United States v. Otho Leonard Rater

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-1638
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United States of America, *
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Appellee, *
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v. *
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Michael Jackson, *
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Appellant. *
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Appeals from the United States
No. 03-1723 District Court for the
___________ Western District of Missouri.
United States of America, *
*
Appellee, *
*
v. *
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Fabian Jackson, *
*
Appellant. *
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Submitted: January 13, 2004
Filed: April2 6, 2004
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Before BYE, LAY, and SMITH, Circuit Judges.

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1 The Honorable H. Dean Whipple, Chief Judge, United States District Court
for the Western District of Missouri.
2 This truck was reported stolen earlier that day.
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SMITH, Circuit Judge.
A jury convicted brothers Fabian and Michael Jackson of unlawfully
possessing a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The district
court 1 sentenced Michael to 327 months' imprisonment to run consecutively with two
previous state sentences. The same court sentenced Fabian to 295 months
imprisonment. The Jacksons appeal their convictions and sentences. We affirm.
I. Background
On the morning of March 1, 2002, Missouri resident James Lee returned to his
home to find a white Chevrolet pickup truck 2 backed up to his front door. Lee quickly
realized that his home was being burglarized. Lee used his van to block the truck's
escape path. When the men burglarizing the house saw Lee, one ran back into the
house and the other ran to the truck and prepared to drive away. Lee saw his rifle
sticking up in the floor board next to the driver of the truck. Fearing that the driver
would hit his van, Lee pulled his vehicle back and allowed the truck to leave. The
man in the truck drove around to the back of the house, and Lee observed him leave
with another man in the truck. Lee immediately reported the burglary and identified
the suspects as African-American males.
Deputy Jim Bank of the Clinton County, Missouri, Sheriff's Department
immediately responded to the scene. Deputy Bank dispatched a description of the
truck and the direction it was traveling. Sergeant Keith Trader of the Clay County,
Missouri, Sheriff's Department and a Kearney Police Department unit encountered

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and began to pursue a truck matching that description as it sped past their position.
The pursuit continued for some time with speeds in excess of ninety miles per hour.
The pursuit ended when the truck left the highway, crossed two residential yards, and
crashed into a fence.
Sergeant Trader saw the two suspects exit the truck, jump the fence, and run
into a field. Sergeant Trader followed the men and immediately apprehended one
suspect–identified as Fabian–who was hiding in a ditch near the crash site. The
officers then began a search for the other occupant of the truck. They crossed a field
and found the second suspect, Michael, lying in some woods across a road bordering
the field. The officers also took Michael into custody. The police found a rifle and
other personal property in the bed of the truck. Later, after observing Michael in a
holding cell, Sergeant Trader identified Michael as the driver of the stolen truck
based upon his earlier observation.
Fabian and Michael were each charged with one count for unlawful possession
of a firearm, in violation of 18 U.S.C. § 922(g)(1). Because Michael had nine prior
burglary convictions and Fabian had three burglary convictions and one assault
conviction, the indictment also charged that the penalty-enhancement provisions of
18 U.S.C. § 924(e) applied to each defendant.
Michael moved to suppress the indictment, alleging that the police arrested him
illegally because of his race and because Sergeant Trader's identification of him at the
jail was impermissibly tainted. Following an evidentiary hearing on Michael's motion,
the magistrate judge recommended its denial. The magistrate judge found that the
police had probable cause to arrest Michael, who matched the description of the
suspect involved in a high-speed chase and who was found hiding in a field a short
distance from the crash site of the stolen white pickup truck. In addition, the
magistrate judge found that Sergeant Trader's identification of Michael at the jail was
not tainted by inordinate suggestibility because 1) the defense produced no evidence

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3 Michael was convicted on two charges in Missouri state court prior to his
conviction in this case. These convictions included a seven-year sentence for an
automobile-theft offense that occurred on November 7, 2001, in Johnson County,
Missouri, and a twenty-year conviction for the offense in Clay County, Missouri,
involving the theft of the truck in this case.
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that Michael was the only African American in the holding cell, and 2) Sergeant
Trader had a sufficient opportunity to observe Michael during the chase and
identified him within half an hour. The district court adopted the magistrate's report
and recommendation.
The Jacksons were tried on August 26, 2002, and convicted the next day. Lee
testified and identified Michael as the driver of the truck that he saw in his driveway.
Lee also identified the rifle found in the pickup as his stolen weapon and identified
other items recovered from the pickup as possessions stolen from his residence. The
district court entered judgment on March 6, 2003. Both timely appealed.
II. Analysis
Michael raises two issues and Fabian raises one in this consolidated appeal.
A. Sentencing Under U.S.S.G. § 5G1.3
Michael first argues that the district court erred in running his federal sentence
consecutively, rather than concurrently, with his two state-court sentences.3 As to the
Johnson County offense, Michael argues that this prior incident should have been
taken into account in determining his base offense level. In doing so, he argues,
U.S.S.G. § 5G1.3(b) required the court to run his federal sentence concurrent to his
state sentences. As to the Clay County offense connected to this case, he argues that
this was "fully taken into account" in calculating his sentence as evidenced in the
presentence investigation report ("PSR"). We review the district court's interpretation
of the guidelines de novo. United States v. Smith, 282 F.3d 1045, 1046 (8th Cir.
2002).

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4 18 U.S.C. § 924(e) provides:
(e)(1) In the case of a person who violates section 922(g) of this title and
has three previous convictions by any court referred to in section
922(g)(1) of this title for a violent felony or a serious drug offense, or
both, committed on occasions different from one another, such person
shall be fined under this title and imprisoned not less than fifteen years,
and, notwithstanding any other provision of law, the court shall not
suspend the sentence of, or grant a probationary sentence to, such person
with respect to the conviction under section 922(g).
5 18 U.S.C. § 924(c)(3) provides:
For purposes of this subsection the term "crime of violence" means an
offense that is a felony and–
(A) has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force
against the person or property of another may be used in the course of
committing the offense.
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Because Michael violated 18 U.S.C. § 922, the 18 U.S.C. § 924(e)
enhancement applied.4 Consequently, U.S.S.G. § 4B1.4(a) specifically provides that
Michael qualifies as an "armed career criminal." Michael possessed the firearm in
connection with a crime of violence 5 (burglary), and U.S.S.G. § 4B1.4(b)(3)(A)
specifically sets his offense level at 34 with a criminal history category of VI under
U.S.S.G. § 4B1.4(c)(2) (sentencing range of 262–327 months). Therefore,
independent of his prior criminal conduct, Michael's possession of the gun in the
connected burglary triggered this Sentencing Guidelines provision. The district court
sentenced him to 327 months, which is within the Sentencing Guidelines range.

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In addition, because Michael's base offense level was based only on his status
as an armed career criminal and did not take into account the Johnson and Clay
County crimes, U.S.S.G. § 5G1.3(b) does not apply. In a similar case, we stated:
Sentencing courts must follow the procedures set out in section 5G1.3
and impose a sentence accordingly.We conclude the district court
correctly determined subsection (b) did not apply. Although that
subsection allows adjustment for any prison time already served as a
result of conduct fully taken into account in determining the sentence for
the instant offense, Lyons' base offense level was solely the result of his
armed-career-criminal status, and the Nevada offenses were not
considered in the offense-level calculation. In addition, applying
subsection (b) would defeat the goal of reasonable incremental
punishment for the instant offenses. The district court's application of
subsection (c)–making Lyons' federal sentence concurrent with the
remainder of his unexpired state sentence–achieved the desired result of
giving him some sentencing credit for the overlap in his state and federal
offense conduct, and also of imposing some incremental punishment for
the instant offenses.
United States v. Lyons, 47 F.3d 309, 311 (8th Cir. 1995) (internal citations omitted);
accord United States v. Terry, 305 F.3d 818, 825–826 (8th Cir. 2002). As such,
because Michael had at least three prior felony offenses independent of the Johnson
and Clay County offenses, the district court properly sentenced Michael pursuant to
U.S.S.G. § 5G1.3(c), which allowed the court to sentence in any manner it deemed
necessary "to achieve a reasonable punishment for the instant offense." We find no
error in Michael's sentencing.
B. Motion to Suppress Identification
Michael next argues that the district court erred in denying his motion to
suppress Sergeant Trader's identification of him at the jail following his arrest.
Michael argues that the identification procedure was 1) overly suggestive or unfair,
and 2) created a substantial likelihood of irreparable misidentification. We review

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federal constitutional questions, such as out-of-court identification challenges, de
novo. United States v. Johnson, 56 F.3d 947, 953 (8th Cir. 1995).
In reviewing this claim, we first determine whether the identification procedure
was impermissibly suggestive. "If it was, we must then determine whether, under the
totality of the circumstances, the suggestive procedures created 'a very substantial
likelihood of irreparable misidentification.'" United States v. Murdock, 928 F.2d 293,
297 (8th Cir. 1991) (quoting Manson v. Brathwaite, 432 U.S. 98, 116 (1977)); accord
United States v. Donahue, 948 F.2d 438, 441 (8th Cir. 1991). The central question is
"whether under the 'totality of the circumstances' the identification was reliable"
despite any suggestive or inappropriate pretrial identification techniques. Neil v.
Biggers, 409 U.S. 188, 198 (1972); Mack v. Caspari, 92 F.3d 637, 642–643 (8th Cir.
1996), cert. denied, 520 U.S. 1109 (1997). The relevant factors to "consider[ ] in
evaluating the likelihood of misidentification include the opportunity of the witness
to view the criminal at the time of the crime, the witness' degree of attention, the
accuracy of the witness' prior description of the criminal, the level of certainty
demonstrated by the witness at the confrontation, and the length of time between the
crime and the confrontation." Neil, 409 U.S. at 199–200; accord Manson, 432 U.S.
at 114; United States v. Tucker, 169 F.3d 1115, 1117–1118 (8th Cir. 1999).
Michael argues that by moving to the second step of the inquiry, the district
court impliedly determined that the identification in the jail cell was impermissibly
suggestive. We disagree. The record shows that the district court made no finding on
the "impermissibly suggestive" part of the inquiry (other than to note that there was
no evidence that Michael was the only African American in the holding cell), and
instead immediately moved to the second step of the analysis. At that step, the district
court found that under the totality of the circumstances, Sergeant Trader's
identification of Michael met the necessary factors for reliability suggested in Neil.
Given that Sergeant Trader was nearly hit head-on by Michael and Fabian, that he
correctly described what both men were wearing before they were apprehended, and

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that he was present when Fabian and Michael were apprehended, we find that his
identification of Michael approximately one-half hour later at the jail was reliable.
Therefore, we affirm the district court's denial of Michael's motion to suppress.
C. Sufficiency of the Evidence
In his one point on appeal, Fabian argues that the evidence is insufficient to
support his conviction for unlawfully possessing a firearm. He asserts that the
evidence did not show that he actually or constructively possessed the gun. We
disagree.
We review the sufficiency of the evidence to sustain a conviction de novo.
United States v. Fitz, 317 F.3d 878, 881 (8th Cir. 2003). "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). "We
will uphold a jury verdict if substantial evidence supports it." United States v. Cruz,
285 F.3d 692, 697 (8th Cir. 2002). Substantial evidence exists if a reasonable jury
could have found the defendant guilty beyond a reasonable doubt. Id. We do not
overturn jury verdicts lightly, and "[r]eversal is appropriate only where a reasonable
jury could not have found all of the elements of the offense beyond a reasonable
doubt." United States v. Armstrong, 253 F.3d 335, 336 (8th Cir. 2001).
A conviction for violating § 922(g) may be based on constructive or joint
possession of a firearm. United States v. Boykin, 986 F.2d 270, 274 (8th Cir. 1993);
United States v. Woodall, 938 F.2d 834, 837–838 (8th Cir. 1991). Constructive
possession of a 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. Woodall, 938 F.2d at 838. Constructive possession exists where a person has
both the power and the intention at a given time to exercise dominion or control over

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a thing, either directly or through another person or persons. United States v. Johnson,
18 F.3d 641, 647 (8th Cir. 1994).
Constructive possession need not be proved by direct evidence, but rather may
be premised upon circumstantial evidence, which we recognize as being "intrinsically
as probative as direct evidence." United States v. Patterson, 886 F.2d 217, 219 (8th
Cir. 1989) (citations omitted). However, constructive possession does not exist where
the government fails to establish some nexus between a defendant and the
contraband; mere physical proximity to the contraband is insufficient. United States
v. Gordon, 700 F.2d 215, 217 (5th Cir. 1983). We have specifically stated that mere
presence as a passenger in a car from which the police recover contraband or weapons
does not establish possession. United States v. Flenoid, 718 F.2d 867, 868 (8th Cir.
1983).
Here, the evidence is sufficient to support the jury's verdict. First, the evidence
shows that Fabian was more than just an innocent passenger in the stolen truck.
Rather, he exercised dominion over the vehicle by using the truck to store and
transport the stolen items as well as to attempt to escape the police. In addition, the
evidence shows that the homeowner, James Lee, saw his gun standing up in the cab
of the truck when Michael drove from the front to the back of the house to pick up
Fabian. Fabian asserts that the evidence does not establish that he knew Michael had
the gun in the truck cab and that Michael could have placed the gun in the truck bed
before Fabian entered the truck to escape. However, the police found the stolen items
in the bed of the truck, thus indicating that both Michael and Fabian knew of the
contents not only in the cab of the truck in which they were riding, but also in the bed
of the truck where they both placed the stolen items.
In addition, Lee testified that the trigger lock had been removed from his gun
after it was stolen. Because Michael was driving, the jury could have reasonably
concluded that Fabian removed the trigger lock after Michael picked him up at the

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back of the house. We find that the jury could have reasonably inferred through this
circumstantial evidence that Fabian knew that the gun was in the truck–whether in the
passenger compartment or in the bed–when the brothers left the house.
For the foregoing reasons, we affirm the Jacksons' convictions and sentences.
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