United States of America v. Jody Goldsberry

United States Court of Appeals
For the Eighth Circuit
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No. 16-4315
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United States of America
Plaintiff - Appellee
v.
Jody Goldsberry
Defendant - Appellant
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No. 16-4327
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United States of America
Plaintiff - Appellant
v.
Jody Goldsberry
Defendant - Appellee
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Appeals from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: December 15, 2017
Filed: April 26, 2018

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Before SMITH, Chief Judge, KELLY and ERICKSON, Circuit Judges.
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ERICKSON, Circuit Judge.
Jody Goldsberry pled guilty to being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). When calculating Goldsberry’s applicable
sentencing guideline range, the district court applied enhancements under United1
States Sentencing Guideline § 2K2.1(a)(2) based on Goldsberry’s previous Missouri
convictions for second-degree assault on a law enforcement officer and under §
2K2.1(b)(1)(A) based on its finding that Goldsberry possessed between three and
seven firearms. Goldsberry appeals these determinations, and the government cross-
appeals the court’s determination that Goldsberry’s Missouri second-degree burglary
conviction was not a qualifying predicate offense under the Armed Career Criminal
Act. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
I. BACKGROUND
On January 29, 2013, law enforcement officers responded to a 911 call at the
residence of Jody Goldsberry’s mother. Goldsberry’s mother had been shot in the left
arm. Goldsberry was not present when officers arrived at the house, but they
suspected Goldsberry had fired the .45 caliber gun that injured her.
During a search of the residence, officers located six firearms, several boxes
of ammunition, and a spent .45 caliber shell casing on the kitchen floor. The firearms
discovered were: a .22 caliber revolver in plain view on top of the refrigerator; four
The Honorable Audrey G. Fleissig, United States District Judge for the1
Eastern District of Missouri.
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long guns, including a .22 caliber rifle and scope with Goldsberry’s fingerprints,
under the bed in the master bedroom; and a .50 caliber homemade rifle standing in
the corner of the second bedroom.
The district court held evidentiary hearings related to two primary sentencing
issues raised by the parties: (1) Goldsberry’s claim that he did not reside at his
mother’s house at the time of the shooting; and (2) Goldsberry’s assertion that the
only firearm that could be used to enhance his sentence under the sentencing
guidelines was the .22 caliber rifle bearing his fingerprint. The court determined that
Goldsberry resided at his mother’s house at the time of the shooting and that he was
the person who shot his mother. With regard to the firearms found inside the house,
the court found that Goldsberry had constructive possession of at least three firearms
and had actual possession of the unrecovered .45 caliber firearm used to shoot
Goldsberry’s mother.
At sentencing, the court found that Goldsberry’s second-degree Missouri
burglary conviction was not a qualifying predicate offense under 18 U.S.C. § 924(e)
or U.S.S.G. § 4B1.4(b)(3)(B). The court increased Goldsberry’s offense level to 24
under U.S.S.G. § 2K2.1(a)(2) due to Goldsberry’s two second-degree Missouri
convictions for assault on a law enforcement officer.
Based on these findings, the court determined that Goldsberry’s base offense
level was 24 under U.S.S.G. § 2K2.1(a)(2), which was adjusted to level 26 after
adding the 2-level enhancement under U.S.S.G. § 2K2.1(b)(1)(A) for an offense
involving between three and seven firearms. A person in criminal history category
VI with an offense level of 26 faced an advisory sentencing guideline range of 120
to 150 months. The statutory maximum sentence was 120 months. The court
sentenced Goldsberry to a term of 120 months’ imprisonment.
Goldsberry challenges the district court’s application of U.S.S.G. §§
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2K2.1(a)(2) and 2K2.1(b)(1)(A). The government challenges the district court’s
determination that Goldsberry’s second-degree Missouri burglary conviction is not
a qualifying offense under the Armed Career Criminal Act.
II. DISCUSSION
With regard to sentencing guideline decisions, “we review the district court’s
factual findings for clear error and its application or interpretation of guidelines
provisions de novo.” United States v. Petruk, 836 F.3d 974, 976 (8th Cir. 2016).
A. U.S.S.G. § 2K2.1(b)(1)(A)
Goldsberry argues that the district court erred in applying a 2-level
enhancement under Guidelines § 2K2.1(b)(1)(A). Goldsberry concedes that he
possessed the .22 caliber rifle found with his fingerprint on it, but he argues there was
insufficient evidence to connect him with any of the other firearms.
“A defendant’s possession of firearms may be actual or constructive, sole or
joint.” United States v. Vega, 720 F.3d 1002, 1003 (8th Cir. 2013). Constructive
possession “requires both knowledge that the contraband is present and dominion
over the premises where the contraband is located.” United States v. Ways, 832 F.3d
887, 897 (8th Cir. 2016). “[C]onstructive possession can be established by a showing
that the firearm was seized at the defendant’s residence.” United States v. Boyd, 180
F.3d 967, 978 (8th Cir. 1999).
Along with testimony that mail was found at the home with Goldsberry’s name
on it, neighbors and family members testified that Goldsberry lived at the house with
his mother. In addition, Goldsberry used his mother’s address when he was booked
into custody. Goldsberry’s knowledge of the firearms and dominion over the
residence were sufficient to establish his constructive possession of the firearms
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found inside the house. Goldsberry argues that his mother’s ownership of the .22
caliber revolver found on the refrigerator precluded his constructive possession. This
argument is unavailing. Possession may be “sole or joint.” Vega, 720 F.3d at 1003.
The district court did not clearly err in finding that the offense involved possession
of between three and seven firearms.
B. U.S.S.G. § 2K2.1(a)(2)
Goldsberry has two prior Missouri convictions for assault on a law
enforcement officer. Only the 2009 conviction was contested on appeal. The district
court noted the inconsistency with the complaint charging Goldsberry, which
referenced Mo. Rev. Stat. § 565.081.1, and the information filed two months later that
referenced a violation of Mo. Rev. Stat. § 565.082.2. The court found the information
contained a typographical error and that a conviction under § 565.082.1(1) is a violent
felony.
We need not address the substance of Goldsberry’s claim because the district
court specifically noted that it would not have changed the overall sentence even had
the second assault conviction been a non-qualifying offense under U.S.S.G. §
2K2.1(a)(2). See United States v. Martinez, 821 F.3d 984, 988-89 (8th Cir. 2016)
(stating error is harmless “where the district court specifies the resolution of a
particular issue did not affect the ultimate determination of a sentence . . . such as
when the district court indicates it would have alternatively imposed the same
sentence even if a lower guideline range applied”). The court specifically stated that,
regardless of the applicable sentencing range, it would have varied upward to the
statutory maximum because a sentence of 120 months “is in fact the appropriate
sentence.”
C. Missouri Second-Degree Burglary Conviction
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The United States has cross-appealed the district court’s conclusion that
Goldsberry’s second-degree burglary conviction from Missouri is not a qualifying
predicate offense under the Armed Career Criminal Act. The government’s argument
is foreclosed by our recent decision in United States v. Naylor, __ F.3d __, 2018 WL
1630249 (8th Cir. 2018) (en banc) (concluding a Missouri conviction for second-
degree burglary does not qualify as a violent felony under the Armed Career Criminal
Act).
III. CONCLUSION
For the reasons stated above, we affirm.
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