United States v. Carnes

22 F.4th 743

UNITED STATES of America Plaintiff - Appellee

v.Keith L. CARNES Defendant - Appellant

No. 20-3170

United States Court of Appeals, Eighth Circuit.

Submitted: September 24, 2021

Filed: January 3, 2022

John Jenab, Jenab Law Firm, P.A., Kansas City, MO, argued, for defendant-appellant.

Philip M. Koppe, Asst. U.S. Atty., Kansas City, MO, argued (Teresa A. Moore, Acting U.S. Atty., on the brief), for plaintiff-appellee.

Before SHEPHERD, WOLLMAN, and KOBES, Circuit Judges.

SHEPHERD, Circuit Judge A jury found Keith L. Carnes guilty on all counts of a 3-count indictment, and the district court sentenced him to 240 months imprisonment and 3 years supervised release. Carnes appeals his convictions and sentence. Having jurisdiction under 28 U.S.C. § 1291, we vacate Carnes's third concurrent term of supervised release, affirm the district court in all other respects, and remand for the district court to enter a corrected written judgment.

I.

This case arises out of Carnes's possession of a gun one day in 2013 and during a two-week period in 2016. "We recite the facts in the light most favorable to the jury's verdict." United States v. Galloway, 917 F.3d 631, 632 (8th Cir. 2019) (citation omitted).

On February 10, 2013, a law enforcement officer stopped a vehicle driven by Carnes, who was the sole occupant, for driving 57 miles per hour in a 35-mile-per-hour zone near the intersection of East 63rd Street and Lewis Road in Kansas City, Missouri. Upon approaching the driver's side door, the officer smelled the odor of marijuana. The officer told Carnes, "I need your driver's license and your sack of weed." Carnes responded, "I just smoked at the house" and said that he "just got done smoking." Carnes also told the officer, "I got my gun, too." The officer asked Carnes to exit the vehicle and subsequently recovered a handgun from Carnes's waistband during a pat-down search. A backup officer also smelled a strong odor of marijuana coming from within the vehicle, Carnes's clothing, and his breath. Carnes told this officer that he had smoked a "blunt," which he also called "Kush." Carnes was arrested and transported to the patrol station, where he failed a field sobriety test. Officers at the station noted that Carnes's breath had a strong odor of marijuana, his eyes were bloodshot, and he was walking hesitantly. Carnes stated that he was not "that high." At trial, Carnes admitted that he was under the influence of marijuana when stopped by law enforcement. Carnes testified that he refused to take a blood test or provide a urine sample because he knew the results would come back positive for marijuana.

Three-and-a-half years later, on August 16, 2016, a man was sitting in his parked vehicle near the intersection of East 35th Street and Wabash Avenue in Kansas City, Missouri. As the man's ex-girlfriend was exiting the man's vehicle, another vehicle pulled up alongside the left-hand side of the man's vehicle. The driver of the other vehicle said to the man's ex-girlfriend, "What's up, baby," and the man said to the driver, "Do you mind, I'm talking to my ex." The driver then pulled out a gun and fired at the man four times before driving away. The man selected Carnes as the shooter from a photo array and also testified that his ex-girlfriend had identified Carnes as the shooter. A witness who identified himself as the front-seat passenger of the shooter's vehicle provided law enforcement with a phone number to contact the shooter. Law enforcement determined that Carnes was associated with the phone number. At trial, Carnes denied the shooting.

On August 30, 2016, two weeks after the shooting, Carnes was approaching a female friend's house in Kansas City, Missouri when he saw her son. They spoke briefly before exchanging gunfire; Carnes sustained multiple gunshot wounds. Despite his injuries, Carnes ran to his girlfriend's vehicle and drove away alone. While speeding and driving in the wrong lane, Carnes ran a red light and caused a three-car collision that killed a motorist. A law enforcement officer responding to the collision approached Carnes's vehicle, and Carnes identified himself. The officer smelled the odor of marijuana in his vehicle and observed a handgun on the floorboard between Carnes's feet and a plastic baggie containing what testing later revealed to be an ounce of marijuana. A shell casing from inside the handgun matched shell casings found at the scene of the August 16 shooting. Carnes tested positive for marijuana, cocaine, and phencyclidine (PCP). At trial, Carnes admitted to smoking marijuana and driving under the influence of marijuana on the day of the collision, though he claimed the marijuana found in the vehicle did not belong to him. Carnes also testified that he used marijuana frequently and that law enforcement had previously taken marijuana from him.

A grand jury returned a three-count indictment, charging Carnes with one count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (Count 1) and two counts of being an unlawful user of a controlled substance in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(3), 924(a)(2) (Counts 2 and 3). Counts 1 and 2 concerned Carnes's possession of a gun on August 30, 2016. Count 3 concerned his possession of a gun on February 10, 2013. In 2019, a superseding indictment expanded the date range in Counts 1 and 2 to cover August 16 through August 30.

Before trial, Carnes stipulated that, prior to August 16, 2016, he had been convicted of a felony offense punishable by a term of imprisonment exceeding one year and he knew that he had been convicted of such an offense. After the government presented its evidence, Carnes moved for a judgment of acquittal, arguing that the government failed to prove the elements of each count. The district court denied his motion. Carnes renewed his motion for a judgment of acquittal after both parties rested their cases, which the district court again denied. At the conclusion of the jury trial, Carnes was convicted on all three counts.

Prior to sentencing, the United States Probation Office prepared a Presentence Investigation Report (PSR). The PSR found a total offense level of 24 and a criminal history category of IV. It calculated Carnes's United States Sentencing Guidelines range as 77 to 96 months imprisonment, with a statutory maximum of 240 months. The government requested an upward variance to 240 months, citing the nature and circumstances of Carnes's offense, his criminal history, and his post-conviction assault of a corrections officer. At sentencing, the district court merged Counts 1 and 2 for purposes of sentencing and sentenced Carnes to 120 months imprisonment on Counts 1 and 2 as well as 120 months on Count 3, to run consecutively. This resulted in a total term of 240 months imprisonment. The district court also imposed three concurrent three-year terms of supervised release. Carnes appeals his conviction and sentence on multiple grounds.

II.

Carnes first argues that the government failed to present sufficient evidence that he was an "unlawful user of a controlled substance," as required for Counts 2 and 3. "We review de novo the denial of a motion for judgment of acquittal based on the sufficiency of the evidence."

United States v. Fang, 844 F.3d 775, 778 (8th Cir. 2016) (citation omitted). "We review the sufficiency of the evidence de novo, considering the evidence in the light most favorable to the government and drawing all reasonable inferences in favor of the verdict." United States v. White, 962 F.3d 1052, 1056 (8th Cir. 2020).

Counts 2 and 3 charged Carnes with being an unlawful user of a controlled substance in possession of a firearm, in violation of §§ 922(g)(3) and 924(a)(2). "It is illegal for ‘an unlawful user of ... any controlled substance’ to possess a firearm." United States v. Rodriguez, 711 F.3d 928, 937 (8th Cir. 2013) (alteration in original) (quoting § 922(g)(3) ). "The government is not required to prove that the defendant possessed the firearm while contemporaneously using a controlled substance." Id. Instead, "[i]t is sufficient for the government to demonstrate use of a controlled substance ‘during the period of time’ that the defendant possessed firearms, not that there was actual use ‘at the time that the officers discovered [the defendant] in possession of firearms.’ " Id. (second alteration in original) (citation omitted).

In United States v. Turnbull, we recognized that "[t]he term ‘unlawful user’ is not otherwise defined in the statute, but courts generally agree the law runs the risk of being unconstitutionally vague without a judicially-created temporal nexus between the gun possession and regular drug use." 349 F.3d 558, 561 (8th Cir. 2003), vacated, 543 U.S. 1099, 125 S.Ct. 1047, 160 L.Ed.2d 993 (2005), reinstated, 414 F.3d 942 (8th Cir. 2005) (per curiam). In subsequent decisions, we interpreted § 922's "unlawful user" element to require a temporal nexus between the proscribed act (for § 922(g)(3), possession of a firearm) and regular drug use. E.g., United States v. Figueroa-Serrano, 971 F.3d 806, 812 (8th Cir. 2020) ; United States v. Turner, 842 F.3d 602, 605 (8th Cir. 2016) ; United States v. Boslau, 632 F.3d 422, 430 (8th Cir. 2011).

Without defining "regular drug use" ourselves, we have "held that a district court acted within its discretion" when giving a jury instruction that "adequately captured the ‘temporal nexus [between the proscribed act] and regular drug use’ required by the term [unlawful user]." Boslau, 632 F.3d at 430 (first alteration in original) (citation omitted). In Boslau, the district court instructed the jury: "Such use [of a controlled substance] is not limited to the use of drugs on a particular day , or within a matter of days or weeks before, but rather that the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct. " Id. at 429 (emphasis...