United States v. DeShawn Miller

638 F. App'x 543
CourtCourt of Appeals for the Eighth Circuit
DecidedFebruary 22, 2016
Docket15-2290
StatusUnpublished

This text of 638 F. App'x 543 (United States v. DeShawn Miller) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth 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. DeShawn Miller, 638 F. App'x 543 (8th Cir. 2016).

Opinion

PER CURIAM.

Appellant-defendant DeShawn Miller (“Miller”) appeals his conviction after a jury trial for Unlawful User in Possession of Firearm in violation of 18 U.S.C. §§ 922(g)(3), 924(a)(2). Miller argues: (1) the government failed to present sufficient evidence to sustain the conviction; (2) the district court 1 erred in denying Miller’s motion to exclude from evidence certain rap lyrics; and (3) the district court erred in imposing a sentence enhancement under the U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 2K2.1(b)(6)(B). We affirm.

I. BACKGROUND

On May 20, 2014, officers approached Miller’s grandmother’s’ garage attempting to locate an individual not a party here. As the officers approached, Miller threw something into a vehicle and shut the door. The officers peered into the vehicle and observed what officers later learned to be a 13.39 gram bag of marijuana and a Colt .45 caliber handgun (the “handgun”) with one round in the chamber. The officers searched Miller’s person and found $1,140.00 cash and keys to the vehicle. The officers also searched the garage and found two bags containing less than 2 grams of marijuana. A grand jury indicted Miller on one-count Unlawful User in Possession of Firearm, 18 U.S.C. §§ 922(g)(3), 924(a)(2).

Prior to trial, Miller moved to exclude evidence of rap lyrics Miller posted on Facebook (the “lyrics”). The lyrics, in pertinent part, stated:

Momma told me, she told me, these ... aint yo homies, watch how ... change they change up that’s why I keep one in the chamber cause imma take one wit me!!

(Emphasis added). The district court overruled the objection, allowing use of the lyrics on the cross-examination of Miller. A jury convicted Miller.

Prior to sentencing, Miller objected to a four-level firearm enhancement under U.S.S.G. § 2K2.1(b)(6)(B). The sentencing judge applied the section 2K2.1(b)(6)(B) enhancement, reasoning “the presence of a loaded firearm, [and] the $1,140 in currency strongly suggests [the handgun] was possessed in connection with a possession with intent to distribute marijuana offense.” The sentencing judge sentenced Miller to 30 months’ (2]6 years’) imprisonment, the bottom end of the advisory Guideline range.

II. DISCUSSION

A. Sufficiency of the Evidence

Miller first argues the government failed to present sufficient evidence to sustain Miller’s conviction. We review sufficiency of the evidence questions de novo, examining the record “in the light most favorable to the jury verdict and giving the verdict the benefit of all reasonable inferences.” United States v. Birdine, 515 F.3d 842, 844 (8th Cir.2008). We reverse “only if no reasonable jury could have found the defendant guilty beyond a reasonable doubt.” United States v. Coleman, 584 F.3d 1121, 1125 (8th Cir.2009).

Section 922(g)(3) provides “[i]t shall be unlawful for any person ,.. who is an unlawful user of or addicted to any controlled substance ... [to] possess in or *545 affecting commerce, 2 any firearm or ammunition.” To prove the elements of the crime, the government referred to the following: (1) Miller threw a plastic bag into a vehicle and shut the door; (2) upon peering through the window of the vehicle, officers observed the handgun and a bag of marijuana; (3) officers discovered $1,140.00 cash and keys to the vehicle on Miller’s person; (4) Miller, after waiving his Miranda rights, admitted to possession of both the marijuana and the handgun; and (5) Miller admitted to smoking marijuana “two or three times a week____for approximately two years.” Viewing the evidence in the light most favorable to the verdict, we conclude sufficient evidence supports the jury’s verdict.

B. Motion to Exclude the Lyrics

Miller next argues the district court erred in denying Miller’s motion to exclude the lyrics. We review “evidentia-ry rulings for abuse of discretion, reversing ‘only when an improper evidentiary ruling affects the substantial rights of the defendant, or ... had more than a slight influence on the verdict.’ ” United States v. Thomas, 791 F.3d 889, 895 (8th Cir.2015) (quoting Finan v. Good Earth Tools, Inc., 565 F.3d 1076, 1080 (8th Cir.2009)). Evidence is inadmissible if it is irrelevant or “its probative value is substantially outweighed by a danger of ... unfair prejudice.”- Fed.R.Evid. 401-03. The district court “has broad discretion in determining the relevancy and admissibility of evidence.” United States v. Wallace, 722 F.2d 415, 416 (8th Cir.1983).

Miller first asserts the lyrics were irrelevant. To the contrary, Miller testified at trial that he did not possess the handgun. Miller’s testimony made possession of the handgun a fact of consequence at trial. Accordingly, the lyrics became relevant on cross examination to show Miller, in fact, possessed the handgun because police confiscated the handgun with “one in the chamber,” paralleling the lyrics posted by Miller. The lyrics, thus, had a “tendency to make a fact”—Miller’s possession of the handgun—“more or less probable than it would be without the evidence.” Fed. R.Evid. 401; see also United States v. Moore, 639 F.3d 443, 447-48 (8th Cir.2011) (holding rap recordings about dealing cocaine were relevant to show knowledge and motive when the defendant testified he had never purchased or sold cocaine).

Miller also claims the lyrics were “unfairly prejudicial” because the lyrics portrayed Miller as “another dangerous, violent black man.” But “[w]e give great deference to a district court’s application of the Rule 403 balancing test.” United States v. Lupino, 301 F.3d 642, 646 (8th Cir.2002). Here, the district court balanced the interests at stake and determined the value of the relevant evidence outweighed the prejudice to Miller. United States v. Gant, 721 F.3d 505, 510 (8th Cir.2013) (“Damaging evidence is always prejudicial; the question is whether the evidence is unfairly prejudicial.”) (quoting United States v. Tyerman,

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Related

United States v. Moore
639 F.3d 443 (Eighth Circuit, 2011)
United States v. Eric Wallace
722 F.2d 415 (Eighth Circuit, 1983)
United States v. Donald Lupino
301 F.3d 642 (Eighth Circuit, 2002)
United States v. Shawn Gant
721 F.3d 505 (Eighth Circuit, 2013)
Finan v. Good Earth Tools, Inc.
565 F.3d 1076 (Eighth Circuit, 2009)
United States v. Birdine
515 F.3d 842 (Eighth Circuit, 2008)
United States v. Coleman
584 F.3d 1121 (Eighth Circuit, 2009)
State v. Adams
554 N.W.2d 686 (Supreme Court of Iowa, 1996)
United States v. Kenvis Norwood
774 F.3d 476 (Eighth Circuit, 2014)
United States v. Delvonn Battle
774 F.3d 504 (Eighth Circuit, 2014)
United States v. Brandy Thomas
791 F.3d 889 (Eighth Circuit, 2015)
United States v. Lori Jenkins
792 F.3d 931 (Eighth Circuit, 2015)
United States v. Brandon Tyerman
701 F.3d 552 (Eighth Circuit, 2012)

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Bluebook (online)
638 F. App'x 543, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-deshawn-miller-ca8-2016.