United States v. Sinclair , 301 F. App'x 251 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4218
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KELVIN ROSS SINCLAIR,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:06-cr-01321-RBH-1)
Submitted: October 24, 2008 Decided: November 24, 2008
Before NIEMEYER, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael A. Meetze, Assistant Federal Public Defender, Florence,
South Carolina, for Appellant. W. Walter Wilkins, United States
Attorney, Alfred W. Bethea, Jr., Carrie A. Fisher, Assistant
United States Attorneys, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kelvin Ross Sinclair was convicted by a jury of
unlawful possession of a firearm and ammunition by a convicted
felon, 18 U.S.C.A. §§ 922(g)(1), 924(e) (West 2006 & Supp.
2008), and was sentenced to a term of life imprisonment.
Sinclair appeals his conviction and sentence, contending that
the district court abused its discretion in permitting the
government to introduce certain hearsay testimony, erred in
applying a cross reference to U.S. Sentencing Guidelines Manual
§ 2A1.1 (2006) (First Degree Murder), and erred in overruling
his constitutional challenge to the armed career criminal
sentence. We affirm.
On October 8, 2006, Phillippe Williamson was shot and
killed at Club Maximus, a nightclub in Myrtle Beach, South
Carolina. Although the gun used to kill him was never
recovered, Sinclair was prosecuted on a federal charge of
unlawful possession of a firearm (the murder weapon) and
ammunition by a felon. The government’s evidence at trial
established that Williamson and Sinclair got into a fight inside
the club and that Sinclair was removed from the club. He
returned a short while later with a gun and shot Williamson.
Two principal witnesses were Darrell Holmes, a friend of
Williamson, who witnessed the fight and the shooting, and Dante
Tolbert, a friend of Sinclair, who saw him reenter the club
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after he was ejected. Tuesday Smith, Williamson’s girlfriend,
also testified that she came to the club after her nephew,
Xavier Smith, told her he had learned in a telephone call that
Williamson and Sinclair had been fighting at the club and that
Williamson was “near dead on the floor.” When Smith arrived at
the club, she spoke to Holmes in the parking lot. He told her
that “Kevin” shot Williamson. Holmes did not know Sinclair’s
last name, and identified Sinclair as “Misty’s baby daddy.”
Misty Brown was a mutual acquaintance and the mother of
Sinclair’s two children.
Sinclair unsuccessfully sought to exclude Holmes’
testimony about Smith’s statements to him and Smith’s testimony
about Xavier Smith’s statements to her. A trial court’s ruling
on the admissibility of evidence is reviewed for abuse of
discretion. United States v. Midgett, 488 F.3d 288, 297 (4th
Cir.), cert. denied, 128 S. Ct. 464 (2007). Hearsay is defined
in Fed. R. Evid. 801(c) as “a statement, other than one made by
the declarant while testifying at the trial or hearing, offered
in evidence to prove the truth of the matter asserted.” A
“statement” is defined in Rule 801(a)(1) as “an oral or written
assertion.” “Assertion” is not defined, but the advisory
committee notes to Rule 801(a) clarify that “nothing is an
assertion unless intended to be one.”
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The “statements” by Tuesday Smith that Sinclair sought
to exclude consisted of three questions she asked Holmes. He
testified:
So Tuesday pulled me off to the side, she was like,
what happened, Derrell, what happened, tell me what
happen. I was like Tuesday, he shot him. She said,
who shot him. I said Kevin, Kevin shot him. At that
time, I didn’t even know his last name. I mean, I
know him, I didn’t know his last name. I know who he
was.
She was like, who? Misty’s baby daddy. I say he shot
him, he shot him.
A question or inquiry is not a statement, and
therefore is not hearsay unless it can be construed as an
intended assertion. United States v. Thomas, 453 F.3d 838, 845
(7th Cir. 2006); United States v. Jackson, 88 F.3d 845, 848
(10th Cir. 1996); United States v. Oguns, 921 F.2d 442, 449 (2d
Cir. 1990); United States v. Lewis, 902 F.2d 1176, 1179 (5th
Cir. 1990). In this case, Smith’s questions were requests for
information and cannot be construed as assertions. Because the
questions were not hearsay, the district court did not abuse its
discretion in admitting them. Holmes’ statements to Smith were
not hearsay because, pursuant to Rule 801(d)(1)(C), a “statement
is not hearsay if . . . the declarant testifies at the trial or
hearing and is subject to cross-examination concerning the
statement, and the statement is . . . one of identification of a
person made after perceiving the person.”
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Sinclair also sought to exclude the following
testimony by Tuesday Smith:
[Xavier] said he just got a call that Phil and Kevin
was fighting. And I said what Kevin. And he said
Misty’s Kevin. Then he turned and came back and said
Phil was damn near dead on the floor.
The government offered this testimony, not for the
truth of the matter asserted, but to show “why [Smith] did what
she did next,” that is, why she left home and went to Club
Maximus at about 2:00 o’clock in the morning. Although the
statements are hearsay, we are satisfied that the district court
did not abuse its discretion in admitting them under Fed. R.
Evid. 803(3) to explain Smith’s “then existing state of mind.”
In any case, any error was harmless because the statements
tended to prove only that Sinclair and Williamson fought at the
club and that Williamson was likely dead, but did not suggest
that Sinclair possessed a gun, the offense for which he was on
trial.
At the sentencing hearing, Sinclair objected to the
cross reference to USSG § 2A1.1, the guideline for first degree
murder, arguing that the killing was done without premeditation
or malice, in the heat of a sudden quarrel. He maintained that
a more appropriate cross reference would be to the guideline for
voluntary manslaughter, or “something other than premeditated
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murder.” The district court disagreed, finding that § 2A1.1
applied. The court made the following findings:
This was a malicious and premeditated killing. After
the confrontation between the defendant and the
deceased, the defendant was escorted out of the club.
Instead of leaving, he goes and retrieves a firearm.
He made a conscious, deliberate decision to come back
with a weapon with the intention of shooting Phillippe
Williamson.
According to Derrell Holmes’ testimony, the defendant
came back in with a hoody over his head, and a hand
under his shirt. Holmes said the defendant came up
and said, quote, hey, where your boy at? And said,
also, quote, I should pop your bitch ass, too. Holmes
tried to get the defendant to leave, but instead, the
defendant proceeded to basically rob Holmes, when
Phillippe Williamson came up, and the defendant shot
him.
Later, Donte [sic] Tolbert asked the defendant if
Williamson was dead, and the defendant said, I hope
so.
This was not voluntary manslaughter. He had time to
reflect on what he was doing. He knew what he was
doing. He came in there with a hoody over his head, a
hand under his shirt and in fact, told Holmes
basically that he should shoot him, too, before he
shot the deceased. His conduct was malicious,
reckless, wanton, he retrieved a gun and fired it at
Mr. Williamson. He made a conscious decision to do
so. The fact that after being escorted out, he
returned with a loaded gun, coupled with the
statements he made to Mr. Holmes and Mr. Tolbert
support the fact that his conduct was malicious and
premeditated, so I overrule your objection.
The court also agreed with the government that
Sinclair committed the murder during the perpetration of a
robbery, which established an alternative ground for a cross
reference to § 2A1.1. USSG § 2A1.1, comment. (n.1(B)).
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Sinclair contends that the evidence showed that
Williamson’s death was a voluntary manslaughter rather than a
premeditated murder. We review a sentence under an abuse of
discretion standard. Gall v. United States, 128 S. Ct. 586, 590
(2007). The first step in this review requires the appellate
court to ensure that the district court committed no significant
procedural error, such as improperly calculating the guideline
range. United States v. Osborne, 514 F.3d 377, 387 (4th Cir.),
cert. denied, 128 S. Ct. 2525 (2008).
Under § 2K2.1(c)(1)(B), if the defendant unlawfully
used or possessed a firearm in connection with another offense,
and death resulted, the most analogous homicide guideline should
be applied. Guideline section § 2A1.1 applies in cases where a
killing is premeditated, while USSG § 2A1.3 applies in the case
of voluntary manslaughter.
To establish first degree murder, the government must
show malice aforethought as well as premeditation and
deliberation. United States v. Shaw, 701 F.2d 367, 392 (5th
Cir. 1983). Malice aforethought “may be established by evidence
of conduct which is reckless and wanton and a gross deviation
from a reasonable standard of care, of such a nature that a jury
is warranted in inferring that defendant was aware of a serious
risk of death or serious bodily injury.” United States
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v. Williams, 342 F.3d 350, 356-57 (4th Cir. 2003) (internal
quotation and citation omitted).
This court has held that no particular period of time
for reflection is essential to a finding of premeditation and
deliberation. Faust v. North Carolina, 307 F.2d 869, 871 (4th
Cir. 1962); see also United States v. Downs, 56 F.3d 973, 975
(8th Cir. 1995); Shaw, 701 F.2d at 392-93. What is required is
a showing that the defendant acted with a “cool mind [and] did,
in fact, reflect, at least for a short period time before his
act.” Id. at 393. While the amount of time for reflection may
vary, “it is the fact of deliberation, of second thought that is
important.” United States v. Frappier, 807 F.2d 257, 261 (1st
Cir. 1986) (citing Fisher v. United States, 328 U.S. 463(1946)). Voluntary manslaughter is defined in 18 U.S.C.A.
§ 1112 (West 2000 & Supp. 2008) as “an unlawful killing of a
human being without malice . . . [u]pon a sudden quarrel or heat
of passion.”
Sinclair maintains that Williamson was shot during a
sudden, heated confrontation, which he characterizes as “an
ongoing dispute” in which Williamson attacked him and he
“retaliated within minutes, while the dispute was ongoing.”
However, the evidence established that Sinclair had at least
several minutes to reflect after he was ejected from the club.
During that time, he obtained a gun, put on a hoody and pulled
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the hood up, thus changing his appearance to some degree, and
went back into the club through a side exit door. He thus
avoided the club’s weapon check at the front door. Sinclair’s
encounter with Holmes after he reentered the club indicated that
he was looking for Williamson, and he shot Williamson when he
found him. This evidence showed that Sinclair had time to
reflect between his fight with Williamson and the shooting. We
conclude that the district court did not err in finding that
there was evidence of premeditation, and correctly applied the
cross reference to § 2A1.1.
Last, Sinclair challenges his armed career criminal
sentence, arguing that the government’s failure to charge his
predicate convictions in the indictment violates the Fifth and
Sixth Amendments under Apprendi v. New Jersey, 530 U.S. 466(2000). He contends that Apprendi cannot be reconciled with the
Supreme Court’s holding in Almendarez-Torres v. United States,
523 U.S. 224 (1998) (holding that prior conviction used to
enhance sentence need not be charged in the indictment). We
have rejected similar Fifth and Sixth Amendment challenges to
the continued viability of Almendarez-Torres, see United States
v. Thompson, 421 F.3d 278, 281 n.2 (4th Cir. 2005); United
States v. Cheek, 415 F.3d 349, 352-54 (4th Cir. 2005), and may
not overrule this court’s precedents. United States v. Simms,
441 F.3d 313, 318 (4th Cir.) (AA decision of a panel of this
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court becomes the law of the circuit and is binding on other
panels unless it is overruled by a subsequent en banc opinion of
this court or a superseding contrary decision of the Supreme
Court.@ (internal quotation omitted)), cert. denied, 127 S. Ct.
233 (2006). Therefore, this claim fails.
Accordingly, we affirm the conviction and sentence.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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