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No. 95-3653
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Charles E. Dotson, * [UNPUBLISHED]
*
Appellant. *
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Submitted: April 10, 1996
Filed: April 23, 1996
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Before McMILLIAN, WOLLMAN, and MURPHY, Circuit Judges.
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PER CURIAM.
Charles E. Dotson appeals from the final judgment entered in the
district court,1 upon a jury verdict, finding him guilty of being a felon
in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). For
reversal, Dotson argues that the district court erred by admitting evidence
of his subsequent conviction for unlawful use of a weapon; by sentencing
him under the aggravated-assault Guideline; and by denying his motion to
dismiss the indictment, in which he raised a constitutional challenge to
section 922(g), based on United States v. Lopez, 115 S. Ct. 1624 (1995).
We affirm.
At trial, Germaine Robinson testified that, on the evening of
1
The Honorable Carol E. Jackson, United States District Judge
for the Eastern District of Missouri.
September 26, 1991, Dotson pointed a firearm at him while he and Dotson
were arguing. St. Louis City police officer Daniel Earley testified that,
when he arrived at the scene, Robinson flagged him down and gave him a
description of Dotson's clothing. While pursuing Dotson, Earley saw Dotson
throw down a firearm. After arresting Dotson, Earley retrieved the
firearm: a loaded .22 caliber Derringer. A firearms expert testified that
the Derringer had been manufactured in Germany and had traveled in
interstate commerce prior to arriving in Missouri. The parties stipulated
as to Dotson's four prior convictions.
Before the next government witness testified, the court denied
Dotson's previously-filed motion in limine to exclude any evidence
regarding his March 24, 1992 arrest (and subsequent conviction) for
unlawful use of a weapon, because the element of knowledge had not been
taken out of the case. The government then called St. Louis City Detective
John Stewart to testify. Without objection, Stewart testified that on
March 24, 1992, he arrested Dotson on the charge of unlawful use of a
weapon, and that in November 1992, Dotson pleaded guilty to the charge in
Missouri state court.
Dotson's defense was that he had not possessed the firearm, although
he was present when it was found. The jury nevertheless found Dotson
guilty. At sentencing, the court overruled Dotson's objection to the
recommended determination of his base offense level under the aggravated-
assault Guideline,2 and sentenced Dotson to 57 months imprisonment and two
years supervised release.
As Dotson did not contemporaneously object to the government's
presentation of evidence regarding his subsequent arrest and conviction for
unlawful use of a weapon, we review for plain error.
2
The aggravated-assault Guideline, U.S.S.G. § 2A2.2, was
applied through a cross-reference provision of the Guidelines
applicable to section 922(g), U.S.S.G. § 2K2.1(c).
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See United States v. Ojeda, 23 F.3d 1473, 1477 (8th Cir. 1994) (standard
of review); Fed. R. Evid. 103(a)(1) (timely objection on record required
for finding of error). Evidence of other crimes is admissible under
Federal Rule of Evidence 404(b) if it is (1) relevant to a material issue;
(2) proved by a preponderance of the evidence; (3) more probative than
prejudicial, based on Federal Rule of Evidence 403; and (4) similar in kind
and close in time to the crime charged. United States v. Sutton, 41 F.3d
1257, 1259 (8th Cir. 1994), cert. denied, 115 S. Ct. 1712 (1995). These
requirements were satisfied. Thus, we conclude the district court did not
err--much less plainly err--by admitting the evidence. See United States
v. Thomas, 58 F.3d 1318, 1321 (8th Cir. 1995) (Rule 404(b) evidence
admissible when defendant places state of mind in issue, even if done by
means of general-denial defense); United States v. Mihm, 13 F.3d 1200, 1205
(8th Cir. 1994) (Rule 404(b) evidence admissible where knowledge and intent
are at issue and "mere-presence" defense is asserted); United States v.
Sykes, 977 F.2d 1242, 1246 (8th Cir. 1992) (Rule 404(b) evidence of other
crime properly admitted and more probative than prejudicial where crime was
virtually identical to charged offense and occurred only eight months
later, and court provided limiting instruction to jury); United States v.
Marin-Cifuentes, 866 F.2d 988, 996 (8th Cir. 1989) (Rule 404(b) evidence
proper where knowledge was material issue because it was essential element
of crime, and defense was general denial).
We also see no error in the application of the aggravated-assault
Guideline. Aggravated assault is defined as a "felonious assault that
involved . . . a dangerous weapon with intent to do bodily harm (i.e., not
merely to frighten)." U.S.S.G. § 2A2.2, comment. (n.1). At sentencing,
the district court relied on Robinson's trial testimony that Dotson had
pointed a gun at him; the court also relied on the sentencing testimony of
an Alcohol, Tobacco and Firearms agent and an investigator as to Robinson's
statements that Dotson had used threatening language during the
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incident and that Robinson had felt threatened. In making its sentencing
determination, a district court may rely on trial testimony, see United
States v. Lowrimore, 923 F.2d 590, 594 (8th Cir.), cert. denied, 500 U.S.
919 (1991), and on reliable hearsay evidence, see United States v. Cassidy,
6 F.3d 554, 557 (8th Cir. 1993); United States v. Wise, 976 F.2d 393, 402
(8th Cir. 1992) (en banc), cert. denied, 507 U.S. 989 (1993). We conclude
the district court did not clearly err in finding that Dotson's offense
conduct constituted aggravated assault. See United States v. Garcia, 34
F.3d 6, 10 (1st Cir. 1994) (district court's finding of intent in context
of § 2A2.2 is factual finding reviewed for clear error); United States v.
Madewell, 917 F.2d 301, 307 (7th Cir. 1990) (holding district court
implicitly found defendant had requisite intent to commit aggravated
assault where court sentenced defendant under § 2A2.2); cf. United States
v. Shinners, 892 F.2d 742, 743 (8th Cir. 1989) (per curiam) (affirming
cross-reference to § 2A2.2 where defendant was convicted of violating §
922(g)(1); offense conduct constituted aggravated assault where defendant
possessed firearm and threatened to kill store employees who were trying
to subdue him).
Finally, we conclude that Dotson's Lopez challenge to section 922(g)
is foreclosed by our recent opinion in United States v. Shelton, 66 F.3d
991, 992 (8th Cir. 1995) (per curiam) (rejecting Lopez challenge to §
922(g)), cert. denied, 1996 WL 97336 (U.S. Apr. 1, 1996) (No. 95-8099); see
also United States v. Rankin, 64 F.3d 338, 339 (8th Cir.) (per curiam)
(holding § 922(g)(1) clearly tied to interstate commerce), cert. denied,
116 S. Ct. 577 (1995).
The judgment is affirmed.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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