United States v. Damon Goodrich , 739 F.3d 1091 ( 2014 )

United States Court of Appeals
For the Eighth Circuit
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No. 12-2919
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Damon E. Goodrich
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: September 27, 2013
Filed: January 9, 2014
(Published)
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Before WOLLMAN, SMITH, and KELLY, Circuit Judges.
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PER CURIAM.
A jury convicted Damon Goodrich on all counts of a three-count indictment
for being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1)
and 924(a)(2) ("Count 1"); possession with intent to distribute less than fifty
kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D) ("Count
2"); and possession of a firearm in furtherance of a drug trafficking crime, in violation
of 18 U.S.C. § 924(c)(1)(A) (Count 3"). The district court1 sentenced Goodrich to 33
months' imprisonment on Counts 1 and 2, and 90 months, to run consecutive to
Counts 1 and 2, on Count 3. Goodrich seeks reversal of the guilty verdict or, in the
alternative, remand for resentencing. First, he alleges that the evidence presented
against him was the fruit of two unlawful searches of his home. Second, he claims
that the evidence presented was insufficient to support a conviction. Third, he
contends that the district court's sentence, particularly its upward variance on Count
3, was substantively unreasonable. For the reasons stated below, we affirm.
I. Background
On the evening of May 21, 2009, three Kansas City, Missouri police officers
responded to a report of a break-in at a house that Goodrich rented. When they
arrived, a witness told police he heard a gunshot. The officers could see people
moving inside the house. One intruder left the house and ran toward a nearby wooded
area. While fleeing, this suspect dropped a bag of marijuana and two handguns and
was eventually arrested. Police arrested a second intruder attempting to exit the house
through a window.
Goodrich arrived at the house shortly after the police. Advised of a gunshot,
the officers organized a protective sweep of the house for additional intruders or
possible victims. They asked Goodrich to open the front door. He initially refused,
but he relented after officers informed him that if he did not unlock the door, they
would force their way in. Once inside, officers conducted a 20 to 25 minutes,
room-by-room sweep of the house. They looked under beds and blankets, in closets,
and anywhere they believed suspects could be hiding or victims might be found.
During the search, they observed a firearm on a bed and an open diaper box
containing individually wrapped baggies of marijuana in a bedroom.
1
The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.
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After the search, Police Detective Darryl Ward arrived on the scene. Based on
the responding officer's report, Ward determined that a second search was needed.
Ward sought Goodrich's consent but he initially denied living at the house. After a
search through the police database matched Goodrich to the address, and police found
utility bills in the mailbox in his name, Goodrich admitted to living in the house.
Detective Ward gave Goodrich a consent-to-search form, which advised
Goodrich of his right to refuse and the potential use of any evidence found during the
search. An officer read the form aloud to Goodrich, who also read it himself and
admitted that he understood it. When Goodrich asked what would happen if he did
not consent to the search, Detective Ward stated officers would obtain a search
warrant. Mr. Goodrich signed the form.
In the second search, police found a loaded pistol and $1,000 in cash in one
bedroom. They recovered $13,000 in cash and several clear plastic bags containing
a "green, leafy substance" in the next bedroom. They discovered another loaded pistol
and several scales in the kitchen. Finally, a search of the living room revealed
$10,000 in cash in a briefcase, an industrial size roll of shrink wrap, a box of
ammunition matching the caliber of one of the pistols, and a ballistic vest.
Police tested several bags of the leafy substance; tests revealed that the bags
contained approximately 5760 grams of marijuana. Police developed a partial genetic
profile from the gun. The profile matched Goodrich, though officers did contaminate
the sample by getting some of their own DNA on the gun.
On this evidence, a grand jury returned a three-count indictment against
Goodrich. Count 1 charged him with being a felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Count 2 charged him with
possession with intent to distribute less than 50 kilograms of marijuana, in violation
of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D). Count 3 charged him with possession of a
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firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A). The parties stipulated that Goodrich had at least one prior felony
conviction.
Goodrich pleaded not guilty. He then moved to suppress all of the evidence
discovered in the searches of his home, claiming that the searches violated the Fourth
Amendment. The magistrate judge rendered, and the district court adopted, a report
and recommendation granting in part and denying in part the motion to suppress.
After a three-day trial, the jury found Goodrich guilty on all three counts. The
court calculated a Guidelines range of 27 to 33 months each on Counts 1 and 2, and
60 months on Count 3. The court sentenced Goodrich to 33 months on Counts 1 and
2, to be served concurrently, and 90 months on Count 3, to be served consecutively.
II. Discussion
Goodrich appeals, renewing his objection to the search and challenging the
sufficiency of the evidence for his conviction. In the alternative, he argues that his
sentence is substantively unreasonable.
A. Motion to Suppress
Goodrich alleges that the protective sweep and the consent search each violated
his Fourth Amendment rights.
We review the factual findings of the district court "in support of its denial of
a motion to suppress for clear error." United States v. Hogan, 539 F.3d 916, 921 (8th
Cir. 2008) (internal quotations and citations omitted). We review de novo its legal
conclusions. Id. We "will affirm the district court's denial of a motion to suppress
evidence unless it is unsupported by substantial evidence, based on an erroneous
interpretation of applicable law, or, based on the entire record, it is clear a mistake
was made." Id. (quotations and citations omitted)
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The Fourth Amendment guarantees "the right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures…"
As the Supreme Court observed, "a search or seizure carried out in a suspect's
premises without a warrant is per se unreasonable, unless the police can show that it
falls within one of a carefully defined set of exceptions based on the presence of
'exigent circumstances.'" Coolidge v. New Hampshire, 403 U.S. 443, 474–75 (1971).
1. Protective Sweep
Goodrich acknowledges that he gave police consent to enter his home, but
argues that the consent was coerced. He avers that he only agreed to unlock the house
door for the protective sweep after officers threatened to "break the door down" if he
did not open it. He also claims he was handcuffed at the time. He argues that no
consent obtained through "duress and threats of property damage" can be valid
consent, and thus the protective sweep was unlawful. The officers testified they
would have forced entry if Goodrich had not unlocked the door, but they never
handcuffed Goodrich.
The validity of a protective sweep does not hinge on Goodrich's consent. In
exigent circumstances, police may enter a dwelling without the owner or occupant's
consent. "[L]egitimate concern for the safety of individuals may constitute 'exigent
circumstances' justifying warrantless entr[y]" into a home. United States v. Atwine,
873 F.2d 1144, 1147 (8th Cir. 1989) (citations omitted). Here, a witness told arriving
police that a gun had been fired. Police captured one of the suspects with a firearm.
Based on the circumstances, the police could have reasonably believed that a shooting
victim or an additional armed suspect might be in the house. This reasonable belief
justified warrantless entry of the house, with or without Goodrich's consent.
Goodrich also contends that the search exceeded a reasonable scope, stretching
more than half an hour and including a search in boxes and "other places that could
not reasonably be expected to hold suspects or victims." Officers testified that the
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search lasted 20 to 25 minutes and that their search was confined to searching beds,
closets, and other places a person might hide. Police conducted a methodical search
of a multi-room, multi-story home to look for potential victims or suspects. The
reasonableness of any exigency-based search requires a highly fact-intensive inquiry.
Taking into account the facts recited, we hold that the 20 to 25 minutes search did not
exceed the scope presented by the exigent circumstances present here. We hold that
the police did not violate the Fourth Amendment by entering Goodrich's home
without a warrant based on exigent circumstances at that time. The search remained
within the circumference of a reasonable search for suspects or victims.
2. Consent Search
Goodrich next challenges the consent search, alleging that police used threats
to coerce his consent. He claims officers handcuffed him after the first search, and
threatened to "get angry" and "destroy the house while they were searching it" if they
had to get a warrant rather than his consent. The government presented, and the court
below accepted, a different version of events. The district court found that Goodrich
did not object to the search, nor was he threatened. Goodrich acknowledges that he
read and understood the consent form, and did not object while officers searched the
house.
A search conducted pursuant to valid consent does not violate the Fourth
Amendment. United States v. Hines, 387 F.3d 690, 694 (8th Cir. 2004). Having
reviewed the record, we conclude that the district court did not clearly err in its
findings of fact; therefore, Goodrich consented to the search and no constitutional
violation occurred. The district court properly denied Goodrich's motion to suppress.
B. Sufficiency of the Evidence
Goodrich challenges the sufficiency of the evidence on each count of the
verdict. "We review de novo the sufficiency of the evidence to sustain a conviction.
We will affirm unless, viewing the evidence in the light most favorable to the
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[g]overnment and accepting all reasonable inferences that may be drawn in favor of
the verdict, no reasonable jury could have found [the defendant] guilty." United
States v. Thompson, 686 F.3d 575, 582 (8th Cir. 2012).
1. Counts 1 & 2: Possession Offenses
To convict Goodrich on Count 1, of being a felon in possession of a firearm,
the government must prove, that he "knowingly possessed" the firearm. United States
v. Brown, 634 F.3d 435, 439 (8th Cir. 2011) (describing the elements of being a felon
in possession of a firearm under 18 U.S.C. §§ 922(g)(1)). Similarly, to convict
Goodrich on Count 2, the government must prove that he "knowingly possessed" the
drugs. United States v. Parker, 587 F.3d 871, 881 (8th Cir. 2009) (describing the
elements of possession of a drug with intent to distribute under 21 U.S.C. §§
841(a)(1)).
"Possession may be actual or constructive." Id. (quotations and citations
omitted). "Constructive possession is established by proof that the defendant had
control over the place where the firearm was located, or control, ownership, or
dominion of the firearm itself." Brown, 634 F.3d at 439 (quotations and citations
omitted). See also Parker, 587 F.3d at 881 ("A defendant's control and dominion over
a vehicle [where drugs were found] can indicate knowledge.") (citations omitted).
Goodrich alleges that the government did not present sufficient evidence that
he possessed either the guns or drugs. He argues that no evidence ties him to the
firearms or drugs. He proposes that the burglars, who "ransacked the house leaving
it in total disarray," may have brought the guns and marijuana with them. He points
out that the government presented no fingerprint evidence tying him to either item of
contraband. He also challenges the reliability of the DNA evidence and its associated
lab process.
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Upon review, we hold that the government presented sufficient proof that
Goodrich controlled and dwelled in the house. Goodrich admitted that he rented and
lived in the house, utility bills found in the mailbox were in his name, and he
possessed keys to the house. Such evidence suffices to show that he had dominion
and control over the premises. See United States v. McCracken, 110 F.3d 535, 541
(8th Cir. 1997) (finding constructive possession where the defendant lived in the
apartment where drugs were found, and law enforcement found drugs and some of the
defendant's possessions in the same room).
Goodrich's suggestion that the burglars brought the guns and drugs into the
house is certainly possible. In Brown, we considered a similar argument. In that case,
the defendant was charged with being a felon in possession of a firearm. 654 F.3d at
436. He was a passenger in the car where the gun was found. Id. at 436–37. He
argued "an unknown person may have left the gun in [the] automobile." Id. at 439.
Affirming his conviction, we held that "the presence of one possible 'innocent'
explanation for the government's evidence does not preclude a reasonable jury from
rejecting the exculpatory hypothesis in favor of guilt beyond a reasonable doubt." Id.
(quotations and citations omitted).
Nor does the lack of fingerprint evidence cast reasonable doubt on the verdict.
"While such fingerprint evidence might have strengthened the [government's] case,
. . . it is not required to convict." Brown, 643 F.3d at 439. (alteration in original)
(quoting United States v. McCraney, 612 F.3d 1057, 1064 (8th Cir. 2010))
Finally, Goodrich challenges the reliability—not the admissibility—of the
DNA evidence. The contamination of the DNA evidence in the collection process and
the weight to give it are questions for the jury to decide. See United States v. Vallie,
284 F.3d 917, 920 (8th Cir. 2002) ("Moreover, any defect in the collection of the
DNA evidence would have gone more to its weight than its admissibility."); United
States v. Beasley, 102 F.3d 1440, 1448 (8th Cir. 1996) (holding that alleged
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deficiencies in the protocols and procedures used by a lab go to the weight rather than
admissibility of DNA evidence). Goodrich had ample opportunity to cross-examine
witnesses and proffer his own expert testimony. On the record before us, we conclude
that a reasonable jury could have returned a guilty verdict on Counts 1 and 2.
2. Count III: Possession of a Firearm in Furtherance
of a Drug Trafficking Crime
"A conviction for possessing a firearm in furtherance of a drug trafficking
crime requires that the government prove a nexus between the defendant's possession
of the firearm and the drug crime." United States v. Close, 518 F.3d 617, 619 (8th Cir.
2008) (interpreting 18 U.S.C. § 924(c)(1)(A)). This requires more than mere proof
that drugs and a firearm were possessed simultaneously. Id. The jury may infer that
the firearm was so used "when it is kept in close proximity to the drugs, it is quickly
accessible, and there is expert testimony regarding the use of firearms in connection
with drug trafficking." Id.
Goodrich argues that burglars moved around items inside the house, including
guns and marijuana, meaning that the government cannot prove that the drugs and
guns were kept in close proximity. He further contends that the government offered
no evidence that guns were sold from or regularly possessed in the house.
We considered similar facts in United States v. Sanchez-Garcia, 461 F.3d 939
(8th Cir. 2006). In that case, police found firearms in an apartment bedroom, and
drugs and scales in the adjacent kitchen. We held that such proximity sufficiently
satisfied the elements of the crime. Id. at 947. Here, drugs, firearms, scales, and cash
were kept throughout the house, in at least two bedrooms, the living room, and the
kitchen. A jury could reasonably infer that the firearms were kept in close proximity
to the drugs, despite burglars moving items in the house.
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The government presented competent testimony that drug dealers often keep
firearms readily accessible to protect their drugs and money. The government
presented testimony that drugs found in this quantity, with scales and large quantities
of cash, are consistent with the owner distributing drugs. The government satisfied
its evidentiary burden. A reasonable jury could infer from the evidence presented that
Goodrich was engaged in selling drugs, and that he possessed a firearm in furtherance
of that crime.
C. Sentencing
"[W]e review the imposition of sentences, whether inside or outside the
Guidelines range, [under] a deferential abuse-of-discretion standard." United States
v. Hayes, 518 F.3d 989, 995 (8th Cir. 2008) (quoting Gall v. United States, 552 U.S.
38, 40 (2007)).
Goodrich challenges the reasonableness of his sentence on two fronts. First, he
points out that the government offered a plea agreement before trial, with a
recommended sentence of 24 to 33 months in custody. At the post-trial sentencing
hearing, the government recommended sentences at the top of the Guidelines range
for Counts 1 and 2 (33 months), and the statutory minimum of 60 months for Count
3. The court imposed concurrent 33-months' sentences for Counts 1 and 2, and varied
upward to 90 months for Count 3. Goodrich contends that if the initial plea offer or
the government's post-trial recommendation represented a sentence sufficient but not
greater than necessary to achieve the purposes of criminal sentencing, a longer
sentence must be excessive. Second, he contends that the district court did not
consider any of the significant mitigating evidence he offered, but instead focused on
his criminal history.
With respect to Counts 1 and 2, this court may presume that a sentence within
the Guidelines range is reasonable. United States v. Feemster, 572 F.3d 455, 461–62
(8th Cir. 2009) (en banc). Given the facts adduced at trial and considered by the
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district court at sentencing, we discern no basis for concluding this within-
Guidelines-range sentence is substantively unreasonable.
Nor is Goodrich's argument from the plea offer convincing. It is unsurprising
that the government would offer a lighter sentence in a plea agreement than a
defendant might expect to receive when imposed by the court after a trial. Also, the
government would likely recommend a higher sentence after a criminal defendant
puts it through the time and expense of a contested trial. The reasonableness of a
sentence imposed by a district court after trial is not judged by what the government
or the defendant considered in their bargaining before the matter became solely a
judicial task upon conviction.
With respect to Count 3, the court varied upward significantly. As Goodrich
asserts, the court focused on Goodrich's criminal history, noting that despite an
extensive criminal record, he rarely faced incarceration. The court's focus, however,
was neither unwarranted nor unexplained. Goodrich's most recent felony conviction
was for possession of a controlled substance and unlawful use of a weapon—conduct
substantially similar to this case. The court emphasized that the firearm possession
prompted the variance. The court noted that Goodrich knew he should not have
possessed a firearm, and the court expressed concern that his conduct mirrored much
of his past criminal behavior. The court also considered Goodrich's responsibility for
the presence of unsecured guns in a house with small children. The court's variance
is supported by substantial evidence in the record, and there is no evidence that the
court either ignored mitigating evidence or failed to adequately consider the statutory
factors. We cannot find that the district court abused its discretion in imposing a 90-
month sentence for Count 3.
III. Conclusion
Accordingly, the judgment of the district court is affirmed.
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