United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-1158
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Eastern District of Missouri.
*
Dewayne Williams, * [UNPUBLISHED]
*
Appellant. *
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Submitted: September 17, 2004
Filed: May 12, 2005
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Before WOLLMAN, RICHARD S. ARNOLD,1 and BYE, Circuit Judges.
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PER CURIAM.
Dewayne Williams appeals from his conviction and sentence for being a felon
in possession of a firearm, a violation of 18 U.S.C. §922(g). We affirm.
I.
Williams was walking down a street when he was approached by four officers
from the St. Louis Metropolitan Police Department riding in a marked police car.
Shortly after seeing the officers, Williams began running through a yard adjacent to
1
The Honorable Richard S. Arnold died on September 23, 2004. This opinion
is being filed by the remaining judges of the panel pursuant to 8th Cir. Rule 47E.
the street. Two officers began a foot chase, during which one of them saw Williams
remove a handgun from his front waistband area and toss it to the ground. The officer
retrieved the gun and continued his pursuit. After overcoming Williams, the officer
placed him under arrest and discovered crack cocaine and marijuana during a search
incident to arrest.
Prior to trial, Williams sought to exclude evidence of the crack cocaine and
marijuana obtained from the search incident to arrest. Williams argued that the
prejudicial effect of this evidence outweighed its probative value. The district court2
admitted the evidence as intrinsic evidence not governed by Federal Rule of Evidence
404(b) and reasoned in the alternative that the evidence was admissible under the
rule.
Following Williams’s conviction, the district court sentenced him to ten years’
imprisonment. Williams challenges the district court’s admission of evidence and its
enhancements to his sentence.
II.
The facts and arguments related to the district court’s admission of the drug
evidence closely resemble those we addressed in United States v. Rankin, 902 F.2d
1344 (8th Cir. 1990). We concluded in Rankin that the defendant’s drug possession
was part of the same criminal event as his gun possession. Id. at 1346. We held in
the alternative that the evidence was admissible to show motive under Rule 404(b).
Id. Those principles control here.
2
The Honorable Donald J. Stohr, United States District Judge for the Eastern
District of Missouri.
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III.
Williams challenges, under the auspices of United States v. Booker, 125 S. Ct.
738 (2005), enhancements to his sentence based on the district court’s determinations
that his past convictions were for “crimes of violence,” as defined in section 4B1.2
of the sentencing guidelines, and that he had used the firearm in connection with
another felony within the meaning of section 2K2.1(b)(5). Because Williams did not
preserve these challenges by timely objecting below, we review the district court’s
rulings for plain error. United States v. Pirani, No. 03-2871, slip op. at 6 (8th Cir.
April 29, 2005) (en banc).
A.
Because the district court’s enhancements for past crimes of violence were
based upon facts of prior convictions, this aspect of Williams’s argument fails to
implicate constitutional concerns. See Booker, 125 S. Ct. at 756 (“Any fact (other
than a prior conviction) which is necessary to support a sentence exceeding the
maximum authorized by the facts established by a plea of guilty or a jury verdict must
be admitted by the defendant or proved to a jury beyond a reasonable doubt.”). The
Presentence Investigation Report indicates that Williams has two prior adult
convictions for burglary (for offenses committed when he was a minor). These
constitute crimes of violence under the guidelines. See U.S.S.G. § 4B1.2, application
note 1 (“A conviction for an offense committed prior to age eighteen is an adult
conviction if it is classified as an adult conviction under the laws of the jurisdiction
in which the defendant was convicted.”). Accordingly, the district court did not err
in enhancing the sentence on the basis of Williams’s prior convictions.
B.
To resolve Williams’s remaining challenge to his sentence, we must conduct
plain error review under the four-part test of United States v. Olano, 507 U.S. 725
(1993). Pursuant to that test, before we can correct an error not raised at trial, “there
must be (1) error, (2) that is plain, and (3) that affects substantial rights. Johnson v.
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United States, 520 U.S. 461, 466-67 (1997). If all three conditions are met, we may
remedy the error only if it “seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id.
The district court’s enhancement based on the fact that Williams had used the
firearm he was found to have possessed in connection with another felony was
erroneous in light of Booker. Under these circumstances, the first two Olano factors
are satisfied. See Pirani, slip op. at 8. Whether the error affected Williams’s
substantial rights is another matter. In order to satisfy this factor of Olano, “the
defendant must show a ‘reasonable probability,’ based on the appellate record as a
whole, that but for the error he would have received a more favorable sentence.” Id.
at 11.
After accounting for his prior convictions, Williams’s base offense level of 24
and his criminal history category of VI resulted in a sentencing range of 100-125
months. The district court’s finding pertaining to the firearm resulted in a four-level
upward adjustment, which produced a sentencing range of 140-175 months. Because
the low end of the sentencing range exceeded the statutory maximum of 120 months
under 18 U.S.C. § 924(a)(2), the parties did not dispute that the appropriate sentence
was 120 months.3
Williams implies that, had the district court considered the appropriate range
of 100-125 months, it could have imposed a sentence lower than the statutory
maximum. We do not believe, however, that this assertion by itself demonstrates a
reasonable probability that Williams would have received a more favorable sentence.
Prior to sentencing Williams, the district court observed that:
3
At sentencing, Williams’s attorney stated that “[t]he Guidelines obviously
exceed the statutory maximum, so I think the only sentence the Court can impose in
this matter under the Guideline structure is 120 months and I expect that’s what the
Court will do.” Sen. Tr. at 4.
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Based upon the serious nature of the instant offense, which involved a
felon in possession of a firearm, and in consideration of defendant’s
significant criminal history that includes convictions for two burglaries
second-degree offenses, two tampering first-degree offenses, two assault
third-degree offenses, two misdemeanor stealing offenses and a felony
stealing offense, the [120 month] sentence would seem to address the
sentencing objectives of punishment, general deterrence, and
incapacitation.
Sen. Tr. at 5. The district court then imposed the statutory maximum of 120 months,
which falls within the range of 100-125 months that it would have considered absent
the Booker error. We conclude that, under these circumstances, Williams has not
demonstrated prejudicial plain error under Olano.
The sentence is affirmed.
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