United States v. Raekwon Webb ( 2022 )

United States Court of Appeals
For the Eighth Circuit
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No. 21-3820
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Raekwon Duprix Webb
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Central
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Submitted: May 9, 2022
Filed: July 5, 2022
[Unpublished]
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Before SMITH, Chief Judge, WOLLMAN and SHEPHERD, Circuit Judges.
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PER CURIAM.
Raekwon Webb pleaded guilty pursuant to a written plea agreement to one
count of being a felon in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2), and was sentenced to 60 months’ imprisonment. On
appeal, Webb argues that the district court1 clearly erred in concluding that he used
the firearm in the commission of a robbery. See U.S.S.G. § 2B3.1 (robbery offense
level). We affirm.
I. Background
Webb pleaded guilty pursuant to a written plea agreement to being a felon in
possession of a firearm. In that agreement, he acknowledged that he threw a
nine-millimeter pistol out of a vehicle’s window. He stipulated that the firearm was
stolen.
A presentence report (PSR) was prepared. It set forth the offense conduct as
follows:
11. On October 19, 2020, Des Moines, Iowa (Des Moines), Police
received a call from [T.T.]. [T.T.] stated that a male named
Raekwon Duprix Webb robbed him of $500 in cash, and that
[T.T.] was currently following Webb in a vehicle. Dispatch told
[T.T.] to stop, but he refused and stated, “There is going to be a
full-on high-speed chase.” [T.T.] went on to state to dispatch that
Webb held a gun to [T.T.] and stole money from him. Shortly
after [T.T.’s] call, dispatch received another call from a
homeowner stating a white vehicle had crashed into his fence at
919 Southeast 11th Street in Des Moines and was stuck in his
yard.
12. [Law enforcement] responded to the scene of the crash and
located [T.T.] attempting to get a white 2008 Dodge Avenger
with no license plates unstuck from a fence. [T.T.’s] sister, [C.T.],
was also present. [T.T.] told [law enforcement] that he and his
sister had been driving around with Webb. [C.T.], who had a gun
permit, possessed a Smith and Wesson nine-millimeter pistol in
1
The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.
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the vehicle. At some point, they had also picked up Webb’s
friend, Jamel Carter. While they were riding around, Webb
grabbed [C.T.’s] gun, held it to [T.T.], and told [T.T.] to give
Webb his money. Webb held the gun on [T.T.] while Carter took
the money. After the robbery, the vehicle crashed into the fence,
and Webb took off with the gun and the money.
R. Doc. 41, at 6 (emphasis and footnote omitted).
The PSR reported that a few hours after the incident, T.T. again contacted
police and reported “that he had contacted Webb and arranged for Webb to return
[T.T.’s] property.” Id. at 7 (emphasis omitted). Webb was expected to take the stolen
firearm to C.T.’s apartment. Law enforcement went to the apartment complex and
observed a vehicle entering the apartment complex parking lot. The vehicle’s
occupants saw police, made a u-turn, and sped away. Law enforcement located the
vehicle and conducted a traffic stop. The vehicle’s driver was Webb’s girlfriend.
Webb sat in the front passenger seat. Two small children were also in the vehicle.
Webb denied having any guns. Thereafter, police retraced the vehicle’s route and
recovered a nine-millimeter pistol near the entrance to the apartment complex’s
parking lot. During a post-Miranda2 interview, Webb’s girlfriend admitted that Webb
threw the pistol out of the vehicle’s window while they attempted to elude police.
According to the PSR, in a follow-up interview the next day, T.T. told law
enforcement of his belief that he and his sister “were targeted because earlier in the
day, he was flashing cash on Snapchat, and he and Webb were ‘friends’ on
Snapchat.” Id. at 7 (emphasis omitted). T.T. reported to police that he and Webb
spoke on the phone after the robbery and that Webb agreed to return C.T.’s pistol.
Webb stole the money, according to T.T., “because he had ‘mouths to feed.’” Id. T.T.
asked Webb to return the money, and Webb replied that he had already spent the
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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money. T.T. told police that he became angered by Webb’s reply and called police to
report Webb’s imminent return of the pistol to C.T.’s apartment.
Police then spoke with C.T. “She confirmed [T.T.’s] account of events and also
said that Webb took her gun and pointed it at them while Carter went through their
pockets and took the money.” Id. (emphasis omitted). C.T. provided law enforcement
with a phone conversation between Webb’s girlfriend and T.T. in which the girlfriend
told T.T., “This is his girl, I’ll make sure you get your stuff back.” Id.The PSR calculated a base offense level of 20 because the firearm was used or
possessed in a robbery. See U.S.S.G. § 2B3.1(a). It applied a five-level enhancement
for Webb brandishing or possessing the firearm during a robbery. See id.
§ 2B3.1(b)(2)(C). It also applied a one-level enhancement for Webb taking the
firearm. See id. § 2B3.1(b)(6). These enhancements increased Webb’s offense level
to 26. After applying a three-level reduction for acceptance of responsibility, see
U.S.S.G. § 3E1.1(a), (b), the PSR calculated a total offense level of 23.
Webb objected to the allegations that he had robbed T.T. or taken C.T.’s
firearm. The government responded by offering several exhibits in support of the
PSR’s factual assertions: (1) a police report recounting the events of October 19,
2020; (2) excerpts of police video from the evening of October 19, 2020; and (3)
federal grand jury testimony of C.T. and T.T. given on November 18, 2020. At
sentencing, the government’s exhibits were admitted without objection. Webb, by
contrast, relied in significant part on state court depositions of C.T. and T.T. taken in
April 2021.
The PSR’s factual assertions largely matched the police report: First, T.T.
reported to police dispatch “that a male named Raekwon had robbed him of $500.00”
at gunpoint. R. Doc. 47-1, at 1. Second, T.T. reported that he and his sister, C.T., had
been driving around with Webb and, at some point, picked up Webb’s friend (later
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identified as Carter). T.T. stated that Webb held the gun, while Carter took the
money. C.T. told officers that her handgun had been taken. T.T. also told police “that
he had been flashing money on Snapchat earlier that day.” Id. at 2. Third, T.T.
confirmed in a subsequent interview that Webb took C.T.’s handgun from her and
held the two at gunpoint while Carter went through their pockets and took their
money. Finally, C.T. confirmed this same version of events.
The police video confirmed C.T.’s and T.T.’s statements to law enforcement
after the vehicle crashed into the fence. For example, C.T. stated, “My brother just got
robbed.” R. Doc. 47-3, at 1:37. T.T. stated, “They t[ook] my sister’s gun.” Id. at 2:08.
But T.T. also made statements that Webb had taken as much as $1,000 and that
Webb—not T.T.—had been driving the vehicle prior to the crash. Id. at 2:18–2:40.
In his federal grand jury testimony—given less than one month after the
incident—T.T. confirmed that Webb took $500 from him. He likewise confirmed that
Webb stole C.T.’s gun at the same time. C.T. testified to the grand jury that Webb
stole her nine-millimeter pistol.
In April 2021—almost six months after the incident—C.T. and T.T. each gave
depositions in state court. By this time, C.T. had recanted. C.T. now claimed that no
robbery had occurred. R. Doc. 50, at 12 (“Q. There was no robbery, was there? A.
No.”). T.T. equivocated. At times, he testified that (1) he could not recall critical
details, such as who was driving or anything at all about the incident; (2) he was high
at the time; and (3) no robbery occurred. At other times, T.T. maintained that Webb
robbed him, although Webb did not put a gun to T.T.’s head. T.T. did acknowledge
having reported the robbery to dispatch after his 911 call was played at the
deposition.3
3
Webb ultimately pleaded guilty in Iowa state court to conspiracy to commit
a felony. He agreed that he conspired with Carter to steal $500 from T.T. The plea
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The district court concluded that the government established by a
preponderance of the evidence that Webb possessed the firearm in connection with
a robbery. In support of its factual finding, the court cited the police report, excerpts
of police video, and federal grand jury testimony of C.T. and T.T. The court did
expressly acknowledge C.T.’s and T.T.’s inconsistent testimony offered in the state
case.
After calculating a Guidelines range of 57 to 71 months’ imprisonment, the
district court reviewed the 18 U.S.C. § 3553(a) factors. The court noted that the
offense is “really serious” with “evidence demonstrat[ing] by a preponderance that
he took that money by force and that he took that money and he obtained that gun in
a manner that creates danger to not only the individuals involved but the community
as a large.” R. Doc. 66, at 42. The court also cited the danger created when Webb
threw the pistol from the vehicle. The court also stated, “It’s dangerous to the children
that were in the car. It’s dangerous to the individuals who are around who might
encounter that firearm, and it demonstrates a disregard for the safety of others that is
of concern to the Court.” Id. at 43. Finally, the court was “concerned by aspects of the
defendant’s criminal history.” Id. This history included witness tampering and a
violent burglary.
The court imposed a sentence of 60 months’ imprisonment. The court reviewed
the other sentencing calculations available to it, including without the robbery
cross-reference, and concluded that it would have imposed the same sentence, noting
that “the circumstances surrounding this case are sufficiently dangerous.” Id. at
45–46.
agreement provided that Webb’s state sentence would run concurrent with his federal
sentence.
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II. Discussion
On appeal, Webb argues that the district court clearly erred in finding that he
committed a robbery, resulting in application of U.S.S.G. § 2B3.1. In support, Webb
relies on the state-court depositions in which T.T. and C.T. gave testimony
inconsistent with the police report, excerpts of police video, and federal grand jury
testimony of C.T. and T.T.
“When finding sentencing facts, district courts apply a
preponderance-of-the-evidence standard.” United States v. Clark, 932 F.3d 1064,
1066 (8th Cir. 2019). We review for clear error a district court’s “factual findings
underlying a sentence enhancement.” Id. (internal quotation marks omitted).
“As a general proposition, a sentencing judge may appropriately conduct an
inquiry broad in scope, largely unlimited either as to the kind of information he may
consider, or the source from which it may come.” Nichols v. United States, 511 U.S.
738, 747 (1994) (internal quotation marks omitted). “In sentencing, ‘the court may
consider relevant information without regard to its admissibility under the rules of
evidence applicable at trial, provided that the information has sufficient indicia of
reliability to support its probable accuracy.’” United States v. Pepper, 747 F.3d 520,
524 (8th Cir. 2014) (quoting U.S.S.G. § 6A1.3).
We hold that the district court properly relied on the police report, excerpts of
police video, and federal grand jury testimony in making its factual finding that Webb
committed a robbery by stealing C.T.’s firearm and taking money from T.T. First,
“[w]e have repeatedly upheld the consideration of grand jury testimony at sentencing;
it has indicia of reliability because it was given under oath and subject to the penalties
of perjury.” United States v. Cross, 888 F.3d 985, 993 (8th Cir. 2018) (internal
quotation marks omitted). Second, T.T.’s and C.T.’s “statements [to police], though
hearsay, were made under circumstances indicating sufficient reliability,” considering
that they made them shortly after the incident. Clark, 932 F.3d at 1067.
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Webb’s alternative view of the facts based on C.T.’s and T.T.’s later state
deposition testimony is another “permissible view[] of the evidence.” Anderson v.
City of Bessemer City, 470 U.S. 564, 574 (1985). But “[w]here there are two
permissible views of the evidence, the factfinder’s choice between them cannot be
clearly erroneous.” Id. Here, the district court credited the version of the incident set
forth in the police report, excerpts of police video, and grand jury testimony. Its
factual finding based on this evidence is not clearly erroneous.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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