United States v. Jeroba Wright

Filing

OPINION FILED - THE COURT: MICHAEL J. MELLOY, MORRIS S. ARNOLD and BOBBY E. SHEPHERD. Michael J. Melloy, Authoring Judge (PUBLISHED) [3926161] [11-2127]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 11-2127
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United States of America,

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Appellee,
v.
Jeroba K. Wright,

Appeal from the United States
District Court for the
Western District of Missouri.

Appellant.
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Submitted: January 9, 2012
Filed: June 27, 2012
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Before MELLOY, ARNOLD, and SHEPHERD, Circuit Judges.
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MELLOY, Circuit Judge.
A jury convicted Jeroba K. Wright of being a felon in possession of a firearm
in violation of 18 U.S.C. § 922(g). The district court1 sentenced Wright as an armed
career criminal to 180 months' imprisonment under 18 U.S.C. § 924(e). Wright now
challenges the district court's denial of his motion for a fourth continuance, the
sufficiency of the evidence to convict him, and the application of the Armed Career
Criminal Act ("ACCA") at sentencing. We affirm.

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The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.

Appellate Case: 11-2127

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Date Filed: 06/27/2012 Entry ID: 3926161

Wright was a passenger in a vehicle that the Kansas City, Missouri, Police
Department stopped on May 25, 2009. As law enforcement placed the driver in
handcuffs, Wright began to drive the car away. Law enforcement gave chase as
Wright fled in the car, which reached speeds of up to sixty miles per hour before
crashing mere blocks from the site of the initial stop. After apprehending Wright, law
enforcement discovered a firearm in the car. In a subsequent interview with a
member of the Kansas City Police Department, Wright admitted that he fled in order
to dispose of the firearm before being apprehended. He maintained, however, that he
was unaware of the gun's presence in the car until the car's driver mentioned the gun
during the traffic stop.
After a grand jury handed down a one-count indictment, charging Wright with
being a felon in possession of a firearm, the government filed notice of its intent to
rely on the ACCA at sentencing, citing, inter alia, Wright's two prior burglary
convictions. Wright was appointed counsel, but after being granted two
continuances, Wright moved to replace his appointed counsel. The district court
granted that motion on August 4, 2010. Wright's newly-appointed counsel then
moved for a third continuance in the case, which the court granted on August 11,
2010.
With trial set for December 13, 2010, Wright on December 2, 2010, again
moved to replace his counsel and to continue the case. That motion was denied in its
entirety on December 7, 2010. On the morning of the trial, Wright again moved to
continue the case and to remove counsel or, in the alternative, to proceed pro se. The
district court denied the motion for a continuance, leaving Wright to decide whether
to go to trial that day either pro se or with current counsel. Wright opted for the
latter. After a jury verdict of guilty, the district court sentenced Wright to the
statutory mandatory minimum sentence of 180 months' imprisonment, based on
Wright's status as an armed career offender under the ACCA.

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Wright's first argument on appeal is that the district court abused its discretion
in denying the motion for a continuance that Wright made on the day of trial. "We
will not overturn a trial court's denial of a continuance unless the trial court clearly
has abused its discretion, because continuances are not favored and should be granted
only when a compelling reason has been shown." United States v. Summage, 575
F.3d 864, 877 (8th Cir. 2009) (internal marks omitted). Further, this Court will only
reverse the district court's denial of a motion for a continuance if "the moving party
was prejudiced by the denial." United States v. Hayles, 479 F.3d 958, 967 (8th Cir.
2007) (internal marks omitted).
Wright's principal contention is that the district court abused its discretion, and
effectively violated his Sixth Amendment right to self-representation, when it denied
his motion for a continuance. Wright argues that, without a continuance, he was
forced into a Hobson's choice between either proceeding with appointed counsel or
representing himself with no time to prepare such representation. Yet this
predicament was a product of Wright's own making, as he did not request to proceed
pro se until the morning of trial. "While the Sixth Amendment allows a defendant to
represent himself at trial, that right is not absolute." United States v. Myers, 503 F.3d
676, 681 (8th Cir. 2007). One limitation is that "[t]he defendant must first make his
request to proceed pro se in a timely manner." United States v. Oaks, 606 F.3d 530,
541 (8th Cir. 2010); see also United States v. Henderson, 382 F. App'x. 736, 739
(10th Cir. 2010) ("Mr. Henderson argues that he diligently pursued a continuance,
seeking it immediately after demonstrating his desire to proceed pro se, on the day
of trial. However, it is well established that a request for a continuance on the day of
trial is not timely."); United States v. Weber, 84 F.3d 1056, 1063 n.3 (8th Cir. 1996)
("In fact, the district court could have denied outright [the defendant's] petition to
represent himself" based on the untimely nature of the request.). Wright's request to
proceed pro se was untimely, and Wright therefore suffered no prejudice when the
district court denied the continuance motion. The district court did not abuse its
discretion in denying Wright's motion for a continuance.
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Wright's second argument on appeal is that the evidence at trial was
insufficient to support his conviction. We review such challenges de novo and will
reverse only if no reasonable jury could have found the defendant guilty. United
States v. Clay, 618 F.3d 946, 950 (8th Cir. 2010). The only contested element of the
felon in possession charge was whether Wright knowingly possessed the firearm,
either constructively or actually. Wright argues that he only possessed the firearm in
order to rid himself of it, a situation he characterizes as "the opposite of possession."
It is uncontested, however, that Wright drove the vehicle with knowledge that the
firearm was present in the vehicle with him. This is sufficient to establish his
constructive possession of the firearm. See United States v. Hiebert, 30 F.3d 1005,
1009 (8th Cir. 1994). Further, to the extent Wright attempts to raise a defense of
transitory or innocent possession, that defense (which this Court has yet to adopt)
does not apply here because Wright failed to "rid himself of [the firearm] as promptly
as reasonably possible" after learning of its presence—by immediately exiting the car,
for example. United States v. Byers, 603 F.3d 503, 507 (8th Cir. 2010). Indeed, his
possession was transitory only because he crashed the car shortly after fleeing law
enforcement. Possession of a firearm during a high-speed chase initiated for the sole
purpose of concealing that firearm from law enforcement is anything but innocent.

Wright's final argument is that the district court incorrectly applied the ACCA
by counting Wright's two prior burglary convictions as independent predicate
offenses under the ACCA. Wright argues that because he was arrested at the same
time for both offenses and because he was likewise sentenced for both offenses at the
same time, the district court should have counted these two separate burglary
convictions as only one predicate offense under the ACCA. This Court has
repeatedly rejected such arguments, see United States v. Daniels, 625 F.3d 529, 533
(8th Cir. 2010), and we do so again here.

The conviction and resulting sentence are affirmed.
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