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United States v. McGee

United States Court of Appeals, Eighth Circuit

May 18, 2018

United States of America Plaintiff-Appellee
v.
Christopher John McGee Defendant-Appellant

          Submitted: December 14, 2017

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

          Before WOLLMAN, LOKEN, and MURPHY, [*] Circuit Judges.

          LOKEN, CIRCUIT JUDGE.

         Christopher McGee pleaded guilty to two counts of being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) & 924 (a)(2). The Presentence Investigation Report (PSR) determined a base offense level of 22, a total offense level of 31, and criminal history category VI, resulting in an advisory guidelines range of 188-235 months imprisonment. McGee filed numerous objections. After an extended evidentiary hearing, the district court[1] overruled McGee's objections. The court varied downward to criminal history category V, which reduced the guidelines range to 168 to 210 months, and sentenced McGee to 168 months in prison. McGee appeals the sentence, arguing the district court erred in determining the base offense level, in imposing three enhancements, and in granting a continuance of the sentencing hearing. Reviewing the district court's factual findings for clear error, and its interpretation and application of the guidelines de novo, we affirm. United States v. Lyons, 556 F.3d 703, 706-07 (8th Cir. 2009) (standard of review). We begin with the enhancement issues because they involve facts underlying McGee's first count of conviction.

         I. The Enhancement Issues

         McGee pleaded guilty to unlawful possession on March 21 and May 20, 2016. The district court imposed three sentencing guidelines enhancements based on findings of what occurred during the March 21 incident -- a two-level enhancement because the offense involved three or more firearms, U.S.S.G. § 2K2.1(b)(1)(A); a two-level enhancement because McGee used a minor to aid in committing the offense, § 3B1.4; and a four-level enhancement because he committed the offense in connection with another felony offense, § 2K2.1(b)(6)(B).

         The district court held its sentencing hearing on December 13, 2016. Amber Andrews testified that McGee and I.C., a teenage minor, came to her residence on March 21, 2016, to get money in exchange for returning stolen tattoo equipment. When they arrived, both had guns. McGee did not bring the equipment. He told I.C. to look in the kitchen for the money. I.C. did not find money and asked McGee if he should shoot Andrews. McGee said no. Andrews had called the police to report the theft of her tattoo equipment. As the police were arriving, McGee gave his gun to I.C. and told him to hide it. McGee then got Andrews's gun from a cupboard and sat on a couch next to Andrews, holding the gun to her back. Officer John O'Brien testified that the police found a Jimenez firearm in the sofa cushion near where McGee was seated when they arrived, and a Taurus nine millimeter pistol and a .22 caliber revolver elsewhere in the home. McGee objected to the PSR finding that he possessed the Jimenez. Officer O'Brien testified that I.C. told officers he accompanied McGee to Andrews's residence, knew both were armed, and believed they went there for drugs or money.

         Expressly crediting Andrews's testimony, the district court found that McGee's first count of conviction, the March 21 incident, involved at least three firearms, that McGee used a minor, I.C., to further commission and avoid detection of the offense, and that he possessed a weapon in connection with another felony offense, assaulting Andrews while displaying a dangerous weapon. The court granted a downward variance and sentenced McGee to 168 months in prison; he appealed. With the appeal pending, the government disclosed that Andrews was under investigation and had been interviewed by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) in September 2016. We vacated the sentence and granted the parties' joint motion to remand to afford McGee an opportunity to cross-examine Andrews regarding the recorded ATF interview.

         The district court ordered a resentencing hearing for March 7, 2017. When Andrews did not appear on March 7, the district court granted the government's request for a brief continuance, advising that if Andrews did not appear at the rescheduled hearing, her prior testimony would likely be struck and the court would recalculate McGee's sentence in light of the record without that testimony. The government subpoenaed Andrews, and she appeared at the rescheduled hearing on April 19, 2017. She was vigorously cross-examined regarding inconsistencies in her testimony to the grand jury in June 2016, statements she made in the ATF interview in September, and her testimony at the December sentencing hearing.

         Reviewing this additional evidence, the district court again found that Andrews's testimony regarding McGee's March 21 offense was credible. The court recognized that Andrews may not have been entirely truthful at the ATF interview, when she and a man who was living with her were potential targets of the ATF investigation. However, the court found Andrews's testimony before the grand jury regarding the events on March 21 was largely consistent with her testimony at the December sentencing. The court again found that this testimony was credible and warranted imposing the three disputed enhancements. The court again imposed a sentence of 168 months in prison, based on a total offense level of 31 and a downward variance to criminal history category V.

         On appeal, McGee argues the district court clearly erred in imposing the enhancements because "Andrews's testimony was inconsistent and unreliable [and] the issues with [her] testimony establish the district court clearly erred by relying on her testimony." Regarding the enhancement for three or more firearms, McGee argues the court erred in finding that he possessed the Jimenez firearm, noting that at sentencing, Andrews testified that McGee retrieved the Jimenez firearm from her bedroom, whereas she testified to the grand jury that McGee retrieved it from her kitchen. Regarding the enhancement for use of a minor in committing the offense, McGee argues that Andrews's testimony to the grand jury regarding McGee's direction and control over I.C. was different than her testimony at sentencing. Regarding the enhancement for another felony offense, McGee argues that Andrews's testimony that he held a gun to her back on the sofa is incredible. McGee also notes that Andrews used the incorrect address when purchasing a firearm, lied when she was questioned by the ATF regarding her purchases of firearms, and has two prior theft convictions. He concludes that these inconsistencies and the lack of other corroborating evidence render her testimony incredible.

         We review the district court's factual findings for clear error, but "[a] district court's findings with respect to witness credibility are almost never clear error given the district court's comparative advantage at evaluating credibility. . . . Thus, a district court's credibility determinations are virtually unreviewable on appeal." United States v. Bridges, 569 F.3d 374, 377-78 (8th Cir. 2009). Here, the district court observed Andrews testify at length at two sentencing hearings. Her minor inconsistencies in describing events relevant to the enhancements, and her dubious statements to the ATF interviewer regarding unrelated issues the ATF was investigating, do not undermine the district court's careful finding that Andrews credibly testified to facts warranting the three enhancements. There was no clear error in finding Andrews credible and imposing the enhancements.

         II. A ...


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