United States v. Burnette

21 F. App'x 382
CourtCourt of Appeals for the Sixth Circuit
DecidedOctober 10, 2001
DocketNo. 99-6342
StatusPublished
Cited by1 cases

This text of 21 F. App'x 382 (United States v. Burnette) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Burnette, 21 F. App'x 382 (6th Cir. 2001).

Opinion

OPINION

GILMAN, Circuit Judge.

Solomon E. Burnette was arrested on August 19, 1994 after selling crack cocaine to an undercover police officer. He was subsequently indicted for unlawfully possessing a firearm on two separate occasions, possessing crack cocaine with the intent to distribute, and carrying a firearm during a drug trafficking offense. The jury found Burnette guilty on all counts. He was subsequently sentenced by the district court to 387 months in prison, followed by three years of supervised released. Burnette appeals, challenging both his conviction and sentence on numerous grounds. For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

A. Factual background

On the evening of June 29, 1994, police officers were investigating a complaint about drug dealing near the intersection of Baskin and Halcomb streets in Memphis. The officers observed at least three men engaging in what appeared to be drug transactions. When the officers approached these men and identified themselves as police officers, the men fled. Two of the men ran south and one ran north.

Lieutenant Lawrence Johnson, who was in radio contact with the other police officers, was driving a police van when he saw a man running north from the intersection of Baskin and Halcomb streets. Johnson exited his vehicle and chased the man. While pursuing the suspect, Johnson identified himself as a police officer and told the man to stop. The man turned and fired gunshots at Johnson. Johnson returned the gunfire, but the man escaped. Soon thereafter, near the scene of the gunfire exchange, police officers recovered a recently discharged handgun that was covered with blood. Johnson later identified Burnette as the man who fired the gunshots at him.

On the same night, Darnell Ousley, a guard at the Shelby County Correctional Center who lived near the intersection of Baskin and Halcomb streets, saw a man running through his yard. Ousley recognized the man as someone who had been incarcerated at the Shelby County Correctional Center. Ousley later identified Burnette as the man he saw running through his yard.

On July 12, 1994, two Memphis police officers saw Burnette sitting on the porch of a vacant house near the intersection of Baskin and Halcomb streets. Burnette [385]*385fled as the officers approached, firing gunshots at them as he retreated.

On August 19, 1994, an undercover police officer purchased crack cocaine from Burnette. Following the transaction, another police officer approached Burnette and attempted to arrest him. Burnette fled into a nearby apartment building. After chasing Burnette into one of the apartments, the police officer found him in the bathroom next to a toilet that was in the process of being flushed. The officer found marked money in Burnette’s front right pants pocket and an unloaded firearm in his front left pants pocket.

B. Procedural background

Burnette was indicted on the following four counts: (1) possession of a firearm on June 29, 1994, in violation of 18 U.S.C. § 922(g), (2) possession of a firearm on August 19, 1994, in violation of 18 U.S.C. § 922(g), (3) possession with intent to distribute crack cocaine on August 19, 1994, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and (4) carrying a firearm during a drug trafficking offense on August 19, 1994, in violation of 18 U.S.C. § 924(c). Burnette’s original trial commenced on July 15, 1996 and concluded on July 19, 1996. After the jury found him guilty on all four counts, the district court sentenced him to 387 months in prison, followed by five years of supervised release. Burnette filed a timely appeal.

On April 13, 1999, a prior panel of this court reversed Burnette’s conviction based on the panel’s conclusion that the district court erred in admitting the police officers’ testimony that Burnette had fired gunshots at them during the incident on July 12, 1994. United States v. Burnette, No. 97-5467, 1999 WL 238652 (6th Cir. Apr.13, 1999) (unpublished table decision). The case was thus remanded for a new trial. Retrial commenced on August 2, 1999 and concluded on the following day. The jury again found Burnette guilty on all four counts. He was given the same sentence of 387 months in prison, but his term of supervised release was shortened to three years. This timely appeal followed.

II. ANALYSIS

A. The district court did not commit plain error by allowing the government to introduce evidence of Burnette’s July 12, 1994 flight to show consciousness of guilt

Burnette argues that the district court erred by admitting evidence that, on July 12, 1994, police officers saw him sitting on the porch of a vacant house, that he waved at the officers, and then fled in order to avoid arrest. He argues that this evidence of uncharged misconduct is not admissible pursuant to Rule 404(b) of the Federal Rules of Evidence. Rule 404(b) provides that evidence of other acts is “not admissible to prove the character of a person in order to show action in conformity therewith____” Such evidence, however, may be admissible for other purposes, including proof of “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....” Id.

Because Burnette did not object to the introduction of this evidence at trial, we review its admission under the plain error standard set forth in Rule 52(b) of the Federal Rules of Criminal Procedure. This court has described the plain error analysis as consisting of four inquiries: (1) whether an error actually occurred in the district court, (2) the obviousness of that error, (3) whether the error affected substantial rights, and (4) whether the compromise of substantial rights seriously affected the fairness, integrity or public reputation of the judicial proceedings. [386]*386United States v. Thomas, 11 F.3d 620, 629-30 (6th Cir.1993).

Our inquiry begins with an examination of whether the district court erred in determining that the evidence was admissible for a legitimate purpose. Evidence of other acts is probative of a material issue other than character if (1) the evidence is offered for a legitimate purpose, (2) the purpose for which the evidence is offered is material or “in issue,” and (3) the evidence is probative with regard to the purpose for which it is offered. United States v. Johnson, 27 F.3d 1186, 1190-93 (6th Cir.1994) (finding that evidence of the defendant’s prior drug sales was probative of his intent to distribute cocaine on the date charged).

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Bluebook (online)
21 F. App'x 382, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-burnette-ca6-2001.