United States v. Drew

9 F.4th 718

UNITED STATES of America, Plaintiff-Appellee,

v.Jose D. DREW, also known as Jose Drew, Defendant-Appellant.

No. 20-2596

United States Court of Appeals, Eighth Circuit.

Submitted: April 16, 2021

Filed: August 16, 2021

Rehearing and Rehearing En Banc Denied September 20, 2021

David J. Guastello, The Guastello Law Firm, LLC, Kansas City, MO, argued, for defendant-appellant.

Philip M. Koppe, Asst. U.S. Atty., Kansas City, MO, argued (Timothy A. Garrison, U.S. Atty., on the brief, for plaintiff-appellee.

Before KELLY, GRASZ, and KOBES, Circuit Judges.

GRASZ, Circuit Judge.

After a botched gun sale to a confidential informant, a jury found that Jose Drew unlawfully possessed a gun, 18 U.S.C. § 922(g)(1), and the district court¹ imposed a 360-month sentence. Drew challenges his conviction and his sentence. We affirm.

I. Background

The government paid DeAnthony Smith to buy a gun from Drew's co-defendant, Maurice Jefferson. Smith and Jefferson arranged to meet in a parking lot. When Smith arrived, he found Jefferson and Drew in a parked car. Drew sat in the passenger's seat.

Peering into the car, Smith saw "a Glock ... with a 25 round magazine" on the center console between Drew and Jefferson. Smith said that the gun stayed on the center console for the "majority of" the failed sale but eventually, Drew held it in his hand. A grand jury indicted Drew—who had six past felony convictions—for violating the federal ban on felons possessing firearms. See 18 U.S.C. § 922(g)(1).

When his trial began, the jury only needed to decide if Drew knowingly possessed a gun. The government called five witnesses, including Smith. Smith's eyewitness testimony placed Drew at the sale and the gun in his hand.

Special Agent Thomas Waggoner, who helped Smith arrange the sale, also testified. The government told the district court that it planned to ask Waggoner about Drew's past felonies.² Before admitting those convictions, the district court instructed the jury:

You are about to hear evidence that the defendant was previously convicted of crimes involving a firearm. You may consider this evidence only if you unanimously find it is more likely true than not true. ... You decide that by considering all of the evidence and deciding what evidence is more believable. This is a lower standard than proof beyond a reasonable doubt.

If you find this evidence has been proved, then you may consider it to help you decide, in this case, the defendant's knowledge of the presence of the firearm, a Glock, ... and his intent to possess it. You should give it the weight and the value you believe it is entitled to receive. If you find this evidence has not been proved, then you must disregard it.

Instruction No. 12. Then, Waggoner testified that Drew had six felony convictions: one first-degree robbery; two second-degree robberies; and three "armed criminal action[s.]" And Waggoner testified that for each conviction, Drew "possess[ed] a handgun in connection with th[e] offense."

The government also presented DNA evidence from forensic scientist Sarah Yearsley. Yearsley's analysis identified Drew "as a possible contributor" to DNA swabs from the gun. While she expressed no knowledge about how the DNA got on the gun, she admitted that it could appear there even if he never touched it.

After the government rested, and during the jury-charge conference, the district court rejected Drew's proposed mere-presence instruction. That instruction would tell the jury that his "mere presence ... at a location where the gun was found [wa]s not sufficient to establish beyond a reasonable doubt that [he] knowingly possessed the firearm[.]"

Instead, the district court's "possession" instruction (No. 21) included constructive- and joint-possession definitions. It told the jury that "[c]onstructive possession" meant that "[a] person who, although not in actual possession, ha[d] both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons[.]" It also told the jury that "joint possession" meant that "two or more persons shar[ed] actual or constructive possession of a thing." After deliberating, the jury found Drew guilty.

Before sentencing, the district court reviewed the parties’ sentencing briefs and the presentencing investigation report ("PSR"). The PSR highlighted Drew's mental-health history, including diagnoses of, and treatment for, anxiety, depression, obsessive-compulsive disorder, post-traumatic stress disorder, schizophrenia, and social-anxiety disorder. Over his objection, the PSR (and a later filing) included allegations about Drew's violent conduct while awaiting sentencing in this case.

At sentencing, everyone agreed on Drew's: (1) total offense level (33); (2) criminal history category (VI); (3) statutory sentence range (fifteen years to life); and (4) United States Sentencing Guidelines Manual ("Guidelines") range (235 to 293 months). The government asked for 360 months and Drew asked for 84. Even though it declined to present evidence to support the PSR's in-custody allegations, the government pointed to those exact allegations to highlight Drew's future dangerousness. Drew, meanwhile, relied on family testimony to tie his in-custody conduct to mental-health-medication imbalances. Drew also said that one presentence assault (beyond the PSR's allegations) stemmed from his cooperation efforts.

In explaining the 360-month sentence, the district court mentioned that it considered the 18 U.S.C. § 3553(a) factors, Drew's past in-custody violations, and his parolee status during this case. It focused primarily on the recent in-custody allegations. In doing so, the district court emphasized concerns about public safety, respect for the law, and the armed nature of the crime.

Drew asks us to review three conviction-related challenges³ and one sentencing challenge.

II. Discussion

A. Past Felony Convictions

Drew argues that the district court erred in admitting six past felony convictions. See Fed. R. Evid. 404(b). We review 404(b) admissions for abuse of discretion. See United States v. Smith , 978 F.3d 613, 616 (8th Cir. 2020). And we will only reverse those admissions when they "clearly had no bearing on the case and w[ere] introduced solely to prove the defendant's propensity to commit criminal acts." Id.

Rule 404(b) reflects the common-law tradition that seeks to avoid "overpersuad[ing] [the jury] as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge."

Old Chief v. United States , 519 U.S. 172, 181, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997) (describing an earlier version of Rule 404(b) ); United States v. Jandreau , 611 F.3d 922, 924 (8th Cir. 2010) (" Old Chief is limited to cases involving prior felony convictions[.]").

It does so by banning parties from using a prior-bad act as propensity evidence. Fed. R. Evid. 404(b) ("Evidence of any other crime, wrong, or act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character."). But in criminal cases, district courts can admit prior-bad-acts evidence for a non-propensity purpose like knowledge or identity. Fed. R. Evid. 404(b)(2). Yet "[w]e do not convict people of crimes simply because of their propensities; we do so because of what they have actually done." United States v. Mothershed , 859 F.2d 585, 589 (8th Cir. 1988).

"Courts properly admit evidence under Rule 404(b) if (1) it is relevant to a material issue; (2) it is similar in kind and not overly remote in time to the crime charged; (3) it is supported by sufficient evidence; and (4) its potential prejudice does not substantially outweigh its probative value." Smith , 978 F.3d at 616 (cleaned up) (quoting United States v. Williams , 796 F.3d 951, 959 (8th Cir. 2015) ). Because Drew conceded the second and third prongs, we limit our discussion to the first and the fourth.

At oral argument, Drew seemingly conceded that our precedent resolves the first prong (materiality) against him but he asks us to revisit it. United States v. Walker , 470 F.3d 1271, 1274 (8th Cir. 2006). Under Walker , a not-guilty plea in a felon-in-possession case makes past firearm convictions relevant to show "the material issue[s] of ... knowledge of the presence of the firearm and his intent to possess it." Id. (emphasis added). Building on that precedent, Smith keeps intent in play even if the government only pursues a constructive-possession theory. Smith , 978 F.3d at 616. Relying on a sister circuit, Drew argues that intent to possess a firearm is not an element of § 922(g). See United States v. Linares , 367 F.3d 941, 946, 948 (D.C. Cir. 2004) (concluding admission of a past arrest involving a loaded gun was not relevant to intent, knowledge, or absence of mistake). Even if we question Walker ’s wisdom, we cannot sidestep it. See Mader v. United States , 654 F.3d 794, 800 (8th Cir. 2011) (en banc) (bound by earliest panel's decision).

Next, for the fourth prong: we ask if the potential prejudice of Drew's six felony convictions substantially outweighed whatever probative value they may have carried. See Smith , 978 F.3d at 616. "Damaging evidence is always prejudicial; the question is whether the evidence is unfairly prejudicial." United States v. Gant , 721 F.3d 505, 510 (8th Cir. 2013). Because Drew argued that the admissions violated both Rule 403 and Rule 404(b), "there is no practical difference whether we analyze the Rule 403 claim separately or instead as a subpart of Rule 404(b)." United States v. Maxwell , 643 F.3d 1096, 1102 (8th Cir. 2011) ; Fed. R. Evid. 403 ("The court may exclude relevant evidence 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.").

At the outset, no...