee” means to increase speed, extinguish motor vehicle headlights or taillights, refuse to stop the vehicle, or use other means with intent to attempt to elude a peace officer following a signal given by any peace оfficer to the driver of a motor vehicle.
Because
“Risk of violence is inherent to vehicle flight.” Sykes, 564 U.S. at ___, 131 S.Ct. at 2274. “Althоugh statistics are not dispositive,” they reveal the high risk associated with vehicular flight: “Studies show that between 18% and 41% of chases involve crashes, which always carry a risk of injury, and that between 4% and 17% of all chases end in injury.” Id. We recognize the statistics cited in Sykes are by now several years old, but they reflect the Supreme Court‘s reasoning and presumably reflect the risk associated with Pate‘s fleeing convictions, which are also several years old. In any event, Pate has not presented newer statistical evidence, let alone other statistics or evidence contradicting the statistics discussed by the Court in Sykes.
While Pate speculates someone could violate
We also reject Pate‘s assertion that
Having reviewed the statute in light of Descamps, we reaffirm Bartel and again “hold that a violation of Minnesota Statute
2. Ex Post Facto Clause
Second, citing United States v. Tyler, 580 F.3d 722, 726 (8th Cir.2009), for the premise that his two Minnesota fleeing convictions were not violent felonies at the time of conviction (2007 and 2008), Pate insists that treating these convictions as ACCA predicates violates one of the Ex Post Facto Clauses,
As Justice Chase explained in his oft-quoted opinion in Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798) (quoted recently in Peugh v. United States, 569 U.S. ___, ___, 133 S.Ct. 2072, 2081, 186 L.Ed.2d 84 (2013)), constitutionally prohibited ex post facto laws include any “law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.” Pate cannot complain the ACCA itself is an ex post facto law because it was enacted before his crimes. Instead, he contends the Supreme Court‘s decision in Sykes, by requiring our court to revisit and overrule Tyler after Pate‘s fleeing convictions, see Bartel, 698 F.3d at 662, was “the equivalent of a judicially created ex post facto violation, because ... he was not subject to ACCA treatment when he committed the fleeing offenses.” (Emphasis added).
Pate‘s contention is flawed because “the Ex Post Facto Clause does not apply to judicial decisionmaking.” Rogers, 532 U.S. at 462, 121 S.Ct. 1693. Certain “limitations on ex post facto judicial decisionmaking are inherent in the notion of due process,” id. at 456, 121 S.Ct. 1693, but these “‘due process limitations’ ... are not coextensive with the limitations placed on legislatures by the Constitution‘s Ex Post Facto Clauses,” Metrish v. Lancaster, 569 U.S. ___, ___, 133 S.Ct. 1781, 1788, 185 L.Ed.2d 988 (2013) (emphasis added) (quoting Rogers, 532 U.S. at 459, 121 S.Ct. 1693). A judicial shift in “criminal law violates the principle оf fair warning, and hence must not be given retroactive effect, only where it is ‘unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.‘” Rogers, 532 U.S. at 462, 121 S.Ct. 1693 (emphasis added) (quoting Bouie v. City of Columbia, 378 U.S. 347, 354, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964)). The conduct at issue here is not, as Pate thinks, his prior flight; it is the firearm possessiоn charge being appealed here. See Vartelas v. Holder, 566 U.S. ___, ___, 132 S.Ct. 1479, 1489-90, 182 L.Ed.2d 473 (2012) (citing United States v. Pfeifer, 371 F.3d 430, 436 (8th Cir.2004)). Pate possessed the firearm after the Court decided Sykes, which means he cannot claim to be surprised Sykes applies to him, even assuming Pate is an avid reader of the case law. See id.; see also Sykes, 564 U.S. at ___, 131 S.Ct. at 2276-77 (decided June 9, 2011).
Even if Pate were right to focus on the law at the time of his prior convictions, the earliest case he cites to show his fleeing convictions were not ACCA-qualifying offenses was decided after both convictions, which occurred on October 12, 2007, and February 20, 2008. See Tyler, 580 F.3d at 722 (filed September 4, 2009). At the time of his convictions, several of our sister circuits had reached the opposite conclusion, intеrpreting laws similar to
Therefore, Sykes and Bartel were not “unexpected and indefensible,” Bouie, 378 U.S. at 354, 84 S.Ct. 1697, and we reject Pate‘s ex post facto challenge.
3. Vagueness
Third, relying on Justice Scalia‘s dissent in Sykes, 564 U.S. at ___, 131 S.Ct. at 2284 (Scalia, J., dissenting), Pate claims “[t]he ACCA‘s residual clause is void for vagueness and hence unconstitutional.” Justice Scalia‘s views on this point are wеll known and eloquently expressed, but they have not been adopted by the Supreme Court. See, e.g., id. at 2284-88. Whatever we personally might think, our court has already rejected the vagueness argument Pate asks us to adopt. In United States v. Childs, 403 F.3d 970, 972 (8th Cir.2005), we found “no merit” in the argument “that § 924(e) is unconstitutionally vague.” “[N]ot being free as a panel to overrule” Childs, “we are obliged to affirm.” United States v. Eneff, 79 F.3d 104, 105 (8th Cir.1996).
III. CONCLUSION
Affirmed.
RILEY
CHIEF JUDGE