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United States v. Godfrey

United States Court of Appeals, Eighth Circuit

July 25, 2017

United States of America Plaintiff- Appellee
Cowan Godfrey Defendant-Appellant

          Submitted: June 9, 2017

         Appeal from United States District Court for the Northern District of Iowa - Dubuque

          Before WOLLMAN, GRUENDER, and SHEPHERD, Circuit Judges.

          GRUENDER, Circuit Judge.

         Cowan Godfrey pleaded guilty to one count of being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1). The district court[1] sentenced him to 120 months' imprisonment followed by three years of supervised release. Godfrey appeals his sentence, arguing that the district court committed procedural error, imposed a substantively unreasonable sentence, and imposed an improper special condition of supervised release. For the following reasons, we affirm.

         I. BACKGROUND

         On April 1, 2015, police officers responded to a report of shots fired in Jackson Park in Dubuque, Iowa. At the time of the incident, the park was occupied by multiple families and young children. By the time officers arrived, the shooting had ended and the individuals involved had fled. Officers interviewed several witnesses, and they obtained several surveillance videos depicting the shooting.

         The videos show Godfrey entering Jackson Park with a group of associates. One of these associates, Principal Springer, was a member of the "Moes" street gang in Dubuque and went by the street name "Little Moe." The videos show that Godfrey and his associates exited their vehicles, walked up a small hill leading into the park, and sat on a set of benches near a large set of playground equipment. Godfrey then temporarily left Springer's group and went to a different area of the park. During Godfrey's absence, Springer's group was approached by a group of people belonging to a rival gang, the Black Disciples. One of the Black Disciples members, Demarcus Timmons, ran up to Springer's group, took off his sweatshirt, and threw it down in a threatening manner. Although the videos are not equipped with sound, they show what appears to be a verbal confrontation between Timmons and Springer's group. Three witnesses originally claimed that they saw Timmons or another Black Disciples member, Derrick Moore, display a firearm during the confrontation, but these witnesses later recanted their statements, and no such firearm is visible in the videos.

         During this confrontation, the videos show that Godfrey ran up to the two groups, observed them for several seconds, and then ran down the hill towards the street and the parked vehicles, where he remained off-camera for approximately thirty seconds. While Godfrey was gone, Timmons retrieved his sweatshirt, and he and Moore began walking away from Springer's group. Godfrey then reappeared on camera, running towards the park while carrying a handgun he apparently had retrieved from one of the vehicles. Before he reached the base of the hill, Godfrey raised the gun and began shooting in the direction of Timmons and Moore. When he began shooting, he was over thirty feet away from Timmons but only a few feet away from a mother with her children. As soon as Godfrey began shooting, everyone in the area immediately scattered, with families fleeing in visible terror. Godfrey continued to shoot as he ran up the hill. As he neared the top of the hill, he stopped shooting, turned around, and fled. Police officers later retrieved seven shell casings in the area that Godfrey ran through while shooting, and they determined that one of Godfrey's bullets struck the playground equipment several inches from the ground. Fortunately, no injuries were reported.

         As a result of the police investigation, Timmons, Moore, and Godfrey were arrested. For their participation in the incident, Timmons and Moore were charged with several crimes in Iowa state court. They pleaded guilty to some of these charges, but others were dismissed. Godfrey was charged in federal court with one count of being a felon in possession of ammunition. See 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He pleaded guilty and proceeded to sentencing.

         The Presentence Investigation Report ("PSR") calculated Godfrey's total offense level as 15. This calculation included a three-level reduction for acceptance of responsibility, which the Government did not dispute. See U.S.S.G. § 3E1.1. However, the Government objected to the PSR's failure to apply a cross-reference for attempted murder, which would have increased Godfrey's base offense level to 33 and his total offense level to 30. See U.S.S.G. § 2A2.1(a)(1).

         After the Government made this objection, Godfrey objected to the PSR's description of the offense conduct, which stated that Godfrey was "shooting in the direction" of Timmons and Moore. Godfrey contended that when he "ran towards the direction of Timmons and Moore and actually shot the gun, it was pointed towards the sky." He suggested that Timmons and Moore "arrived at the park with a concealed firearm, displayed the firearm, and began to assault people" and that "Moore began firing his weapon first, which resulted in [Godfrey] firing the weapon." Godfrey also objected to the PSR's recommendation that the district court impose a special condition of supervised release prohibiting him from using alcohol or entering any bar or tavern.

         Before the sentencing hearing, the Government requested that the district court apply the cross-reference for attempted murder because the locations of Godfrey's shots were consistent with an attempt to shoot and kill people. In the alternative, the Government requested that the district court apply an upward departure because of the manner in which Godfrey endangered others. See U.S.S.G. § 5K2.6. In response, Godfrey maintained that he fired the gun "in order to protect others from being injured or killed by Timmons and Moore" after they "displayed their revolver, cocked the hammer, and pointed it at others."

         At the sentencing hearing, before taking evidence on the disputed sentencing issues, the district court made the following comment:

So the issue is the cross-reference and upward departure. I would just say, in terms of the offense conduct, Defense Objection 1, there are some representations about Timmons and Moore assaulting people, displaying a weapon, the gun pointing toward the sky. I looked at the videos. I didn't see any of that, and so if there's evidence of that, that's fine, but I didn't see it. I didn't see any physical altercation between anybody. I didn't see anybody assaulting other people. I didn't see anyone except Mr. Godfrey with a firearm. I did not see him pointing the firearm to the sky. So if that's defense-if you're really contending that, you are going to have to find the evidence, because it's not on these videos.

         After receiving evidence related to the disputed sentencing issues, the district court also expressed its belief that Godfrey "did not take overall responsibility" for his actions because "he's frivolously contesting offense conduct. And when you do that, you can lose acceptance."

         The following month, the court announced its findings and disposition. The court first noted that "[t]his case does not fit neatly into the advisory guidelines because the relevant conduct of the defendant is not fully captured in the computation." Specifically, the court explained that United States Sentencing Guidelines § 2K2.1 applies initially to an offense for being a felon in possession of ammunition "as though the possession of ammunition was peaceful and passive, and obviously that's not the case [here]." The court observed that it could "deal with the aggravated relevant conduct" either by applying the cross-reference for attempted murder or by departing upwards, but instead it chose to vary upward to impose a non-guidelines sentence after considering the statutory factors included in 18 U.S.C. § 3553(a). Regardless, the court recognized that it was required to calculate the advisory guidelines range, and it proceeded to do so.

         The court adopted the offense-level scoring in the PSR but declined to grant Godfrey a reduction for acceptance of responsibility. The court noted that "[a]lthough he may have pled guilty, the objections that he's made to the presentence investigation deny what I find to be relevant conduct and mischaracterize what happened." The court further explained that Godfrey "claims Timmons and Derrick Moore were assaulting people. He also claims that when he fired the gun, it was pointed to the sky, and we know that's not true. The video reflects and the testimony of the officer proves both of these assertions to be false." Thus, the court calculated Godfrey's total offense level as 18 rather than 15.

         With a total offense level of 18 and a criminal history category of II, Godfrey's advisory guidelines range was 30 to 37 months' imprisonment, but the court reiterated that "this guideline calculation is not what I am depending on in arriving at a sentence." The court then discussed how the relevant § 3553(a) factors supported an upward variance, especially noting that Godfrey discharged his weapon "in very close proximity to women and children, innocent visitors to the park" and that this was "premeditated conduct." Thus, the court imposed a sentence of 120 months' imprisonment, the statutory maximum for his offense. See 18 U.S.C. ยง ...

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