United States v. Mozee

405 F.3d 1082, 2005 U.S. App. LEXIS 7188, 2005 WL 958498
CourtCourt of Appeals for the Tenth Circuit
DecidedApril 27, 2005
Docket04-8015
StatusPublished
Cited by46 cases

This text of 405 F.3d 1082 (United States v. Mozee) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth 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. Mozee, 405 F.3d 1082, 2005 U.S. App. LEXIS 7188, 2005 WL 958498 (10th Cir. 2005).

Opinions

SEYMOUR, Circuit Judge.

Armond Eugene Mozee entered a plea of guilty to a charge of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). At sentencing, Mr. Mozee’s guidelines range was enhanced by four offense levels, pursuant to U.S.S.G. § 2K2.1(b)(5), on the basis of the district court’s finding that Mr. Mozee possessed a firearm in connection with the commission of another felony offense. Incorporating the four-level enhancement, the court determined Mr. Mozee’s guidelines range was 100 to 120 months and sentenced him to 120 months incarceration. Mr. Mozee advances several theories to support his contention that the district court erred in finding he possessed a firearm in connection with the commission of another felony. He also argues his Sixth Amendment rights were violated pursuant to Blakely v. Washington, — U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). For the reasons stated below, we AFFIRM.

I

It is undisputed that on July 14, 2003, a loaded firearm in the immediate possession of Mr. Mozee was discharged. It is further undisputed that the bullet expelled from the discharge struck Mr. Mozee’s former girlfriend, Susan Ferguson. The bullet entered her body at the upper left side of her back and exited from the middle of her right buttock. The factual circumstances leading up to and resulting in the shooting are in dispute. Of particular significance is the question of whether the shooting was accidental or intentional in nature. Based on the facts stated below, the district court determined, by a preponderance of the evidence, that the shooting was intentional.

After the shooting incident, the Cheyenne Police Department (CPD) was notified that Ms. Ferguson had been admitted to the hospital suffering from a suspicious gunshot wound. Officer Radomicki and Detective Weese were the initial CPD investigating officers dispatched to the hospital. According to Officer Radomicki, Ms. Ferguson relayed a series of stories regarding how she had sustained her injuries, which ranged from being struck by a rock thrown from a passing car in the street to a drive-by shooting. When Detective Weese arrived at the hospital, he examined Ms. Ferguson’s wounds where the bullet had entered and exited her body. He did not see any gun powder burn marks around her entrance wound [1085]*1085(commonly referred to as “stippling” or “tattooing”), the presence of which is one method of determining whether the gunshot occurred at close range. After the examination, Detective Weese proceeded to the residence Ms. Ferguson shared with Mr. Mozee in Cheyenne, Wyoming.

Upon his arrival at the Ferguson-Mozee residence, Detective Weese met Mr. Moz-ee and questioned him regarding the shooting incident. Mr. Mozee’s first version of events was nearly identical to the second story Ms. Ferguson had provided Officer Radomicki: that Ms. Ferguson sustained her injuries as a result of a drive-by shooting. Detective Weese requested that Mr. Mozee accompany him to the CPD to discuss the matter further. Mr. Mozee agreed and, once the pair arrived at the CPD, the detective began a second interview.

Mr. Mozee elaborated on his initial version of events, again denying any involvement in the shooting. He said he first became aware of the shooting when he witnessed Ms. Ferguson lying on a couch in their residence with blood coming from the area of her back. He claimed he then called a friend, Vicki Hoffman, who resided in Loveland, Colorado, and requested she drive approximately 70 miles to Cheyenne to assist him with the situation. After Ms. Hoffman arrived from Loveland, she took Ms. Ferguson to the hospital.

Detective Weese did not believe Mr. Mozee and pressed him further. Mr. Moz-ee then said he had accidentally shot Ms. Ferguson while they were arguing in their home. He claimed he picked up his Colt .380 caliber handgun from a nearby table during the argument. While he was in the process of placing the gun in the waistband of his pants, where he routinely carried it, Ms. Ferguson grabbed his arm and caused the gun to sweep past her body. Mr. Mozee reported that the gun discharged during this “sweep,” wounding Ms. Ferguson.

Detective Weese was not convinced by Mr. Mozee’s story. His skepticism was principally fueled by his belief that the bullet’s trajectory through Ms. Ferguson’s body would have only occurred as it did if Ms. Ferguson was in a crouching position with her head oriented toward her knees at the time of the shooting. After his interview with Mr. Mozee, therefore, Detective Weese returned to the hospital to speak with Ms. Ferguson. The detective informed her of the reason for his visit and she offered a third version of events. According to Ms. Ferguson, she and Mr. Mozee were arguing and, at some point, she turned to walk out of the door when she felt a sharp burn or pain in her lower middle back. Detective Weese said Ms. Ferguson told him that she was “getting out of the house, and I got shot.” Rec., vol. IV at 24.

At Mr. Mozee’s sentencing hearing, Detective Weese testified that while Ms. Ferguson’s latest version of events was more consistent with the geometry of her wounds, her story still failed to fully explain the bullet’s trajectory. The detective remained convinced that when the shot was fired, Ms. Ferguson was crouched down, leaning forward, and facing her shooter. On cross-examination, Detective Weese conceded that there were at least theoretically conceivable physical contortions two people in a struggle could achieve that might explain Ms. Ferguson’s wounds. He also acknowledged that Ms. Ferguson had not characterized the shooting as either intentional or accidental; she simply said, “I got shot.”

Vicki Hoffman also testified at Mr. Moz-ee’s sentencing hearing. She reported that, upon her arrival at the Ferguson-Mozee residence, she observed Ms. Ferguson’s condition and asked Mr. Mozee what [1086]*1086had happened. Ms. Hoffman initially testified that “he really didn’t say anything,” and “he just sat there.” Id. at 26. Once pressed, however, she testified that Mr. Mozee responded: “[Ms. Ferguson] was fucking with me and wouldn’t leave me alone.” Id. at 21. Ms. Hoffman admitted that Mr. Mozee repeated this line several times before she finally took Ms. Ferguson to the emergency room.

The final witness at the sentencing hearing was Shirley Martinez, the victim-witness coordinator for the Wyoming United States Attorney’s Office. She testified that Ms. Ferguson contacted her approximately two weeks after the shooting, inquiring whether Mr. Mozee would be paroled or released from jail. From August 1 until August 12, 2003, Ms. Martinez spoke with Ms. Ferguson several times. Their conversations focused on domestic violence issues and the possibility of Ms. Ferguson attending domestic violence counseling. Based on her 17 years of experience and training in the area of domestic violence, Ms. Martinez opined that Ms. Ferguson was afraid of Mr. Mozee and the possibility that he might be released from jail.

The officer who prepared Mr. Mozee’s presentence report (PSR) evaluated the facts and circumstances of Ms. Ferguson’s shooting and proposed a four-level enhancement to Mr. Mozee’s base offense level, pursuant to § 2K2.1(b)(5), because his felony possession of the firearm was “in connection with” the felony offense of aggravated assault. Mr.

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Bluebook (online)
405 F.3d 1082, 2005 U.S. App. LEXIS 7188, 2005 WL 958498, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mozee-ca10-2005.