UNITED STATES оf America, Plaintiff-Appellee, v. Warnell REID, Defendant-Appellant.
No. 15-1676
United States Court of Appeals, Eighth Circuit.
July 5, 2016
Rehearing and Rehearing En Banc Denied Aug. 9, 2016.
827 F.3d 797
Submitted: January 15, 2016
That Combs had not previously distributed kilograms of cocaine, however, suggests only a lack of opportunity, not a lack of predisposition. Combs told Edmond he had been “waiting on” an opportunity this profitable to “take us out of the ghetto,” and Combs agreed to commit the robbery because he stood to make “an unbelievable amount of money.” The opportunity was profitable because of the quantity of cocaine involved. Combs‘s readiness to participate demonstrated his predisposition to traffiс in a larger quantity of drugs when he had the chance. A defendant is not entitled to an entrapment instruction if there is undisputed proof that he exhibited a predisposition to engage in the criminal conduct. The district court thus did not err in declining to instruct the jury on entrapment. United States v. Berg, 178 F.3d 976, 980 (8th Cir. 1999); United States v. Neal, 990 F.2d 355, 358 (8th Cir. 1993); Johnson, 892 F.2d at 710.
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The judgment of the district court is affirmed.
Counsel who presented argument on behalf of the appellant was Andrew Douglas Lamb, of Saint Louis, MO. The following attorney(s) appeared on the appellant brief; Robert P. Berry, of Saint Louis, MO.
Counsel who presented argument and appeared on the brief on behalf of the appellee was Michael A. Reilly, AUSA, of Saint Louis, MO.
Before WOLLMAN, MELLOY, and COLLOTON, Circuit Judges.
COLLOTON, Circuit Judge.
A jury convicted Warnell Reid of possession of a firearm as a previously convicted
I.
The prosecution arose from events that transpired when law enforcement officers executed an arrest warrant for Earnestine Graham, Reid‘s girlfriend, at her residence in November 2011. At the time, Reid was on parole for three felonies in Missouri: robbery, armed criminal action, and possession of a controlled substance in a correctional facility.
After arresting Graham without incident, officers searched the home. In a first-floor bedroom, officers discovered a semiautomatic SKS assault rifle with a loaded 30-round magazine attached to the weapon, a loaded twelve-gauge shotgun, and a disassembled .44 caliber revolver. Offiсers also found in the bedroom several of Reid‘s possessions, including a cell phone, wallet and identification, articles of clothing, a to-do list Reid had written the day before, and two folders containing documents in Reid‘s name.
Graham told the officers that Reid lived at the residence and that the firеarms belonged to him. As officers were placing the weapons in their vehicle, Reid arrived at the residence and parked his car nearby. Officers arrested Reid and recovered keys in his possession that opened the front door of the residence and a padlock in the home‘s kitchen.
A grand jury charged Reid with unlawful possession of a firearm as a previously convicted felon, and the case proceeded to trial. There was no dispute that Reid was a convicted felon, but Reid denied that he possessed a firearm. The firearms and other evidence seized at the home were received in evidence. Graham testified that Reid had purchased the assault rifle and shotgun. She also said that after Reid began living at the residence in September 2011, he brought the firearms into the home and kept them in a first-floor bedroom closet with a combination lock. She explained that Reid removed the firearms from the closet the day before the search while he was under the influence of narcotics.
Reid testified at trial and denied living at Graham‘s residence. He testified that he left his papers and the to-do list at the residence on the day before the search, and he claimed that nearly all of the clothing seized belonged to Graham. Reid said he “had nothing to do” with the firearms in the house. The jury found Reid guilty, and a sentencing and appeal followed.
On remand from the first appeal, the district court held a resentencing hearing. The court received evidence, determined an advisory guideline range of 77 to 96 months’ imprisonment, and imposed a sentence of 96 months, to be served consecutive to a sentence that Reid was serving in Missouri. Reid appeals the sentence, raising claims of procedural error and substantive unreasonablenеss. We review the
II.
Reid argues that the district court erred in allowing the government on remand to add evidence to the existing record. Our prior opinion, however, did not address the issues raised on remand or limit the scope of the proceedings. The district court was thus permitted to consider any relevant evidence that it could have received at Reid‘s first sentencing hearing. United States v. Kendall, 475 F.3d 961, 964 (8th Cir.2007).
Reid‘s first claim of procedural error is that the district court incorrectly determined that his base offense level was 22. Under
Reid argues that the district court impermissibly relied on the presentence report and never made a finding that any of the firearms were capable of accepting a large capacity magazine. The presentence report is not evidence, but if a defendant does not object to facts set forth in the report, then the district court may accept those facts as true for purposes of sentencing. United States v. Moser, 168 F.3d 1130, 1132 (8th Cir.1999). Reid never objected to portions of the report stating that the assault rifle could accept a large capacity magazine. The court thus did not err when it adopted those facts without making a separate finding. The triаl record, moreover, contains abundant evidence to show that the assault rifle was semiautomatic and capable of accepting a large capacity magazine.
Reid also objects that he never received notice in the indictment that his sentence could be еnhanced based on possession of a firearm that could accept a large capacity magazine. That the assault rifle was capable of accepting a large capacity magazine, however, did not increase the statutory minimum or maximum punishment, and it was thus not an еlement of the violation under
Reid next argues that the district court erred in applying an adjustment for obstruction of justice under
Reid contends that the district court simply relied on the jury‘s verdict to support the adjustment. The court did observe that the jury disbelieved Reid‘s denial that he possessed the firearms, but the court did not rely solely on the jury‘s verdict. The court made these findings: “I do find by a preponderance of the evidence that this enhancement is supportable based on the evidence and on the ultimate decision by the jury to сonvict.” And: “I think there‘s definitely a basis by a preponderance of the evidence that ... this enhancement is appropriate.” The court referred to the trial transcript, the government‘s sentencing memorandum, and the parties’ arguments at sentencing in support of its conclusion. We conсlude that the court‘s statements on the record are sufficient to show an independent finding that Reid had perjured himself when he denied possessing the firearms. See United States v. Kessler, 321 F.3d 699, 703 (8th Cir.2003).
Reid also complains that the district court did not find each element necessary to support a finding of perjury. The findings are indeed slim on thе constituent elements. But our cases have affirmed an independent finding of obstruction of justice, even without explicit mention of each factual predicate, where the finding is strongly supported by the record. E.g., Nshanian, 821 F.3d at 1018-19; Kessler, 321 F.3d at 703; United States v. Brown, 311 F.3d 886, 890 (8th Cir.2002); United States v. Esparza, 291 F.3d 1052, 1055-56 (8th Cir.2002). There is no doubt here that Reid‘s denial was material—whether hе possessed the firearms was the central issue at trial. And we see no plausible argument that Reid‘s false testimony was the result of confusion, mistake, or faulty memory. Graham testified that Reid purchased the guns and brought them into the residence. Reid possessed keys to Graham‘s residence, and he knew the combination to the lock on the closet where the firearms were stored. Police found Reid‘s possessions in the room with the weapons. The record strongly supports a conclusion that Reid‘s testimony was willful, and a remand for clarification is unnecessary on this record. The district court did not clearly err in applying the two-level increase under
Reid next disputes the district court‘s computation of his criminal history score under the guidelines. The court assessed three criminal history points for Reid‘s prior conviction for possession of a controlled substance in a correctional fаcility. In 1998, while serving a twenty-five year prison sentence in Missouri for robbery, Reid was sentenced to a consecutive term of ten years for committing a drug offense while incarcerated. The ten-year term is scheduled to begin when the robbery sentence expires in 2017.
The guidelines provide that three рoints are added “for each prior sentence of imprisonment exceeding one year and one month.”
Reid‘s argument is premised on commentary to
Where, on the other hand, the State imposes an obligation to serve a term of imprisonment for a prior conviction, the conviction results in a prior sentence of imprisonment. The parenthetical in the commentary concerning escaped prisoners shows that actual service of a sentence is not a universal prerequisite. We held in Thompson, for example, that where authorities simply failed to pick up a defendant after sentencing, and he avoided prison through inadvertence or negligence of the State, his sentence still constituted a “sentence of imprisonment.” Id. at 235-36. The Fifth Circuit in United States v. Duffy, 29 F.3d 625 (5th Cir.1994), rejected Reid‘s precise argument. The court explained that adopting Reid‘s interpretation of the commentary would rewаrd aberrant behavior by treating a harsher consecutive sentence yet to be served more leniently than a concurrent sentence already in progress. We agree. Reid was sentenced to a term of imprisonment in 1998, and the State has done nothing to relieve him of the obligation to sеrve it. The district court therefore properly assessed three criminal history points based on the 1998 conviction.**
Reid next asserts that the district court violated the procedural requirements of
Reid argues finally that even if there was no procedural error at sentencing, the district court imposed an unreasonable sentence. We review the decision under a deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Because the sentence is within the advisory guideline range, we presume it is reasonable. United States v. Ruelas-Mendez, 556 F.3d 655, 657 (8th Cir.2009); see Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007).
Reid argues that the district court refused at the resentencing hearing to consider his post-sentencing accomplishments. The court noted, however, that Reid had obtained his General Educational Development diploma, and it heard Reid‘s arguments concerning his other post-sentencing activitiеs. The court has considerable
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The judgment of the district court is affirmed.