United States v. Brandon Brooks-Davis ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 19-2876
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Brandon Dante Brooks-Davis
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the District of Minnesota
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Submitted: October 23, 2020
Filed: January 7, 2021
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Before SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.
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LOKEN, Circuit Judge.
A jury convicted Brandon Brooks-Davis of two counts of aiding and abetting
a felon-in-possession of a firearm in violation of 18 U.S.C. §§ 2, 922(g)(1), and
924(a)(2). The district court1 varied downward and sentenced Brooks-Davis to 105
1
The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.
months imprisonment. He appeals his conviction and sentence. With the appeal
pending, the Supreme Court held in Rehaif v. United States that, “in a prosecution
under 18 U.S.C. § 922(g) and § 924(a)(2), the Government must prove both that the
defendant knew he possessed a firearm and that he knew he belonged to the relevant
category of persons barred from possessing a firearm.” 139 S. Ct. 2191, 2200 (2019).
On appeal, Brooks-Davis argues (1) the evidence was insufficient to convict him of
either count; (2) the district court committed plain error by not instructing the jury
that it must find that Brooks-Davis knew he had been convicted of a crime punishable
by more than one year, as Rehaif now requires; and (3) the court committed
procedural sentencing error in applying two-point enhancements for possessing three-
to-seven firearms and a stolen firearm. We affirm.
I. Sufficiency of the Evidence
In 2018, police investigating Donta Adams for drug dealing executed a warrant
to search an apartment in Edina, Minnesota. Brooks-Davis emerged naked from a
bedroom where he was with an adult woman. In the bedroom, officers found shorts
containing a wallet with Brooks-Davis’s driver’s licence approximately two-feet from
an Air Jordan bag containing marijuana, a digital scale, and a Glock .40 pistol. They
also found a short-barrel rifle in the closet of the second bedroom and a large amount
of cash and three additional firearms in a safe in the laundry room. During the search,
Adams appeared at the apartment, fled, and was apprehended in an adjunct parking
garage where another gun was later found.
Adams and Brooks-Davis were indicted as co-defendants. Count 1 charged
both defendants with unlawful possession of “the firearms found in the safe: a
Beretta . . . a Smith & Wesson . . . and a Ruger.” Count 2 charged both with unlawful
possession of the Glock pistol found in the Air Jordan bag. Adams pleaded guilty and
testified for the government at Brooks-Davis’s trial.
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At trial, the government introduced the drug and firearm evidence found during
the warrant search together with law enforcement officer testimony describing where
the evidence was found and the actions of Brooks-Davis and Adams during and after
the search. Adams then testified that he and Brooks-Davis sold drugs together and
split the profits. They shared the apartment, owned the drugs found in the apartment,
and both carried firearms. Adams testified Brooks-Davis stayed in the bedroom
where he was found; the Air Jordan bag and Glock firearm found in the bedroom
belonged to Brooks-Davis. He testified they jointly owned the safe in the laundry
room and used it to store their guns and cash. The Beretta found in the safe belonged
to Brooks-Davis; the Ruger, a stolen gun, belonged to Adams; and the Smith &
Wesson was being held for a friend. When asked why only his fingerprints and DNA
were found on the firearms, Adams testified that Books-Davis was “careful” and wore
gloves or wiped the guns down. Adams was extensively cross examined by defense
counsel. At the close of the government’s evidence, Brooks-Davis waived his right
to testify and the defense presented no evidence. The district court denied his motion
for judgment of acquittal. The jury convicted him of Counts 1 and 2.
On appeal, Brooks-Davis argues the evidence was insufficient to prove he
possessed the Glock pistol charged in Count 2 or any of the three firearms charged
in Count 1. Alternatively, he argues the evidence was insufficient to prove he
possessed the Smith & Wesson found in the safe and therefore he could not be
convicted of Count 1 because the jury was instructed it must find he possessed all
three guns in the safe. Our standard of review for “a claim of insufficient evidence
is strict, and a jury’s verdict should not be lightly overturned.” United States v. Tate,
633 F.3d 624, 628 (8th Cir. 2011). We will affirm if, viewing all facts in the light
most favorable to the verdict, we conclude a reasonable jury could have found the
defendant guilty beyond a reasonable doubt. United States v. Bates, 77 F.3d 1101,
1104-05 (8th Cir.), cert. denied 519 U.S. 884 (1996).
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Brooks-Davis argues there was some evidence he did not live in the Edina
apartment and therefore the fact that his shorts containing his driver’s licence were
found near the Air Jordan bag was a coincidence. That of course was an issue for the
jury to resolve. The crux of his argument is that the government’s case depended on
the self-serving testimony of Donta Adams, an unreliable witness. According to
Brooks-Davis, cross examination established that Adams lied to the police when he
first spoke to them; lied in telling the prosecutor he committed a robbery with
Brooks-Davis in Oregon when it was impossible for Brooks-Davis to be in Oregon;
Adams was the only one who resisted arrest; and only Adams’s fingerprints and DNA
were found on the firearms. Regarding the Smith & Wesson found in the safe,
Brooks-Davis argues that Adams did not testify when he took possession of the gun,
when it entered the safe, whether Brooks-Davis knew it was there, or that it was tied
to their joint drug dealings. Despite thorough cross-examination on these issues, the
jury found Adams’s trial testimony regarding the guns credible. “It is the function of
the jury, not an appellate court, to resolve conflicts in testimony or judge the
credibility of witnesses.” United States v. Hernandez, 569 F.3d 893, 897 (8th Cir.
2009), cert. denied, 559 U.S. 915 (2010). Its determinations are “virtually
unreviewable on appeal.” Id.Adams testified that he and Brooks-Davis lived in the apartment, sold drugs
together, and jointly owned the gun safe; that the Glock pistol belonged to Brooks-
Davis; and that together they possessed the guns and cash found in the safe. The
government’s case was weakest regarding whether Brooks-Davis possessed the Smith
& Wesson gun found in the safe, which Adams testified was being held for a friend.
However, “[i]f two or more persons share actual or constructive possession of a thing,
possession is joint.” United States v. Payne, 377 F.3d 811, 815 (8th Cir. 2004),
vacated on other grounds, 543 U.S. 1112 (2005). The district court correctly
instructed the jury as to actual, constructive, and joint possession. Viewing the
evidence in the light most favorable to the jury’s verdict, we conclude the evidence
was sufficient for a reasonable jury to find that Brooks-Davis constructively
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possessed the Glock pistol in the Air Jordan bag and was in joint constructive
possession of the three guns found in the safe.
II. The Rehaif Issue
As Rehaif was not decided until Brooks-Davis’s appeal was pending, the
district court did not instruct the jury that it must find that Brooks-Davis knew of his
status as a person prohibited from possessing a firearm. The Government concedes
this was Rehaif error. However, Brooks-Davis did not object to the jury instruction,
so our review is for plain error. Thus, Brooks-Davis must establish: “(1) an error (2)
that was obvious and (3) that affected the defendant’s substantial rights and (4) that
seriously affected the fairness, integrity, or public reputation of judicial proceedings.”
United States v. Hollingshed, 940 F.3d 410, 415 (8th Cir. 2019), cert. denied, 140
S. Ct. 2545 (2020), citing United States v. Olano, 507 U.S. 725, 734 (1993). As in
Hollingshed and other recent cases, the issue turns on the last two plain error
elements, whether Brooks-Davis has shown a reasonable probability the error affected
his substantial rights and seriously affected the fairness of the proceedings.
The status that made Brooks-Davis’s possession of a firearm or ammunition
unlawful was that he “has been convicted in any court of, a crime punishable by
imprisonment for a term exceeding one year.” 18 U.S.C. § 922(g)(1). The indictment
alleged that, in 2015 and 2016, he was twice convicted of a felony, Violation of No
Contact Order issued after an alleged assault of his girlfriend.2 For the 2015 offense,
he was sentenced to 15 months imprisonment but received a stay and served 79 days
in jail. For the 2016 offense, he received a stayed sentence of 21 months and served
2
The PSR also reported a felony assault conviction in 2010 for which Brooks-
Davis received a stayed sentence and served 60 days in jail. He then received a
stayed sentence of one year and one day and served 63 days in jail for a 2012
probation violation plus another 6 days in jail for a 2013 probation violation.
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276 days in jail for violating probation on both offenses. At trial, to gain the
evidentiary advantages of Old Chief v. United States, 519 U.S. 172, 180 (1997),
Brooks-Davis entered into the following stipulation:
The parties stipulate and agree that prior to August 7, 2018,
Brandon Dante Brooks-Davis had been convicted of at least one offense
punishable by a term of imprisonment exceeding one year and was thus
prohibited from possessing any firearm on August 7, 2018.
The government argues that this stipulation should foreclose Brooks-Davis’s
plain error claim that the instruction error affected his substantial rights. Brooks-
Davis argues the stipulation only establishes he was legally prohibited from
possessing a firearm, not that he knew of his prohibited status. As in Hollingshed,
940 F.3d at 415, and United States v. Everett, 977 F.3d 679, 687 (8th Cir. 2020), we
decline to decide whether the stipulation by itself resolves the issue of plain Rehaif
error.
Brooks-Davis argues that Hollingshed and other cases rejecting claims of plain
Rehaif error are distinguishable because he never served more than one year in jail
for any felony conviction, unlike the defendant in Hollingshed, who served four years
in prison for a drug conviction and an additional fifteen months for violating
supervised release. 940 F.3d at 416. In our view, this is a distinction that does not
make a plain error difference. The relevant status, § 922(g)(1), requires only a prior
conviction for a crime punishable by imprisonment in excess of one year. Here,
Brooks-Davis stipulated to that fact. The PSR established that he stood before a state
court judge who imposed a stayed sentence of more than one year imprisonment on
at least three separate occasions.3 This record leaves no question that Brooks-Davis
3
In its brief on appeal, the government states that Brooks-Davis’s written guilty
plea to one felony recited that “the maximum penalty that the court could impose . . .
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knew he was a member of the class prohibited by § 922(g)(1). This is not a case like
United States v. Davies, 942 F.3d 871, 874 (8th Cir. 2019), where the defendant’s
wrongful possession offense occurred after he pleaded guilty to a prior felony but
before he was sentenced, so he might not realize that he had been convicted of a
§ 922(g)(1) predicate felony.
As Brooks-Davis cannot show the district court’s failure to include a Rehaif
instruction affected his substantial rights or seriously affected the fairness, integrity,
or public reputation of the proceedings, there was no plain Rehaif error.
III. The Sentencing Issue
At sentencing, the district court overruled Brooks-Davis’s objections to a two-
level enhancement for possessing three-to-seven firearms, USSG § 2K2.1(b)(1)(A),
and a two-level enhancement for possessing a stolen firearm, USSG §
2K2.1(b)(4)(A). The court determined that the advisory guidelines sentencing range
was 168 to 210 months imprisonment but granted a downward variance and imposed
a 105-month sentence. On appeal, Brooks-Davis argues the court erred in applying
the two-level enhancements. We review the court’s application of the sentencing
guidelines de novo and its factual findings for clear error. United States v. Mathews,
784 F.3d 1232, 1236 (8th Cir.), cert denied, 577 U.S. 946 (2015).
is imprisonment for 21 months,” and that the government did not introduce this
certified record because of the Old Chief stipulation. Brooks-Davis moves to strike
this portion of the brief as “an improper, if candid, attempt to expand the record” on
appeal. We deny the motion. Though we have not considered the guilty plea
recitation, we doubt it would be improper to consider this official record in reviewing
for plain Rehaif error.
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Brooks-Davis’s argument against both enhancements is based on his alternative
arguments that the evidence was insufficient to find he constructively possessed the
guns found in the safe, which included a stolen Ruger. Because we have concluded
that the evidence was sufficient to convict Brooks-Davis of constructive joint
possession of all three firearms named in Count 1, the district court did not clearly err
in applying two-level sentencing enhancements for possessing three-to-seven guns
(the Glock pistol charged in Count 2 meant he possessed a total of four guns), and for
possessing a stolen gun.
The judgment of the district court is affirmed.
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