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United States v. Cotton

United States Court of Appeals, Eighth Circuit

July 6, 2017

United States of America Plaintiff- Appellee
v.
Curtis J. Cotton Defendant-Appellant

          Submitted: May 12, 2017

         Appeal from United States District Court for the District of Nebraska - Lincoln

          Before RILEY, BEAM, and SHEPHERD, Circuit Judges.

          SHEPHERD, Circuit Judge.

         While on supervised release following a prison term for his 2009 bank robbery conviction, Curtis Cotton was found to have violated the terms of his supervision by committing assault, in violation of Iowa Code section 708.1(2)(c). The district court[1] revoked Cotton's supervision and sentenced him to twenty-four months in prison. Cotton challenges the sufficiency of the government's evidence. Having jurisdiction under 28 U.S.C. § 1291, we affirm.

         I. Background

         Cotton was sentenced to sixty months imprisonment and three years supervised release after pleading guilty to bank robbery in 2009. He began his supervised release on September 16, 2015. Relevant to the present case, the supervised release included the following terms: (1) "The defendant shall not commit another federal, state or local crime"; and (2) "The defendant shall not possess a firearm, destructive device, or any other dangerous weapon." On November 10, 2015, Cotton's probation officer filed a petition alleging that Cotton violated these two mandatory conditions.

         Around 1:55 a.m. on October 26, 2015, Ryan Storey exited the Horseshoe Casino in Council Bluffs, Iowa, with approximately $8000 in baccarat winnings. As Storey retrieved his overnight luggage from his truck in a hotel parking lot adjacent to the casino, an armed assailant ran toward Storey shouting "hold up, " coming within five to ten feet of Storey and pointing a large silver handgun at him. Storey jumped back, shouted loudly, and ran into the hotel office. The assailant ran in the opposite direction. The encounter lasted 10 to 15 seconds.

         Storey identified Cotton as the assailant. Cotton admitted that he was at the Horseshoe Casino that night and that he made contact with Storey while in the casino. Storey testified that while he played baccarat with several thousand dollars in chips in public view, Cotton lingered behind him and hung around asking questions. Storey testified that Cotton stood out to him because he was just "moseying around the casino, " was lingering behind him, and was not gambling. Storey remembered conversing with Cotton at the casino.

          Casino surveillance video shows that Cotton exited the casino with Bronson Birdow through the same door as Storey about 20 seconds ahead of him and got into a black Chevrolet Avalanche pickup truck waiting just outside the casino doors driven by a third unidentified individual. Storey walked past the truck carrying a pizza as he exited the casino. Casino parking lot video shows that the black truck containing Cotton followed Storey at a distance with its lights off as Storey walked to his vehicle. The same black truck is seen on the video following Storey's vehicle leaving the casino parking lot. Storey made the very short drive to the Country Inn and Suites adjacent to the casino. The "hold up" incident occurred after Storey checked in at the hotel desk and returned to his vehicle in the hotel parking lot to retrieve his overnight luggage.

         Storey testified that he recognized Cotton as the assailant because of his eyes, voice, short stature, gait, and clothes-which he remembered from their interaction and his observations of Cotton earlier at the casino. Cotton claims that he went straight home from the casino, but called no witnesses to support that assertion.

         The district court found "by the greater weight of the evidence" that Cotton pointed a handgun at Storey in the parking lot that night, committing assault in violation of Iowa state law. The district court, therefore, found Cotton guilty of both violations since he broke an Iowa law and possessed a firearm. The district court sentenced Cotton to twenty-four months imprisonment followed by an additional year of supervised release.

         Cotton appeals the district court's revocation of his supervised release and its finding that he violated the terms and conditions of his ...


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