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United States v. Boman

United States Court of Appeals, Eighth Circuit

October 20, 2017

United States of America Plaintiff - Appellee
v.
Donald Boman Defendant-Appellant

          Submitted: January 31, 2017

         Appeal from United States District Court for the Northern District of Iowa - Cedar Rapids

          Before SMITH, [1] MURPHY, and MELLOY, Circuit Judges.

          MELLOY, Circuit Judge.

         A jury 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.).

         I.

         On 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.

         Next, 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.

         Jamie 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.

         Cooper's 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.

         Sarah 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.[2] Michaels and Cinkan called 911 following this incident.

         On 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 months' imprisonment.

         On 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 remand.

         Boman'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.

         Boman's 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 ...


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