United States v. Bailey

85 F.4th 891

UNITED STATES of America, Plaintiff-Appellee v. Lamont BAILEY, Defendant-Appellant.

No. 22-3394

United States Court of Appeals, Eighth Circuit

Submitted: September 19, 2023

Filed: November 3, 2023

Appeal from United States District Court for the Northern District of Iowa — Cedar Rapids

Counsel who represented the appellant was Nova D. Janssen, AFPD, of Des Moines, IA.

Counsel who represented the appellee was Dan Chatham, AUSA, of Cedar Rapids, IA.

Before LOKEN, WOLLMAN, and BENTON, Circuit Judges.

LOKEN, Circuit Judge.

Lamont Bailey pleaded guilty to Possession of a Firearm by a Felon in violation of 18 U.S.C. § 922(g)(1). The district court¹ sentenced him to 100 months imprisonment. Bailey appeals the sentence, arguing the court erred by increasing his base offense level under USSG § 2K2.1(a)(2), based on two prior Illinois convictions for Delivery or Manufacture of Cocaine in violation of 720 ILCS 570/206(b)(4); and by applying a four-level increase under § 2K2.1(b)(6)(B) because he used a firearm in connection with another felony offense, Intimidation with a Dangerous Weapon in violation of Iowa Code § 708.6(2). We affirm.

I. Background

On December 11, 2021, Bailey entered a smoke shop in Cedar Rapids, Iowa, carrying a pistol. Leaving the shop, Bailey encountered three individuals walking behind his car across the parking lot. Bailey drove out of the parking lot and stopped his car in front of property adjacent to the smoke shop. A few seconds later, one of the individuals began firing shots from about thirty yards away; the other two fled. Bailey exited his car and fired at least two shots. The other individual continued firing. Bailey got back in his car and drove away.

Bailey was charged with Possession of a Firearm by a Felon. He pleaded guilty. The district court accepted the plea in April 2022. In the Presentence Investigation Report (PSR), the United States Probation Office recommended an increased base offense level of 24 based on the two prior Illinois controlled substance offenses, and a four-level increase for use of a firearm in connection with the Iowa felony of Intimidation with a Dangerous Weapon. Baily objected to both increases. The district court overruled his objections.

II. The Controlled Substance Offense Issue

Section 2K2.1(a)(2) of the Guidelines provides, as relevant here, that the base offense level for a federal felon-in-possession offense is 24 if the defendant committed the offense "subsequent to sustaining at least two felony convictions of... a controlled substance offense." Bailey concedes he has two Illinois convictions for Manufacture or Delivery of Cocaine in violation of 720 ILCS 570/401(b)(4). He argues these convictions do not qualify as a "controlled substance offense" under § 2K2.1(a)(2) because the Illinois statute criminalizes substances not regulated by the federal Controlled Substances Act, namely, positional cocaine isomers. See 21 U.S.C. §§ 802(14), 812, sched. II(a)(4).

As the district court held, and as Bailey acknowledges in his Brief, we recently held that the term "controlled substance offense" as used in the advisory sentencing guidelines includes state-law offenses even if the state statute sweeps more broadly than the Controlled Substances Act. United States v. Henderson, 11 F.4th 713, 718 (8th Cir. 2021), cert. denied, ___ U.S. ___, 142 S. Ct. 1696, 212 L.Ed.2d 594 (2022). Bailey argues that "Henderson was wrongly decided and must be overruled." However, our panel is bound by prior panel decisions. See United States v. Gammell, 932 F.3d 1175, 1179 (8th Cir. 2019), cert. denied, ___ U.S. ___, 140 S. Ct. 2809, 207 L.Ed.2d 145 (2020), citing Mader v. United States, 654 F.3d 794, 800 (8th Cir. 2011) (en banc). Accordingly, this argument must be submitted to the court en banc.

III. The In-Connection-With-Another-Felony-Offense Issue

The advisory guidelines call for a four-level increase to the base offense level if the defendant "used or possessed any firearm or ammunition in connection with another felony offense." USSG § 2K2.1(b)(6)(B). At the sentencing hearing, the district court found by a preponderance of the evidence that Bailey used a firearm in "committ[ing] the crime of intimidation with a dangerous weapon and that [Bailey] was not justified in the use of force."

In applying § 2K2.1(b)(6)(B), when the defendant has not been convicted of another state or federal felony offense, as in this case, "the district court must find by a preponderance of the evidence that another felony offense was committed, and that use or possession of the firearm facilitated that other felony." United States v. Boman, 873 F.3d 1035, 1043 (8th Cir. 2017) (quotation omitted). The government must prove that the defendant committed another felony offense "and it must negate an affirmative defense by a preponderance of the evidence." United States v. Mattox, 27 F.4th 668, 676 (2022), citing United States v. Raglin, 500 F.3d 675, 677 (8th Cir. 2007). We review the district court's finding that Bailey possessed a firearm in connection with another felony offense for clear error, and its application of the guidelines de novo. Id. (citation omitted).

The other felony offense at issue is Iowa Code § 708.6(2). Entitled Intimidation with a dangerous weapon, the statute provides as relevant here:

A person commits a class "D" felony when the person shoots ... or discharges a dangerous weapon ... within an assembly of people, and thereby places the ... people in reasonable apprehension of serious injury or threatens to commit such an act under circumstances raising a reasonable expectation that the threat will be carried out.

Bailey does not challenge the district court's finding that his conduct satisfied the elements of this offense. Rather, he contends the district court clearly erred in finding by a preponderance of the evidence that the government negated his claim that he fired his weapon in self-defense. The government concedes this is an affirmative defense to a § 708.6(2) charge under Iowa Code § 704.3: "A person is justified in the use of reasonable force when the person reasonably believes that such force is necessary to defend oneself or another from any actual or imminent use of unlawful force." "Reasonable force" is defined as:

[T]hat force and no more which a reasonable person, in like circumstances, would judge to be necessary to prevent an injury or loss and can include deadly force if it is reasonable to believe that such force is necessary to avoid injury or risk to one's life or safety of the life or safety of another, or it is reasonable to believe that such force is necessary to avoid a like force or threat.

Iowa Code § 704.1(1).

Based on video evidence — the smoke shop's surveillance cameras — and the testimony of a responding officer, the district court entered detailed findings of fact. The court found that "there's no hard evidence that [Bailey] was the target of the shooting," noting no evidence that bullets struck Bailey's car and Bailey's statement to police that he heard gunshots, "not that he saw somebody shooting at him." In any event, the court found, Bailey's car was in a place where he could easily have driven away, rather than exit the car and fire his own weapon. On appeal Bailey does not point to evidence contradicting these findings. After careful review, we conclude they are not clearly erroneous. A showing either that "[t]he Defendant did not believe he was in imminent danger of death...