UNITED STATES of America, Plaintiff-Appellee v. Lewis PATE, True Name Lewis Antwhane Pate, III, Defendant-Appellant
No. 15-3991
United States Court of Appeals, Eighth Circuit.
Submitted: October 17, 2016. Filed: April 14, 2017.
851 F.3d 820
Here, the district court made specific findings at sentencing that King lied when he testified that he was promised total immunity from drug dealing. Although there may “be extraordinary cases in which adjustments under both §§ 3C1.1 and 3E1.1 may apply,” “[c]onduct resulting in an enhancement under § 3C1.1 ... ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct.” U.S.S.G. § 3E1.1 cmt. n.4. We therefore hold that King has not shown that his case is “extraordinary,” especially considering that King put the government to its burden of proof at trial.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
Counsel who represented the appellee was Jeffrey S. Paulsen, AUSA, of Minneapolis, MN.
Before RILEY,1 Chief Judge, WOLLMAN and BENTON, Circuit Judges.
RILEY, Chief Judge.
In 2012, a jury found Lewis Pate guilty of being a felon in possession of a firearm. See
I. BACKGROUND
Pate was arrested on March 20, 2012, after police officers in St. Paul, Minnesota, responded to a report of gunfire ex
In June 2015, Pate moved under
II. DISCUSSION
“We review the district court‘s interpretation of the guidelines de novo, and its factual findings ... for clear error.” United States v. Ewert, 828 F.3d 694, 697 (8th Cir. 2016) (omission in original) (quoting United States v. Howard, 759 F.3d 886, 889 (8th Cir. 2014)). Pate first challenges the district court‘s application of the 4-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B). Section 2K2.1(b)(6)(B) states that a defendant‘s offense level is increased by four levels if the defendant “[u]sed or possessed any firearm or ammunition in connection with another felony offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). “Another felony offense” is defined as “any Federal, state, or local offense ... punishable by imprisonment for a term exceeding one year, regardless of whether a criminal charge was brought, or a conviction obtained.” Id. § 2K2.1 cmt. n.14(C). When § 2K2.1(b)(6)(B) is applied and “the defendant has not been convicted of another state or federal felony offense,” as is the case here, “the district court must find by a preponderance of the evidence that another felony offense was committed, and that use or possession of the firearm ‘facilitated’ that other felony.” United States v. Holm, 745 F.3d 938, 940 (8th Cir. 2014) (quoting United States v. Littrell, 557 F.3d 616, 617 (8th Cir. 2009)).
Pate complains the government never proved—nor attempted to prove—he was present during the shooting. Pate points out the lack of physical evidence connecting Pate and the gun found in the laundry hamper, as well as the fact that the shell casings discovered at the shooting location did not match that gun. Although during closing arguments the government remarked it did not “have to prove” that Pate possessed the gun during the shooting or shot anyone with it, the government cast doubt on Pate‘s version of events, which we determined was inconsistent with testimony at trial. See Pate, 754 F.3d at 553. A government witness observed the shooting and described two men wearing black hooded sweatshirts shooting at a third man who returned their fire. The witness could not state with certainty which men were shooting, but he stated the shooting went on for a minute or less before the shooters fled. And when officers arrived at the residence where Pate was found, Pate appeared at the front door with his hands up and announced “I‘m the one that was being shot at.” In addition, although the casings found at the scene of the shooting did not match the gun determined to be in Pate‘s possession, Pate‘s gun was a revolver and would not have expelled cartridges like a semiautomatic or automatic weapon would have. It also had two rounds missing from its six-shot cylinder.
Pate also argues the evidence was insufficient to support the enhancement because “neither the PSR nor the Court determined that there was in fact a felony offense committed by anyone that day.” True, neither the government nor the district court identified an underlying state or federal statute Pate could have been charged with violating. But the unopposed PSR clearly indicated the relevant conduct supporting the enhancement was “firing a weapon at others,” and the government argued at sentencing that the trial evidence “proved there was a shootout on the street and Mr. Pate was part of it by his own admission.” The government witness stated the men were shooting guns at each other—not merely discharging their fire
Pate next argues the district court erred when it concluded his prior conviction for third-degree non-residential burglary under Minnesota law was a crime of violence. See U.S.S.G. §§ 2K2.1(a)(2), 4B1.2(a)(2). In June 2016, we vacated our judgment in United States v. Benedict, 815 F.3d 377, 385 (8th Cir. 2016), where we held “[c]ommercial burglary should ... properly be classified as an enumerated crime of violence under the guidelines.” United States v. Benedict, 815 F.3d 377, 385 (8th Cir. 2016); see also United States v. Stymiest, 581 F.3d 759, 768 (8th Cir. 2009) (“[W]e have repeatedly held that any generic burglary is a crime of violence under the ‘otherwise involves’ residual provision in U.S.S.G. § 4B1.2(a)(2).“). Had Pate‘s prior conviction for third-degree burglary not been considered a crime of violence under the Guidelines, his base offense level would have been four levels lower. See U.S.S.G. § 2K2.1(a)(4)(A). As a result, Pate‘s total offense level would have been 24 (including the § 2K2.1(b)(6)(B) enhancement) as opposed to 28, and his advisory Guidelines sentencing range would have been 100 to 120 months—instead of 140 to 175. Yet here, the district court plainly stated that “were the case law to develop such that the appropriate level would move the defendant from 28 down to 24 points, the sentence that this Court would impose would still be 120 months, which would be within the applicable range.”5 “When the guidelines are incorrectly applied, we re
III. CONCLUSION
We affirm Pate‘s sentence.
Notes
Although the shooting of the firearm was not an element to be considered by the jury, there was the testimony adduced surrounding the incident which convinces me by the preponderance of the evidence ... that the firearm was possessed in connection with the crime of violence and that the defendant shot the firearm during the course of the earlier part of the offense prior to the retrieval of the gun from the bathroom.