United States of America v. Ceeron Tearrence Williams

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 21-3122
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Ceeron Tearrence Williams
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the Southern District of Iowa - Central
____________
Submitted: April 14, 2022
Filed: July 26, 2022
____________
Before LOKEN, KELLY, and KOBES, Circuit Judges.
____________
LOKEN, Circuit Judge.
A jury convicted Ceeron Tearrence Williams of being a felon in possession of
ammunition -- nine cartridge cases found at the scene of a shooting in front of a Kum
& Go convenience store in Des Moines, Iowa shortly after 4:00 a.m. on January 21,

-- 1 of 12 --

2018. See 18 U.S.C. §§ 921(a)(17)(A), 922(g)(1). The district court1 sentenced
Williams to 120 months imprisonment, the statutory maximum sentence, to be served
consecutively to any undischarged term of state court sentences Williams was serving
for offenses arising out of the same incident. See 18 U.S.C. § 924(a)(2); USSG
§ 5G1.1(a). He appeals the conviction and sentence, arguing the district court (i)
abused its discretion in admitting lay opinion testimony by Detective Danny White
of the Des Moines Police Department about what White saw on convenience store
surveillance videos; (ii) erred at sentencing in cross-referencing to the guidelines base
offense level for attempted second degree murder, USSG § 2A2.1; and (iii) abused
its discretion in imposing a consecutive sentence. We affirm.
I. Background
We summarize the relevant facts in the light most favorable to the jury’s
verdict. Earlier in the evening of the night in question, Williams and Raylon Canada
were out on the town. They met with Machelle King, whom Canada was dating, and
Shannon Galbreath. A cell-phone video shows Williams wearing a black coat with
a fur hood and a pink cap, together with King and Galbreath. At some point, Tyler
Armel texted King, hoping to meet up with her. Canada, pretending to be King,
responded, telling Armel to meet at the Kum & Go gas station.
At approximately 4:05 a.m., Williams and Canada arrived at the Kum & Go in
a black Tahoe driven by Canada, parking in front of the store. Minutes later, two
more vehicles arrived. The first, a silver Malibu carrying King and Galbreath, also
parked in front of the store. The second, a gold or tan Cadillac carrying Armel and
Samir Eminic, parked at a gas pump. Armel and Eminic walked toward the door of
the store. Canada exited the Tahoe and spoke with Armel near the front door.
1The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.
-2-

-- 2 of 12 --

Williams, wearing a black coat with a fur hood and a pink cap, exited the Tahoe and
paused near the hood, watching Canada and Armel. Canada threw a punch at Armel,
missed, and stumbled out of the way. With King, Galbreath, and Eminic watching,
Williams approached Canada and Armel, drew a semi-automatic pistol, and fired nine
rounds at Armel, striking him seven times. Law enforcement found nine cartridge
casings in front of the store.
After the shooting, Williams got in the Tahoe with his firearm, and Canada
drove away. King and Galbreath drove away in the Malibu. Eminic helped the
grievously wounded Armel into their car and drove him to the hospital. After
emergency surgery, Armel survived. At trial, all five eyewitnesses identified
Williams as the shooter -- Armel, Canada, King, Galbreath, and Eminic.
During the ensuing investigation, Kum & Go provided law enforcement with
footage from security cameras operating during the thirty minute period that included
the shooting. Prior to the start of trial, the parties stipulated to admission of many
exhibits, including five CDs, each about nine minutes long, showing multiple views
of the front of the store from different angles, taken by Kum & Go security cameras
located inside the store and outside the store covering the fuel pumps, and still-shot
photos from the security videos. The indoor camera videos included sound recording.
Detective White, the lead detective, was the government’s first witness. White
first explained that “multi-view” security videos on the CDs would show the jury the
scene as recorded by images from fuel pump and inside store cameras placed side-by-
side. The first nine-minute CD, Exhibit 100, was played for the jury in portions, with
Detective White describing what transpired beginning at 4:06 a.m., when the three
vehicles began arriving. Defense counsel Steinbach objected this was hearsay. The
court overruled the objection:
-3-

-- 3 of 12 --

THE COURT: . . . The hearsay objection is overruled. The
witness can testify as to the videos obtained from the Kum & Go.
You can make an objection if you believe there is improper
testimony, Mr. Steinbach . . . .
Detective White’s testimony continued until all of Exhibit 100 had been played, with
two defense “Speculation” objections overruled and one hearsay objection sustained.
The court then excused the jury for an afternoon recess during which attorney
Steinbach, at the court’s urging, argued this issue in greater detail:
MR. STEINBACH: [For Detective White] to testify what he
thinks he sees in that video is . . . hearsay . . . and/or he’s invading the
province of the jury as to what they see on that video.
* * * * *
THE COURT: So the hearsay objection is overruled because
there’s nothing that is being said. There’s no out-of-court statement that
he is repeating for the truth of the matter asserted.
How do you [government counsel] respond to the new objection,
which is that the testimony of this witness invades the province of the
jury . . . to find facts from evidence that you’re presenting?
MR. KERNDT: Your Honor, this would be, like, if I showed him
a picture and I asked what color is the sky in this picture. . . .
THE COURT: So the Court understands the objection. The jury
will have this [video] evidence . . . in the record, and they will have the
opportunity to view it while they’re deliberating.
To th[e] extent that this witness is assisting the jury, based on his
investigation and understanding, what this video is and what it shows,
the objection is overruled . . . because it is helpful to the jury in light of
the exhibit that is provided . . . .
-4-

-- 4 of 12 --

To the extent that his testimony goes beyond . . . the findings
based on his investigation, I would ask you to pose another objection,
Mr. Steinbach.
But the Court finds that the witness’s testimony . . . assisting the
jury in understanding the exhibit that he has obtained from Kum & Go
based upon his investigation is permissible.
The jury returned and Detective White’s testimony about the CD videos and
photographs continued, leading up to the evidentiary issue raised on appeal. The
questioning turned to ten individual still-shot photos from the multi-view Exhibit 100
video. White had previously testified he heard nine gunshots in his many reviews of
the video. When the Exhibit 100-I photo was displayed, White was asked:
MR. KERNDT: Q. Detective White, what moment is this with respect
to when you first hear gunshots?
A. This is just a split second before you hear the gunshots. . . .
Q. Detective White, how long have you been a law enforcement
officer?
A. For a little over 20 years.
Q. And as part of your duties . . . are you familiar with firearms?
A. Yes, sir.
Q. Do you see an individual with a pink cap on the left-hand side of the
screen?
A. Yes, sir, I do.
Q. Tell the jury . . . in your investigation and experience, what do you
see coming out of the end of his arm?
-5-

-- 5 of 12 --

MR. STEINBACH: Objection, Your Honor. Invades the
province of the jury, and this witness is not qualified to testify to what
he believes he sees.
THE COURT: Thank you, Mr. Steinbach. So the objection is
invades the province and qualification.
Do you wish to provide additional foundation as to the basis for
his testimony?
MR. KERNDT: Happy to, Your Honor.
THE COURT: Thank you.
MR. KERNDT: Q. When you viewed the video . . . what did you hear?
A. I heard nine gunshots.
Q. And what’s depicted here in [photo] 100-J, was that at the same time
that you heard one of those gunshots?
A. Yes, sir.
Q. In your experience, when a firearm is fired, does it make any
indications other than sound?
A. Yes, sir.
Q. What is that?
A. It’s what’s called muzzle flash. That’s the explosion of the round or
the bullet that’s in the chamber. As the bullet explodes and sends the
projectile out the barrel, there is a small amount of fire or burning
powder that follows that bullet out of the end of the gun.
Q. Is that what you’re referring to on 100-J?
A. Yes, sir.
-6-

-- 6 of 12 --

The defense made no objection to the muzzle-flash foundational testimony and did
not renew or request a ruling on its pending objection.
II. The Evidentiary Issue
On appeal, Williams argues the district court violated Rule 701 of the Federal
Rules of Evidence by permitting Detective White to testify as to the presence of
“muzzle flash” in the surveillance video. Rule 701 provides:
Rule 701. Opinion Testimony by Lay Witnesses
If a witness is not testifying as an expert, testimony in the form of an
opinion is limited to one that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to
determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge
within the scope of Rule 702.
“Personal knowledge or perceptions based on experience is sufficient foundation for
lay testimony.” United States v. Smith, 591 F.3d 974, 982 (8th Cir. 2010) (quotation
omitted). Rule 701 permits a law enforcement officer “to express an opinion that was
rationally based on his or her perception, and helpful to understanding the witness’s
testimony or to determining a fact in issue.” United States v. Lemons, 792 F.3d 941,
948 (8th Cir. 2015) (emphasis added). These issues obviously turn on the facts and
circumstances of a particular case. “We review the district court’s evidentiary rulings
for clear abuse of discretion.” United States v. Pirani, 406 F.3d 543, 555 (8th Cir.
2005) (en banc).
Here, the Rule 701 issue comes to us in a peculiar posture. When Detective
White began describing what the jury was seeing in Exhibit 100, the multi-view
security camera video, defense counsel objected that “he’s invading the province of
-7-

-- 7 of 12 --

the jury as to what they see on that video.” The district court carefully considered this
objection and explicitly found that the jury “will have the opportunity to view [the
video] while they’re deliberating,” and that White’s testimony “assisting the jury in
understanding the exhibit that he has obtained from Kum & Go based upon his
investigation is permissible.” Williams does not appeal that ruling, and it was
consistent with the plain language of Rule 701 as construed in our prior cases.
Rather, he appeals only the muzzle flash testimony that was later offered when the
district court asked the government to provide further foundation before the court
ruled on Williams’s objection to White testifying that, in one photo from the in-store
video, Williams is holding a gun with his arm extended at the time White heard one
of the gun shots in the sound recordings.
Williams did not object to this muzzle flash testimony, on either foundation or
invade-the-province grounds. He did not renew his objection to the prior gun shot
testimony, and did not press the court for a ruling on that pending objection. In other
words, Williams is appealing a ruling the court never made. He is implicitly arguing
that the district court was obligated sua sponte to interrupt and strike testimony to
which there was no objection. That argument is plainly without merit. As we said
in United States v. Mihm, 13 F.3d 1200, 1204 (8th Cir. 1994) (cleaned up):
[T]he district court cannot be guilty of plain error because it specifically
advised [Williams] . . . to raise this issue by [specific] objection at trial.
Knowing that [Williams] was aware of the relevant issue and when to
raise it, the district court properly left to [Williams] the decision whether
to object to this [muzzle flash testimony].
Moreover, even if Williams preserved the issue, the admission of the muzzle
flash testimony was neither an abuse of discretion nor plain error. To convict
Williams of being a felon in possession of ammunition, the government had to prove
(i) that Williams was the man in the black coat and pink hat who fired shots at Armel
in front of the Kum & Go store and departed with a firearm that was never found, and
-8-

-- 8 of 12 --

(ii) that the shell casings found at the scene were fired from the shooter’s firearm and
therefore were ammunition that had been knowingly in Williams’s possession. See
United States v. Obi, 25 F.4th 574, 578 (8th Cir. 2022). In closing argument, defense
counsel emphasized that the jury should focus on whether Williams knowingly
possessed ammunition, not whether he shot someone. It was dark at 4:00 a.m. so if
the jury saw a light flash when it examined the video evidence during deliberations,
Detective White’s muzzle flash testimony based upon his experience as a law
enforcement officer did more than merely narrate the video. As the district court
found, it “assist[ed] the jury in understanding the exhibit.” Rule 701 permits
introduction of lay opinion testimony in just such circumstances. Nor did this brief
testimony “so invade[] the province of the jury that we cannot with confidence say
that there [is] no significant possibility that it had substantial impact on the jury.”
United States v. Peoples, 250 F.3d 630, 642 (8th Cir. 2001).
III. The Base Offense Level Issue
Section 2K2.1 of the advisory guidelines governs the base offense level for
Williams’s firearm offense. Section 2K2.1(c)(1)(A) provides that if the “defendant
used or possessed any firearm or ammunition cited in the offense of conviction in
connection with the commission or attempted commission of another offense . . .
apply § 2X1.1 . . . if the resulting offense level is greater than that determined above.”
In this case, the § 2X1.1 cross-reference at issue is to § 2A2.1, the guideline for
“Assault with Intent to Commit Murder; Attempted Murder.” Under § 2A2.1(a)(1)-
(2), the base offense level is 33 if the other offense would have constituted first-
degree murder and 27 otherwise. The federal murder statute, 18 U.S.C. § 1111(a),
determines what constitutes first-degree murder. USSG § 2A2.1 comment. (n.1).
Murder “is the unlawful killing of a human being with malice aforethought.” 18
U.S.C. § 1111(a). A murder lacking aggravating factors enumerated in the statute “is
murder in the second degree.” Id.
-9-

-- 9 of 12 --

At sentencing, after hearing extensive arguments, the district court applied the
cross-referenced guideline for attempted second-degree murder:
[C]learly this action demonstrated malice aforethought sufficient
to be murder. As the Eighth Circuit instructions indicate, malice
aforethought means an intent at the time of a killing willfully to take the
life of a human being or an intent willfully to act in callous and wanton
disregard of the consequences to human life, but malice aforethought
does not necessarily imply any ill will, spite, or hatred towards the
individual killed.
* * * * *
The defendant shot bullets at close range to an individual. That
is callous and wanton disregard of the consequences to human life.
* * * * *
So the question of whether or not this is an attempted murder is
easy to the Court. It’s proven beyond a reasonable doubt.
Williams argues the court erred because the evidence does not support a finding of
the intent necessary for attempted murder, malice aforethought. Therefore, he argues,
the base offense level in § 2A.2.2 for Aggravated Assault is more appropriate.
Williams’s intent is a finding of fact we review for clear error. United States
v. Grauer, 701 F.3d 318, 325 (8th Cir. 2012). Here, there was no clear error.
Williams intervened in an altercation between Canada and Armel, firing a gun nine
times at close range and striking Armel seven times. Like the conduct in United
States v. Comly, this unprovoked attack with a deadly weapon “demonstrated an
intent to kill or, at the very least, an act in callous and wanton disregard of the
consequences to human life.” 998 F.3d 340, 343 (8th Cir. 2021); see United States
v. McMorris, 224 F. App’x 549, 551 (8th Cir. 2007).
-10-

-- 10 of 12 --

IV. The Consecutive Sentence Issue
Prior to this federal prosecution, Williams was convicted in state court of
Intimidation with a Dangerous Weapon, Injure/Provoke Fear; and Willful Injury,
Causing Serious Injury. See Iowa Code §§ 708.6.1, 708.4. The state court sentenced
Williams to two consecutive 10-year sentences for this offense conduct, which arose
out of this same incident. At sentencing, rejecting Williams’s argument for a
concurrent sentence, the district court imposed a 120-month statutory maximum
federal sentence to be served consecutively to the undischarged term of his state
sentences. Williams appeals that ruling. We review a court’s decision to impose a
consecutive or concurrent sentence for reasonableness, United States v. Benson, 888
F.3d 1017, 1019 (8th Cir. 2018), which is akin to abuse-of-discretion review, United
States v. Peterson, 869 F.3d 620, 621 (8th Cir. 2017).
District courts have broad discretion to impose consecutive or concurrent
sentences, subject to the provisions of the Sentencing Guidelines. See 18 U.S.C.
§§ 3553(a), (b), and 3584. Section 5G1.3 of the advisory guidelines addresses this
issue when a defendant is subject to an undischarged term of imprisonment. If the
undischarged term “resulted from another offense that is relevant conduct to the
instant offense of conviction,” as in this case, the sentence for the instant offense shall
be adjusted for time served that will not be credited by the Bureau of Prisons, and
“shall be imposed to run concurrently to the remainder of the undischarged term of
imprisonment.” USSG § 5G1.3(b)(1)-(2).
Though § 5G1.3(b) repeatedly uses the word “shall,” the Sentencing Guidelines
have been advisory, not mandatory, for nearly twenty years. Thus, not surprisingly,
it is well established that “section 5G1.3(b)(2) does not prohibit the district court
from exercising its statutory authority to impose a consecutive sentence.” Benson,
888 F.3d at 1019. Section 5G1.3(b) “is merely advisory.” Id. (quotation omitted).
Conceding as much, Williams argues the district court abused its discretion because,
-11-

-- 11 of 12 --

when prior state offenses stemmed entirely from the same incident, a federal court
“should impose the sentence for this offense to run concurrently to the remainder of
the undischarged state sentence.”
At sentencing, in addition to considering the § 3553(a) sentencing factors, as
§ 3584(b) requires, the district court gave this issue careful attention. The court noted
that “[t]his is an incredibly serious offense,” that Williams’s Category IV criminal
history reflects “a pattern of assaultive conduct,” and that he had assaulted two
inmates while in custody following this Kum & Go incident. If the court were not
limited to the 120-month statutory maximum, the court stated, a sentence at the high
end of the advisory guidelines range -- 121 to 151 months -- “would be appropriate.”
Thus, based upon the totality of the circumstances, and recognizing “that the
guidelines generally advise for convictions arising from the same relevant conduct
to be concurrent,” the court concluded that a consecutive sentence “is warranted,
recognizing my authority to sentence them concurrently under the applicable factors.”
After careful review of the record, we agree with the government that the district
court did not abuse its “broad discretion to order a consecutive sentence to an
undischarged sentence.” Peterson, 869 F.3d at 621.
The judgment of the district court is affirmed.
______________________________
-12-

-- 12 of 12 --