*3 COLLOTON, Before SMITH KORNMANN,1 Judges, and Circuit Judge. District COLLOTON, Judge. Circuit McCraney and Kennie Williams Adrian posses- were each convicted *4 of cocaine base with intent to distrib- sion 841(a)(1) ute, §§ in violation of U.S.C. 841(b)(1)(C), robbery in violation of Act, pos- the Hobbs 18 U.S.C. session of a firearm in furtherance of a crime, drug trafficking in violation of 18 924(c). U.S.C. also found McCraney guilty of a firearm felon, as' a convicted in violation of 18 § 922(g)(1). The district court2 U.S.C. sentenced to a total of 225 Williams imprisonment McCraney months’ to a imprisonment. total of 420 months’ appeal, challenges On the dis- Williams post-arrest trict court’s exclusion of his police, statement denial of his motion severance, rejection proposed for of his doubt, jury instruction on reasonable motion for denial of his new trial. sentence, challenges Williams also his ar- in- guing counts one and two of the grouped dictment should have been for purposes advisory guidelines, advisory increasing facts Williams’s sen- beyond tence proved must be reasonable Aledo, IL, Appleton, argued, Mark A. doubt, imposed by and that the sentence appellant, McCraney. for Adrian Lamont the district court is unreasonable. McCra- Taylor, argued, Wallace L. of Cedar ney challenges sufficiency of the evi- IA, Rapids, appellant, Kennie Alexan- him, dence to convict and the district der Williams. application court’s of the career offender affirm the Barrows, AUSA, guideline sentencing. We argued,
Joel W. IA, Davenport, Zaehringer, Spe- judgments Melisa K. of the district court. Kornmann, Jarvey, 1. The B. Unit- 2. The Honorable John A. Honorable Charles Judge Judge ed States District for the District of States District for the Southern District Dakota, sitting by designation. South of Iowa. car. I. side window of Williams Officers searching along later the route found August Kennie Williams In late phone containing Motorola cell box several arrangements buy four ounces of made of cocaine and a packages handgun. Larry from a dealer named cocaine agreed The two to meet Jones. officers When concluded that Super lot of the Wal-Mart Cor- parking voluntarily, would not stop Williams one of Iowa, alville, evening August late pursuing intentionally officers struck Jones en- 29 to conduct the transaction. car, causing it to spin Williams’s off the vehicle and handed tered Williams’s into a ditch. road and Police arrested of cocaine to package one-ounce Williams McCraney and Williams. Officers inspect. Jones testified car searched the and recovered one sealed pack- fidgeting [the “started kind package clip of cocaine and a and a bullet discussing ... how he didn’t age] handgun. for a .45 caliber At the time of right.” think that it looked arrest, carried two cell to convince Williams to As Jones tried phones own and Jones’s —and $219 —his deal, McCraney Adrian en- complete the cash. carrying $137. passenger side tered the vehicle on *5 McCraney and Williams were both and seated himself behind Jones. Jones charged possession of with cocaine base by McCraney’s appearance, was startled distribute, with intent to Hobbs Act rob- okay, it was that it was but Williams “said bery, and of a firearm in fur- McCraney began question to his cousin.” drug trafficking therance of a crime. police an undercover whether Jones was McCraney charged was also officer, posses- with responding and while Jones was felon, fidgeting with of a firearm a McCraney, kept Williams sion convicted A Motorola package the one of cocaine. 922(g)(1). violation of 18 a U.S.C. After phone containing box the rest of the co- trial March a returned ver- lap. caine remained in Jones’s guilty dicts of on all counts. The district court to 165 sentenced Williams months’ reached over the Suddenly, McCraney two, imprisonment on both counts one and him top put of the seat in front of concurrently, to be served 60 months gun to chest. While Jones was Jones’s three, consecutively, on count through to be served gunpoint, held at Williams rifled belongings. imprisonment. his Williams took the box for a total of 225 months’ remaining emptied cocaine and McCraney The court sentenced to 360 ID, pockets, seizing Jones’s all of Jones’s one, months on count on count months money, pack cigarettes, lighter, his two, four, and 120 months on count to be phone. and a cell concurrently, served and 60 months on three, consecutively, count to be served eventually and Williams per- vehicle, imprisonment. a total of 420 months’ mitted Jones to leave the and then sped out of the lot with parking Williams motorcycle,
driving. Jones followed on his II. pursuit but soon abandoned the and called A. report robbery. 911 to argues Williams that the district Police officers located the Williams vehi- by refusing court abused its discretion engaged high-speed cle and chase admit into a statement made evidence he Shueyville, down Interstate 380 into Iowa. police at the after chase, Coralville station During the officers saw several passenger- argues items thrown out of the front arrest. He that the statement was adequately guaranteed statement its relia- exception under the residual admissible hearsay exception, bility. rule. That set The court ruled the statement of Evidence identifying McCraney forth in Federal Rule as the mastermind admit provides that the district robbery was not under admissible testimony “equivalent it has circumstan- indi- Rule because does not bear “[i]t of trustworthiness” and the guarantees tial somebody cia of trustworthiness for to sit “(A) court determines that the statement and write out a that es- down statement fact; a material is offered as evidence of sentially implicates somebody else.” We (B) probative is more on the the statement with this conclusion. agree sensible any it is offered than other point for which leading police was arrested after Williams procure can proponent evidence which highspeed on a The found a police chase. (C) efforts; through reasonable phone belonging robbery cell to the victim general purposes of rules of [the evidence] person on his and located cocaine and ac- justice will be and the interests of best handgun cessories to a in his car. by served admission of the statement into plausibly deny altogeth- could not evidence.” We review the district court’s participated er that he had in the ruling for abuse of discretion. United subsequent flight, so he had clear Horse, 745, 747 States v. Thunder present motivation to himself as an unwit- ting unwilling participant. The dis- disputed was a declara- statement trict court did not abuse its discretion by tion that he did not know ruling that a statement made under these anything prior about the of Jones sufficiently circumstances is not trustwor- occurred, to when it that he taken thy to admitted into evidence under be *6 surprise McCraney entered the car when Rule 807.3 pulled gun, out a that after the rob- B. bery McCraney instructed him to drive lot, away parking from the and that next argues that the district put gun then to Williams’s erroneously jury instructed the keep driving head and told him to while government’s guilt burden to establish police pursued sug- them. Williams doubt, beyond reasonable and should have gests given by that a statement an uncoun- proposed used instruction instead. interrogation seled arrestee is under who The Eighth district court used the Cir- by law enforcement officers suffi- bears pattern cuit’s instruction on reasonable cient indicia of to warrant trustworthiness doubt: 807, admission under Rule because the A reasonable doubt is a doubt based very purpose police interrogation of is to upon sense, reason and common and not obtain truthful statements that can be possibility the mere A of innocence. an investigation. used to further reasonable doubt is the of kind doubt person that would make a reasonable disagreed
The district court
that
surrounding
beyond
circumstances
Williams’s
hesitate to act. Proof
a reason-
1620,
(1968).
complains
3. Williams also
that
the district
1063 novo, doubt, therefore, proof must be the evidence de viewing able the evidence convincing verdict, such a character that a rea- light most favorable to the not person sonable would hesitate only and we will reverse if no reasonable However, rely upon proof and act it. jury could have found the guilty defendant beyond a reasonable doubt does not beyond a reasonable doubt. United States proof beyond possible mean all doubt. (8th 580, Scofield, 433 F.3d 584-85 Cir. 2006). Eighth Circuit Manual of Model Criminal
Jury 3.11 Instructions —Instruction McCraney’s primary argument is (2009).4 testimony Larry Jones was have upheld
We
constitutionali
unreliable. Determinations of witness
3.11,
ty of Model Instruction
see United
however,
credibility,
prov
are within the
(8th
Foster,
799,
States v.
802
jury
ince of the
“virtually
unreview
Cir.2003);
Rosso,
appeal.”
able on
United States v. Thomp
(8th
1102,
Cir.1999),
F.3d
and neither
son,
745,
Cir.2009)
748-49
phrase,
the “hesitate to act”
see Holland v.
(internal
omitted).
quotation
Attorneys
States,
140,
121,
348 U.S.
75 S.Ct.
representing both defendants cross-exam
(1954); Rosso,
127,
magazine, Motorola
Finger-
anyone
any way
who “in
containing
punishment
cocaine.
for
of
bags
plastic
obstructs,
might
strengthened
delays,
have
or affects com-
degree
evidence
or
print
convict,
case,
required to
but it is not
article or
any
the movement of
merce or
and the
testimony given by Jones
commerce,
and the
by robbery,” 18
commodity in
involved
officers
law enforcement
1951(a),
and we have stated
U.S.C.
McCraney and Williams
of
apprehension
full
reaches to the
extent
the statute
on which to find
ample evidence
provided
interstate
Congress’ power
regulate
to
charged.
crimes
McCraney guilty of the
Quigley, 53
commerce. United States v.
(8th Cir.1995).
govern-
F.3d
910
B.
only a minimal effect on
prove
ment need
claim that he
does not
a
support
commerce to
convic-
interstate
judgment
acquittal,
to a
but
was entitled
v.
tion
the Hobbs Act.
under
against
he contends that the verdict
(8th Cir.2002).
Williams,
F.3d
838
308
evidence,
that the
weight of the
Congress may well have been motivated
by de
court abused its discretion
district
a
to enact the Hobbs Act
“offenses with
trial on three
nying his motion
new
commerce,”
impact
broad
on interstate
but
Rule of
counts of conviction. Federal
exclude
the text of the statute does not
33(a) permits
Procedure
a court
Criminal
satisfy
require-
local robberies that
a
trial “if the interest of
grant
to
new
ment of an effect on interstate commerce.
justice
requires.”
so
“Where a defendant
Farmer,
United States
grounds
trial on the
moves for
new
(8th Cir.1996). This court has observed
contrary
weight
the verdict is
to the
of the
prosecution predicated
that a Hobbs Act
evidence,
grant
the district court should
individual,
opposed
of an
to
on
weighs heavily
the motion if the evidence
business,
“very
application,
is a
unusual”
enough against the verdict that a miscar
necessarily beyond
scope
but not
riage
justice may
have occurred.”
Quigley,
statute.
1065
Cox,
Cir.1991),
power
America and thus would have
traveled
question
and the
presented by Williams is
commerce).
whether the evidence supports
finding
Finally,
argues
the evi-
joint,
that Williams had
pos
constructive
dence was insufficient to convict him for
gun
session of the
remained in
possession of a firearm in furtherance of a
McCraney’s hands.
drug trafficking offense under 18 U.S.C.
924(c),
authority
There is
suggesting
because
“possessed”
he never
by acting
firearm.
in concert
points
gun
He
out that the
*9
McCraney’s
robbery,
commit armed
throughout
jointly
hands
the en-
Williams
Jones,
possessed
McCraney
counter with
and that it
the firearm that
was thrown
ac
side,
tually
from the car on
passenger
possessed.
the
where
In United States v.
sitting.
says
Bryant,
(D.C.Cir.2008),
was
that
Williams
the evidence actual- who was an individual concert with the sen challenges also weapons on one of the ly carrying He by the district court. imposed tence was “ade- holding that there person,” the district court should contends that first that juror for a to conclude quate evidence counts the first second “grouped” have fire- constructively possessed both Bryant § 3D1.2 when of conviction under USSG here, Similarly there at 356. arms.” Id. advisory guideline range, calculating the jury a to find evidence for was sufficient proce serious that failure to do so was the cocaine trans- arranged that Williams resentencing. requires error that dural Jones, Jones into action with drew interpretation a court’s review district We then robbery, and to facilitate the vehicle sentencing guide of the application confiscate Jones’s plan carried out a Mathijss novo. United States lines de McCraney kept gun while possessions en, 496, 498 trained on Jones. grouping 3D1.2 calls for Section concerted not decide whether We need counts,” which are defined “closely related a actually possessing a person action with involving substantially the same as “counts itself, sufficient, to establish firearm is that his convic- argues harm.” Williams the evidence here joint possession, because in- possession tions for and McCra- stronger. After Williams have cocaine base should tent distribute Jones, the vehi- ney drove robbed to USSG grouped pursuant been scene, knowing that he away cle from the 3D1.2(c). provides That subsection McCraney and the carrying away both was substantially the same counts “involve robbery. At firearm used in the the counts embodies harm” when “one of concerted given point, especially Williams’s specific offense conduct that is treated robbery, McCraney during the action with to, in, adjustment or other characteristic find that Williams a reasonable could to another of the guideline applicable firearm dur- constructively possessed the stipula- argues this counts.” Williams and that he did so ing getaway, ap- guideline because the tion is satisfied joint possession with furtherance of his robbery conviction includes to his plicable that was intent to distribute the cocaine characteristic that calls specific offense See taken from Jones. United a ... con- increase “[i]f one-level Cir.2007) Gardner, 700, 714 taken, tak- or trolled substance constructive- (holding that driver of vehicle object an of such item was ing in actual ly possessed firearms 2B3.1(b)(6). offense.” USSG the others passengers, where he drove the district conclude We using purpose to a motel for the group properly declined of- drug trafficking firearms to commit conviction, Richardson, the conduct counts of because fense); No. States v. *10 drug trafficking drug possession. in the count than “embodie[d]” The district court’s specific group was not treated as offense char- refusal did not result in double it robbery guideline. counting; appropriate The ensured acteristic incre- counting mental of robbery guideline provides for an in- Williams’s intent to dis- tribute cocaine. if a We thus conclude that creased offense level controlled sub- the court’s decision on Thus, grouping was not robbery. “taken” in the stance was procedural error.5 if simply Williams had been convicted for possessing during the cocaine that he took argues Williams next that the dis robbery, that conduct would have been procedurally by trict court erred failing to 2B3.1(b)(6), by § grouping covered give adequate consideration to the sentenc appropriate. have been It impos- would is ing 3553(a). § factors listed in 18 U.S.C. sible to take a controlled during substance object did not sentencing on it, robbery possessing without and fail- ground, this so we review plain error. group ure to those offenses would run Statman, goal to the grouping counter of the rules to (8th Cir.2010). The record refutes his prevent counting” “double of offense be- court, contention. The district citing after 3D1.2, § havior. See USSG comment. 3553(a), § engaged in a lengthy analysis of (n.5). the nature and circumstances of the of drug fense,
But Williams’s conviction embodies as well as history Williams’s simple more than possession. He was con- characteristics. The court discussed the possessing victed of with intent to dangerous distrib- nature of the armed ute, chase, a more serious offense. The specific and high-speed Williams’s extensive robbery guide- offense characteristic history, criminal and its concern with de line for a accounts robber’s of terring future criminal pro behavior and stolen, drugs that he has but it does not tecting public. disagree punish aggravating circumstance of weight the with the that the court elected to drugs. robber’s intent to give considerations, distribute To these various but group the of counts conviction would un- plain there was no error in the procedural purpose guidelines dermine the of the of adequacy the court’s consideration of drug sanction trafficking severely more the factors.6 1.2(d) pro- §
5. The district
ruled
applicable guideline
court
3D
"[s]pecifically
grouping
hibited
traf-
operation
excluded from the
of this [sub]sec-
counts,
ficking
robbery guideline,
because the
1.2(d),
§
heavily
tion” under
3D
but relied
2B2.1,
"[sjpecifically
§
excluded from the
1.2(b),
commentary governing § 3D
and ulti-
operation
this
subsection."
USSG
mately concluded that the defendant's offense
1.2(d)
added).
§
(emphasis
3D
We do not af-
multiple
conduct under
counts of conviction
ground,
firm on this
because —as the district
substantially
could not be "considered
recognized
opera-
from the
—exclusion
grouping purposes
same harm for
under
1.2(d)
not,
§
by
3D
plain
tion
does
§
analysis
3D1.2.”
McCraney challenges of a the career offender the district court’s selection application of tends court’s 4B1.1, § to calculate his advisory range, see guideline, USSG the sentence within range. He sentencing advisory guideline 347, States, 338, 551 U.S. Rita v. United erroneously court that the district asserts (2007); 2456, L.Ed.2d 203 127 168 S.Ct. Illinois him a 1997 attributed to Lincoln, 716, 717 v. United States Adrian Small- in the name of conviction (8th Cir.2005), of dis- we discern no abuse court that the district wood. We conclude cretion. finding that McCra clearly err in did not cursory also makes convicted Smallwood” ney and the “Adrian unreasonableness at claim of substantive person. Illinois in were the same Illinois argument that the the conclusion of convic that the 1997 court records show adequately failed to consider district court was ordered of Adrian Smallwood tion 3553(a) § factors. The court sen two other convic concurrently run Williams, too, advisory within the tenced name of Adrian in the tions entered that this choice to McCraney range, presume ad and we McCraney—convictions to him. When mits conform with the recommendation were attributable McCraney was arrested for Sentencing was not unreason Commission gave police in he Larry August Jones dangerous In view of the violent and able. The the name of “Adrian Smallwood.” offense conduct nature ample basis to find district court thus had history, criminal we see Williams’s serious “Adrian McCraney used the name that the no basis to conclude district alias, an and that the 1997 Smallwood” as range of in exceeded its wide discretion name of “Smallwood” was conviction the selecting a sentence. McCraney’s. prior indeed a conviction of McCraney separately contends guideline career offender is undu judgments of the district court are The harsh,
ly and that the district court should affirmed. If means that the applied
not have
it.
he
guideline
ignored
court should have
KORNMANN,
Judge,
District
calculating
advisory guideline
when
concurring
part
dissenting
part.
is without merit.
range,
the contention
join
majority opinion with one
I
apply
“The
of whether to
determination
respectfully
I
dissent as to the
exception.
to calculate
the career offender Guidelines
Act,
convictions.
Hobbs
18 U.S.C.
advisory
range is not a
Guidelines
grouping questions under
I will not discuss
matter left to the district court’s discre
is,
all,
since this
after
noth-
the Guidelines
Berni,
F.3d
tion.” United States v.
439
ing
a dissent.
but
curiam).
(8th Cir.2006)
(per
992
largely on
majority opinion
relies
argument
an
develop
does not
(8th
Cox,
The victim here was a small time Collins, in interstate commerce. dealer. The total amount of cocaine stolen (footnotes omitted). at 100 Under this was four ounces. There was no sufficient standard, the theft of an individual’s car evidentiary foundation to show that he was did not affect interstate commerce within “regularly substantially in in- involved 1951(a) meaning though even theory terstate commerce.” The prevented individual, theft a national prosecution must have been the rob- computer company employee, from attend- bery involving quantity the small of co- ing a obstructed, meeting using business his cellu- apparently delayed, caine or lar telephone to make business calls. Id. any affected commerce or the movement of This, at 97-101.” Id. I commodity respectfully article or in commerce. submit that however, nothing robbery but a local theft here did not and satisfy could not prosecuted, any should have which been of the three tests described. With all, charges in state court. Hobbs Act in a country this illegal awash in drugs, type case of this contribute to the dimin- here, Collins, in Quigley country ishment of federalism our “had no effect or realistic potential effect where, in present things, any course of on interstate I commerce.” would set activity eventually illegal will be federal aside the convictions and remand crime of some sort. to the district court to conduct another hearing. sentence
I believe this case is controlled more recent and definitive case of United Quigley,
States v.
Cir.1995). “The commerce power is not
unbridled, however. Because of federal
ism, Congress only has power regulate
conduct that ‘exerts a substantial economic FERCELLO, Claudia Plaintiff- effect on interstate commerce.’ Wickard Appellant, Filburn, 111, 125, 317 U.S. 63 S.Ct. (1942). 122 ... ‘Congress may 87 L.Ed. RAMSEY, COUNTY OF Defendant- that, alone, regulate not conduct standing Appellee. directly does not affect interstate com No. 09-2587. merce’ or have a ‘substantial indirect effect Collins, on interstate commerce.’ Appeals, United States Court of at 101.” There was no evidence in the Eighth Circuit. present any case of “substantial economic May Submitted: 2010. effect on interstate commerce.” July Filed: 2010. We are further instructed in Quigley. “Criminal acts directed towards individuals
rather than businesses violate