United States v. Major , 170 F. App'x 315 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 7, 2006
Charles R. Fulbruge III
Clerk
No. 04-11460
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANIEL L. MAJOR; CHRISTOPHER L. RHODES; SHANGO H. ALVES,
Defendants-Appellants.
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Appeals from the United States District Court
for the Northern District of Texas
(4:04-CR-70-4)
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Before KING, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Daniel L. Major appeals his jury
conviction and sentence for conspiracy to use and carry a firearm
during a crime of violence. Defendant-Appellants Christopher L.
Rhodes and Shango H. Alves appeal their jury convictions and
sentences for conspiracy to use and carry a firearm during a crime
of violence, theft of firearms from a federally licensed firearms
dealer, and using and carrying a firearm during a crime of
violence.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Rhodes contends that the district court abused its discretion
in admitting the testimony of Virgil VanHuss, Jr., the manager of
the 183 Pawn Shop, and Special Agent Melanie Finney of the Bureau
of Alcohol, Tobacco, Firearms, and Explosives, that the 183 Pawn
Shop was a federally licensed firearms dealer on the date of the
robbery. Rhodes argues that the witnesses lacked personal
knowledge of this fact. VanHuss testified that he had been the
manager of the pawn shop for 20 years, had personally seen the pawn
shop’s federal firearms license, and had been told that the pawn
shop had a federal firearms license. Agent Finney testified that
a search of the ATF regulatory branch records confirmed that this
pawn shop was a federally licensed firearms dealer on the date of
the robbery. Rhodes has not shown that the district court abused
its discretion in admitting this testimony. See United States v.
Cantu, 167 F.3d 198, 203-04 (5th Cir. 1999).
Rhodes and Major contend that the evidence was insufficient to
support the jury’s finding that the pawn shop was a federally
licensed firearms dealer on the date of the robbery. This fact was
not an element of the conspiracy offense of which Major was
convicted, so the jury was not required to find this fact to
convict Major of the conspiracy offense. Rhodes made a motion for
a judgment of acquittal at the close of the government’s case, but
did not renew the motion at the close of all of the evidence.
Therefore, our review is limited to determining whether there was
“a manifest miscarriage of justice.” United States v. Green, 293
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F.3d 886, 895 (5th Cir. 2002). A review of the testimony of
VanHuss and Agent Finney confirms that the record is not devoid of
evidence that the pawn shop was a federally licensed firearms
dealer on the date of the robbery or that the evidence was “so
tenuous that a conviction is shocking.” See United States v.
Avants, 367 F.3d 433, 449 (5th Cir. 2004).
Major asserts that the evidence was insufficient to support
his conviction for conspiracy to use and carry a firearm during a
crime of violence. He made a motion for a judgment of acquittal at
the close of the government’s case, but did not renew the motion at
the close of all of the evidence. Our review is thus limited to
determining whether there was “a manifest miscarriage of justice.”
See Green, 293 F.3d at 895. The government presented evidence that
Major was present at Terrell Clark’s apartment along with Clark,
Alves, Rhodes, Timothy Davis, and Crystal Pruitt, when Clark,
Rhodes, and Alves were planning the robbery. Clark asked Major
whether they could use his car. Clark and Davis testified that
Major (1) agreed to allow the robbers to use his car, (2) gave the
keys to the car to either Clark or Rhodes, and (3) told them not to
damage his car. Alves stole a license plate to put on Major’s car
during the robbery. Rhodes told Major he could have first choice
of any gun or “whatever he bring[s].” Major was present at the
apartment when Clark, Rhodes, and Alves returned after the robbery.
Clark returned Major’s car keys and told him there was nothing
wrong with the car. Major chose a .45 caliber chrome pistol from
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the firearms stolen during the robbery. Davis later saw Major
changing the license plate on his car. A review of the evidence
demonstrates that the record is not devoid of evidence of Major’s
guilt or that the evidence was “so tenuous that a conviction is
shocking.” See Avants, 367 F.3d at 449.
Major, Rhodes, and Alves contend that the district court erred
(1) in excluding the testimony of Stacy Harris concerning
statements allegedly made by Terrell Clark and (2) in not allowing
Clark to be recalled to deny making these statements. We review
the admission or exclusion of evidence for abuse of discretion, and
any resulting error for harmlessness. Cantu, 167 F.3d at 203. We
review alleged violations of the Confrontation Clause de novo, and
any resulting error for harmlessness. United States v. Bell, 367
F.3d 452, 465 (5th Cir. 2004). As Major and Alves did not object
to the district court’s exclusion of Harris’s testimony and the
limitations of Clark’s cross-examination, our review is limited to
plain error. See United States v. Mares, 402 F.3d 511, 520 (5th
Cir.), cert. denied, 126 S. Ct. 43 (2005). The defendants have not
shown that the district court abused its discretion in excluding
Harris’s testimony or violated their rights under the Confrontation
Clause by limiting their cross-examination of Clark. Rhodes’s
counsel was permitted to cross-examine Clark extensively concerning
his plea agreement with the government in exchange for a lesser
sentence and the government’s agreement not to prosecute him for
the robbery of the Alvarado Pawn Shop. Rhodes’s counsel also
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cross-examined Clark concerning inconsistent statements that he
made to the police concerning the robberies. This cross-
examination confirms that the jury was provided adequate
information to appraise Clark’s bias and motives. See United
States v. Mizell, 88 F.3d 288, 293 (5th Cir. 1996). The jury’s
acquittal of Rhodes for counts one, two, and three concerning the
Alvarado Pawn Shop robbery is also a strong indication that the
jury had adequate information to appraise Clark’s bias, motives,
and credibility. And, as Clark’s testimony was cumulative of the
testimony of VanHuss and Davis and extensive cross-examination of
Clark was otherwise permitted, any error was harmless. See
Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986). As the jury was
provided with adequate information to assess Clark’s bias and
motives, and as Clark’s testimony was corroborated by other
evidence, including the testimony of Davis and Hickman against
these defendants, Alves and Major have failed to show that the
district court’s limitation of their cross-examination of Clark was
reversible plain error. See Mares, 402 F.3d at 520-21.
Alves urges that the district court erred in refusing to
suppress his statements made while in custody because he was under
the influence of narcotics and unable to intelligently waive his
rights. He also urges that statements he made after requesting an
attorney should have been suppressed. As Alves did not provide a
transcript of the suppression hearing, we are precluded from
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reviewing his allegations in that regard. See United States v.
Narvaez, 38 F.3d 162, 167 (5th Cir. 1994).
Alves further contends that the district judge erred in
refusing to recuse himself. Alves has not shown that a reasonable
person who knew all of the circumstances would harbor doubts about
the judge’s impartiality. See United States v. Anderson, 160 F.3d
231, 233 (5th Cir. 1998). Therefore, Alves has not shown that the
district court abused its discretion in denying his motion for
recusal.
All Defendants-Appellants insist that their sentences should
be vacated in light of United States v. Booker, 543 U.S. 220(2005). The government conceded that the defendants’s objections
based on Blakely v. Washington, 542 U.S. 296 (2004), were
sufficient to preserve this issue for appeal. We review the
sentences for harmless error. United States v. Walters, 418 F.3d
461, 463 (5th Cir. 2005). The government also concedes that the
district court erred in imposing the defendants’ sentences under
the mandatory Guidelines, and that it cannot demonstrate that the
error was harmless beyond a reasonable doubt because there is no
indication in the record that the district court would have imposed
the same sentences if the Guidelines had been advisory. See United
States v. Garza, 429 F.3d 165, 170 (5th Cir. 2005). Accordingly,
the sentences of Major, Rhodes, and Alves are vacated and their
cases remanded for resentencing.
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Major also claims that the district court erred in increasing
his offense level under U.S.S.G. § 2K2.1(b)(4) because the firearms
were stolen. As we are vacating Major’s sentence and remanding for
resentencing, we do not reach this argument of sentencing error at
this time. See United States v. Akpan, 407 F.3d 360, 377 n.62 (5th
Cir. 2005).
CONVICTIONS AFFIRMED; SENTENCES VACATED AND REMANDED FOR
RESENTENCING.
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