UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 95-60218 Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
BARTO EDWARD USRY, JR.,
Defendant-Appellant.
Appeal from the United States District Court For the Southern District of Mississippi (3:94cr123WN) (October 23, 1995)
Before THORNBERRY, JOLLY and BENAVIDES, Circuit Judges. PER CURIAM:* Appellant Barto Usry appeals his conviction for possession of
a firearm by a felon. We affirm.
BACKGROUND
Officer Rozerrio Camel of the City of Jackson, Mississippi,
* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the Court has determined that this opinion should not be published. Police Department testified that, on the afternoon of September 15,
1994, while patrolling his usual beat, he spotted a blue and white
pickup truck with no license plate. When the pickup stopped at a
red light with Camel's car behind it, Camel observed that the
driver "began to look around like he was nervous . . . just unusual
movement. He was jumping around. And he leaned forward." After
Camel stopped the truck, the driver identified himself as Barto
Usry, but said he had no driver's license or other identification.
Camel placed Usry under arrest, conducted a pat-down for weapons,
and seated him in his patrol car. A check of the truck's
identification number indicated the vehicle was not stolen, but
belonged to someone other than Usry. Camel then began an inventory
of the truck's contents and found a loaded Colt .357 Magnum handgun
under the driver's seat. When Camel confronted Usry with the gun,
Usry "stated . . . that he was a convicted felon and he would be a
fool if he was caught with a gun." At some point Usry was released
on bond.
On October 19, 1994, Usry voluntarily went to the office of
Special Agent Ted G. Stratakos of the Bureau of Alcohol, Tobacco
and Firearms, who was investigating a different incident.
Stratakos testified that, during this meeting, Usry admitted
commission of the instant offense. According to Stratakos, Usry
told him that on the day he was stopped by Camel, "he was on his
way to deliver one eighth of an ounce of crystal methamphetamine .
. .." He also told Stratakos
that while he was driving the truck, he had a revolver, a 357 revolver tucked in the waistband of his pants. He
2 said that while he was being stopped, he reached into his pants and he even gestures -- showed me how he reached into his pants and put this revolver under the driver's seat. . . . And he told me that he told the officer the gun was in the car because he felt it was inevitable that the officer would find it.
After Usry was convicted by a jury of the instant offense the
court assessed a 295 month sentence, five years supervised release,
a $5,000 fine, and a $50.00 special assessment. He raises several
challenges to his conviction and sentence, including sufficiency of
the evidence to support the conviction.
SUFFICIENCY OF EVIDENCE
Usry argues the evidence was insufficient to support his
conviction because the Government failed to establish a connection
between himself and the .357 revolver, and therefore, his motion
for judgment of acquittal should have been granted. We disagree.
In a analyzing an insufficiency claim this Court, viewing the
evidence in the light most favorable to the verdict, affords the
Government the benefit of all reasonable inferences and credibility
choices. United States v. Nixon, 816 F.2d 1022, 1029 (5th Cir.
1987), cert. denied, 484 U.S. 1026 (1988). It is not necessary for
the evidence to exclude every reasonable hypothesis of innocence,
or be inconsistent with every conclusion except that of guilt, so
long as a reasonable trier of fact could find the evidence
establishes guilt beyond a reasonable doubt, and the jury may
choose among reasonable constructions of the evidence. United
States v. Bell, 678 F.2d 547, 549 (5th Cir. 1982) (en banc), aff'd,
462 U.S. 356 (1983).
3 To support a conviction for unlawful possession of a firearm
by a convicted felon, the Government must prove the defendant had
a prior felony conviction, knowingly possessed a firearm, and the
firearm traveled in or affected interstate commerce. 18 U.S.C.
§ 922(g); United States v. Wright, 24 F.3d 732, 734 (5th Cir.
1994). Possession may be actual or constructive, Id. at 734.
Constructive possession is defined as ownership, dominion or
control over the premises or vehicle in which the contraband is
concealed, and a fact-specific approach is applied to determine
whether the firearm was constructively possessed. Id. at 734-35.
Usry challenges the government's proof of the second element, viz:
that he knew there was a handgun in the car he was driving.
In addition to the facts recited above, the jury heard the
following additional evidence. Officer Camel testified that the
.357 revolver was pushed up under the seat of the truck in a place
close enough to the driver's seat so that Usry would have had easy
access to the gun or could have placed it there. Special Agent
Stratakos testified that Usry told Camel "the gun was in the car
because he felt it was inevitable that the officer would find it."
Stratakos further stated that Usry informed him that two women
named Brenda and Pam had given him the revolver for an eighth of an
ounce of methamphetamine, and told him that the gun was stolen from
a highway patrolman.
Usry argues that because his fingerprints were not on the
revolver and because he was not the owner of the truck, the
evidence was insufficient to show knowing possession, relying on
4 United States v. Blue, 957 F.2d 106 (4th Cir. 1992). In Blue, the
court found the evidence insufficient because there were no
fingerprints or any other physical evidence to show the defendant
knowingly possessed the firearm. Id. at 108. However, Blue is
distinguishable from the instant case because here, Stratakos'
testimony that Usry admitted possessing the revolver showed that he
knowingly possessed the firearm. The jury was free to believe
Stratakos' testimony. Bell, 678 F.2d at 549. Viewed in the light
most favorable to the verdict, the evidence was sufficient to
support the conviction.
EXTRINSIC OFFENSES
Prior to trial Usry filed a motion in limine attempting to
exclude Stratakos' testimony regarding Usry's involvement in
narcotics transactions before and after his arrest as prejudicial
and irrelevant under FED. R. EVID. 403. He specifically complained
of the following acts of misconduct related by Stratakos: that Usry
was on his way to deliver drugs when stopped; that he had acquired
the allegedly stolen revolver from two women; and that he had
ingested methamphetamine while in the back of Camel's car and
remained "wired" for three days afterward. The district court
denied the motion, but counsel renewed the objection to this line
of testimony when Stratakos began testifying that Usry was on his
way to deliver methamphetamine when Camel stopped him. The court
referenced its prior ruling but did not state reasons for the
denial. Usry now reurges his Rule 403 complaint, but also argues
5 for the first time on appeal that the evidence was precluded under
FED. R. EVID. 404(b). Because he did not argue application of Rule
404(b) before the district court, these contentions will be
reviewed under a plain error standard of review.
A reviewing court will reverse a district court's ruling on
admissibility of evidence only if it was an abuse of discretion.
United States v. Eakes, 783 F.2d 499, 506-07 (5th Cir.), cert.
denied, 477 U.S. 906 (1986). In order to preserve a challenge to
the admission of evidence after the denial of a motion in limine,
an objection must be made or renewed at trial contemporaneously
with presentation of the challenged evidence. United States v.
Graves, 5 F.3d 1546, 1551-52 (5th Cir. 1993), cert. denied, 114
S.Ct. 1829 (1994).1
This court will correct plain forfeited errors only when the
appellant shows that there is an error, that is clear or obvious,
which affects his substantial rights. United States v. Calverly,
37 F.3d 160, 162-64 (5th Cir. 1994) (en banc) (citing United States
v. Olano, U.S. , 113 S.Ct. 1770, 1776-79 (1993)), cert.
denied, 115 S.Ct. 1266 (1995). Parties are required to challenge
1 Although counsel renewed his objection to Stratakos' testimony that Usry was delivering methamphetamine when stopped, he did not ask for a running objection, or continue to object either when Stratakos testified regarding the acquisition of the gun, or when he related the tale of how Usry had ingested the drug while in Camel's car, and which caused him to be "wired for two or three days" after his arrest and incarceration. Since these incidents were arguably separate and distinct extrinsic offenses, and because counsel did not object as the evidence unfolded at trial, his Rule 403 complaint regarding this evidence will also be reviewed under the plain error standard. Graves, 5 F.3d at 1552.
6 errors in the district court, and when a criminal defendant fails
to object, thereby forfeiting the error, this Court may remedy the
error only in the most exceptional case. Calverly, 37 F.3d at 162.
Usry argues that, under Fed. R. Evid. 404(b), Stratakos'
testimony concerning his involvement with narcotics was extrinsic
to the offense of possession of a firearm. Alternatively, he
argues that, if the evidence was not extrinsic, its admission was
unfairly prejudicial because it allowed the Government to portray
him as an armed narcotics dealer. Rule 404(b) precludes admission
of
[e]vidence of other crimes, wrong or acts . . . to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . ..
An inherent danger in admission of "other acts" evidence is that a
jury might convict the defendant not of the charged offense, but of
the extrinsic offense. United States v. Ridlehuber, 11 F.3d 516,
521 (5th Cir. 1993); United States v. Beechum, 582 F.2d 898, 914
(5th Cir. 1978), cert. denied, 440 U.S. 920 (1979). Even if
relevant, the probative value of extrinsic act evidence must be
weighed against its prejudicial impact. Ibid.
In order to be admissible under Rule 404(b), uncharged
misconduct evidence must be relevant to an issue other than the
defendant's character, must possess probative value which is not
outweighed by undue prejudice, and must satisfy the other
requirements of Rule 403. United States v. Bentley-Smith, 2 F.3d
1368, 1377 (5th Cir. 1993). With the above principles in mind, we
7 turn to analysis of the complained of acts in the instant case.
Stratakos' testimony that Usry was en route to deliver drugs
when stopped and his acquisition of the handgun through a trade was
arguably relevant to show knowledge, an element which the
Government must prove in a prosecution for possession of a firearm
by a felon. See Wright, 24 F.3d at 734. As such, the testimony was
not relevant solely as character evidence. See Ridlehuber, 11 F.3d
at 521. Rule 404(b) therefore, did not preclude admission of the
testimony. However, our analysis does not stop here.
Rule 403 provides that, "[a]lthough relevant, evidence may be
excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading
the jury . . .." (emphasis added). This Court is reluctant to
exclude evidence under Rule 403 because all relevant evidence is by
its nature inherently prejudicial to the defendant. Only unfair
prejudice which substantially outweighs probative value permits
exclusion of relevant evidence under Rule 403. United States v.
Pace, 10 F.3d 1106, 1115-16 (5th Cir. 1993), cert. denied, 114
S.Ct. 2180 (1994).
The testimony that Usry obtained the gun through a trade, and
that he was on his way to deliver drugs was probative of Usry's
knowing possession of a firearm, and therefore relevant because it
tended to "make the existence of any fact that is of consequence to
the determination of the action more probable . . . than it would
without the evidence." FED. R. EVID. 401. The evidence was also
prejudicial because distribution of methamphetamine "is the kind of
8 offense for which the jury may feel the defendant should be
punished regardless of whether he is guilty of the charged
offense." Ridlehuber, 11 F.3d at 523. Nevertheless, even though
no limiting instruction was given, the prejudicial nature of this
evidence was mitigated in part by the weight of the unchallenged
evidence supporting Usry's conviction. This evidence included
Usry's statement to Stratakos that he had the revolver on his
person when Camel stopped him, as well as Camel's testimony that
the gun was well within Usry's reach inside the truck. Under these
circumstances the prejudicial nature of the evidence did not
substantially outweigh its probative value. Thus, there was no
error, plain or otherwise in its admission.
Stratakos' testimony regarding Usry's possession and ingestion
of methamphetamine after his arrest, however, is a different
matter. Stratakos was permitted to testify as follows:
He said that while he was in the back of the patrol car that he had a small packet with approximately one gram of crystal methamphetamine in it and that he tossed it on the patrol car floor; that he still had the one eighth ounce of crystal methamphetamine on his person. He told me that when they transported him to the city jail and he was being booked, he had the opportunity to take that bag and put it in his mouth. And he began trying to swallow the drug. He told me that he swallowed a major portion of the drug and even joked about the fact that he stayed wired for two or three days afterward because the drug was in his system.
This testimony had absolutely no relevance to any issue in the
case, as the Government had no need of this incident to prove any
element of the offense, nor was it "inextricably intertwined" with
the crime. Indeed, this evidence was, by its very nature, the type
of character evidence that Rule 404(b) was meant to exclude.
9 Evidence of drug trafficking, as stated previously is extremely
inflammatory and prejudicial, as it may cause the jury to convict
based solely on the extrinsic evidence. Ridlehuber, 11 F.3d at
523. The district court should not have allowed this testimony.
However, a review of the record indicates its admission did not
affect Usry's substantial rights and thus, no plain error resulted.
See Calverly, 37 F.3d at 164.
DENIAL OF CAUTIONARY INSTRUCTION
At the close of the evidence, the trial judge refused Usry's
requested instruction which stated as follows:
There is proper concern about the stipulation to the fact that the defendant has a felony conviction. Many persons are convicted felons. Simply because the defendant has a felony conviction does not mean that he committed the crime charged.
Usry argues this instruction was necessary to overcome the inherent
bias of his status as a convicted felon.
The district court has wide latitude in formulating the jury
charge, and refusal to give a requested instruction is reviewed for
an abuse of discretion. United States v. Aggarwal, 17 F.3d 737,
745 (5th Cir. 1994). This Court will reverse only if the requested
instruction was substantially correct, was not substantially
covered in the charge actually delivered to the jury, and concerns
an important point such that failure to give it seriously impaired
the defendant's ability to effectively present his defense. Ibid.
The court instructed the jury that the stipulation between the
parties "is not and was not admitted as proof concerning the
10 question of whether or not the defendant knowingly possessed a
firearm which affected interstate commerce." Further, "The fact
that the defendant has a felony conviction cannot in and of itself
infer that the defendant knowingly possessed a firearm which
affected interstate commerce." Jurors were also instructed that
they were required to find "evidence independent of the
stipulation" to prove the crime charged. Since Usry's requested
instruction was comprehensively covered in the charge given the
jury, the refusal to deliver the proposed instruction did not
seriously impair his ability to present a defense. See Aggarwal,
17 F.3d at 745. Consequently, the district court did not abuse its
discretion in denying the requested instruction.
SENTENCING
Usry argues the district court erred in denying him a
reduction for acceptance of responsibility and in applying the
armed career criminal provision in calculating his sentence. The
district court's application and interpretation of the Sentencing
Guidelines are reviewed de novo, while its findings of fact are
reviewed for clear error. United States v. Hill, 42 F.3d 914, 916
(5th Cir. 1995), cert. petition filed, June 5, 1995. A sentence
will be vacated only if it was imposed in violation of law, if the
guidelines were improperly applied, or if the sentence is outside
the guidelines and is unreasonable. United States v. Parks, 924
F.2d 68, 71 (5th Cir. 1991).
Usry argues that the district court should have granted him a
11 reduction for acceptance of responsibility under U.S.S.G.
§ 3E1.1(a) because he admitted to Agent Stratakos that he possessed
the firearm. § 3E1.1(a) authorizes the district court to decrease
the offense level by two levels if "the defendant clearly
demonstrates acceptance of responsibility for his offense[.]" The
commentary accompanying § 3E1.1 states that conviction after a
trial as opposed to a guilty plea does not automatically preclude
consideration for the reduction, but in certain circumstances a
defendant may qualify for the adjustment based on pre-trial
statements and conduct. § 3E1.1, note 2. If a defendant "falsely
denies or frivolously contests, relevant conduct that the court
determines to be true [he] has acted in a manner inconsistent with
acceptance of responsibility." § 3E1.1, note 1(a).
Consistent with note 5 of § 3E1.1, we have agreed that because
the sentencing judge is in a unique position to evaluate the
defendant's acceptance of responsibility, the court's determination
must be afforded great deference on review. United States v.
Franks, 46 F.3d 402, 405 (5th Cir. 1995). This Court has applied
various standards of review of a district court's refusal to credit
acceptance of responsibility: "clearly erroneous," "without
foundation," and "great deference." Id. at 406. There appears to
be no practical difference between these standards. Ibid. However,
we have held the standard is even more deferential than a pure
clearly erroneous standard. United States v. Maldonado, 42 F.3d
906, 913 (5th Cir. 1995).
Although Usry orally confessed to Stratakos, he also
12 challenged the fact that he made the statement and the content of
the statement during trial and sentencing. The adjustment for
acceptance of responsibility does not "apply to a defendant who
puts the government to its burden of proof at trial by denying
essential factual elements of guilt, is convicted, and only then
admits guilt and expresses remorse." § 3E1.1. A defendant's
attempt to minimize or deny involvement in an offense supports a
court's refusal to grant a reduction for acceptance of
responsibility. United States v. Watson, 988 F.2d 544, 551 (5th
Cir. 1993), cert. denied, 114 S.Ct. 698 (1994). Usry has not met
his burden of showing the district court abused its discretion in
denying the reduction.
Finally, Usry complains the district court erred in enhancing
his sentence because he was an armed career criminal under U.S.S.G.
§ 4B1.4(b)(3)(A). The Presentence Report ("PSR") included a
finding that the enhancement applied and the district court
agreed.2 A defendant may be subject to the enhancement under 18
U.S.C. § 924(e) if he was convicted of being a felon in possession
of a firearm, 18 U.S.C. § 922(g), and he had at least three prior
violent felony convictions. § 4B1.4, comment (n.1). The PSR
stated that Usry qualified as a violent felony offender because he
had three prior convictions for armed robbery and was delivering
methamphetamine when arrested for possessing the .357 revolver.
2 Usry challenges this finding by the district court for the first time on appeal. Therefore, his complaint is reviewed only for plain error. See United States v. Brunson, 915 F.2d 942, 944 (5th Cir. 1990), overruled on other grounds, Calverly, 37 F.3d at 163-64, n.27.
13 Added to the other adjustments, this enhancement resulted in a
total offense level of 34 and a criminal history category of six,
with a sentencing range of 262 to 327 months.
Usry's complaint regarding the enhancement is twofold. First,
he argues that because the district court found he was only in
possession of the methamphetamine during commission of the offense
the enhancement did not apply. Second, he asserts the court should
not have applied the enhancement because being a felon in
possession of a firearm is not a crime of violence, relying on
Stinson v. United States, 113 S.Ct. 1913 (1993). This latter
contention is unavailing because Usry's enhancement was due to his
involvement with narcotics and not because his was a crime of
violence.3
The court at sentencing found that Usry had a base level
offense of 24 because he was convicted of violating § 922(g) and
had at least two prior felony convictions for crimes of violence.
U.S.S.G. § 2K2.1(a)(2). The base offense level was raised to level
28 because Usry possessed a firearm in connection with another
felony offense, namely possession of a controlled substance.
U.S.S.G. § 2K2.1(b)(5). The court further found that because Usry
had three violent felony convictions, pursuant to § 924(e)(1) and
§ 4B1.4(b)(3)(A) he was deemed to be an armed career criminal,
further raising the offense level by four additional levels.
3 Usry was not sentenced under § 4B1.1 (Nov. 1989), the career-offender guideline provision interpreted in Stinson. The commentary to the 1994 version of § 4B1.2 contains a definition of "crime of violence" which specifically excludes unlawful possession of a firearm by a felon. § 4B1.2 (comment, note 2).
14 § 4B1.4(b)(3)(A) provides in part that the offense level is 34
"if the defendant used or possessed the firearm . . . in connection
with a crime of violence or a controlled substance offense, as
defined in §4B1.2(1), . . .." Usry contends that his offense does
not fit the definition of this section, which defines "controlled
substance offense" as "an offense under a federal or state law
prohibiting the manufacture, import, export, distribution, or
dispensing of a controlled substance . . . or the possession of a
controlled substance . . . with intent to manufacture, import,
export, distribute, or dispense." § 4B1.2(1) (emphasis added).
Since the PSR found him to be in possession of methamphetamine with
intent to distribute the drug, and the district court followed the
PSR in sentencing him, the offense adequately fit the definition
provided in § 4b1.2(1). Thus, there was no plain error in the
district court's application of the guidelines.
CONCLUSION
We find no merit to any of Usry's contentions. Therefore, the
judgment and sentence are
AFFIRMED.