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United States v. Wyatt

United States Court of Appeals, Eighth Circuit

April 4, 2017

United States of America Plaintiff- Appellee
v.
Wesley B. Wyatt Defendant-Appellant

          Submitted: November 18, 2016

         Appeal from United States District Court for the Western District of Missouri - Kansas City

          Before RILEY, [1] Chief Judge, WOLLMAN and KELLY, Circuit Judges.

          RILEY, Chief Judge.

         A jury found Wesley Wyatt guilty of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court[2] sentenced Wyatt to a prison term of 262 months. On appeal, Wyatt contends the indictment charged him with receipt (not possession) of a firearm, and thus the district court should have granted his motion for judgment of acquittal because the government failed to carry its burden of proving where and when Wyatt received the gun. Wyatt also argues the district court erred by applying the Armed Career Criminal Act (ACCA) enhancement under 18 U.S.C. § 924(e), because a jury never found beyond a reasonable doubt his prior convictions occurred on different occasions. We find no merit in either argument, and we affirm Wyatt's conviction and sentence.

         I. BACKGROUND

         On September 18, 2013, the Kansas City Police Department (Missouri) received a call from Lisa Hayes about a domestic disturbance at her apartment. Officers arrived at the scene within a few minutes to find Hayes-Wyatt's girlfriend and roommate-waiting for them outside. Hayes told the officers she had just been in an argument with Wyatt that "escalated to a point where he pulled a gun, pointed it at her, " and said something to the effect of "'If you don't leave, I will kill you.'" The officers then canvassed the surrounding area for roughly 20 minutes, but had no luck locating Wyatt and returned to the apartment. They were discussing the matter outside when Hayes, who had returned inside during the search, yelled from her porch that Wyatt was sitting on the couch inside the apartment. The officers arrested Wyatt "without incident, " though they could not find the gun before taking Wyatt to headquarters for booking.

         Two hours after the first report, dispatch received another call from Hayes. Hayes told the police Wyatt's sister had contacted her, saying "the thing" was in the mailbox and that she needed to "take care of it" for Wyatt. Sure enough, when Hayes found Wyatt's keys and looked in the mailbox she found a loaded .38-caliber Derringer pistol. Hayes had never seen the gun before that night, but Wyatt had told her within the last week that he had purchased a gun and hidden it outside the apartment. A detective subsequently discovered two calls Wyatt had made from the detention center after he was detained that corroborated Hayes's story. In the first recorded call, Wyatt indicated there was "[s]omething serious in that mailbox" that needed to be retrieved. In the second call, Wyatt told his sister: "I got a gun in the mailbox. Get it out of there 'cause [Hayes] just called the police on me."

         On September 20, Wyatt was charged with being a felon who "did knowingly possess, in and affecting interstate commerce, a firearm." See 18 U.S.C. §§ 922(g)(1), 924(a)(2). A grand jury indicted Wyatt on that same charge less than one month later. The indictment read:

On or about September 18, 2013, in the Western District of Missouri, the defendant, WESLEY WYATT, having been convicted of crimes punishable by imprisonment for a term exceeding one year, did knowingly possess, a firearm, . . . which had been transported in interstate commerce.

         Wyatt's case proceeded to trial, and the government put forth evidence establishing the above narrative before resting its case. Wyatt stipulated to two additional points. First, the recovered gun was operable and "manufactured by Davis Industries in the State of California." Second, he "had sustained at least one conviction for which he could receive a term of imprisonment greater than one year, otherwise known as a felony conviction." Wyatt moved for a judgment of acquittal, see Fed. R. Crim. P. 29(a), arguing "the indictment [did] not charge Mr. Wyatt with possessing any firearm 'in or affecting commerce, ' but only with possessing a firearm that 'had been transported in interstate commerce.'" (Citing 18 U.S.C. § 922(g); United States v. Singletary, 268 F.3d 196, 199 (3d Cir. 2001)). Thus, "[g]iven the interstate nexus alleged in the indictment, " Wyatt claimed, "the government was obligated to prove receipt, rather than mere possession, of the firearm."[3]Unconvinced by Wyatt's interpretation, the district court denied the motion. The jury found Wyatt guilty.

         The United States Probation Office prepared a Presentence Investigation Report (PSR), and determined Wyatt had a total offense level of 34, criminal history category of VI, and advisory sentencing range of 262 to 327 months. See generally United States Sentencing Guidelines (Guidelines). The PSR also found Wyatt was subject to the ACCA enhancement, which replaced Wyatt's ten-year maximum sentence with a fifteen-year minimum sentence. See 18 U.S.C. § 924(a)(2), (e). Wyatt objected on the basis that some of the predicate convictions stemmed from a single trial, and no jury ever found beyond a reasonable doubt that the offenses were "committed on occasions different from one another" as the ACCA requires. Id. § 924(e). At the sentencing hearing, Wyatt's counsel candidly acknowledged to the district court that "there is Eighth Circuit case law against [Wyatt] on this issue, " and explained he was preserving his objection "for the purpose of appellate review in the event at some point the law does change in our favor." The district court overruled the objection, and then sentenced Wyatt to a bottom-of-the-Guidelines range of 262 months imprisonment. Wyatt appeals. See 28 U.S.C. § 1291 (appellate jurisdiction).

         II. DISCUSSION

         A.Motion for Judgment of ...


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