United States v. Cedric McDonald

Filing

PER CURIAM OPINION FILED - THE COURT: Lavenski R. Smith, Steven M. Colloton and Ralph R. Erickson, Chief Judge, US District Court for the District of North Dakota (PUBLISHED) [4417092] [15-2506]

United States Court of Appeals
For the Eighth Circuit
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No. 15-2506
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Cedric McDonald,
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa
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Submitted: February 9, 2016
Filed: June 24, 2016
[Published]
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Before SMITH and COLLOTON, Circuit Judges, and ERICKSON,1 District
Judge.
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PER CURIAM.

1

The Honorable Ralph R. Erickson, Chief Judge, United States District Court
for the District of North Dakota, sitting by designation.

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A jury convicted Cedric McDonald of possession of firearms by a convicted
felon, in violation of 18 U.S.C. § 922(g)(1) and 924(e)(1), and acquitted McDonald
of possession of stolen firearms, in violation of 18 U.S.C. § 922(j). The district court2
sentenced McDonald to a term of 210 months’ imprisonment. McDonald argues on
appeal that the district court erred in: (1) finding McDonald qualified for an
obstruction of justice enhancement pursuant to U.S.S.G. §3C1.1; (2) failing to
provide a two-level reduction in McDonald’s offense level for acceptance of
responsibility pursuant to U.S.S.G. §3E1.1(a); and (3) denying McDonald’s motion
for a judgment of acquittal or, in the alternative, a new trial. We affirm.
I. Background
The evidence against McDonald begins with a burglary of Leslie Castor’s Fort
Dodge, Iowa home. On February 15, 2014, Mrs. Castor left her residence for
approximately an hour between 9:30 and 10:30 p.m. While she was away, someone
entered her home and purloined six firearms belonging to her husband, a king size
bed comforter, and a plastic jug containing a few hundred dollars of change.
A woman of unusual resourcefulness, Mrs. Castor immediately conducted an
independent investigation of the theft and discovered that a male had deposited
$201.95 into a change redemption machine at 10:26 p.m. on February 15, 2014, at a
nearby Hy-Vee Store. Mrs. Castor notified the police, who subsequently obtained a
video as well as receipt records for the transaction.
On May 2, 2014, Ronnie Shivers was apprehended and found in possession of
approximately one gram of crystal methamphetamine by Detective Luke Fleener.
Shivers told Detective Fleener he was on probation for simple possession. Detective
Fleener asked Shivers if he was interested in cooperating and agreed not to arrest or

2

The Honorable Mark W. Bennett, United States District Judge for the
Northern District of Iowa.
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charge Shivers if he was willing to act as a confidential informant. Shivers agreed
and began to cooperate.
Sometime later, Shivers and McDonald (who were lifelong friends) were
visiting with Shivers’ cousin, Dartonya “Doc” Shivers. McDonald told Ronnie and
Doc that he had a number of stolen firearms he was looking to sell. Ronnie Shivers
reported this conversation to Detective Fleener, who directed him to call McDonald
and tell McDonald that he had an acquaintance who was interested in buying the
firearms.
During a recorded conversation, Ronnie Shivers arranged to buy eight firearms
from McDonald for $1,000.00. Shivers was to pick up the firearms from McDonald.
During a second recorded conversation, however, McDonald told Shivers he could
not meet in person but that Shivers should retrieve the firearms from a white
Mitsubishi parked outside of Doc’s residence.
Shivers and an undercover agent traveled to Doc’s residence and removed the
firearms that were wrapped in Mrs. Castor’s stolen comforter from the vehicle. Ten
firearms were taken, even though Shivers and McDonald had agreed on eight
firearms. After the pick-up, Shivers made another recorded call to McDonald,
complaining that he had been forced to take the firearms “in broad daylight.”
McDonald informed Shivers that they needed to settle up since Shivers had taken all
ten firearms, rather than the eight they had agreed upon.
Shivers drove Detective Fleener’s vehicle to McDonald’s residence to settle up
the account. Shivers paid McDonald $1,200.00 for the ten guns. McDonald rebated
Ronnie $50.00 for the additional risk involved in the “broad daylight” acquisition.
This conversation was also recorded, as Detective Fleener’s car was equipped with
video and audio recording equipment.

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On December 16, 2014, law enforcement agents obtained and executed a
search warrant on Doc’s home and the white Mitsubishi. The search yielded indicia
of ownership of the Mitsubishi including insurance documents in McDonald’s name.
In the house, agents found items related to McDonald’s business and McDonald’s
personal mail.
Agents identified some of the firearms as having belonged to Mrs. Castor’s
husband. At trial, McDonald admitted that he was the individual in the Hy-Vee video
but denied that he was involved in the burglary of the Castor residence. He testified
that he had acquired the coins before playing a pool game with Doc. McDonald also
testified that the Mitsubishi belonged to Doc but that he had insured the vehicle in his
name as an accommodation to Doc.
McDonald testified that the telephone recordings were taken out of context and
misleading. He claimed that he was originally approached by Shivers about
purchasing what he believed was stereo equipment. McDonald claimed that he was
“set up” by Shivers. McDonald testified that he agreed with Shivers to make some
orchestrated phone calls and say what Shivers wanted him to say in order to “help
out” Doc and Shivers on a gun deal that they needed to make. McDonald further
testified that his decision to assist Shivers with the firearms was induced by smoking
marijuana and a desire to help out a friend. Specifically, McDonald testified:
So he [Shivers] comes - - well, we smoking the weed, and he says he
needs somebody to talk to the guy that - - because he owes the guy some
money. And I was like, man, I’m not touching the guns. I’m not dealing.
I’m not even going near them. And he’s like, well, just talk to the guy
for me, and it’s probably the only way I’m going to get your money for
you and stuff like that.

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McDonald also testified that he agreed to make the phone call, so long as he did not
have to touch the firearms or meet the people. McDonald claimed he never saw or
handled the firearms presented at trial.
At the close of the evidence, McDonald moved for an acquittal pursuant to
Fed.R.Crim.P. 29, which the district court denied. After the verdict, McDonald
renewed his motion for an acquittal and, in the alternative, for a new trial under
Fed.R.Crim.P. 33. Both motions were denied.
The district court determined the advisory sentencing guideline range for
McDonald was 210–262 months, finding that McDonald was an armed career
criminal, he had obstructed justice by perjury, and he was not entitled to credit for
acceptance of responsibility. The district court sentenced McDonald to a low-end
guideline sentence of 210 months’ imprisonment.
II. Discussion
A.

Obstruction of Justice.
McDonald argues that the district court erred at sentencing when it imposed a
two-level increase for obstruction of justice pursuant to U.S.S.G. § 3C1.1.“We review
the district court’s factual findings underlying an adjustment for obstruction of justice
for clear error, giving great deference to the sentencing court’s determination.”
United States v. Brown, 539 F.3d 835, 839 (8th Cir. 2008) (citing United States v.
Whiting, 522 F.3d 845, 849 (8th Cir. 2008)). The increase applies when the district
court finds by a preponderance of the evidence that a defendant willfully testified
falsely under oath and the false testimony related to a material matter. United States
v. Nshanian, __ F.3d __, 2016 WL 2342909, *3 (8th Cir. May 4, 2016).
The district court must make an independent finding that the defendant
committed perjury. United States v. Dunnigan, 507 U.S. 87, 94-95 (1993). While
“[i]t is preferable for the district court to address each element of perjury in a separate
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and clear finding,” a district court’s finding regarding perjury is sufficient so long as
“all of the factual predicates” for perjury are encompassed. Nshanian, __ F.3d __,
2016 WL 2342909, *3 (8th Cir. May 4, 2016) (quoting Dunnigan, 507 U.S. at 95).
McDonald claims that he is being unfairly punished because he chose to
exercise his constitutional right to testify. He asserts that the conflicting testimony
between Ronnie Shivers and himself cannot constitute proof of perjury by a
preponderance of the evidence. The district court noted that McDonald’s testimony
must necessarily have been rejected, at least in part, by the jury in order to convict
him of being a felon in possession of firearms:
So I’m going to go ahead and find that - - well, I think the jury would
have had to have found some of his testimony untruthful in order to
convict him. I realize I have an independent obligation to make that
judgment myself, and I make the same judgment that the jury did. I
thought some of the defendant’s testimony was believable and credible
and truthful but some of it was not. And he denied possession of
firearms.
The district court made a finding independent of the jury’s verdict. Although
the district court did not expressly state that McDonald’s false testimony was willful,
the record is clear that McDonald’s denial that he possessed firearms in spite of all
the other evidence presented at trial was not the product of confusion, mistake or
faulty memory. Finally, the district court neglected to address whether the false
testimony was material; however, this court has affirmed a finding of obstruction of
justice where the finding is “strongly supported by the record.” Nshanian, __ F.3d
__, 2016 WL 2342909, *3 (8th Cir. May 4, 2016). The district court pointed to a
specific portion of McDonald’s testimony that concerned a material matter–that is,
that he denied possession of the firearms despite overwhelming evidence to the
contrary. Under the circumstances, the district court’s finding was adequate, and
application of the increase under § 3C1.1 was not clearly erroneous.

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B.

Acceptance of Responsibility.
McDonald next argues that he was entitled to a reduction for acceptance of
responsibility under U.S.S.G. § 3E1.1(a). We review for clear error a district court’s
denial of a reduction under § 3E1.1. United States v. Ervasti, 201 F.3d 1029, 1043
(8th Cir. 2000). Absent extraordinary circumstances, obstruction of justice “ordinarily
indicates that the defendant has not accepted responsibility for his criminal conduct.”
U.S.S.G. § 3E1.1 cmt. (n.4); see United States v. Jones, 612 F.3d 1040, 1047 (8th Cir.
2010). To determine whether a case is extraordinary, a district court should consider
“the totality of the circumstances, including the nature of the [defendant’s]
obstructive conduct and the degree of [defendant’s] acceptance of responsibility.”
United States v. Honken, 184 F.3d 961, 968 (8th Cir. 1999).
Under the circumstances of this case, the mere fact that the jury acquitted for
stolen firearms and convicted for possession of firearms by a convicted felon is not
an extraordinary circumstance. This is not a case where McDonald admitted all the
facts and contested the applicability of the statute to his circumstances or that the
statute was subject to a constitutional challenge. Rather, McDonald claimed he never
possessed the firearms, a fact rejected by the jury. We see no ground for finding an
extraordinary circumstance exists in this case. The district court did not err in
denying McDonald a reduction for acceptance of responsibility.
C.

Motion for Judgment of Acquittal.
McDonald also argues that there was insufficient evidence to support his
conviction, and that the district court erred in denying his motions for judgment of
acquittal. We review the denial of a motion for judgment of acquittal de novo,
viewing the evidence and all reasonable inferences in the light most favorable to the
jury’s verdict. United States v. Hill, 750 F.3d 982, 987 (8th Cir. 2014). We will
direct a judgment of acquittal only when no reasonable jury could have found the
defendant guilty beyond a reasonable doubt. Id.
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To obtain a conviction for felon in possession of a firearm, the government
must prove: (1) McDonald had previously been convicted of a crime punishable by
a term of imprisonment exceeding one year; (2) he knowingly possessed at least one
firearm; and (3) the firearm had been in or affected interstate commerce. United
States v. Garcia-Hernandez, 803 F.3d 994, 996 (8th Cir. 2015). McDonald stipulated
that he had previously been convicted of a felony and that the firearms had traveled
in interstate commerce. At issue is whether McDonald knowingly possessed the
firearms in question.
To establish this element, it is sufficient if the government proved McDonald
had actual or constructive possession of the firearm. United States v. Garrett, 648
F.3d 618, 622 (8th Cir. 2011). “Constructive possession requires that the defendant
‘has dominion over the premises where the firearm is located, or control, ownership,
or dominion over the firearm itself.’” United States v. Evans, 431 F.3d 342, 345 (8th
Cir. 2005) (quoting United States v. Maxwell, 363 F.3d 815, 818 (8th Cir. 2004)).
While constructive possession can be established by circumstantial evidence, the
government must show a sufficient nexus between the defendant and the firearm. Id.
(citing United States v. Howard, 413 F.3d 861, 864 (8th Cir. 2005)).
McDonald first argues the evidence was insufficient because the jury was not
presented with any credible evidence that he ever physically possessed the firearms
in question or exercised any dominion and control over them. McDonald admitted to
being the person in the Hy-Vee Store video where he was seen depositing a large
number of coins in a change redemption machine in close proximity to the time in
which the nearby Castor residence was burglarized and a jug of coins was taken.
Firearms located in the Mitsubishi parked at Doc’s residence were wrapped in a
comforter taken from the Castor residence. Agents identified some of the firearms
as belonging to Mr. Castor. The government presented multiple recorded phone calls
where McDonald set up a transaction to trade firearms for money, discussed payment
for the firearms, identified the location of the firearms, and even apologized for
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having Shivers retrieve the firearms during the daytime. In addition, the vehicle in
which the firearms were found was insured in McDonald’s name and McDonald told
Shivers where the vehicle was located. Because the evidence was sufficient to
support the jury’s finding that McDonald knowingly possessed the firearms in
question, we will not disturb the verdict.
McDonald next argues that the evidence was insufficient because his testimony
was more credible than Ronnie Shivers. When reviewing a district court’s denial of
a motion for judgment of acquittal, we “do not weigh the evidence or assess the
credibility of witnesses; that is the province of the jury.” United States v. White, 794
F.3d 913, 918 (8th Cir. 2015) (citing United States v. Johnson, 474 F.3d 1044, 1048
(8th Cir. 2007)). We decline McDonald’s invitation to reweigh the evidence and
assess witness credibility, as it is not within the permissible scope of our review.
Lastly, McDonald argues the conviction rested on mere speculation because
the acquittal on count two is irreconcilable with a conviction on count one. “We have
previously held, when considering what are characterized as inconsistent verdicts,
that we only ask whether the government presented sufficient evidence to support the
conviction.” United States v. Opare-Addo, 486 F.3d 414, 416 (8th Cir. 2007). This
is because “[w]e are reluctant to delve into the minds of the jurors to determine the
reasons for apparently inconsistent verdicts.” Id. Even when the evidence rationally
supports two conflicting hypotheses, we will not disturb the conviction. United
States v. Griffith, 786 F.3d 1098, 1102 (8th Cir. 2015) (quoting United States v.
Serrano-Lopez, 366 F.3d 628, 634 (8th Cir. 2004)). Viewing the evidence in light
most favorable to the verdict and accepting all reasonable inferences tending to
support it, we cannot say no reasonable jury could have found McDonald knowingly
possessed the firearms in question. Because the evidence was sufficient to allow a
jury to conclude McDonald knew of the firearms, we will not disturb the verdict.

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D.

Motion for a New Trial.

Upon a defendant’s motion, a court may grant a new trial “if the interest of
justice so requires.” Fed.R.Crim.P. 33(a). We review a district court’s denial of a
motion for new trial for abuse of discretion. United States v. Caldwell, 83 F.3d 954,
955 (8th Cir. 1996) (citing United States v. Cruz, 993 F.2d 164, 167 (8th Cir. 1993)).
McDonald’s sole contention for a new trial is the purported inconsistent verdicts.
Even accepting McDonald’s contention, “[i]nconsistent verdicts are not, on their own,
sufficient grounds for reversal or a new trial. A jury may acquit a defendant as to one
or more charges for any number of reasons, including an inclination to be merciful,
and yet come to the reasonable conclusion that the defendant was guilty of other
related charges.” United States v. Whatley, 133 F.3d 601, 606 (8th Cir. 1998).
Sufficient evidence supports the conviction. The district court’s denial of
McDonald’s motion for a new trial was not an abuse of discretion.

III. Conclusion
Accordingly, we affirm the judgment of the district court.
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