United States v. Usry

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 95-60218
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

BARTO EDWARD USRY, JR.,

Defendant-Appellant.

Appeal from the United States District Court
For the Southern District of Mississippi
(3:94cr123WN)
(October 23, 1995)

Before THORNBERRY, JOLLY and BENAVIDES, Circuit Judges.
PER CURIAM:*
Appellant Barto Usry appeals his conviction for possession of

a firearm by a felon. We affirm.

BACKGROUND

Officer Rozerrio Camel of the City of Jackson, Mississippi,

*
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
Police Department testified that, on the afternoon of September 15,

1994, while patrolling his usual beat, he spotted a blue and white

pickup truck with no license plate. When the pickup stopped at a

red light with Camel's car behind it, Camel observed that the

driver "began to look around like he was nervous . . . just unusual

movement. He was jumping around. And he leaned forward." After

Camel stopped the truck, the driver identified himself as Barto

Usry, but said he had no driver's license or other identification.

Camel placed Usry under arrest, conducted a pat-down for weapons,

and seated him in his patrol car. A check of the truck's

identification number indicated the vehicle was not stolen, but

belonged to someone other than Usry. Camel then began an inventory

of the truck's contents and found a loaded Colt .357 Magnum handgun

under the driver's seat. When Camel confronted Usry with the gun,

Usry "stated . . . that he was a convicted felon and he would be a

fool if he was caught with a gun." At some point Usry was released

on bond.

On October 19, 1994, Usry voluntarily went to the office of

Special Agent Ted G. Stratakos of the Bureau of Alcohol, Tobacco

and Firearms, who was investigating a different incident.

Stratakos testified that, during this meeting, Usry admitted

commission of the instant offense. According to Stratakos, Usry

told him that on the day he was stopped by Camel, "he was on his

way to deliver one eighth of an ounce of crystal methamphetamine .

. .." He also told Stratakos

that while he was driving the truck, he had a revolver,
a 357 revolver tucked in the waistband of his pants. He

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 said that while he was being stopped, he reached into his
pants and he even gestures -- showed me how he reached
into his pants and put this revolver under the driver's
seat. . . . And he told me that he told the officer the
gun was in the car because he felt it was inevitable that
the officer would find it.

After Usry was convicted by a jury of the instant offense the

court assessed a 295 month sentence, five years supervised release,

a $5,000 fine, and a $50.00 special assessment. He raises several

challenges to his conviction and sentence, including sufficiency of

the evidence to support the conviction.

SUFFICIENCY OF EVIDENCE

Usry argues the evidence was insufficient to support his

conviction because the Government failed to establish a connection

between himself and the .357 revolver, and therefore, his motion

for judgment of acquittal should have been granted. We disagree.

In a analyzing an insufficiency claim this Court, viewing the

evidence in the light most favorable to the verdict, affords the

Government the benefit of all reasonable inferences and credibility

choices. United States v. Nixon, 816 F.2d 1022, 1029 (5th Cir.

1987), cert. denied, 484 U.S. 1026 (1988). It is not necessary for

the evidence to exclude every reasonable hypothesis of innocence,

or be inconsistent with every conclusion except that of guilt, so

long as a reasonable trier of fact could find the evidence

establishes guilt beyond a reasonable doubt, and the jury may

choose among reasonable constructions of the evidence. United

States v. Bell, 678 F.2d 547, 549 (5th Cir. 1982) (en banc), aff'd,

462 U.S. 356 (1983).

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 To support a conviction for unlawful possession of a firearm

by a convicted felon, the Government must prove the defendant had

a prior felony conviction, knowingly possessed a firearm, and the

firearm traveled in or affected interstate commerce. 18 U.S.C.

§ 922(g); United States v. Wright, 24 F.3d 732, 734 (5th Cir.

1994). Possession may be actual or constructive, Id. at 734.

Constructive possession is defined as ownership, dominion or

control over the premises or vehicle in which the contraband is

concealed, and a fact-specific approach is applied to determine

whether the firearm was constructively possessed. Id. at 734-35.

Usry challenges the government's proof of the second element, viz:

that he knew there was a handgun in the car he was driving.

In addition to the facts recited above, the jury heard the

following additional evidence. Officer Camel testified that the

.357 revolver was pushed up under the seat of the truck in a place

close enough to the driver's seat so that Usry would have had easy

access to the gun or could have placed it there. Special Agent

Stratakos testified that Usry told Camel "the gun was in the car

because he felt it was inevitable that the officer would find it."

Stratakos further stated that Usry informed him that two women

named Brenda and Pam had given him the revolver for an eighth of an

ounce of methamphetamine, and told him that the gun was stolen from

a highway patrolman.

Usry argues that because his fingerprints were not on the

revolver and because he was not the owner of the truck, the

evidence was insufficient to show knowing possession, relying on

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United States v. Blue, 957 F.2d 106 (4th Cir. 1992). In Blue, the

court found the evidence insufficient because there were no

fingerprints or any other physical evidence to show the defendant

knowingly possessed the firearm. Id. at 108. However, Blue is

distinguishable from the instant case because here, Stratakos'

testimony that Usry admitted possessing the revolver showed that he

knowingly possessed the firearm. The jury was free to believe

Stratakos' testimony. Bell, 678 F.2d at 549. Viewed in the light

most favorable to the verdict, the evidence was sufficient to

support the conviction.

EXTRINSIC OFFENSES

Prior to trial Usry filed a motion in limine attempting to

exclude Stratakos' testimony regarding Usry's involvement in

narcotics transactions before and after his arrest as prejudicial

and irrelevant under FED. R. EVID. 403. He specifically complained

of the following acts of misconduct related by Stratakos: that Usry

was on his way to deliver drugs when stopped; that he had acquired

the allegedly stolen revolver from two women; and that he had

ingested methamphetamine while in the back of Camel's car and

remained "wired" for three days afterward. The district court

denied the motion, but counsel renewed the objection to this line

of testimony when Stratakos began testifying that Usry was on his

way to deliver methamphetamine when Camel stopped him. The court

referenced its prior ruling but did not state reasons for the

denial. Usry now reurges his Rule 403 complaint, but also argues

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for the first time on appeal that the evidence was precluded under

FED. R. EVID. 404(b). Because he did not argue application of Rule

404(b) before the district court, these contentions will be

reviewed under a plain error standard of review.

A reviewing court will reverse a district court's ruling on

admissibility of evidence only if it was an abuse of discretion.

United States v. Eakes, 783 F.2d 499, 506-07 (5th Cir.), cert.

denied, 477 U.S. 906 (1986). In order to preserve a challenge to

the admission of evidence after the denial of a motion in limine,

an objection must be made or renewed at trial contemporaneously

with presentation of the challenged evidence. United States v.

Graves, 5 F.3d 1546, 1551-52 (5th Cir. 1993), cert. denied, 114

S.Ct. 1829 (1994).1

This court will correct plain forfeited errors only when the

appellant shows that there is an error, that is clear or obvious,

which affects his substantial rights. United States v. Calverly,

37 F.3d 160, 162-64 (5th Cir. 1994) (en banc) (citing United States

v. Olano, U.S. , 113 S.Ct. 1770, 1776-79 (1993)), cert.

denied, 115 S.Ct. 1266 (1995). Parties are required to challenge

1
Although counsel renewed his objection to Stratakos'
testimony that Usry was delivering methamphetamine when stopped, he
did not ask for a running objection, or continue to object either
when Stratakos testified regarding the acquisition of the gun, or
when he related the tale of how Usry had ingested the drug while in
Camel's car, and which caused him to be "wired for two or three
days" after his arrest and incarceration. Since these incidents
were arguably separate and distinct extrinsic offenses, and because
counsel did not object as the evidence unfolded at trial, his Rule
403 complaint regarding this evidence will also be reviewed under
the plain error standard. Graves, 5 F.3d at 1552.

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errors in the district court, and when a criminal defendant fails

to object, thereby forfeiting the error, this Court may remedy the

error only in the most exceptional case. Calverly, 37 F.3d at 162.

Usry argues that, under Fed. R. Evid. 404(b), Stratakos'

testimony concerning his involvement with narcotics was extrinsic

to the offense of possession of a firearm. Alternatively, he

argues that, if the evidence was not extrinsic, its admission was

unfairly prejudicial because it allowed the Government to portray

him as an armed narcotics dealer. Rule 404(b) precludes admission

of

[e]vidence of other crimes, wrong or acts . . . to prove
the character of a person in order to show action in
conformity therewith. It may, however, be admissible for
other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or
absence of mistake or accident . . ..

An inherent danger in admission of "other acts" evidence is that a

jury might convict the defendant not of the charged offense, but of

the extrinsic offense. United States v. Ridlehuber, 11 F.3d 516,

521 (5th Cir. 1993); United States v. Beechum, 582 F.2d 898, 914

(5th Cir. 1978), cert. denied, 440 U.S. 920 (1979). Even if

relevant, the probative value of extrinsic act evidence must be

weighed against its prejudicial impact. Ibid.

In order to be admissible under Rule 404(b), uncharged

misconduct evidence must be relevant to an issue other than the

defendant's character, must possess probative value which is not

outweighed by undue prejudice, and must satisfy the other

requirements of Rule 403. United States v. Bentley-Smith, 2 F.3d

1368, 1377 (5th Cir. 1993). With the above principles in mind, we

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turn to analysis of the complained of acts in the instant case.

Stratakos' testimony that Usry was en route to deliver drugs

when stopped and his acquisition of the handgun through a trade was

arguably relevant to show knowledge, an element which the

Government must prove in a prosecution for possession of a firearm

by a felon. See Wright, 24 F.3d at 734. As such, the testimony was

not relevant solely as character evidence. See Ridlehuber, 11 F.3d

at 521. Rule 404(b) therefore, did not preclude admission of the

testimony. However, our analysis does not stop here.

Rule 403 provides that, "[a]lthough relevant, evidence may be

excluded if its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading

the jury . . .." (emphasis added). This Court is reluctant to

exclude evidence under Rule 403 because all relevant evidence is by

its nature inherently prejudicial to the defendant. Only unfair

prejudice which substantially outweighs probative value permits

exclusion of relevant evidence under Rule 403. United States v.

Pace, 10 F.3d 1106, 1115-16 (5th Cir. 1993), cert. denied, 114

S.Ct. 2180 (1994).

The testimony that Usry obtained the gun through a trade, and

that he was on his way to deliver drugs was probative of Usry's

knowing possession of a firearm, and therefore relevant because it

tended to "make the existence of any fact that is of consequence to

the determination of the action more probable . . . than it would

without the evidence." FED. R. EVID. 401. The evidence was also

prejudicial because distribution of methamphetamine "is the kind of

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offense for which the jury may feel the defendant should be

punished regardless of whether he is guilty of the charged

offense." Ridlehuber, 11 F.3d at 523. Nevertheless, even though

no limiting instruction was given, the prejudicial nature of this

evidence was mitigated in part by the weight of the unchallenged

evidence supporting Usry's conviction. This evidence included

Usry's statement to Stratakos that he had the revolver on his

person when Camel stopped him, as well as Camel's testimony that

the gun was well within Usry's reach inside the truck. Under these

circumstances the prejudicial nature of the evidence did not

substantially outweigh its probative value. Thus, there was no

error, plain or otherwise in its admission.

Stratakos' testimony regarding Usry's possession and ingestion

of methamphetamine after his arrest, however, is a different

matter. Stratakos was permitted to testify as follows:

He said that while he was in the back of the patrol car
that he had a small packet with approximately one gram of
crystal methamphetamine in it and that he tossed it on
the patrol car floor; that he still had the one eighth
ounce of crystal methamphetamine on his person. He told
me that when they transported him to the city jail and he
was being booked, he had the opportunity to take that bag
and put it in his mouth. And he began trying to swallow
the drug. He told me that he swallowed a major portion
of the drug and even joked about the fact that he stayed
wired for two or three days afterward because the drug
was in his system.

This testimony had absolutely no relevance to any issue in the

case, as the Government had no need of this incident to prove any

element of the offense, nor was it "inextricably intertwined" with

the crime. Indeed, this evidence was, by its very nature, the type

of character evidence that Rule 404(b) was meant to exclude.

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Evidence of drug trafficking, as stated previously is extremely

inflammatory and prejudicial, as it may cause the jury to convict

based solely on the extrinsic evidence. Ridlehuber, 11 F.3d at

523. The district court should not have allowed this testimony.

However, a review of the record indicates its admission did not

affect Usry's substantial rights and thus, no plain error resulted.

See Calverly, 37 F.3d at 164.

DENIAL OF CAUTIONARY INSTRUCTION

At the close of the evidence, the trial judge refused Usry's

requested instruction which stated as follows:

There is proper concern about the stipulation to the fact
that the defendant has a felony conviction. Many persons
are convicted felons. Simply because the defendant has
a felony conviction does not mean that he committed the
crime charged.

Usry argues this instruction was necessary to overcome the inherent

bias of his status as a convicted felon.

The district court has wide latitude in formulating the jury

charge, and refusal to give a requested instruction is reviewed for

an abuse of discretion. United States v. Aggarwal, 17 F.3d 737,

745 (5th Cir. 1994). This Court will reverse only if the requested

instruction was substantially correct, was not substantially

covered in the charge actually delivered to the jury, and concerns

an important point such that failure to give it seriously impaired

the defendant's ability to effectively present his defense. Ibid.

The court instructed the jury that the stipulation between the

parties "is not and was not admitted as proof concerning the

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question of whether or not the defendant knowingly possessed a

firearm which affected interstate commerce." Further, "The fact

that the defendant has a felony conviction cannot in and of itself

infer that the defendant knowingly possessed a firearm which

affected interstate commerce." Jurors were also instructed that

they were required to find "evidence independent of the

stipulation" to prove the crime charged. Since Usry's requested

instruction was comprehensively covered in the charge given the

jury, the refusal to deliver the proposed instruction did not

seriously impair his ability to present a defense. See Aggarwal,

17 F.3d at 745. Consequently, the district court did not abuse its

discretion in denying the requested instruction.

SENTENCING

Usry argues the district court erred in denying him a

reduction for acceptance of responsibility and in applying the

armed career criminal provision in calculating his sentence. The

district court's application and interpretation of the Sentencing

Guidelines are reviewed de novo, while its findings of fact are

reviewed for clear error. United States v. Hill, 42 F.3d 914, 916

(5th Cir. 1995), cert. petition filed, June 5, 1995. A sentence

will be vacated only if it was imposed in violation of law, if the

guidelines were improperly applied, or if the sentence is outside

the guidelines and is unreasonable. United States v. Parks, 924

F.2d 68, 71 (5th Cir. 1991).

Usry argues that the district court should have granted him a

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reduction for acceptance of responsibility under U.S.S.G.

§ 3E1.1(a) because he admitted to Agent Stratakos that he possessed

the firearm. § 3E1.1(a) authorizes the district court to decrease

the offense level by two levels if "the defendant clearly

demonstrates acceptance of responsibility for his offense[.]" The

commentary accompanying § 3E1.1 states that conviction after a

trial as opposed to a guilty plea does not automatically preclude

consideration for the reduction, but in certain circumstances a

defendant may qualify for the adjustment based on pre-trial

statements and conduct. § 3E1.1, note 2. If a defendant "falsely

denies or frivolously contests, relevant conduct that the court

determines to be true [he] has acted in a manner inconsistent with

acceptance of responsibility." § 3E1.1, note 1(a).

Consistent with note 5 of § 3E1.1, we have agreed that because

the sentencing judge is in a unique position to evaluate the

defendant's acceptance of responsibility, the court's determination

must be afforded great deference on review. United States v.

Franks, 46 F.3d 402, 405 (5th Cir. 1995). This Court has applied

various standards of review of a district court's refusal to credit

acceptance of responsibility: "clearly erroneous," "without

foundation," and "great deference." Id. at 406. There appears to

be no practical difference between these standards. Ibid. However,

we have held the standard is even more deferential than a pure

clearly erroneous standard. United States v. Maldonado, 42 F.3d

906, 913 (5th Cir. 1995).

Although Usry orally confessed to Stratakos, he also

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challenged the fact that he made the statement and the content of

the statement during trial and sentencing. The adjustment for

acceptance of responsibility does not "apply to a defendant who

puts the government to its burden of proof at trial by denying

essential factual elements of guilt, is convicted, and only then

admits guilt and expresses remorse." § 3E1.1. A defendant's

attempt to minimize or deny involvement in an offense supports a

court's refusal to grant a reduction for acceptance of

responsibility. United States v. Watson, 988 F.2d 544, 551 (5th

Cir. 1993), cert. denied, 114 S.Ct. 698 (1994). Usry has not met

his burden of showing the district court abused its discretion in

denying the reduction.

Finally, Usry complains the district court erred in enhancing

his sentence because he was an armed career criminal under U.S.S.G.

§ 4B1.4(b)(3)(A). The Presentence Report ("PSR") included a

finding that the enhancement applied and the district court

agreed.2 A defendant may be subject to the enhancement under 18

U.S.C. § 924(e) if he was convicted of being a felon in possession

of a firearm, 18 U.S.C. § 922(g), and he had at least three prior

violent felony convictions. § 4B1.4, comment (n.1). The PSR

stated that Usry qualified as a violent felony offender because he

had three prior convictions for armed robbery and was delivering

methamphetamine when arrested for possessing the .357 revolver.

2
Usry challenges this finding by the district court for the
first time on appeal. Therefore, his complaint is reviewed only
for plain error. See United States v. Brunson, 915 F.2d 942, 944
(5th Cir. 1990), overruled on other grounds, Calverly, 37 F.3d at
163-64, n.27.

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Added to the other adjustments, this enhancement resulted in a

total offense level of 34 and a criminal history category of six,

with a sentencing range of 262 to 327 months.

Usry's complaint regarding the enhancement is twofold. First,

he argues that because the district court found he was only in

possession of the methamphetamine during commission of the offense

the enhancement did not apply. Second, he asserts the court should

not have applied the enhancement because being a felon in

possession of a firearm is not a crime of violence, relying on

Stinson v. United States, 113 S.Ct. 1913 (1993). This latter

contention is unavailing because Usry's enhancement was due to his

involvement with narcotics and not because his was a crime of

violence.3

The court at sentencing found that Usry had a base level

offense of 24 because he was convicted of violating § 922(g) and

had at least two prior felony convictions for crimes of violence.

U.S.S.G. § 2K2.1(a)(2). The base offense level was raised to level

28 because Usry possessed a firearm in connection with another

felony offense, namely possession of a controlled substance.

U.S.S.G. § 2K2.1(b)(5). The court further found that because Usry

had three violent felony convictions, pursuant to § 924(e)(1) and

§ 4B1.4(b)(3)(A) he was deemed to be an armed career criminal,

further raising the offense level by four additional levels.

3
Usry was not sentenced under § 4B1.1 (Nov. 1989), the
career-offender guideline provision interpreted in Stinson. The
commentary to the 1994 version of § 4B1.2 contains a definition of
"crime of violence" which specifically excludes unlawful possession
of a firearm by a felon. § 4B1.2 (comment, note 2).

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 § 4B1.4(b)(3)(A) provides in part that the offense level is 34

"if the defendant used or possessed the firearm . . . in connection

with a crime of violence or a controlled substance offense, as

defined in §4B1.2(1), . . .." Usry contends that his offense does

not fit the definition of this section, which defines "controlled

substance offense" as "an offense under a federal or state law

prohibiting the manufacture, import, export, distribution, or

dispensing of a controlled substance . . . or the possession of a

controlled substance . . . with intent to manufacture, import,

export, distribute, or dispense." § 4B1.2(1) (emphasis added).

Since the PSR found him to be in possession of methamphetamine with

intent to distribute the drug, and the district court followed the

PSR in sentencing him, the offense adequately fit the definition

provided in § 4b1.2(1). Thus, there was no plain error in the

district court's application of the guidelines.

CONCLUSION

We find no merit to any of Usry's contentions. Therefore, the

judgment and sentence are

AFFIRMED.

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