United States v. Robert E. Lillard

116 F. App'x 49

8th Cir.

2004

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Docket

UNITED STATES of America, Plaintiff-Appellee, v. Francisco CEBALLOS, Defendant-Appellant.

No. 04-1065.

United States Court of Appeals, Eighth Circuit.

Nov. 24, 2004.

115 Fed. Appx. 49

the conspiracy, and a preponderance of the evidence showed that he was generally aware of the drug quantities that his family was trafficking. See TSP at 176-77. Additionally, the evidence was “uncontroverted” that Francisco was involved in the transfer of over fifteen kilograms of methamphetamine from Texas to Omaha. Id. at 177. Therefore, the district court did not err in holding Francisco accountable for that quantity of drugs. See United States v. Rodriguez, 367 F.3d 1019, 1028 (8th Cir.2004); United States v. Brown, 148 F.3d 1003, 1008 (8th Cir.1998).

Francisco also claims that when assigning the quantity of drugs to a co-conspirator, the Government “must prove the defendant benefitted from the commitment to the conspiracy.” Appellant‘s Brief at 10 (citing United States v. Flores, 73 F.3d 826 (8th Cir.1996)). Francisco misreads Flores. That case merely states that the degree to which a defendant benefits from co-conspirators’ activities, and the level of commitment to a conspiracy that a defendant exhibited, are relevant factors in determining the drug quantity accountable to a co-conspirator. See Flores, 73 F.3d at 833.

Lastly, Francisco appeals the district court‘s decision to admit evidence of Francisco‘s prior convictions when the court lacked certified copies of the actual convictions. To prove the prior convictions, the Government presented a certified document from the U.S. District Court Probation Office in San Mateo, California, which reported Francisco‘s criminal record. See TSP at 192-96. Francisco contends that this violates Fed. R. Ev. 902, and therefore the enhancement of his sentence based on the prior record was clearly erroneous.

The Federal Rules of Evidence are inapplicable at sentencing hearings, and the document relied upon by the court contained sufficient markers of reliability: it issued from a recognized court, contained docket numbers, and its appearance was familiar to the sentencing judge. See Fed. R. Ev. 1101(d)(3); United States v. Luna, 265 F.3d 649, 652 (8th Cir.2001). As such, the court did not err in admitting this evidence and relying upon it in reaching a sentencing decision.

Thus, Francisco Ceballos’ appeal is DENIED. The district court‘s judgment is AFFIRMED.²

UNITED STATES of America, Plaintiff-Appellee, v. Robert E. LILLARD, Defendant-Appellant.

No. 04-2249.

United States Court of Appeals, Eighth Circuit.

Submitted Nov. 18, 2004. Decided Nov. 24, 2004.

Before MURPHY, LAY, and MELLOY, Circuit Judges.

PER CURIAM.

Robert Lillard was found guilty of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). During sentencing, the Government alleged that Lillard was eligible for a sentencing enhancement pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). The Government alleged that Lillard would be required to serve at least fifteen years in prison because he had previously been convicted of three “violent felonies“—attempted robbery, robbery, and possession of a short shotgun.

The district court¹ found that each of Lillard‘s three prior convictions constituted a “violent felony” under § 924(e) and sentenced him to 188 months imprisonment. On appeal, Lillard argues that possession of a short shotgun is not a “violent felony” under § 924(e). He also argues that the district court erred when it found that his prior robbery convictions were separate and distinct criminal episodes for the purposes of § 924(e). Because his prior robbery convictions were consolidated for trial and sentencing in state court, Lillard argues that his two convictions for robbery should be considered a single criminal episode.

This court has found that possession of a short shotgun constitutes a “crime of violence” under § 4B1.2(a) of the United States Sentencing Guidelines. United States v. Allegree, 175 F.3d 648, 651 (8th Cir.1999). Although § 924(e) uses the term “violent felony” rather than “crime of violence,” the definitions of these terms are identical: an offense “punishable by imprisonment for a term exceeding one year” that “involves conduct that presents a serious potential risk of physical injury to another.” See 18 U.S.C. § 924(e)(2)(B)(ii); U.S.S.G. § 4B1.2(a)(2). In Allegree, we found that “[p]ossession of a sawed-off shotgun qualifies under this definition because such weapons are inherently dangerous and lack usefulness except for violent and criminal purposes.” Allegree, 175 F.3d at 651. We find that the reasoning of Allegree applies equally to this case, and hold that possession of a short shotgun is a “violent felony” under § 924(e).

Lillard also argues that his two prior robbery convictions constituted a single criminal episode. Although Lillard was sentenced on the same day for two robbery convictions, the two robberies were committed more than one month apart and involved different victims. We have held that ”§ 924(e) specifically notes that it is the occurrence of the criminal activity, not the conviction, that dictates the enhancement decision.” United States v. Speakman, 330 F.3d 1080, 1083 (8th Cir.2003). Lillard‘s robbery convictions are not part of a single criminal episode and were properly considered separate criminal convictions under § 924(e). See United States v. Gray, 152 F.3d 816, 821 (8th Cir.1998) (“The two transactions were distinct in time, occurring on separate days, and required separate planning and execution by [the defendants].“).

We affirm the judgment of the district court.

Notes

The Honorable Joseph F. Bataillon, United States District Judge for the District of Nebraska, presiding.

The mandate in this case is stayed pending the Supreme Court‘s resolution of , cert. granted, , and , cert. granted, .