United States of America v. Trivansky Swington

United States Court of Appeals
For the Eighth Circuit
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No. 22-3362
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United States of America
Plaintiff - Appellee
v.
Trivansky Swington
Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Eastern
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Submitted: October 19, 2023
Filed: January 9, 2024
[Unpublished]
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Before GRUENDER, STRAS, and KOBES, Circuit Judges.
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PER CURIAM.
For possessing a firearm as a felon, see 18 U.S.C. § 922(g)(1), Trivansky
Swington received a sentence of 120 months in prison. The district court made only
one mistake: it failed to rule on a factual objection at sentencing. We remand for
consideration of the objection, but otherwise affirm.

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I.
On Valentine’s Day, Swington and his girlfriend spent the evening with
family and friends. When the gathering broke up in the early morning hours, an
argument erupted between the couple in front of two of their friends, who were with
them in a car. As the argument grew more heated, Swington pulled out a revolver.
His girlfriend ran away to call 911, while the others tried to wrestle the gun away
from him before running inside too.
After attempting to follow them, Swington walked away. By the time officers
arrived, he had already fired several shots and thrown the revolver into the snow.
One officer followed some footprints to a driveway. From there, a police K-9 led
him to the revolver, which was behind a garage.
Multiple witnesses testified, including many of the attendees of the
Valentine’s Day gathering and several police officers. After the jury found
Swington guilty of a single felon-in-possession count, the district court sentenced
him to 120 months in prison.
II.
For the conviction to stand, there must have been evidence that Swington
“possess[ed] . . . [the] firearm.” 18 U.S.C. § 922(g)(1). We review the sufficiency
of the evidence de novo, viewing the record in the light most favorable to the verdict.
See United States v. Aungie, 4 F.4th 638, 643 (8th Cir. 2021).
Swington’s defense at trial was that someone had planted the revolver in the
snow to frame him and that several of the witnesses were in on it. The jury
considered this possibility and rejected it, no doubt because multiple witnesses saw
him with the gun earlier that night. Even if some of them may have had a motive to
lie, as he suggests, the jury was still in “the best position to assess the[ir] credibility.”
United States v. Trotter, 837 F.3d 864, 868 (8th Cir. 2016) (citation omitted).

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Our only task in a sufficiency challenge is to determine “if there is any
interpretation of the evidence that could lead a reasonable jury to convict.” United
States v. Brandon, 521 F.3d 1019, 1025 (8th Cir. 2008). And here, there is. See
United States v. L.B.G., 131 F.3d 1276, 1278 (8th Cir. 1997) (holding that even a
single witness’s testimony can be enough).
III.
Swington also argues that some of the testimony used to convict him was
inadmissible. He objects to the footprint analysis by two officers. See Fed. R. Evid.
701, 702. We review the admissibility of their testimony for an abuse of discretion.
See United States v. Duggar, 76 F.4th 788, 794 (8th Cir. 2023).
The first officer, who was at the scene and personally found the revolver, was
a lay witness testifying “about his first-hand observations.” United States v. Peoples,
250 F.3d 630, 639 (8th Cir. 2001); see Fed. R. Evid. 701(a). His testimony was
“helpful” because it described how he found the revolver by following the footprints
left in the snow. United States v. Lomas, 826 F.3d 1097, 1106–07 (8th Cir. 2016)
(citation omitted) (discussing the requirements of lay testimony).
The other officer was not at the scene and testified as a crime-lab expert. See
Fed. R. Evid. 702. She compared photographs of the footprints to the tread pattern
on Swington’s shoes and noted the similarities. Even assuming her testimony was
inadmissible, it did not “substantially influence[] the jury’s verdict.” United States
v. Merrell, 842 F.3d 577, 582 (8th Cir. 2016) (citation omitted). Four witnesses
placed the revolver in Swington’s hands, and the jury heard how the footprints led
the other officer to it. The error, if any, was harmless.

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IV.
Swington’s first of two sentencing challenges is to the calculation of his base
offense level. It was high because the district found that he “committed” a felon-in-
possession offense after a “felony conviction of . . . a controlled[-]substance
offense.” U.S.S.G. § 2K2.1(a)(4)(A) (setting a base offense level of 20). Swington
believes that his prior conviction of possessing marijuana with intent to deliver, see
Iowa Code § 124.401(1)(d), does not count because hemp is no longer a controlled
substance, even if it was back then.
Unfortunately for Swington, we have already concluded otherwise. In United
States v. Bailey, 37 F.4th 467 (8th Cir. 2022) (per curiam), we held that a marijuana
conviction under the same Iowa possession-with-intent-to-deliver statute counted as
a controlled-substance offense, even if the defendant only possessed hemp at the
time. See id. at 470 (“[W]e may not look to current state law to define a previous
offense.” (citation omitted)). Bailey forecloses Swington’s first sentencing
challenge.
V.
But not the second. Before sentencing, Swington objected to two paragraphs
of the presentence investigation report discussing whether he was a gang member.
Despite the objection, the district court went ahead and checked a box “adopt[ing]
the presentence investigation report.” It never resolved the objection.
District courts must, “for any disputed portion of the presentence report[,] . . .
rule on the dispute or determine that a ruling is unnecessary.” Fed. R. Crim. P.
32(i)(3)(B). When a court fails to do so, we remand for a decision on the objection
or a determination that a ruling is unnecessary, along with an accompanying change
to the statement of reasons. See United States v. Conrad, 74 F.4th 957, 959–60 (8th
Cir. 2023). On remand, the court should follow one of those two paths.

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VI.
We accordingly affirm the district court’s judgment, except for a limited
remand for consideration of Swington’s objection to the presentence investigation
report.
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