Submitted: January 31, 2017
from United States District Court for the Northern District
of Iowa - Cedar Rapids
SMITH,  MURPHY, and MELLOY, Circuit Judges.
MELLOY, Circuit Judge.
convicted Donald Boman of possessing a firearm and ammunition
as a felon. The district court sentenced him to 262 months in
prison. Boman appealed to this court, raising a number of
arguments, including that the district court erred in
classifying him as an Armed Career Criminal under the Armed
Career Criminal Act ("ACCA"), 18 U.S.C. §
924(e). We affirmed the district court. United States v.
Boman, 810 F.3d 534 (8th Cir. 2016). Boman petitioned
for writ of certiorari, and the Supreme Court granted the
petition, vacated the judgment, and remanded for further
consideration in light of Mathis v. United States,
136 S.Ct. 2243 (2016). Boman v. United States, 137
S.Ct. 87 (2016) (Mem.).
November 2, 2013, Cedar Rapids Police Officers responded to a
911 call regarding a shooting. Once the officers arrived at
the scene of the shooting, Officer Zach Jeffries spoke with
Marcus Brown, who was walking across the street and
"thought he had been shot." After conducting a
pat-down of Brown, Officer Jeffries determined Brown had not
been shot nor did Brown have any weapons.
Officer Jeffries spoke with witnesses at the scene of the
incident. From those conversations, Officer Jeffries learned
the suspected shooter, Boman, was located inside the
residence at 1800 Ridgewood Terrace Southeast. Sergeant
Steven Yardly contacted Boman, and Boman walked out of the
residence. Officer Jeffries then handcuffed Boman and placed
him in the back of his squad car.
Cooper, Boman's girlfriend, lived with Boman and arrived
at the scene shortly thereafter. At that time, Cooper
consented to the police officers' search of her home.
During the search, Cooper was cooperative and directed the
officers to her bedroom dresser, which is where she said a
firearm would be located. Cooper shared the bedroom with
Boman. The officers located the firearm and two boxes of
ammunition. One box contained fifty rounds of ammunition and
the other box contained forty rounds of ammunition. The
magazine in the firearm was missing one round.
daughters, Cheyenne Cinkan and Jade Hasson, also lived at the
residence, along with Cinkan's children. Cinkan thus had
two connections to the relevant actors in this case because
Brown was her boyfriend. Because Brown had physically abused
Cinkan, she had recently moved to the residence shared by
Boman and Cooper. In fact, earlier on November 2, 2013, Brown
and Cinkan got into an argument at Boman's and
Cooper's home. Soon thereafter, the argument ensued
between Boman and Brown.
Michaels testified to witnessing the altercation. She said it
involved two African American men, one taller than the other.
The shorter man yelled from across the street, "Do it
nigger! Do it nigger!" The taller African-American man
then ran across the street, hit the other man, reached for
his hip, and pointed his hand at the man on the ground.
Michaels then heard a pop noise. Michaels and Cinkan called
911 following this incident.
March 18, 2014, a grand jury returned a one-count superseding
indictment against Boman charging him with unlawfully
possessing a firearm and ammunition as a convicted felon in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
Following a two-day jury trial, the jury found Boman guilty
of possessing a firearm as a felon. The initial Presentence
Investigation Report ("PSR") recommended a
four-level sentence enhancement, pursuant to United States
Sentencing Guidelines ("U.S.S.G.") §
2K2.1(b)(6)(B), and determined that Boman qualified as an
Armed Career Criminal under the ACCA. Boman objected to the
enhancement and his status as an Armed Career Criminal. As to
his status under the ACCA, Boman argued that his prior
convictions were not separate and distinct criminal episodes.
The district court overruled Boman's objections and
calculated a Guidelines range of 262-327 months'
imprisonment. Ultimately, the court sentenced Boman to 262
appeal, Boman raised five arguments. In his first three
arguments, Boman challenged the district court's
evidentiary rulings. First, Boman claimed the district court
improperly excluded the introduction of "reverse"
Federal Rule of Evidence 404(b) evidence relating to a
criminal conviction of the victim, Marcus Brown. Second,
Boman argued the district court improperly excluded evidence
relating to proof of Brown's motive and bias against
Boman under Federal Rule of Evidence 403. Third, Boman
asserted the district court improperly admitted Brown's
911 phone call under the excited-utterance exception of
Federal Rule of Evidence 803(2). We held that the district
court did not abuse its discretion in making these
evidentiary rulings. Boman, 810 F.3d at 538-41.
These holdings were not disturbed by the Supreme Court's
last two arguments raised sentencing issues. First, Boman
challenged his status as an Armed Career Criminal. Initially,
he argued that his prior convictions under 18 U.S.C. §
924(c)(1) for Use of a Firearm During the Commission of a
Violent Crime were not separate and distinct criminal
episodes, as required by the ACCA. In a supplemental brief,
however, Boman relied on the Supreme Court's opinion in
Johnson v. United States, 135 S.Ct. 2551 (2015), to
argue that his prior convictions were not predicate offenses
under the ACCA because they were not "violent
felonies" as defined in 18 U.S.C. §
924(e)(2)(B)(i). Applying the modified categorical approach,
we held that Boman's convictions qualified as violent
felonies. Boman, 810 F.3d at 541-43. We also held
that Boman's convictions were "discrete criminal
episodes." Id. at 543-44.
second sentencing argument challenged the four-level
enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for use or
possession of a firearm or ammunition in connection with
another felony offense. Boman argued that the enhancement was
improper because the government did not prove by a
preponderance of the evidence that Boman committed a felony
offense and did not disprove Boman's justification
defense. We did not address these ...