United States Court of Appeals
For the Eighth Circuit
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No. 19-3440
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Barrett C. Swan
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - Cape Girardeau
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Submitted: September 25, 2020
Filed: September 30, 2020
[Unpublished]
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Before GRUENDER, WOLLMAN, and GRASZ, Circuit Judges.
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PER CURIAM.
Barrett Swan appeals after a jury found him guilty of two counts of being a
felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1); and the district
court1 sentenced him under the Armed Career Criminal Act (ACCA). His counsel has
moved for leave to withdraw, and has filed a brief under Anders v. California, 386
U.S. 738 (1967), challenging the district court’s denial of Swan’s motion to sever the
counts and the court’s failure to sua sponte grant judgment of acquittal, and arguing
that the court erred in sentencing Swan under the ACCA. In a pro se brief, Swan
echoes counsel’s severance argument, and challenges the district court’s denial of his
motion to suppress and the court’s handling of exhibits during jury deliberations.
Turning first to the arguments in the Anders brief, we conclude the district
court did not abuse its discretion in denying Swan’s motion to sever the counts. See
United States v. Boyd, 180 F.3d 967, 982-83 (8th Cir. 1999) (explaining denial of
motion to sever is reversible only when defendant shows abuse of discretion resulting
in severe prejudice; stating joint trial does not result in prejudice where evidence of
other offenses would have been admissible in separate trial). Next, we conclude the
district court did not plainly err in failing to sua sponte grant judgment of acquittal.
See United States v. Calhoun, 721 F.3d 596, 600 (8th Cir. 2013) (noting, absent a
defendant’s contemporaneous motion, a district court’s failure to sua sponte grant a
judgment of acquittal is reversible plain error only if there was no evidence of guilt
or evidence on a key element was so tenuous the conviction would be shocking); see
also United States v. Battle, 774 F.3d 504, 511 (8th Cir. 2014) (noting that in a
§ 922(g)(1) conviction, the government must prove, inter alia, defendant knowingly
possessed a firearm by showing actual or constructive possession). In addition, we
conclude the district court did not err in sentencing Swan under the ACCA. See
United States v. Harris, 794 F.3d 885, 887 (8th Cir. 2015) (explaining recidivism is
not element which must be proved to jury; whether prior offenses were committed on
different occasions is a recidivism-related fact).
1
The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the
Eastern District of Missouri.
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Turning next to the arguments in Swan’s pro se brief, we conclude denial of
his motion to suppress was proper. See United States v. Wise, 588 F.3d 531, 536 (8th
Cir. 2009) (standard of review); see also United States v. Head, 407 F.3d 925, 929
(8th Cir. 2005) (explaining officer’s statement did not constitute interrogation
because he could not have predicted informing suspect he wanted “to talk to [suspect]
about what had occurred” would elicit incriminating response). We further conclude
the district court did not abuse its considerable discretion in handling the exhibits
during jury deliberations. See United States v. Venerable, 807 F.2d 745, 747 (8th Cir.
1986) (standard of review).
Having reviewed the record pursuant to Penson v. Ohio, 488 U.S. 75 (1988),
we find no nonfrivolous issues. Accordingly, we affirm, and we grant counsel leave
to withdraw.
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