United States of America v. Edrick Denorris Ellis

United States Court of Appeals
For the Eighth Circuit
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No. 24-1421
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United States of America
Plaintiff - Appellee
v.
Edrick Denorris Ellis
Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Central
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Submitted: November 22, 2024
Filed: February 7, 2025
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Before SHEPHERD, ERICKSON, and GRASZ, Circuit Judges.
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ERICKSON, Circuit Judge.
Following a jury trial, Edrick Denorris Ellis was convicted of being a felon in
possession of a firearm under 18 U.S.C. § 922(g)(1). The district court1 sentenced
him to 120 months’ imprisonment, followed by 2 years’ supervised release. On
1 The Honorable Billy Roy Wilson, United States District Judge for the Eastern
District of Arkansas.

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appeal, Ellis challenges both the sufficiency of the evidence against him and the
district court’s sentence. We affirm.
I. BACKGROUND
On July 28, 2019, Arkansas State Trooper Dean Pitchford stopped Derrick
Daniel’s truck in a high-traffic area of Little Rock, Arkansas, for a hanging taillight.
Ellis, the front seat passenger, fled from the vehicle during the stop, prompting
Trooper Pitchford to radio for assistance. Trooper Cleyton McDonald responded to
the call and located Ellis running through an alleyway next to an apartment building.
As Trooper McDonald pursued him, Ellis jumped and tossed an object over an
adjacent fence. Trooper McDonald subdued Ellis and placed him under arrest.
Trooper McDonald then asked Ellis what he had thrown over the fence. Troopers
Quincy Harris and Dwight Roam arrived at the scene shortly thereafter and, at
Trooper McDonald’s direction, searched the area beyond the fence. They recovered
a hat and a 9mm handgun from a parking lot on the other side of the fence.
Ellis was charged with being a felon in possession of a firearm, in violation
of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). At trial, Troopers Pitchford, McDonald,
Harris, and Roam testified about the traffic stop and Ellis’ arrest. The government
also introduced testimony from an agent with the Bureau of Alcohol, Tobacco,
Firearms, and Explosives who confirmed that the 9mm handgun had been
manufactured in Florida and transported across state lines to Arkansas. Dashboard
camera footage from Trooper Pitchford’s and McDonald’s vehicles was also
admitted into evidence. In the footage, Ellis appears to jump and toss an object over
the fence during the chase. Ellis’ defense, on the other hand, focused on disputing
his connection to the handgun. Daniel testified that he had spent the day with Ellis
and did not see him with a handgun. The jury found Ellis guilty.
At sentencing, Ellis’ advisory Sentencing Guidelines range was 100 to 120
months’ imprisonment, based on a total offense level of 24 and criminal history
category of VI. The district court treated both of Ellis’ two previous Arkansas

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robbery convictions as crimes of violence under the Sentencing Guidelines. It
ultimately sentenced Ellis to the statutory maximum of 120 months’ imprisonment,
followed by 2 years’ supervised release. This appeal followed.
II. DISCUSSION
Ellis contests the sufficiency of the evidence supporting his conviction and
the classification of his Arkansas robbery convictions as crimes of violence under
the Sentencing Guidelines.
A. Sufficiency of the Evidence
We review the sufficiency of the evidence de novo, viewing the evidence in
the light most favorable to the verdict and drawing all reasonable inferences in its
favor. United States v. Thompson, 11 F.4th 925, 929 (8th Cir. 2021). We will
reverse a conviction only if no reasonable jury could find the defendant guilty
beyond a reasonable doubt. United States v. Fool Bear, 903 F.3d 704, 708 (8th Cir.
2018).
To convict Ellis under 18 U.S.C. § 922(g)(1), the government was required to
prove: (1) Ellis had a prior conviction for a crime punishable by imprisonment
exceeding one year; (2) he knowingly possessed a firearm; and (3) the firearm had
been in or affected interstate commerce. United States v. Collier, 527 F.3d 695, 701
(8th Cir. 2008). On appeal, Ellis challenges only the second element—knowing
possession.
Knowing possession may be actual or constructive. United States v. Tenerelli,
614 F.3d 764, 769 (8th Cir. 2010). Constructive possession requires proof that the
defendant knew of the object, had the ability to control it, and intended to do so.
United States v. Piwowar, 492 F.3d 953, 955 (8th Cir. 2007). Although constructive
possession may be established through circumstantial evidence, the government
must demonstrate a “sufficient nexus” between the defendant and the firearm.

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United States v. Garrett, 648 F.3d 618, 622 (8th Cir. 2011) (quoting United States v.
Evans, 431 F.3d 342, 345 (8th Cir. 2005)). Mere physical proximity to the firearm
is not enough. United States v. Battle, 774 F.3d 504, 511 (8th Cir. 2014).
Ellis, relying on United States v. Parker, 871 F.3d 590, 604 (8th Cir. 2017),
contends that the government failed to prove more than physical proximity. In
Parker, the government attempted to rely on a co-defendant’s movements in the
vehicle before the chase to establish possession, but this Court found that evidence
insufficient because Black’s movements were “not directly connected to the gun’s
location.” Id. at 603. Here, the evidence establishes a clearer connection.
Dashboard camera footage shows Ellis jumping and tossing an object over the fence
as Trooper McDonald pursued him. Other officers recovered the firearm in the area
where Ellis appeared to have thrown something. Although, as Ellis points out, the
footage does not clearly show what was thrown, a reasonable jury could infer that
Ellis threw the firearm recovered on the other side of the fence. In doing so, Ellis
exercised dominion and control over the firearm. See Tenerelli, 614 F.3d at 769-70.
The evidence presented at trial demonstrates more than mere proximity and was
sufficient to establish Ellis knowingly possessed a firearm. We affirm Ellis’
conviction.
B. Arkansas Robbery Convictions
While we generally review de novo whether a conviction qualifies as a crime
of violence, we review Ellis’ claim for plain error because he did not raise this
argument below. United States v. Gordon, 69 F.4th 932, 933 (8th Cir. 2023); Fed.
R. Crim. P. 52(b). To satisfy the plain error standard, Ellis “must show that there
was an error, the error is clear or obvious under current law, the error affected the
party’s substantial rights, and the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” United States v. Poitra, 648 F.3d 884,
887 (8th Cir. 2011).

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The Sentencing Guidelines prescribe a base offense level of 24 for a
conviction under 18 U.S.C. § 922(g)(1) if the defendant has at least two prior felony
convictions for either a crime of violence or a controlled substance offense. U.S.S.G.
§ 2K2.1(a)(2). A crime of violence is an offense that: (1) has as an element the use,
attempted use, or threatened use of physical force against another person (“force
clause”); or (2) constitutes one of several enumerated offenses, such as murder,
kidnapping, or, as relevant here, robbery (“enumerated offenses clause”). U.S.S.G.
§ 4B1.2(a).
To determine whether a prior conviction qualifies as a crime of violence,
courts apply the categorical approach, focusing on the statutory elements of the
offense rather than the facts of the underlying conviction. United States v.
McMillan, 863 F.3d 1053, 1056 (8th Cir. 2017). Under Arkansas law, a person
commits robbery if, “with the purpose of committing a felony or misdemeanor theft
or resisting apprehension immediately after committing a felony or misdemeanor
theft, the person employs or threatens to immediately employ physical force upon
another person.” Ark. Code Ann. § 5-12-102(a). “Physical force” includes “[b]odily
impact, restraint, or confinement” or “[t]hreat of any bodily impact, restraint, or
confinement.” Ark. Code Ann. § 5-12-101.
This Court has previously determined that robbery under Arkansas law
qualifies as a crime of violence under both the force clause and the enumerated
offenses clause. United States v. Smith, 928 F.3d 714, 717 (8th Cir. 2019). Ellis
asserts that Smith must be reconsidered in light of Borden v. United States, 593 U.S.
420, 429 (2021), in which the Supreme Court held that offenses which can be
committed with reckless intent cannot be considered crimes of violence under the
force clause. See United States v. Hoxworth, 11 F.4th 693, 695-96 (8th Cir. 2021)
(discussing Borden). Ellis supports his argument by referencing several cases in
which Arkansas courts have recognized that the statute in question encompasses
robberies committed without any intent to use force. See e.g., McElyea v. State, 189
S.W.3d 67, 70 (Ark. App. 2004) (noting that “[f]or purposes of the robbery statute,
it is immaterial whether appellant ever intended to use physical force against

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[another] to further his escape”); Collins v. State, No. CACR 92-414, 1992 WL
383749, at *1 (Ark. Ct. App. Dec. 16, 1992) (same).
Borden impacts the scope of the force clause, but it does not alter our analysis
under the enumerated offenses clause. See United States v. Mahurin, No. 22-2580,
2023 WL 3090632, at *1 (8th Cir. Apr. 26, 2023) (per curiam) (rejecting Borden
argument where case involved enumerated offenses clause). “To determine whether
a crime falls within the enumerated-offenses clause, we begin by identifying the
elements of the generic enumerated offense.” United States v. Schneider, 905 F.3d
1088, 1093 (8th Cir. 2018). In United States v. House, 825 F.3d 381, 387 (8th Cir.
2016), this Court defined “generic robbery” as “aggravated larceny, or the
misappropriation of property under circumstances involving immediate danger to a
person.” In United States v. Stovall, 921 F.3d 758, 760 (8th Cir. 2019), this Court
held that Arkansas robbery is an enumerated crime of violence because it has the
same elements as generic robbery. While Borden may cast doubt on whether
robbery under Arkansas law qualifies as a crime of violence under the force clause,
it does not disturb our decisions in Smith or Stovall that held it is a qualifying offense
under the enumerated offenses clause. There was no error, plain or otherwise, in the
calculation of Ellis’ Sentencing Guidelines range or in the sentence imposed.
III. CONCLUSION
We affirm the judgment of the district court.
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