United States v. Kevin Presberry

Filing

PER CURIAM OPINION FILED - THE COURT: DIANA E. MURPHY, DAVID R. HANSEN and MICHAEL J. MELLOY (UNPUBLISHED) [3745910] [10-1790]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 10-1790
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United States of America,
Plaintiff - Appellee,
v.
Kevin Presberry,
Defendant - Appellant.

*
*
*
* Appeal from the United States
* District Court for the Eastern
* District of Missouri.
*
* [UNPUBLISHED]
*
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Submitted: January 13, 2011
Filed: January 19, 2011
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Before MURPHY, HANSEN, and MELLOY Circuit Judges.
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PER CURIAM.
Kevin M. Presberry pled guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). At sentencing, the district court1 imposed an
enhancement under U.S.S.G. § 2K2.1(b)(6) for possessing a firearm in connection
with another felony and also found that Presberry's previous Missouri conviction for
stealing from a person was a crime of violence. It sentenced Presberry to 84 months,
the bottom of his advisory guideline range. On appeal, Presberry argues that those

1

The Honorable Donald J. Stohr, United States District Judge for the Eastern
District of Missouri.

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two findings are clearly erroneous. He also argues that the felon in possession statute
violates the Second Amendment. We affirm.
I.
Over Presberry's objection, the district court found the following facts at
Presberry's sentencing hearing. At about 10:00 p.m. on March 7, 2009, a woman
customer of Commerce Bank in Clayton, Missouri drove up to the bank's exterior
automatic teller machine to make a withdrawal. As she was completing her
transaction, she noticed a figure approaching her car from the rear of the driver side.
He wore dark clothing, a dark colored baseball cap with gold lettering, and a mask
over his face. His hands were in the pockets of his jacket. Concerned that she was
about to be robbed, the woman quickly drove away and alerted a nearby police officer.
Within 30 seconds, the officer responded and observed an individual, later identified
as Presberry, walking away from the bank. He was dressed in dark jeans, a dark
baseball cap, and a black jacket, and he had both hands in his pockets.
After arresting Presberry on suspicion of bank robbery, the officer discovered
a loaded revolver in one of his jacket pockets. The officer arranged a drive by
identification with the victim, who identified Presberry as her assailant based on his
clothing. Several days later, Presberry's car was searched after he was arrested on a
failure to appear warrant in a separate incident. A bag in his trunk contained another
loaded revolver, a black ski mask, a black bandana, and black gloves.
Since Presberry had previously been convicted of the Missouri felony of
stealing from a person, the government charged him with two counts of being a felon
in possession of a firearm. In exchange for dismissing the second count, Presberry
pled guilty while reserving the right to argue that the § 2K2.1(b)(6) adjustment did not
apply and that his Missouri conviction was not a crime of violence. At sentencing the
district court found that Presberry possessed the firearm "in connection with" the
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attempted robbery and that his prior Missouri conviction was a crime of violence.
Applying those findings, it calculated an advisory guideline range of 84 to 105
months, sentencing him to the bottom of the range. Presberry now appeals.
II.
Presberry first challenges the district court's application of U.S.S.G.
§ 2K2.1(b)(6). We review the district court's application of the sentencing guidelines
de novo and its supporting factual findings for clear error. United States v. Mangum,
625 F.3d 466, 467 (8th Cir. 2010). Presberry suggests that the district court clearly
erred in applying the four level enhancement under U.S.S.G. § 2K2.1(b)(6) for
possessing a firearm "in connection with" another felony because there was
insufficient evidence that "another felony offense occurred." He suggests that there
is no factual support for the enhancement because the woman reported a crime "that
had not occurred" and because "no firearm or weapon was displayed."
We disagree. Under § 2K2.1(b)(6), a firearm is possessed "in connection with"
another felony offense if its presence "facilitated or had the potential to facilitate" that
offense. Mangum, 625 F.3d at 467, citing U.S.S.G. § 2K2.1, cmt. n. 14(A). The
enhancement does not apply if a firearm was present at the crime scene only because
of mere accident or coincidence." If the defendant keeps a firearm "at an easily
accessible location" while committing a felony offense, however, a sentencing court
may infer that the firearm "emboldened the defendant to engage in the illegal act." Id.
at 467–68, citing United States v. Guiheen, 594 F.3d 589, 591 (8th Cir. 2010).
Here, the district court did not clearly err in finding that Presberry possessed the
loaded revolver "in connection with" the attempted armed robbery. As the
government correctly notes, attempted armed robbery is a felony in Missouri. See
Mo. Rev. Stat. §§ 564.011.3, 569.020.2. Presberry need not have completed an actual
robbery for the enhancement to apply. Similarly, he need not have actually displayed
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the revolver to have used it "in connection with" the attempted armed robbery. All
that § 2K2.1(b)(6) requires is that a firearm's presence "facilitated or had the potential
to facilitate" the felony offense. A revolver is particularly suited to facilitate a bank
robbery in circumstances such as presented here. The district court did not clearly err
in applying the § 2K2.1(b)(6) enhancement.
III.
Presberry also argues that his prior Missouri conviction for stealing from a
person is not a crime of violence, and thus that his base offense level should have been
reduced four levels. See U.S.S.G. § 2K2.1(a). Whether a particular conviction
constitutes a crime of violence is a question of law we review de novo. See United
States v. Hennecke, 590 F.3d 619, 620 (8th Cir. 2009).
Presberry's argument is foreclosed by our decision in Hennecke, in which we
held that the Missouri felony of stealing from a person is a crime of violence for
purposes of the sentencing guidelines. See 590 F.3d at 623–24. At sentencing, the
government presented a charging document indicating that Presberry had been found
guilty of felony stealing from a person. After Hennecke, the district court was bound
to conclude that such offense was a crime of violence. The district court did not
clearly err in assigning Presberry a base offense level of 24 under § 2K2.1(a)(2).
IV.
Finally, Presberry argues that the felon in possession statute violates the Second
Amendment. We reject this argument for reasons we have stated previously. See
United States v. Seay, 620 F.3d 919, 923–25 (8th Cir. 2010), and cases cited.
Accordingly, the judgment of the district court is affirmed.
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