Submitted: February 16, 2018
from United States District Court for the District of
Minnesota - St. Paul
SMITH, Chief Judge, MURPHY and COLLOTON, Circuit Judges.
COLLOTON, CIRCUIT JUDGE.
convicted Jeffrey Pendleton of unlawful possession of a
firearm as a previously convicted felon. The district
court imposed a 15-year prison sentence under
the Armed Career Criminal Act (ACCA), 18 U.S.C. §
924(e)(1). On appeal, Pendleton disputes an evidentiary
ruling at trial and challenges the determination that he
qualifies as an armed career criminal under the sentencing
statute. We conclude that there was no reversible error, and
we therefore affirm.
March 2015, Pendleton was living in the basement of his
nephew's home on the Lower Sioux Indian Reservation near
Morton, Minnesota. On March 17, Penny Arredondo reported to
law enforcement that she had observed Pendleton carrying a
handgun at the nephew's residence. Three days later, law
enforcement officers executed a search warrant at the house.
entered the home and located Pendleton in a basement bedroom,
crouched near the bed. After arresting Pendleton, officers
found a loaded black nine millimeter semiautomatic handgun
under the bed, approximately two feet from where Pendleton
had been crouching. Prescription pill bottles bearing
Pendleton's name were lying on a dresser in the room.
Inside the dresser, officers found shotgun shells, a nine
millimeter round, and a .380 caliber round, as well as
several pairs of blue jeans that matched Pendleton's
physical characteristics. Upstairs, officers found more pill
bottles labeled for Pendleton and a bag of nine millimeter
ammunition. A forensic examination later confirmed that
Pendleton's DNA was on the grip, slide, and magazine of
jury charged Pendleton with unlawful possession of a firearm
and unlawful possession of ammunition as a previously
convicted felon, both in violation of 18 U.S.C. §
922(g)(1). The case proceeded to trial, and a jury found
Pendleton guilty of possessing the firearm, but acquitted him
of possessing ammunition. At sentencing, the district court
concluded that Pendleton qualified as an armed career
criminal under 18 U.S.C. § 924(e) and sentenced him to
the statutory minimum term of 15 years' imprisonment.
appeals his conviction on the ground that the district court
erred by admitting testimony of Penny Arredondo that she saw
Pendleton carrying a handgun before the search. The
government gave advance notice of Arredondo's testimony,
and Pendleton moved in limine to exclude it. The
district court denied the motion, stating that
Arredondo's testimony was admissible under Federal Rule
of Evidence 404(b). The court also overruled Pendleton's
renewed objection to Arredondo's testimony before opening
trial, Arredondo testified that while visiting
Pendleton's nephew, she observed Pendleton carrying a
firearm on his waistband "maybe two or three months
tops" before law enforcement executed the search
warrant. When asked to describe the gun, Arredondo testified:
"I want to say black. It's not one-not like a
revolver. Just one that you put like a-what do you call
those, you fill it and then you just pop it in, the
casings." We review the district court's evidentiary
rulings for abuse of discretion. United States v.
White, 816 F.3d 976, 982 (8th Cir. 2016).
district court admitted Arredondo's testimony for limited
purposes as evidence of a crime, wrong, or other act under
Rule 404(b). We agree with the government, however, that the
testimony was relevant to the charged offense and was
therefore admissible under Rule 402. Arredondo testified that
she observed Pendleton carrying a black semiautomatic handgun
within two or three months of the search, and officers found
a black semiautomatic handgun under the bed near which
Pendleton was crouching when they arrested him.
Arredondo's testimony tended to make it more probable
that the firearm under the bed belonged to Pendleton, because
a jury reasonably could infer that the gun under the bed was
the gun that Arredondo saw Pendleton carrying in his
waistband. See Fed. R. Evid. 401.
complains that Arredondo's observation was too remote in
time to be relevant, but the fact that Pendleton carried a
firearm of the same description within eight weeks of the
search would tend to make it more likely that the seized gun
belonged to him. Pendleton also attacks Arredondo's
credibility, but a challenge to credibility does not affect
admissibility of testimony under Rule 402. See United
States v. Searing, 984 F.2d 960, 965-66 (8th Cir. 1993).
It was for the jury to determine how much weight to give the
testimony in light of Pendleton's ...