United States v. Andrews

United States of America Plaintiff - Appellee v. Norris Deshon Andrews Defendant-Appellant

No. 20-1644

United States Court of Appeals, Eighth Circuit

August 13, 2021

Unpublished

Submitted: February 15, 2021

Appeal from United States District Court for the District of Minnesota

Before SMITH, Chief Judge, WOLLMAN and ARNOLD, Circuit Judges.

PER CURIAM.

A jury convicted Norris Deshon Andrews with being a felon in possession of a firearm, in violation of 18 U.S.C §§ 922(g)(1) and 924(e)(1). After concluding that the Armed Career Criminal Act (ACCA) enhancement applied to Andrews, the district court^[1] imposed a sentence of 262 months' imprisonment and 5 years' supervised release. As a special condition of supervised release, the court prohibited Andrews from gambling. On appeal, Andrews challenges the enhancement of his sentence under the ACCA and the special condition of supervised release. We affirm.

I. Background

On June 20, 2018, a grand jury indicted Andrews for being a felon in possession of a firearm, in violation of 18 U.S.C §§ 922(g)(1) and 924(e)(1). The indictment alleged that Andrews was previously convicted of six felonies: third-degree assault in 2006, fleeing a police officer in a motor vehicle in 2009, two second-degree assaults in 2011, fourth-degree assault on a correctional employee with demonstrable bodily harm in 2013, and second-degree burglary of a dwelling in 2016.

Andrews stipulated that he was a convicted felon prohibited from possessing a firearm. Thus, the government did not present evidence at trial regarding Andrews's criminal history. After a nine-day jury trial in which Andrews represented himself, the jury found Andrews guilty of being a felon in possession of a firearm.

On March 16, 2020, the district court applied the ACCA sentencing enhancement based on Andrews's conviction for third-degree assault and two convictions for second-degree assault. The court calculated a range of 262 to 327 months' imprisonment and imposed a 262-month sentence and 5-year term of supervised release. In addition, the court imposed a special condition of supervised release prohibiting Andrews from gambling. Andrews appeals.

II. Discussion

Andrews argues that the district court erred twice in his sentencing by (A) concluding that the ACCA sentencing enhancement applies and (B) imposing a special condition of supervised release that prohibits Andrews from gambling.

A. ACCA Enhancement

Andrews argues that the district court erred by applying the ACCA sentencing enhancement because (1) there is not sufficient proof that he was convicted of three ACCA-qualifying offenses and (2) his convictions for second-degree assault and third-degree assault are not qualifying offenses. We hold that the district court did not clearly err by finding that Andrews was convicted once for third-degree assault and twice for second-degree assault and that these three convictions trigger application of the ACCA enhancement to Andrews's sentence.

A defendant who is convicted for felony possession of a firearm under § 922(g) and has three previous "violent felony" convictions "committed on occasions different from one another" becomes subject to a mandatory minimum sentence of imprisonment of 15 years. 18 U.S.C. § 924(e)(1).

1. Proof of Convictions

Andrews argues that the government did not establish that he had three qualifying convictions with sufficient proof. The government responds that Andrews did not make specific and clear objections to the fact of his convictions, and thus, effectively admitted them. But even assuming that Andrews properly objected to the fact of his convictions listed in the Presentence Investigation Report (PSR), the district court did not clearly err by finding that Andrews had two convictions for second-degree assault and one for third-degree assault.

At sentencing, the government has the "burden of proving the fact of a [defendant's prior] conviction" by a preponderance of the evidence. United States v. Evans, 285 F.3d 664, 674 (8th Cir. 2002); see also United States v. Poor Bear, 359 F.3d 1038, 1041 (8th Cir. 2004). We review the district court's "factual findings regarding a defendant's prior conviction.... for clear error." United States v. Birdine, 515 F.3d 842, 844 (8th Cir. 2008). In making its factual findings, the "court may consider any evidence in its sentencing determination that has sufficient indicia of reliability to support its probable accuracy." United States v. Urbina-Mejia, 450 F.3d 838, 840 (8th Cir. 2006) (quoting United States v. Marshall, 411 F.3d 891, 894 (8th Cir. 2005)).

The evidence supports the existence of three convictions. In its sentencing memorandum, the government cited the Minnesota Court of Appeals' decision affirming Andrews's two convictions for second-degree assault. See State v. Andrews, Nos. A11-2200, A11-2201, 2012 WL 5834450 (Minn.Ct.App. Nov. 19, 2012). The government also attached to its sentencing memorandum a copy of Andrews's petition to proceed pro se in that case.

Andrews also attempts to challenge those convictions by arguing that his Sixth Amendment right to counsel was violated. See infra Part II(A)(2)(a)(iii). Andrews's argument necessarily concedes that he participated in a trial in which he represented himself and was convicted. He thus attempts what amounts to a collateral attack on the convictions themselves rather than a challenge to the fact of the convictions.

In addition, the parties jointly filed four exhibits prior to the sentencing hearing, which they expressly "agree[d] that the [c]ourt [could] consider . . . for purposes of sentencing." Joint Sent'g Exs. at 1, United States v. Andrews, No. 0:18-cr-00149-SRN-DTS-1 (D. Minn. 2020), ECF No. 313. The four exhibits included transcripts from the proceedings, in which Andrews was convicted for two counts of second-degree assault, and Andrews's stipulation to the fact that he was "convicted in 2006 of assault in the third degree." Joint Sent'g Exs., Ex. 4, at 11, United States v. Andrews, No. 0:18-cr-00149-SRN-DTS-1 (D. Minn. 2020), ECF No. 313-4.

The district court, thus, did not clearly err in finding that Andrews had two second-degree-assault convictions and one for third-degree assault.^[2]

2. Are the Assault Convictions Qualifying Offenses?

We agree with the district court that Andrews's two convictions for second-degree assault and one conviction for third-degree assault qualify as ACCA offenses.^[3]We review a district court's determination of whether a prior conviction is a predicate offense de novo. Birdine, 515 F.3d at 844. Under the ACCA, a "violent felony" is "any crime punishable by imprisonment for a term exceeding one year," if that crime is one enumerated by statute or "has as an element the use, attempted use, or threatened use of physical force." 18 U.S.C. § 924(e)(2)(B).

a. The Two Second-Degree Assault Convictions

The Eighth Circuit has held that Minnesota second-degree assault qualifies as a "violent felony" under the ACCA. United States v. Lindsey, 827 F.3d 733, 740 (8th Cir. 2016). However, Andrews argues that his two convictions cannot constitute predicate offenses because (i) the district court violated his Sixth Amendment right to a jury trial, (ii) the district court erroneously relied on an unpublished court of appeals opinion outside the record, and (iii) the two convictions were obtained in violation of his Sixth Amendment right to counsel.

i. Sixth Amendment Right to a Jury Trial

To constitute two separate ACCA predicate offenses, the two second-degree assaults must have occurred "on occasions different from one another." 18 U.S.C. § 924(e)(1). Andrews argues that the district court violated his Sixth Amendment right to a jury by concluding that they did. However, Andrews also acknowledges that we have rejected this argument. United States v. Wyatt, 853 F.3d 454, 458-59 (8th Cir. 2017). "It is a cardinal rule in our circuit that one panel is bound by the decision of a prior panel." Owsley v. Luebbers, 281 F.3d 687, 690 (8th Cir. 2002) (per curiam) ("We therefore are not free to avoid the clear holding of the [Wyatt] court."). Knowing this, Andrews "raises the issue solely to preserve it for further review." Appellant's Br. at 25. Accordingly, Andrews's convictions for second-degree assault are not disqualified for this reason.

ii. The Minnesota Court of Appeals' Opinion

Next, Andrews argues that the district court erred by relying on the Minnesota Court of Appeals' decision, Andrews, 2012 WL 5834450, which affirmed Andrews's two convictions, to find that Andrews committed the second-degree assaults on different occasions. He contends, "[b]ecause the sole basis for the district court's factfinding here was an unpublished court of appeals opinion that was not part of this record, it . . . must be reversed." Appellant's Br. at 26. He does not directly dispute the facts contained in the opinion. Rather, he maintains that the opinion was not reliable as evidence.

Our precedent is clear that "a district court has wide discretion at sentencing as to the kind of information considered or its source." United States v. Clark, 932 F.3d 1064, 1066 (8th Cir. 2019) (cleaned up). The sentencing court can "consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy." Id. at 1067 (citation omitted); see also supra note 2.

Here the district court did not err by relying on the Minnesota Court of Appeals' decision for its factual determinations. That court's opinion was reliable documentation that Andrews had in fact been convicted for two counts of second-degree assault. Notably, Andrews does...