United States of America v. Keith L. Carnes

United States Court of Appeals
For the Eighth Circuit
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No. 20-3170
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United States of America
Plaintiff - Appellee
v.
Keith L. Carnes
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 24, 2021
Filed: January 3, 2022
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Before SHEPHERD, WOLLMAN, and KOBES, Circuit Judges.
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SHEPHERD, Circuit Judge.
A jury found Keith L. Carnes guilty on all counts of a 3-count indictment, and
the district court sentenced him to 240 months imprisonment and 3 years supervised
release. Carnes appeals his convictions and sentence. Having jurisdiction under 28
U.S.C. § 1291, we vacate Carnes’s third concurrent term of supervised release,
affirm the district court in all other respects, and remand for the district court to enter
a corrected written judgment.

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I.
This case arises out of Carnes’s possession of a gun one day in 2013 and
during a two-week period in 2016. “We recite the facts in the light most favorable
to the jury’s verdict.” United States v. Galloway, 917 F.3d 631, 632 (8th Cir. 2019)
(citation omitted).
On February 10, 2013, a law enforcement officer stopped a vehicle driven by
Carnes, who was the sole occupant, for driving 57 miles per hour in a 35-mile-per-
hour zone near the intersection of East 63rd Street and Lewis Road in Kansas City,
Missouri. Upon approaching the driver’s side door, the officer smelled the odor of
marijuana. The officer told Carnes, “I need your driver’s license and your sack of
weed.” Carnes responded, “I just smoked at the house” and said that he “just got
done smoking.” Carnes also told the officer, “I got my gun, too.” The officer asked
Carnes to exit the vehicle and subsequently recovered a handgun from Carnes’s
waistband during a pat-down search. A backup officer also smelled a strong odor of
marijuana coming from within the vehicle, Carnes’s clothing, and his breath. Carnes
told this officer that he had smoked a “blunt,” which he also called “Kush.” Carnes
was arrested and transported to the patrol station, where he failed a field sobriety
test. Officers at the station noted that Carnes’s breath had a strong odor of marijuana,
his eyes were bloodshot, and he was walking hesitantly. Carnes stated that he was
not “that high.” At trial, Carnes admitted that he was under the influence of
marijuana when stopped by law enforcement. Carnes testified that he refused to take
a blood test or provide a urine sample because he knew the results would come back
positive for marijuana.
Three-and-a-half years later, on August 16, 2016, a man was sitting in his
parked vehicle near the intersection of East 35th Street and Wabash Avenue in
Kansas City, Missouri. As the man’s ex-girlfriend was exiting the man’s vehicle,
another vehicle pulled up alongside the left-hand side of the man’s vehicle. The
driver of the other vehicle said to the man’s ex-girlfriend, “What’s up, baby,” and
the man said to the driver, “Do you mind, I’m talking to my ex.” The driver then

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pulled out a gun and fired at the man four times before driving away. The man
selected Carnes as the shooter from a photo array and also testified that his
ex-girlfriend had identified Carnes as the shooter. A witness who identified himself
as the front-seat passenger of the shooter’s vehicle provided law enforcement with a
phone number to contact the shooter. Law enforcement determined that Carnes was
associated with the phone number. At trial, Carnes denied the shooting.
On August 30, 2016, two weeks after the shooting, Carnes was approaching a
female friend’s house in Kansas City, Missouri when he saw her son. They spoke
briefly before exchanging gunfire; Carnes sustained multiple gunshot wounds.
Despite his injuries, Carnes ran to his girlfriend’s vehicle and drove away alone.
While speeding and driving in the wrong lane, Carnes ran a red light and caused a
three-car collision that killed a motorist. A law enforcement officer responding to
the collision approached Carnes’s vehicle, and Carnes identified himself. The
officer smelled the odor of marijuana in his vehicle and observed a handgun on the
floorboard between Carnes’s feet and a plastic baggie containing what testing later
revealed to be an ounce of marijuana. A shell casing from inside the handgun
matched shell casings found at the scene of the August 16 shooting. Carnes tested
positive for marijuana, cocaine, and phencyclidine (PCP). At trial, Carnes admitted
to smoking marijuana and driving under the influence of marijuana on the day of the
collision, though he claimed the marijuana found in the vehicle did not belong to
him. Carnes also testified that he used marijuana frequently and that law
enforcement had previously taken marijuana from him.
A grand jury returned a three-count indictment, charging Carnes with one
count of being a felon in possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2) (Count 1) and two counts of being an unlawful user of a
controlled substance in possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(3), 924(a)(2) (Counts 2 and 3). Counts 1 and 2 concerned Carnes’s
possession of a gun on August 30, 2016. Count 3 concerned his possession of a gun
on February 10, 2013. In 2019, a superseding indictment expanded the date range
in Counts 1 and 2 to cover August 16 through August 30.

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Before trial, Carnes stipulated that, prior to August 16, 2016, he had been
convicted of a felony offense punishable by a term of imprisonment exceeding one
year and he knew that he had been convicted of such an offense. After the
government presented its evidence, Carnes moved for a judgment of acquittal,
arguing that the government failed to prove the elements of each count. The district
court denied his motion. Carnes renewed his motion for a judgment of acquittal after
both parties rested their cases, which the district court again denied. At the
conclusion of the jury trial, Carnes was convicted on all three counts.
Prior to sentencing, the United States Probation Office prepared a Presentence
Investigation Report (PSR). The PSR found a total offense level of 24 and a criminal
history category of IV. It calculated Carnes’s United States Sentencing Guidelines
range as 77 to 96 months imprisonment, with a statutory maximum of 240 months.
The government requested an upward variance to 240 months, citing the nature and
circumstances of Carnes’s offense, his criminal history, and his post-conviction
assault of a corrections officer. At sentencing, the district court merged Counts 1
and 2 for purposes of sentencing and sentenced Carnes to 120 months imprisonment
on Counts 1 and 2 as well as 120 months on Count 3, to run consecutively. This
resulted in a total term of 240 months imprisonment. The district court also imposed
three concurrent three-year terms of supervised release. Carnes appeals his
conviction and sentence on multiple grounds.
II.
Carnes first argues that the government failed to present sufficient evidence
that he was an “unlawful user of a controlled substance,” as required for Counts 2
and 3. “We review de novo the denial of a motion for judgment of acquittal based
on the sufficiency of the evidence.” United States v. Fang, 844 F.3d 775, 778 (8th
Cir. 2016) (citation omitted). “We review the sufficiency of the evidence de novo,
considering the evidence in the light most favorable to the government and drawing
all reasonable inferences in favor of the verdict.” United States v. White, 962 F.3d
1052, 1056 (8th Cir. 2020).

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Counts 2 and 3 charged Carnes with being an unlawful user of a controlled
substance in possession of a firearm, in violation of §§ 922(g)(3) and 924(a)(2). “It
is illegal for ‘an unlawful user of . . . any controlled substance’ to possess a firearm.”
United States v. Rodriguez, 711 F.3d 928, 937 (8th Cir. 2013) (alteration in original)
(quoting § 922(g)(3)). “The government is not required to prove that the defendant
possessed the firearm while contemporaneously using a controlled substance.” Id.
Instead, “[i]t is sufficient for the government to demonstrate use of a controlled
substance ‘during the period of time’ that the defendant possessed firearms, not that
there was actual use ‘at the time that the officers discovered [the defendant] in
possession of firearms.’” Id. (second alteration in original) (citation omitted).
In United States v. Turnbull, we recognized that “[t]he term ‘unlawful user’
is not otherwise defined in the statute, but courts generally agree the law runs the
risk of being unconstitutionally vague without a judicially-created temporal nexus
between the gun possession and regular drug use.” 349 F.3d 558, 561 (8th Cir.
2003), vacated, 543 U.S. 1099 (2005), reinstated, 414 F.3d 942 (8th Cir. 2005) (per
curiam). In subsequent decisions, we interpreted § 922’s “unlawful user” element
to require a temporal nexus between the proscribed act (for § 922(g)(3), possession
of a firearm) and regular drug use. E.g., United States v. Figueroa-Serrano, 971 F.3d
806, 812 (8th Cir. 2020); United States v. Turner, 842 F.3d 602, 605 (8th Cir. 2016);
United States v. Boslau, 632 F.3d 422, 430 (8th Cir. 2011).
Without defining “regular drug use” ourselves, we have “held that a district
court acted within its discretion” when giving a jury instruction that “adequately
captured the ‘temporal nexus [between the proscribed act] and regular drug use’
required by the term [unlawful user].” Boslau, 632 F.3d at 430 (first alteration in
original) (citation omitted). In Boslau, the district court instructed the jury: “Such
use [of a controlled substance] is not limited to the use of drugs on a particular day,
or within a matter of days or weeks before, but rather that the unlawful use has
occurred recently enough to indicate that the individual is actively engaged in such
conduct.” Id. at 429 (emphasis added); see also Turnbull, 349 F.3d at 561 (finding
a district court did not abuse its discretion by giving an almost-identical jury

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instruction). “‘[A]ctively engaging’ sufficiently encompasses the requisite temporal
nexus” required by § 922’s “unlawful user” element. See Boslau, 632 F.3d at 430.
Here, the district court similarly instructed the jury regarding the phrase “unlawful
user of a controlled substance”:
The defendant must have been actively engaged in use of a controlled
substance during the time he possessed the firearm, but the law does
not require that he use the controlled substance at the precise time he
possessed the firearm. Such use is not limited to the use of drugs on a
particular day or within a matter of days or weeks before but, rather,
that the unlawful use has occurred recently enough to indicate that the
individual is actively engaged in such conduct.
R. Doc. 144, at 101 (emphasis added).
Carnes cites case law from our sister circuits that requires proof of regular use
over an extended period. E.g., United States v. Tanco-Baez, 942 F.3d 7, 15 (1st Cir.
2019); United States v. Bowens, 938 F.3d 790, 793 (6th Cir. 2019). Carnes
acknowledges that the government offered evidence that he used controlled
substances on the days he was found in possession of a firearm. Nevertheless,
Carnes argues that the government failed to meet its burden of proof that Carnes had
regularly used controlled substances over an extended period leading up to the 2013
and 2016 incidents.
We reject Carnes’s expansive interpretation of “regular drug use” that would
require evidence of use over an extended period. While some of our sister circuits
require proof that a defendant used controlled substances regularly over an extended
period, e.g., Tanco-Baez, 942 F.3d at 15; Bowens, 938 F.3d at 793; United States v.
Purdy, 264 F.3d 809, 812-13 (9th Cir. 2001), when the defendant in Boslau urged a
similar approach, we declined to adopt such a rigorous definition, 632 F.3d at
429-31.

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Viewing the evidence in the light most favorable to the verdict and accepting
all reasonable inferences that support the verdict, the government presented
sufficient evidence that Carnes was actively engaged in the use of a controlled
substance during the time he possessed firearms in 2013 and 2016, thereby satisfying
the requisite temporal nexus between gun possession and regular drug use required
under § 922(g)(3). At trial, Carnes admitted that he used marijuana frequently and
that law enforcement had previously taken marijuana from him. In 2013, law
enforcement smelled the odor of marijuana on Carnes, and Carnes repeatedly
admitted that he had smoked marijuana, including the statements that he had “just
smoked at the house” and had “just got done smoking.” At trial, Carnes testified
that he was under the influence of marijuana when law enforcement stopped him and
that he refused to take a blood test or provide a urine sample because he knew either
would test positive for marijuana. In 2016, law enforcement smelled the odor of
marijuana inside a vehicle driven by Carnes and observed a baggie containing
marijuana by his feet. Carnes tested positive for marijuana, cocaine, and PCP. At
trial, Carnes testified that he was operating the vehicle under the influence of
marijuana.
Carnes also argues that the government failed to prove that he knew he was
an unlawful user at the time of each offense. We conclude that the government
presented sufficient evidence that Carnes knew his use of controlled substances
(notably, marijuana) was unlawful. In a § 922(g) prosecution, the government must
prove “that [the defendant] knew he belonged to the relevant category of persons
barred from possessing a firearm.” Rehaif v. United States, 139 S. Ct. 2191, 2200
(2019). In 2013, Carnes refused to take a blood test or provide a urine sample
because he knew either would test positive for marijuana, showing his knowledge of
the unlawfulness of its use. At trial after the 2016 incident, Carnes testified that law
enforcement would often not arrest him but would take his marijuana, pour it out,
and stomp on it. Based on this evidence, a reasonable juror could find that Carnes
knew he was using marijuana unlawfully. The district court thus did not err in
denying Carnes’s motion for judgment of acquittal based on the sufficiency of the
evidence.

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III.
Carnes next argues that Counts 1 and 2 are multiplicitous in violation of the
Double Jeopardy Clause of the Fifth Amendment and that the district court erred by
imposing separate sentences for the two counts that were based on a single incident.
Because Carnes did not raise this claim before the district court, we review for plain
error. United States v. Woolsey, 759 F.3d 905, 907 (8th Cir. 2014). For Carnes to
prevail, he “must show that the district court committed an error that is plain, i.e.
clear under current law, that he was prejudiced by the error, and that the error
seriously affects the fairness, integrity, or public reputation of judicial proceedings.”
Id. (citation omitted). The parties agree that the district court committed plain error
because its written judgment regarding Counts 1 and 2 is broader than its oral
pronouncement delivered at sentencing.
The parties agree that at sentencing, the district court correctly merged Counts
1 and 2 for purposes of sentencing, because they were based on a single incident.
See United States v. Richardson, 439 F.3d 421, 422 (8th Cir. 2006) (en banc) (per
curiam) (holding that multiple counts of conviction under § 922(g) arising out of a
single act of possession of a firearm should be merged at sentencing into a single
offense). The district court orally sentenced Carnes to one 120-month sentence for
the merged Counts 1 and 2. However, the written judgment committed Carnes to
two concurrent 120-month sentences for Counts 1 and 2.1 Also, at sentencing and
in its written judgment, the district court committed Carnes to three concurrent
three-year terms of supervised release.
“The oral pronouncement by the sentencing court is the judgment of the
court.” United States v. Mays, 993 F.3d 607, 622 (8th Cir. 2021) (citation omitted).
“Where an oral sentence and the written judgment conflict, the oral sentence
controls.” United States v. Foster, 514 F.3d 821, 825 (8th Cir. 2008) (citation
1 Both the district court’s oral pronouncement and written judgment properly
sentenced Carnes to a separate 120-month sentence for Count 3, to be served
consecutively.

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omitted). “[T]he portion of the written judgment ‘that is broader than the oral
version is void.’” Mays, 993 F.3d at 622 (citation omitted). When such a conflict
exists, the appropriate remedy is to remand “to the district court with instructions for
it to reconcile the written judgment with the oral pronouncement.” Id. Accordingly,
we will remand for the district court to amend its written judgment to conform to its
oral pronouncement of one 120-month sentence for Counts 1 and 2.
Additionally, as the government concedes, the district court plainly erred
when it imposed three terms of supervised release. After properly merging Counts
1 and 2, the district court was limited to imposing one term of supervised release for
these counts, in addition to the single term of supervised release imposed for Count
3, for a total of two terms of supervised release. See 18 U.S.C. §§ 3583(a), 3624(e).
Accordingly, we will vacate the district court’s imposition of a third term of
supervised release.
IV.
Carnes finally contends that the district court imposed a substantively
unreasonable sentence. We review the substantive reasonableness of a sentence for
abuse of discretion. United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009)
(en banc). A district court abuses its discretion when, in weighing the factors set
forth in 18 U.S.C. § 3553(a), “it (1) ‘fails to consider a relevant factor that should
have received significant weight’; (2) ‘gives significant weight to an improper or
irrelevant factor’; or (3) ‘considers only the appropriate factors but in weighing those
factors commits a clear error of judgment.’” Id. (citation omitted).
Carnes argues that the district court failed to consider mitigating factors that
should have received significant weight and committed a clear error of judgment in
weighing relevant factors that led the district court to impose a significant upward
variance. Carnes claims that the district court gave no consideration to his gunshot
wounds that caused the August 30 collision, his remorse over the fatality resulting
from the collision, and his separate state charge for involuntary manslaughter.

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Carnes also contends that the district court failed to consider his mental health issues
that contributed to his post-conviction assault of a corrections officer. Finally,
Carnes argues that, while a district court may consider factors already considered in
calculating a defendant’s Guidelines range, the heavy weight assigned to Carnes’s
criminal history led to a substantial upward variance that undermined sentencing
uniformity.
Having examined the record, we conclude that the district court did not abuse
its discretion by varying upward from the Guidelines range and did not impose a
substantively unreasonable sentence, as the court properly considered the factors
listed in § 3553(a). “A district court has ‘wide latitude’ to assign weight to give[n]
factors, and ‘[t]he district court may give some factors less weight than a defendant
prefers or more weight to other factors, but that alone does not justify reversal.’”
United States v. Brown, 992 F.3d 665, 673-74 (8th Cir. 2021) (second alteration in
original) (citation omitted). In crafting Carnes’s sentence, the district court
considered the § 3553(a) factors, stressing the nature and circumstances of Carnes’s
offense, including the August 30 fatality, his violent criminal history, and the need
to deter Carnes and protect the public. The district court was entitled to give great
weight to these factors. See id. Carnes’s assertion of substantive unreasonableness
amounts to nothing more than a disagreement with how the district court chose to
weigh the § 3553(a) factors. See United States v. Campbell, 986 F.3d 782, 800 (8th
Cir. 2021).
Regarding Carnes’s claim that the district court failed to consider mitigating
factors that were presented during the sentencing hearing and appeared in the PSR,
“[t]he [district] court did not abuse its discretion merely by not discussing all of a
defendant’s arguments.” United States v. Delgado-Hernandez, 646 F.3d 562, 568
(8th Cir. 2011) (per curiam). We presume the district court properly considered
issues argued by the parties at the sentencing hearing even though the district court
itself did not discuss the issues. See United States v. Miles, 499 F.3d 906, 909-10
(8th Cir. 2007). The district court also had the PSR at its disposal, and it is evident
from the record that the district court examined the PSR. Regarding the factors that

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influenced the district court to vary upward, as Carnes acknowledges, “factors that
have already been taken into account in calculating the advisory Guidelines range
can nevertheless form the basis of a variance.” United States v. Thorne, 896 F.3d
861, 865 (8th Cir. 2018) (per curiam) (citation omitted). Carnes’s sentence is thus
not substantively unreasonable.
V.
For the foregoing reasons, we vacate Carnes’s third term of supervised
release, remand for the district court to amend its written judgment to conform to its
oral pronouncement regarding the merged Counts 1 and 2, and affirm the judgment
of the district court in all other respects.
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