USA v. Xavier Sims

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11966
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
XAVIER SIMS,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 5:20-cr-00055-JA-PRL-1
____________________
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2 Opinion of the Court 21-11966
Before N EWSOM , GRANT, and H ULL , Circuit Judges.
PER CURIAM:
After a jury trial, Xavier Sims appeals his conviction for
possession by a convicted felon of a firearm or ammunition in or
affecting interstate commerce, in violation of 18 U.S.C. § 922(g)(1).
Sims argues that the district court abused its discretion by allowing
the government to introduce evidence of a shooting that occurred
minutes before and in close proximity to his gun possession. Sims
contends the district court violated Federal Rules of Evidence 401,
403, and 404(b). Sims further contends that his conviction under
§ 922(g) plainly violates the Commerce Clause. After review, we
affirm.
I. BACKGROUND
Because Sims claims the district court erred in certain
evidentiary rulings, we review the history of the case and the
relevant trial testimony.
On the evening of February 2, 2020, Tamara McDonald was
at home with her three children and a man she had recently begun
dating. Sims is McDonald’s ex-boyfriend and the three children’s
father. Sims arrived at McDonald’s home to pick up their eldest
child for an overnight visit at Sims’s house.
Soon after Sims drove away with their child, McDonald
received a phone call from Sims during which he asked who was at
her house. McDonald refused to answer. Soon after that call
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21-11966 Opinion of the Court 3
ended, McDonald called Sims back, and Sims told her, “Tamara,
either that dude gonna come outside or I’m going to shoot your
house up.” McDonald hung up the phone. But, worried about her
child who was with Sims, McDonald called Sims back. Sims stated
that after he dropped their eldest child off, he was coming back to
her home. Sims also repeated his earlier threat.
After that third phone call ended, McDonald put her other
two children in the car and drove to Sims’s house to get her eldest
child. When McDonald arrived at Sims’s house, Sims was not
there. McDonald honked her car’s horn, and the eldest child ran
out to her car.
Now with all three children in her car, McDonald drove to
a gas station and called 911 around 9:00 p.m. Sims pulled up next
to her at the gas station in a silver Dodge Neon, which belonged to
Sims’s new girlfriend. McDonald drove away, and Sims followed
her for a while. When Sims eventually stopped following her,
McDonald pulled over on the side of the road to wait for a
responding officer.
When Marion County Sheriff’s Deputy Devin Burgoyne
arrived, McDonald called Sims and put the phone on speaker so
that Deputy Burgoyne could hear their conversation. McDonald
asked Sims about threatening to shoot up her home. Sims did not
deny that he made such threats.
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4 Opinion of the Court 21-11966
After speaking with Deputy Burgoyne and showing him
where Sims lived, McDonald drove home. She and her three
children went to sleep.
Around 1:00 a.m., McDonald heard gunshots and bullets
hitting her home. She immediately called 911 and told the 911
operator she thought Sims was shooting at her house, although she
did not look outside to see what was going on or who shot at her
home. A be-on-the-lookout alert was issued for the Dodge Neon
that Sims was driving.
Thirteen minutes after McDonald heard gunshots and called
911, Marion County Sheriff’s Corporal Colton Sullivan spotted a
Dodge Neon headed away from McDonald’s home. Corporal
Sullivan stopped the vehicle at a gas station. Then, Corporal
Sullivan drew his gun, ordered Sims to get out of the vehicle with
his hands up, searched Sims for weapons, and waited for backup
officers to arrive. After backup arrived, the officers searched the
vehicle. They found a .40-caliber Glock handgun, two magazine
clips, and ten spent casings in the trunk. The officers arrested Sims.
Sims was charged with one count of being a felon in
possession of a firearm and ammunition, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). Sims pleaded not guilty.
Sims filed a motion in limine to exclude evidence of the
shooting at McDonald’s home under Federal Rules of Evidence
401, 403, and 404(b). Sims argued that the fact a shooting happened
at McDonald’s home did not make his possession of a firearm more
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21-11966 Opinion of the Court 5
or less probable, and there was scant evidence to link the two
events. Alternatively, Sims contended that the evidence would
cause unfair prejudice, confuse the issues, mislead the jury, waste
time, needlessly present cumulative evidence, or cause undue
delay. Lastly, Sims argued that the evidence was of a prior bad act
that could cause the jury to convict him because they were
outraged that he shot at McDonald’s home.
The government responded that, because the gun was
found in the trunk of the vehicle Sims was driving, circumstantial
evidence was needed to prove that he constructively possessed the
firearm. The government argued that the evidence of the shooting
was admissible because (1) it was a relevant part of the “chain of
events” that concluded with Sims’s arrest; (2) it was not extrinsic
evidence under Rule 404(b) and was not being offered to prove that
Sims is a bad person; (3) it would tend to prove that Sims had
motive to possess the firearm, had the opportunity and intent to do
so, planned to do so, and that it was no mistake or accident that
Sims was found in the vehicle with the gun; and (4) thus the
probative value of the evidence was extremely high and not
outweighed by any of the Rule 403 concerns.
The district court held a hearing to address Sims’s motion in
limine. After hearing argument from both parties, the district court
found that the evidence of the shooting and events leading up to it
were relevant and not outweighed by the danger of unfair
prejudice. The district court, however, advised counsel to proceed
with caution in order to avoid a Rule 403 or Rule 404(b) issue. The
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6 Opinion of the Court 21-11966
district court later issued an order denying Sims’s motion in limine
for the reasons stated in open court.
During Sims’s trial, the government called Special Agent
Justin Mace of the Bureau of Alcohol, Tobacco, and Firearms to
testify. Special Agent Mace testified that the firearm found in the
trunk of the vehicle Sims was driving was manufactured in Austria
and imported into Georgia. He further testified that the
ammunition was manufactured in Illinois.
After both parties rested and presented their closing
arguments, the district court issued a limiting instruction to the
jury. The court instructed the jury not to consider any prior acts
evidence to decide whether Sims engaged in the activity alleged in
the indictment, and rather, to consider it only for the limited
purpose of determining whether Sims had the state of mind, intent,
motive, or opportunity to commit the acts charged in the
indictment.
The jury convicted Sims. The district court sentenced him
to 115 months’ imprisonment followed by 3 years of supervised
release.
II. ADMISSIBILITY OF THE SHOOTING EVIDENCE
On appeal, Sims argues that the evidence of the shooting
should have been excluded (1) as irrelevant under Rule 401, (2) as
a prior bad act offered to show his propensity to commit the crime
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21-11966 Opinion of the Court 7
charged under Rule 404(b), or (3) as unduly prejudicial under Rule
403.1
After careful review of the record, we explain why the
evidence was relevant under Rule 401, was not extrinsic under Rule
404(b), and has significant probative value and was not unduly
prejudicial under Rule 403.
A. Rule 401
Sims argues the evidence of the shooting is irrelevant
because McDonald did not see the shooter during the incident at
her house. We disagree.
The Federal Rules of Evidence define relevant evidence as
evidence that “has any tendency to make a fact more or less
probable,” provided that “the fact is of consequence in determining
the action.” Fed. R. Evid. 401. Generally, relevant evidence is
admissible unless otherwise specified. Fed. R. Evid. 402.
The offense set forth in § 922(g) “entails three distinct
elements: (1) that the defendant was a convicted felon; (2) that the
defendant was in knowing possession of a firearm; and (3) that the
firearm was in or affecting interstate commerce.”
United States v.
Jernigan, 341 F.3d 1273, 1279 (11th Cir. 2003); 18 U.S.C. § 922(g)(1).
The Supreme Court has held that “in a prosecution under 18 U.S.C.
1 We review the admission of evidence under Rules 401, 403, and 404(b) for
abuse of discretion.
United States v. Culver, 598 F.3d 740, 747 (11th Cir. 2010);
United States v. Matthews, 431 F.3d 1296, 1308 (11th Cir. 2005).
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8 Opinion of the Court 21-11966
§ 922(g) and § 924(a)(2), the [g]overnment must prove both that the
defendant knew he possessed a firearm and that he knew he
belonged to the relevant category of persons barred from
possessing a firearm.”
Rehaif v. United States, 588 U.S. __, 139 S.
Ct. 2191, 2200 (2019).
Here, the evidence of the shooting was highly relevant to
show Sims’s knowing possession of the gun in the trunk of the
vehicle that was not owned or leased by him. Corporal Sullivan
spotted Sims driving the silver Dodge Neon only 13 minutes after
McDonald heard gunshots and called 911. Therefore, Sims’s use of
a gun at the shooting “plainly bore on [his] knowledge” that there
was a gun in the trunk of the car just minutes after the shooting.
See Jernigan, 341 F.3d at 1281 (emphasis omitted). By pleading not
guilty to the charges, Sims made knowledge and possession of a
firearm an issue in the case.
See, e.g.,
United States v. Taylor, 417
F.3d 1176, 1182 (11th Cir. 2005) (concluding that the district court
did not abuse its discretion in admitting evidence of the defendant’s
prior possession of a firearm because the defendant’s not guilty plea
in a felon-in-possession case rendered the mens rea element a
material issue that the government was required to prove).
Significantly, the police had found the gun in a vehicle that
Sims did not own. Thus, the shooting evidence was highly
probative of Sims’s knowing possession of the firearm in the trunk.
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21-11966 Opinion of the Court 9
B. Rule 404(b)
Sims argues that the evidence of the shooting is a prior bad
act offered to show his propensity to commit the crime charged.
He claims that the evidence was not relevant to whether he
knowingly possessed the firearm. He contends that the evidence
of the shooting was weak and unsupported by corroboration and
that it was not relevant to any issue aside from his character. We
disagree.
Rule 404(b) prohibits the introduction of evidence of a
crime, wrong, or other act to “prove a person’s character in order
to show that on a particular occasion the person acted in
accordance with the character.” Fed. R. Evid. 404(b)(1). It does,
however, allow such evidence for other purposes, “such as proving
motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.” Fed. R. Evid.
404(b)(2). Further, such evidence is admissible if it is “(1) [of] an
uncharged offense which arose out of the same transaction or
series of transactions as the charged offense, (2) necessary to
complete the story of the crime, or (3) inextricably intertwined
with the evidence regarding the charged offense.”
United States v.
McLean, 138 F.3d 1398, 1403 (11th Cir. 1998) (quotation marks
omitted). “Rule 404(b) is a rule of inclusion,
and accordingly 404(b) evidence, like other relevant evidence,
should not be lightly excluded when it is central to the
prosecution’s case.”
United States v. Kapordelis, 569 F.3d 1291,
1313 (11th Cir. 2009) (cleaned up).
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10 Opinion of the Court 21-11966
Here, the evidence of the shooting was intrinsic. It “was
vital to an understanding of the context of the government’s case
against [Sims] and, therefore, can be said to be ‘inextricably
intertwined’ with the government’s proof of the charged
offense[].”
See McLean, 138 F.3d at 1404. In other words, the
evidence of the shooting provided necessary context to the charged
offense and was properly admitted by the district court.
C. Rule 403
Sims argues that the evidence of the shooting was unduly
prejudicial and should have been excluded on that basis. Sims
contends that the government should have restricted evidence to
matters related to possession of the firearm or offered an edited
version of the shooting. Sims alleges that the government painted
him as a horrible man by describing the shooting at trial. We
disagree.
Relevant evidence “may” be excluded “if its probative value
is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Fed. R. Evid. 403. However, exclusion
under Rule 403 is an extraordinary remedy that courts should
employ “only sparingly since it permits the trial court to exclude
concededly probative evidence.”
United States v. Smith, 459 F.3d
1276, 1295 (11th Cir. 2006).
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21-11966 Opinion of the Court 11
The district court did not abuse its discretion in ruling the
probative value outweighed any prejudice. As explained above,
the evidence of the shooting was highly probative. Importantly,
there was no
unfair prejudice here. Certainly, the evidence of the
shooting was damaging to Sims’s defense. But all relevant
evidence is inherently prejudicial. And Rule 403 does not permit a
court to exclude the government’s evidence simply because it may
hurt the defendant.
See United States v. Terzado-Madruga, 897
F.2d 1099, 1119 (11th Cir. 1990) (“Simply because the evidence is
damaging or prejudicial to a defendant’s case does not
mean . . . that the evidence should be excluded.”). “It is only
unfair
prejudice, substantially outweighing probative value, which
permits exclusion of relevant matter under Rule 403.”
Id.
(alteration adopted). And, to the extent the evidence of the
shooting is arguably unfairly prejudicial, it still does not
substantially outweigh its probative value.
III. COMMERCE CLAUSE
For the first time on appeal, Sims argues that § 922(g) is
unconstitutional under the Commerce Clause and, as a result, his
conviction and sentence are invalid.2 This argument is foreclosed
2 Generally, we review the constitutionality of a statute
de novo, as it is a
question of law.
United States v. Wright, 607 F.3d 708, 715 (11th Cir. 2010).
However, if the issue is raised for the first time on appeal, we review for plain
error only.
Id. Plain error occurs only if (1) there was error, (2) it was plain,
(3) it affected the defendant’s substantial rights, and (4) it seriously affected the
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12 Opinion of the Court 21-11966
by our precedent. As Sims acknowledges, this Court has “clearly
held that § 922(g) is constitutional under the Commerce Clause.”
United States v. Longoria, 874 F.3d 1278, 1283 (11th Cir. 2017)
(citing
United States v. McAllister, 77 F.3d 387, 390 (11th Cir.
1996)).
This Court has also rejected as-applied challenges to
§ 922(g), holding that the government proves a “minimal nexus” to
interstate commerce where it demonstrates that the firearms were
manufactured outside of the state in which the offense took place
and thus, necessarily traveled in interstate commerce.
United
States v. Wright, 607 F.3d 708, 715–16 (11th Cir. 2010). We have
rejected
Lopez challenges to § 922(g), concluding that “[n]othing in
Lopez suggest[ed] that the minimal nexus test should be changed.”
McAllister, 77 F.3d at 390 (quotation marks omitted).
In light of
McAllister and
Wright, Sims’s constitutionality
arguments regarding § 922(g) lack merit and thus do not establish
error, much less plain error. Here, the government presented
evidence, by way of Special Agent Mace, showing that the firearm
and ammunition that Sims possessed had traveled in interstate
commerce, and therefore, satisfied the minimal nexus
requirement.
AFFIRMED.
“fairness, integrity, or public reputation of judicial proceedings.”
Id.
(quotation marks omitted).
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