United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-2118
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Gustine Evelyn Augustine, *
*
Appellant. *
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Submitted: September 23, 2011
Filed: December 9, 2011
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Before MELLOY, SMITH, and BENTON, Circuit Judges.
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MELLOY, Circuit Judge.
On February 9, 2011, a jury found Gustine Evelyn Augustine guilty of being
a prohibited person in possession of firearms and ammunition. 18 U.S.C. § 922(g)(1),
(3). The district court1 imposed a sentence of twenty-four months, varying downward
from the Guidelines range of forty-six to fifty-seven months. On appeal Augustine
challenges the district court's evidentiary rulings, her conviction, and her sentence.
We affirm.
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The Honorable James E. Gritzner, Chief Judge, United States District Court
for the Southern District of Iowa.
I. Background
Since at least 1998, Augustine has lived with Joseph Belt, an avid hunter, in his
trailer in Pacific Junction, Iowa. They used marijuana frequently, and Augustine used
methamphetamine periodically. Augustine had a troubled relationship with her drug
dealer, Kevin Hershman. On July 23, 2010, Augustine and an acquaintance, Tammy
Rocha, drove to Hershman's residence in Lincoln, Nebraska. At trial Hershman
testified that their meeting ended abruptly when Augustine fled after stealing from
Hershman’s car a bag containing valuable items. Hershman sent text messages to
Augustine concerning the theft, and he and Rocha reported the theft to the Lincoln
police. Hershman and Rocha then drove to Belt and Augustine's trailer in Pacific
Junction, after which they went to the Mills County Sheriff's Office and made largely
corroborative statements to the police regarding the theft. They both also stated that
Augustine's car dragged Rocha down the street as Augustine drove away with
Hershman's bag. In her statement, Rocha alleged that Augustine drove to Hershman's
residence that day intending to consume illegal narcotics, that Augustine accused
Rocha of stealing Augustine's key to a gun safe in Augustine and Belt's residence, and
that Belt kept a hunting rifle in a closet near their bed. Rocha also stated that the
stolen bag contained illegal narcotics, and in addition she made statements concerning
her own drug use.
Mills County Sheriff's Deputy Joshua England thereafter surveilled Augustine
and Belt's residence, observing an individual enter and then leave the trailer. A traffic
stop and subsequent arrest of that individual revealed possession of marijuana and
methamphetamine. Based on that arrest and on Hershman's and Rocha's statements,
Deputy Denise Jens applied for and obtained a warrant to search the residence.
Upon executing the warrant that same day, police observed that Augustine
appeared to be sleeping on a couch in the living room and that Belt appeared to be
walking toward a shotgun that was also in the living room not far from Augustine. In
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addition to that shotgun, the search revealed five firearms in a locked gun safe located
in their bedroom. The deputies also found marijuana in the gun safe, ammunition on
the bedroom floor, and drug paraphernalia on a living room coffee table. The deputies
also recovered from the coffee table a key chain that included a key to the gun safe.
After receiving a warning pursuant to Miranda v. Arizona, 384 U.S. 436 (1966),
Augustine advised Deputy England that she owned all the marijuana in the trailer and
that Belt had placed the shotgun by the door because of safety concerns stemming
from Hershman's texts to Augustine.
At trial Augustine testified that she did not have access to the locked gun safe.
Belt testified that he kept the gun safe locked, but he also testified that he kept his key
to the gun safe in an unlocked dresser in their bedroom. Further, Hershman testified
at trial that he once stole a key to Belt's gun safe from Augustine's key chain.
In the weeks following her arrest, Augustine left a series of irate and profane
voice messages with the Sheriff's Office. Many of those messages pertained to a key
to the gun safe that Augustine alleged was in the possession of the Sheriff's Office.
In those messages she repeatedly used language indicating that she and Belt jointly
owned the gun safe.
A federal grand jury returned an indictment against Augustine on October 13,
2010, charging her with being a felon and an unlawful user of a controlled substance
in possession of firearms and ammunition. 18 U.S.C. § 922(g)(1), (3). The grand jury
then returned a superseding indictment on November 16, 2010, adding Belt as a
co-defendant. Augustine moved to suppress the evidence obtained from the search
of the trailer, which the district court denied. The district court also denied a motion
for judgment of acquittal that Augustine made at the close of evidence. After the jury
returned a guilty verdict, the district court denied Augustine's post-trial motions for
judgment of acquittal and for a new trial. The district court then sentenced Augustine
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to twenty-four-months' imprisonment on May 9, 2011, varying downward from the
Guidelines range of forty-six to fifty-seven months.
II. Analysis
a. The Evidentiary Rulings
Augustine first argues that the search warrant lacked probable cause and that
the district court therefore erred when it denied her motion to suppress the fruits of the
search conducted pursuant to that warrant. "On appeal of the grant or denial of a
motion to suppress, we review the district court's historical factual findings for clear
error and its conclusions of law on the probable cause issue de novo." United States
v. Wells, 223 F.3d 835, 838 (8th Cir. 2000). "Our role is to ensure that the evidence
as a whole provides a substantial basis for finding probable cause to support the
issuance of the search warrant." United States v. Terry, 305 F.3d 818, 822 (8th Cir.
2002). "For probable cause to be shown, the warrant application and affidavit must
describe circumstances showing that, based on practical experience and common
sense, there is a fair probability that contraband or similar evidence will be found in
the targeted place." United States v. Nguyen, 526 F.3d 1129, 1133 (8th Cir. 2008).
"When reviewing the sufficiency of an affidavit to support probable cause, we
consider the 'totality of the circumstances.'" United States v. Searcy, 181 F.3d 975,
981 (8th Cir. 1999) (quoting United States v. Wright, 145 F.3d 972, 975 (8th Cir.
1998)).
The search warrant application in this case supports a finding of probable cause.
As the district court noted, Rocha's and Hershman's statements largely corroborate
each other. Consistent with Rocha's statement that the stolen bag contained illegal
narcotics, Deputy England found both marijuana and methamphetamine on an
individual after that person left Augustine's residence. Further, Rocha alleged that she
had seen narcotics and firearms in the trailer on prior occasions. Finally, Rocha made
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statements against her own penal interest when she told law enforcement about her
own drug use, further establishing her credibility. United States v. Tyler, 238 F.3d
1036, 1039 (8th Cir. 2001). The district court properly denied Augustine's
suppression motion.
Next, Augustine argues that the district court erred when it admitted into
evidence some of the voice messages that Augustine left with the Sheriff's Office.
Specifically, Augustine argues that those pieces of evidence were unfairly prejudicial
under Fed. R. Evid. 403. "'A district court enjoys wide discretion in ruling on the
admissibility of proffered evidence, and evidentiary rulings should only be overturned
if there was a clear and prejudicial abuse of discretion.'" Vasquez v. Colores, 648
F.3d 648, 652 (8th Cir. 2011) (quoting Bady v. Murphy-Kjos, 628 F.3d 1000,
1002–03 (8th Cir. 2011)). Rule 403 does not exclude all prejudicial evidence but only
"protects against evidence that is unfairly prejudicial, that is, if it tends to suggest
decision on an improper basis." Wade v. Haynes, 663 F.2d 778, 783 (8th Cir. 1981).
While the voice messages are probative of Augustine's ability to exercise
dominion and control over Belt's firearms—in those messages she at times refers to
the gun safe as "our" gun safe—Augustine argues that the inflammatory language she
used in those messages unfairly prejudiced the jury against her. While Augustine's
language and tone in the voice messages may have had a prejudicial effect, the district
court mitigated any such prejudice by admitting some but not all of the voice
messages. "Given that under Rule 403 the general rule is that the balance should be
struck in favor of admission, and that we must give great deference to the trial judge
who saw and heard the evidence, we cannot say that the trial court abused its
discretion in admitting" the recordings. United States v. Levine, 477 F.3d 596, 603
(8th Cir. 2007) (citations and marks omitted).
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b. The District Court's Denial of Augustine's Motions for Judgment
of Acquittal and for a New Trial
Augustine next argues that the district court erred in denying her motion for
judgment of acquittal, challenging the sufficiency of the evidence. "'In reviewing the
sufficiency of the evidence to support a guilty verdict, we look at the evidence in the
light most favorable to the verdict and accept as established all reasonable inferences
supporting the verdict.'" United States v. Campa-Fabela, 210 F.3d 837, 839 (8th Cir.
2000) (quoting United States v. Davis, 154 F.3d 772, 786 (8th Cir. 1998)). While
"[t]his Court reviews de novo a district court's denial of a motion for judgment of
acquittal," United States v. Renner, 648 F.3d 680, 688 (8th Cir. 2011), "[w]e review
a challenge to the sufficiency of the evidence deferentially . . . and affirm if any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt." United States v. Goodyke, 639 F.3d 869, 872 (8th Cir. 2011).
The only contested element of the charged offense is whether Augustine
constructively possessed a firearm or ammunition. "'Constructive possession of the
firearm is established if the person has dominion over the premises where the firearm
is located, or control, ownership, or dominion over the firearm itself.' Constructive
possession can also be established 'by a showing that the firearm was seized at the
defendant's residence.'" United States v. Abdul-Aziz, 486 F.3d 471, 477 (8th Cir.
2007) (quoting United States v. Boykin, 986 F.2d 270, 274 (8th Cir. 1993)).
Augustine points to evidence showing that she never had access to Belt's
firearms because they were locked in the gun safe. In addition, Augustine attempts
to diminish the import of evidence indicating that she did in fact enjoy dominion and
control over those firearms. She characterizes her voice messages indicating that she
and Belt jointly owned the gun safe as "sloppy statements during rants." She argues
that her mere proximity to the shotgun in the living room does not establish the
knowing ability to exercise dominion and control over the firearm. And she argues
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that Hershman lacks sufficient knowledge to state that the key chain from which he
took the key belonged to Augustine.
In essence, Augustine urges this Court to make witness assessments and
credibility determinations that are contrary to those the jury made, which is exactly
what this Court cannot do. "We do not weigh the evidence or assess the credibility
of the witnesses. The jury has the responsibility of resolving conflicts or
contradictions in testimony, and we resolve any credibility issues in favor of the
verdict." United States v. Ali, 616 F.3d 745, 755 (8th Cir. 2010). The jury heard
evidence that Augustine possessed a key to the gun safe, that her marijuana was kept
in the gun safe, and that the police found a shotgun close to her in the trailer's living
room. Indeed, the jury heard Augustine herself refer to the gun safe as if she were its
owner. Moreover, her statement to police that Belt had placed the shotgun in the
living room out of safety concerns suggests that before law enforcement arrived, she
knew that the gun was in the room with her. Based on this evidence and the
inferences it supports, we cannot say that the jury's verdict lacked support beyond a
reasonable doubt. The district court committed no error in denying Augustine's
motion for judgment of acquittal.
As to Augustine's motion for a new trial, it was "the district court's task to
weigh the evidence and evaluate the witnesses' credibility to determine if a
miscarriage of justice may have occurred." United States v. Devries, 630 F.3d 1130,
1132 (8th Cir. 2011). We review the district court's ruling for abuse of discretion. Id.
Here, the record does not reveal—nor can Augustine identify—any miscarriage of
justice. Accordingly, we affirm.
c. The Sentence
First, Augustine challenges the district court's application of a two-level
enhancement for possession of three to seven firearms pursuant to U.S. Sentencing
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Guidelines Manual § 2K2.1(b)(1)(A) (2009). "'This court reviews the district court's
construction and application of the Sentencing Guidelines de novo, and we review its
factual findings regarding enhancements for clear error.'" United States v. Jackson,
639 F.3d 479, 482 (8th Cir. 2011) (quoting United States v. Bastian, 603 F.3d 460,
465 (8th Cir. 2010)). "'Only if we have a definite and firm conviction that a mistake
has been made' will we reverse the sentencing court's factual findings," which need
only be made by a preponderance of the evidence. United States Branch, 591 F.3d
602, 611 (8th Cir. 2009) (quoting United States v. Garcia, 512 F.3d 1004, 1005 (8th
Cir. 2008)).
Augustine argues that she did not have access to Belt's gun safe, pointing to
Belt's testimony to that effect. Further, Augustine attacks Hershman's testimony—that
Augustine in fact possessed a key to the safe—by highlighting Hershman's criminal
record and motive to lie. Again, however, such credibility determinations are not for
this Court to make. United States v. Garcia, 512 F.3d 1004, 1006 (8th Cir. 2008).
Because the district court saw sufficient evidence to support by a preponderance of
the evidence its finding that Augustine enjoyed access to the gun safe and therefore
possessed multiple firearms, we affirm the district court's application of the sentencing
enhancement.
Second, Augustine argues that the district court erred in denying a downward
departure based on an over-represented criminal history. "We have no authority,
however, to review the district court's denial of Defendant's request for a downward
departure because Defendant does not argue that the district court had an
unconstitutional motive in denying [her] request and because the district court
recognized that it had the authority to depart downward." United States v. Butler, 594
F.3d 955, 966–967 (8th Cir. 2010). Accordingly, we may not revisit the district
court's decision.
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Finally, Augustine argues that the district court's denial of her motion for a
variance to a sentence of probation was "simply unreasonable." We review the
"'substantive reasonableness of the sentence imposed under an abuse-of-discretion
standard . . . , tak[ing] into account the totality of the circumstances, including the
extent of any variance from the Guidelines range.'" United States v. Hill, 552 F.3d
686, 690 (8th Cir. 2009) (alterations in original) (quoting Gall v. United States, 552
U.S. 38, 51 (2007)). In support of her argument, Augustine points to her efforts at
rehabilitation, her mental health and substance abuse problems, and her performance
on pretrial release. The district court carefully weighed those circumstances, as well
as the unusual nature of the crime, against Augustine's criminal history, concluding
that a sentence of probation would be "inappropriate." Based on the record, we cannot
conclude that the challenged, below-Guidelines sentence is substantively
unreasonable. See United States v. Kane, 639 F.3d 1121, 1136 (8th Cir. 2011)
("'[S]ubstantive review exists, in substantial part, to correct sentences that are based
on unreasonable weighing decisions.'" (quoting United States v. Irey, 612 F.3d 1160,
1194 (11th Cir. 2010))). The district court did not abuse its discretion when it denied
Augustine's motion and instead imposed a sentence of twenty-four months—a
sentence that already represents a twenty-two-month downward variance from the
Guidelines range's low end. See United States v. Cunningham, 593 F.3d 726, 733 (8th
Cir. 2010).
III. Conclusion
We affirm the decision of the district court.
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