UNITED STATES оf America, Plaintiff-Appellee, v. Rashawn LONG, Defendant-Appellant.
No. 16-1419
United States Court of Appeals, Eighth Circuit.
Filed: August 31, 2017
870 F.3d 792
Submitted: June 9, 2017
5. Proposed Jury Instruction
We also reject the defendants’ argument that the district court should have included their proposed jury instruction relating to the effect of the temporary injunction that was lifted on April 5, 2013. “A party is not entitled to a particularly worded instruction.” Retz v. Seaton, 741 F.3d 913, 919 (8th Cir. 2014) (quoting United States v. Meads, 479 F.3d 598, 601 (8th Cir. 2007)). “Our review is limited to a determination of whether the instructions fairly and accurately present the evidence and law to the jury given the issues in the case.” Id. (quoting Eden Elec., Ltd. v. Amana Co., 370 F.3d 824, 827 (8th Cir. 2004)). The proposed instruction, No. 35, stated:
From February 12, 2013 until April 5, 2013, Defendants were enjoined, or prohibited, by this Court from competing for the same customers and carriers serviced by [West Plains]. After April 5, 2013, Defendants were allowed to lawfully compete for the same customers and carriers serviced by [West Plains]. If you are considering awarding [West Plains] any lost profit damages, Defendants are not liable for any lost profit damages after April 5, 2013.
For the same reasons previously discussed, the district court was not required to limit further the time period under which the jury could find West Plains sustained harm.
6. Mitigation Evidence
Finally, the defendants сlaim West Plains failed to present sufficient evidence showing it attempted to mitigate its damages after the employee defendants’ resignations. “A plaintiff‘s failure to take reasonable steps to mitigate damages bars recovery, not in toto, but only for the damages which might have been avoided by reasonable efforts.” Tedd Bish Farm, Inc. v. Sw. Fencing Servs., LLC, 291 Neb. 527, 867 N.W.2d 265, 271 (2015) (quoting Borley Storage & Transfer Co. v. Whitted, 271 Neb. 84, 710 N.W.2d 71, 80 (2006)). West Plains took steps to mitigate damages by immediately transferring employees from another division to CT Freight, despite their lack of experience in the bulk hopper industry. West Plains contacted its customers taken by the defendants in an effort to retain their business. The new management hired at CT Freight expanded the business into other sectors of the freight brokerage industry, like dry van and refrigerated goods. Considering the competitive, relationship-based nature of the industry, it was reasonable CT Freight would try to expand into new sectors, in addition to rebuilding its customer base in the bulk hopper industry.
III. CONCLUSION
We affirm in all respects.
Jeffrey Q. McCarther, Asst. U.S. Atty., U.S. Atty., Kansas City, MO, argued (Thomas M. Larson, Acting U.S. Atty., Philip M. Koppe, Asst. U.S. Atty., on the brief), for appellee.
Before LOKEN, MURPHY, and MELLOY, Circuit Judges.
MELLOY, Circuit Judge.
Rashawn Long was convicted by a jury of one count of possession with intent to distribute a сontrolled substance, in violation of
I.
On October 26, 2013, Long parked his car in Valerie McCoy‘s yard and left it there. McCoy called the Kansas City, Missouri police at approximately 8:20 am. When officers arrived, McCoy explained that a black male parked the car in her yard, knocked on the door, and left when she did not answer. The officers found a 2013 silver Avenger parked in McCoy‘s yard, ran the license plate number, and
After the officers ordered the tow truck, Long ran towards them. Long gave the officers his name, told the officers the name of the person who rented the car, and explained that he had parked the car in McCoy‘s yard. The officers handcuffed and frisked Long and asked if they could look in the car. Long said it would be okay but that the keys were at a nearby house. Officers ran Long‘s name and a computer search revealed two outstanding warrants for his arrest. Believing these warrants were out of Kansas City, Missouri, the officers placed Long in a patrol vehicle. Soon after, the officers learned the warrants were out of Kansas City, Kansas, and were non-extraditable. The officers did not, however, remove Long‘s handcuffs or release him from the patrol vehicle.
Officer Ballowe, one of the first officers on the scene, asked the patrol vehicle driver to continue holding Long so he could “determine if there was anything illegal in the car.” Around this timе, Sergeant Hamilton, a member of the Kansas City Police Department‘s illegal firearms squad, arrived at the scene. He was called to the scene because he was investigating Long as a possible suspect in several homicides and had asked to be notified any time Long had an encounter with police. Sergeant Hamilton was with Officer Ballowe for the entire vehicle search.
Because the car was locked, the tow truck driver used a “slim jim” to open the car door. On the passenger seat of the car, Officer Ballowe found a backpack containing pepper spray, a taser, and a coke can. The coke can felt hard and solid so Officer Ballowe twisted the top of the can and discovered a bag containing а white powder. At this point, Sergeant Hamilton told Officer Ballowe to stop the inventory search in order to obtain a search warrant.
A field test of the substance revealed that the powder was not cocaine and had an extremely weak reaction for amphetamines. Long was placed under arrest, the vehicle was towed, and Long was issued a ticket for illegally рarking the vehicle.
After obtaining the search warrant, officers discovered a camcorder in the car. The camcorder contained clips of Long with a Glock pistol. Additionally, the white powder was tested and determined to be 2-(Methylamino)-1-phenyl-1-butanone (buphedrone), a Schedule I controlled substance. Long was subsequently indicted for possession with intent to distribute a cоntrolled substance and possession of a firearm by a felon.
Before trial, Long moved to suppress the evidence against him. Following a suppression hearing, the magistrate judge recommended denying the motion to suppress, finding that the vehicle search was a valid inventory search and assuming, with without deciding, that Long had standing to challenge the search. The district court adopted that recommendation.
Long was convicted of both counts at trial. The initial Presentence Investigation Report (“PSR“) calculated a Guidelines range of 92-115 months, based on an offense level of 26 and a criminal history category of IV. Long objected to the PSR‘s computation of criminal history points. Specifically, the PSR assessed three criminal history points for Long‘s prior Missouri conviction for second-degree murder, pursuant to United States Sentencing Guidelines (“U.S.S.G.“)
II.
On appeal, Long asserts the district court erred in denying his motion to suppress. Long also contends that the Missouri offense of armed criminal action is not a crime of violence and, thus, the district court erred in assessing a criminal history рoint for that conviction. Alternatively, Long argues his sentence is substantively unreasonable.
A.
“This Court reviews the facts supporting a district court‘s denial of a motion to suppress for clear error and reviews its legal conclusions de novo.” United States v. Cotton, 782 F.3d 392, 395 (8th Cir. 2015). “This court will affirm the district court‘s denial of a motion to suppress evidence unless it is unsupported by substantial evidence, based on an erroneоus interpretation of applicable law, or, based on the entire record, it is clear a mistake was made.” United States v. Hogan, 539 F.3d 916, 921 (8th Cir. 2008) (quoting United States v. Annis, 446 F.3d 852, 855 (8th Cir. 2006)).
Long argues that the district court should have suppressed the evidence discovered during the search of his vehicle because the inventory search prior to towing his vehicle was unconstitutional. The government contends that Long lacks standing to challenge the lеgality of the search and, alternatively, that the inventory search was proper.
The
At the suppression hearing, Long presented thе testimony of Latasha Phillips, the renter of the 2013 Avenger Long parked in McCoy‘s yard. Phillips testified that she rented the car for her friend Roger to drive. She did not, however, put Roger‘s name on the rental contract as an authorized driver. She further testified that she did not restrict what Roger could do with the car or who Roger could let use the car. Phillips stated Roger told her that he allowed Long to drive the car but her testimony was unclear whether she learned that Long was driving the car
Long contends that Phillips‘s testimony establishes that he had consensual possession of the rental car and, thus, that he has standing to challenge the search. This case, however, is not so straightforward because, unlike this circuit‘s precedent, any permission Long had to drive the vehicle was not given direсtly from Phillips, the authorized driver. Rather, Roger, a driver not authorized by the lessor but permitted by the lessee to drive the car, gave Long permission to drive the vehicle and Phillips did not object. Stated differently, Roger acted as a “middleman” between the authorized driver and Long.
This circuit has not yet determined whether a defendant can make an affirmative showing of consensual possession when permission to drive a rental car is not given directly from a contractually authorized driver.3 We now hold that there is no reasonable expectation of privacy based on such an attenuated relationship between an authorized driver and an unauthorized driver. As a result, Long, an unauthorized-driver-once-removed, with only indirect permission from the authorized driver to drive the vеhicle, does not have standing to challenge the search of the vehicle. Thus, the district court did not err in denying Long‘s motion to suppress the evidence discovered during the search.
B.
Long also argues the district court erred in assessing an additional criminal history point because his prior conviction for armed criminal action is not a “crime of violence.” We review a district cоurt‘s determination that a prior conviction is a crime of violence under the Guidelines de novo. United States v. Maid, 772 F.3d 1118, 1120 (8th Cir. 2014).
Pursuant to
- has as an element the use, attempted use, or threatened use of physical force against the person of another, or
- is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
On January 8, 2016, the sentencing commission announced that it had unanimously voted to eliminate the residual clause of the Guidelines. That amendment, however, did not become effective until August 1, 2016. U.S.S.G. app. C, amend. 798. And the Supreme Court recently held that the residual clause in
Here, the offense of conviction provides that “any person who commits any felony under the laws of this state by, with, or through the use, assistance, or aid of a dangerous instrument or deadly weapon is also guilty of the crime of armed criminal action.”
“To qualify as a crime of violence under the residual clause, [Long‘s] prior conviction must (1) ‘present[] a serious potential risk of physical injury to another,’ and (2) be ‘roughly similar, in kind as well as degree of risk posed,’ to the offenses listed in § 4B1.2(a)(2).” United States v. Watson, 650 F.3d 1084, 1092 (8th Cir. 2011) (second alteration in original) (quoting United States v. Boyce, 633 F.3d 708, 711 (8th Cir. 2011)). In Watson, this court held that an Oklahoma conviction under a statute similar to the Missouri statute in this case is a crime of violence under the residual clause. Id. at 1092-94.4 And other courts have held that convictions under similar statutеs in other states qualify as violent felonies under the now-unconstitutional residual clause in the Armed Career Criminal Act. See, e.g., United States v. Fife, 624 F.3d 441 (7th Cir. 2010) (analyzing
We conclude that armed criminal action in Missouri is a crime of violence under the residual clause. Possessing a deadly weapon or dangerous instrument while committing a felony “presents a serious potential risk of physical injury to another” beсause it is likely that the offender will later use it if he encounters another person during the commission of the felony. See United States v. Guiheen, 594 F.3d 589, 591 (8th Cir. 2010); United States v. Haney, 23 F.3d 1413, 1418-19 (8th Cir. 1994). And that serious potential risk of physical injury is “similar, in kind as well as degree of risk posed,” to the enumerated offenses. See Watson, 650 F.3d at 1092; Boyce, 633 F.3d at 711. As a result, the district court did not err in assessing an additional criminal history point for Long‘s Missouri conviction for armed criminal action.
Alternatively, Long argues his 360-month sentence is substantively unreasonable. 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). Long asserts the 21-year upward variance was unduly harsh and unreasonable because it relied too heavily on his history and characteristics and because it greatly differs from sentences other defendants received for similar cоnduct.
“A district court abuses its discretion when it (1) fails to consider a relevant factor that should have received significant weight; (2) gives significant weight to an improper or irrelevant factor; or (3) considers only the appropriate factors but in weighing those factors commits a clear error of judgment.” Id. (internal quotation marks and citation omitted). If a district court deviates from the advisоry Guidelines range, it must “give serious consideration to the extent of any departure from the Guidelines and must explain [its] conclusion that an unusually lenient or an unusually harsh sentence is appropriate in a particular case with sufficient justifications.” Id. at 462 (alteration in original) (quoting Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). The district court has discretion to rely more heavily on some sentencing factors than others, United States v. Townsend, 617 F.3d 991, 994 (8th Cir. 2010) (per curiam), and a defendant challenging the district court‘s sentence “must show more than the fact that the district court disagreed with his view of what weight ought to be accorded certain sentencing factors.” Id. at 995.
In this case, the district court gave “substantial insight into the reasons for its determination.” Feemster, 572 F.3d at 463 (internal quotation marks and citation omitted). The district court addressed Long‘s criminal history, observing that Long had a drug conviction at 18 and pled guilty to second-degree murder at 20. The district court made clear that it was considering the totality of the circumstances, including Long‘s history and characteristics. Addressing Long, the district court stated, “You have shown through your conduct that you‘re not able to conform to society as we know it in terms of you being out [of jail]. And the problem here is people will get hurt if you are on the street.” Finally, the district cоurt acknowledged that it was imposing a significant upward variance, explaining, “I think this sentence is appropriate, and arguably the Court could have ran as high as 40 years. I didn‘t, but I think this is a sentence that is not greater than necessary, but this is a sentence that is certainly going to protect the public from you.”
The district court adequately explained the sentence it imposed on Long. The court clearly addressed the
III.
Based on the foregoing discussion, we