United States v. Brady Rogers

U
                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 19-3732
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                                Brady Austin Rogers

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
                   for the Southern District of Iowa - Davenport
                                  ____________

                            Submitted: January 14, 2021
                              Filed: February 4, 2021
                                   [Unpublished]
                                  ____________

Before SMITH, Chief Judge, KELLY and ERICKSON, Circuit Judges.
                              ____________

PER CURIAM.

      Brady Austin Rogers was indicted on three counts: Count One 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 Two charged him with being a felon in possession of
ammunition, in violation of 18 U.S.C. § 922(g)(1) and 924(a)(2); and Count Three
charged him with receiving and possessing a firearm made from a shotgun, in
violation of 26 U.S.C. §§ 5841, 5845, 5861(c), 5861(d), and 5871. Rogers pled guilty
to Count Two and proceeded to trial on the other counts. At trial, the only contested
issue was whether Rogers knowingly possessed a sawed-off shotgun found under the
backseat of his truck. The jury convicted Rogers on both counts, and the court1
sentenced him to concurrent terms of 96 months’ imprisonment on each count. The
court varied from the applicable advisory Sentencing Guidelines range, which was
110 to 120 months, based on Rogers’ chemical dependency, lack of guidance as a
youth, and mental and emotional condition.

       On appeal, Rogers argues the evidence was insufficient to support the jury’s
verdict; the court erred when it applied to his Sentencing Guidelines range a four-
level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for possessing a firearm in
connection with another felony offense; and the court erred when it applied to his
Sentencing Guidelines range a two-level enhancement under U.S.S.G.
§ 2K2.1(b)(3)(B) for possessing a destructive device. Finding sufficient evidence in
the record to support the jury’s verdict and no error in the district court’s Sentencing
Guidelines calculation, we affirm.

      West Burlington Police Officer Edward Parker ran the license plate of a silver
Chevrolet Silverado as part of an ongoing investigation into stolen vehicles in the
area. Rogers was one of the vehicle’s registered owners. According to the National
Crime Information Center database, Rogers had an active warrant for his arrest.
Because no one was inside the vehicle, Officer Parker retrieved the driver’s license
photograph of Rogers, alerted another officer in the area of the situation, and
conducted surveillance on the vehicle. When Officer Parker saw the truck start to
drive away, with a female in the driver’s seat and a male in the passenger seat


      1
       The Honorable John A. Jarvey, Chief Judge, United States District Court for
the Southern District of Iowa.

                                          -2-
matching the driver’s license image of Rogers, he followed the vehicle for a short
distance and then initiated a traffic stop. Another officer also responded to assist.

        As Officer Parker approached the truck, he noticed metal targets for a small
caliber rifle, like a .22, with holes in the truck’s bed. Officer Parker asked Rogers to
exit the vehicle, told Rogers there was a warrant for his arrest, handcuffed him, and
searched him. During the search, the officers found a Remington .223 rifle round,
and two 12-gauge shotgun slugs with a red casing and brass end. Rogers was
eventually directed to sit in the back of Officer Parker’s patrol vehicle.

       After searching Rogers, Officer Parker returned to the truck to talk to the
driver. Dispatch alerted Officer Parker that the driver, LaShawna Rice, had a
suspended driver’s license and a warrant for her arrest. She was asked to get out of
the vehicle, was searched, and then placed in the backseat of Officer Parker’s patrol
vehicle next to Rogers. With Rogers and Rice in the backseat of the patrol car, the
two officers searched the truck. Under the back passenger bench seat, Officer Parker
found a loaded 12-gauge sawed-off shotgun. The gun had a 13.42 inch barrel and an
overall length of 28.78 inches. It was loaded with a slug style shotgun shell similar
to the one that was found on Rogers’ person.

       Officer Parker’s patrol vehicle was equipped with video and audio recording.
While the officers were searching the truck, Rogers and Rice were talking to each
other. Notably, the following conversation was captured by the recording device:

      Rogers:       Oh here it goes.
      Rice:         Is it mine?
      Rogers:       Look, it’s up to you baby I don’t want you to get into more
                    trouble.
      Rice:         I just, another charge of mine but if I have to bond out but
                    if I have to, I will.


                                          -3-
      Rogers:       You’re not a felon, but it is a sawed off. I hope it doesn’t
                    fuck us. I should have never put it back there. I should
                    have listened to you. I’m sorry. I’m sorry.

       The recording was admitted at trial as evidence. A transcript of the
conversation was shown to the jury while the recording played. The court instructed
the jurors that the transcript was merely an aid; that it was not evidence; and that if
they found any difference between the transcript and the recording, they were to rely
on the recording. Despite Rogers’ arguments that he lacked knowledge of the
shotgun’s presence in his vehicle or its condition, the jury found him guilty on both
counts.

       “We review the sufficiency of the evidence in the light most favorable to the
verdict, upholding the verdict if a reasonable factfinder could find the offense proved
beyond a reasonable doubt, even if the evidence rationally supports two conflicting
hypotheses.” United States v. Morris, 

791 F.3d 910

, 913 (8th Cir. 2015) (cleaned up).
The jury saw the shotgun seized from Rogers’ truck and heard the patrol vehicle
recording of Rogers’ conversation with Rice about the gun. The evidence, when
viewed in the light most favorable to the verdict, was sufficient to prove beyond a
reasonable doubt that Rogers knew about the shotgun and knew about its “sawed-off”
nature – that is, it had a barrel less than 18 inches. While Rogers contends the audio
recording was “muffled” and “inaudible” at times, there is no indication in the record
that the jury had any difficulty hearing or understanding the recording. Any
inconsistencies between Rice’s in-court testimony and her statements recorded in the
back of the patrol vehicle are issues that go to credibility, which is within the
province of the jury. United States v. Colombe, 

964 F.3d 755

, 758–59 (8th Cir.
2020); see United States v. Nickelous, 

916 F.3d 721

, 724 (8th Cir. 2019) (cleaned up)
(“This court does not weigh the credibility of the witnesses or the evidence. The jury
has the sole responsibility to resolve conflicts or contradictions in testimony, and
credibility determinations are resolved in favor of the verdict.”).


                                         -4-
       We review de novo the district court’s construction and application of the
Sentencing Guidelines, and we review for clear error its factual findings regarding
enhancements. United States v. Mathews, 

784 F.3d 1232

, 1236 (8th Cir. 2015). The
12-gauge shotgun found in Rogers’ truck with a barrel length of less than 18 inches
is a “destructive device” under U.S.S.G. § 2K2.1(b)(3)(B). See United States v.
Hardy, 

393 F.3d 747

, 749 (8th Cir. 2004). Rogers has conceded that the shotgun
found in his truck fits within the definition of “destructive device” for purposes of
U.S.S.G. § 2K2.1(b)(3)(B), but contends the enhancement does not apply because the
government failed to establish Roger knew that it was a type of firearm brought
within the scope of “destructive device.” Because we have concluded the evidence
was sufficient to convict Rogers of possessing a firearm made from a shotgun, with
a barrel visibly shorter than 18 inches, the district court did not clearly err in applying
this enhancement.

       As acknowledged by Rogers, his argument that the court erred in applying a
four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) because he possessed the
firearm in connection with another felony offense (Iowa Code § 724.4) is foreclosed
by precedent. United States v. Walker, 

771 F.3d 449

, 452–53 (8th Cir. 2014). As a
panel, we are bound by this controlling decision. Mader v. United States, 

654 F.3d 794

, 800 (8th Cir. 2011).

       For the foregoing reasons, we affirm the district court’s judgment.
                       ______________________________




                                           -5-

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