                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 14-1961
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                 Mario A. Thibeaux

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                           Submitted: January 13, 2015
                              Filed: May 4, 2015
                                ____________

Before LOKEN, MURPHY, and MELLOY, Circuit Judges.
                          ____________

LOKEN, Circuit Judge.

       A jury convicted Mario Thibeaux of being a felon in possession of a firearm
in violation of 18 U.S.C. § 922(g)(1). The district court1 imposed a sentence of 120
months in prison. Thibeaux appeals, challenging the sufficiency of the evidence that


      1
      The Honorable Greg Kays, Chief Judge, United States District Court for the
Western District of Missouri
he possessed the handgun in question, the district court’s exclusion of evidence of a
subsequent firearm offense by the other suspect, and his sentence. We affirm.

                           I. Sufficiency of the Evidence

       We review a sufficiency of the evidence claim do novo and will reverse only
if no reasonable jury could have found Thibeaux guilty, viewing the evidence in the
light most favorable to the jury’s verdict. See, e.g., United States v. Cowling, 648
F.3d 690, 700 (8th Cir. 2011), cert. denied, 132 S. Ct. 1905 (2012). Thibeaux
stipulated that he had previously been convicted of a crime punishable by a term of
imprisonment exceeding one year, and that the firearm in question was manufactured
in Argentina. Thus, as in many felon-in-possession cases, the issue at trial was
whether Thibeaux knowingly possessed the firearm. See id.

        The government’s first witness at the August 2013 trial was Geraldine Scott.
She testified that she awoke to the sound of a woman’s screams outside her home on
Montgall Avenue at 2:00 a.m. on February 22, 2013, the night of a heavy snowstorm.
She called 911, looked out her bedroom window, and reported that two men and a
woman were running around a vehicle in the street. One man, wearing “like a black
and white jacket,” was pointing a handgun at the other man. Scott testified the trio
went into a house across the street, then the other man and the woman came out, got
in the vehicle, and backed it down Montgall Avenue, a one-way street, until it got
stuck in the snow at a nearby intersection. “The guy in the white jacket came out
later” and went to the intersection where the car was. Scott viewed the police
officers’ dash cam video of the events after the officers arrived, listened to her
recorded call to the 911 operator, and positively identified Thibeaux as the man in the
white jacket she saw with a gun. On cross examination, Scott testified that she was
first asked if she could make an identification a few weeks before trial.




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       The next witness, Field Training Officer Ryan Kaighen of the Kansas City
Police Department, testified that he drove the lead patrol car to the scene of the
reported disturbance involving a person armed with a gun. Kaighen’s passenger was
his probationary police officer trainee, Kameron Hylton, who was put in charge of the
scene under Officer Kaighen’s direction. Their patrol car was equipped with a
stationary dash camera that recorded the subsequent events.

       As the Officers approached, they observed a maroon SUV stuck in the snow
at the intersection of Montgall Avenue and 25th Street, facing to their right down
Montgall. Two males and one female were outside the passenger side of the vehicle.
The two males were later identified as Mario Thibeaux and Jermaine Murray.
Thibeaux was wearing a bright neon safety vest. Murray was wearing a heavy beige
coat over a black shirt or jacket. As the patrol car neared, Murray and Thibeaux
moved to the front of the SUV. The Officers exited the car and commanded everyone
to place their hands in the air and approach. The woman complied immediately.
Murray moved around the front of the vehicle to the driver’s side with a shovel and
paused near the driver’s side front tire. Thibeaux came forward and initially put his
hands in the air, then put his right hand into his front pocket, turned his back on the
Officers, and moved along the rear of the vehicle.

        Kaighen testified that, alarmed by Thibeaux’s actions, he drew his weapon and
moved to the left from the driver’s side of the patrol car to a snowbank, where he had
a full view of Thibeaux at the rear of the SUV. Kaighen saw Thibeaux reach into his
pocket and toss a “black object” along the driver’s side of the SUV. The dash cam
video, taken from the right side of the patrol car’s front windshield, shows Thibeaux
making a tossing motion as he moved away from the Officers along the rear of the
SUV, but what Thibeaux tossed (if anything) cannot be seen. When all three persons
had been secured, Kaighen walked to the driver’s side of the SUV and found a
handgun laying “on top of the snow with no snow covering it, right next to the



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driver’s side of the vehicle near the front wheel,” near where Murray briefly stood
when the officers first arrived. Kaighen testified that he could only see that Thibeaux
threw a black object, but there were no other items on the ground. Kaighen left the
gun in the snow for Hylton to recover.

       Hylton testified that when he exited the patrol car on the passenger side, he
kept his eyes on Murray, had an unobstructed view of Murray’s hands as he came
from the far side of the SUV, and did not see him drop or throw anything. At
Kaighen’s direction, Hylton recovered the black gun lying on top of the snow on the
driver’s side of the SUV and unloaded it. Hylton testified that he did not know who
had thrown the gun but understood from their conversation that Kaighen believed
Thibeaux had thrown the gun. On cross exam, Hylton was shown the video and
agreed he recovered the gun where Murray had been standing. Hylton’s incident
report did not include the fact that Murray had moved to the driver’s side of the
vehicle, paused there, and did not comply with the Officers’ commands for twenty or
thirty seconds. When Murray was later searched, a glass vial containing PCP was
found in his left front pocket.

        The recovered gun was a Bersa Piccola Thunder Semiautomatic .380, loaded
with one live round and a magazine containing fifteen rounds. A forensic expert
testified that he took two swabs from the firearm but was unable to match the genetic
profiles to Murray or Thibeaux, which was not uncommon. After the government
rested, the defense called Police Officer Elizabeth Clark, who testified that on March
30, 2013 she initiated a traffic stop of a vehicle registered to Ashley Robinson. The
only occupant, a black male with dreadlocks, drove off, crashed the vehicle into a
fence, and fled. Officer Clark searched the vehicle, finding a glass vial believed to
contain PCP, a nine millimeter Bersa Thunder 9 Compact Pro handgun, and a driver’s
license belonging to Jermaine Murray. The government’s rebuttal witness testified




                                         -4-
that Bersa handguns are available at most gun shops in Kansas City and throughout
the United States.

       On appeal, Thibeaux argues the evidence was insufficient because the dash
cam video shows Murray at the place where the firearm was recovered, Murray had
a motive to drop the gun because he was a felon then in possession of PCP, and
Murray was involved in a similar incident involving PCP and a Bersa handgun a few
weeks later. Thibeaux argues no one saw him throw a gun, and the gun’s position
lying on top of the snow suggests it was dropped and not thrown. He challenges
Geraldine Scott’s credibility because she was not contacted until a few weeks before
trial and did not mention Thibeaux’s conspicuous neon safety vest to the 911
operator. Thibeaux in effect asks us to re-assess Geraldine Scott’s credibility and
Officer Kaighen’s description of the events. But this would be contrary to the
standard governing our review of a jury verdict. “We do not weigh the evidence or
assess the credibility of the witnesses. The jury has the responsibility of resolving
conflicts or contradictions in testimony, and we resolve any credibility issues in favor
of the verdict.” United States v. Augustine, 663 F.3d 367, 373 (8th Cir. 2011).

       During its deliberations, the jury twice asked to review the most relevant
segments of the dash cam video before returning a guilty verdict. The video
confirmed that Thibeaux ignored the Officers’ commands by putting his hand in his
pocket, walking away from the Officers, and making a throwing motion. The jury
heard Kaighen testify that he positioned himself for a clearer view than the video and
saw Thibeaux throw a black object in the direction where the gun was found. They
heard Hylton testify he watched Murray’s hands. Particularly in light of Geraldine
Scott’s positive identification, this was sufficient evidence from which a reasonable
jury could find beyond a reasonable doubt that Thibeaux had been in possession of
the gun found in the snow. The jury rejected Thibeaux’s plausible argument that the
evidence pointed more strongly to Murray being the one who discarded the handgun.



                                          -5-
“Where a reasonable-minded jury could have found evidence sufficient to convict,
we will not disturb the verdict just because a different jury might have reached a
different conclusion.” United States v. Peters, 462 F.3d 953, 958-59 (8th Cir. 2006);
see United States v. Walker, 393 F.3d 842, 847 (8th Cir.), cert. denied, 546 U.S. 953
(2005); United States v. Anderson, 78 F.3d 420, 422 (8th Cir. 1996).

                            II. The Evidentiary Issue

       After Officer Clark testified to the March 2013 incident involving Jermaine
Murray, defense counsel advised the court that Murray was also involved in a
shootout in June 2013 during which a witness observed him hand PCP and a .40
caliber Taurus handgun to a woman identified as Ashley Robinson before the police
arrived. Counsel argued that Clark’s testimony that the car stopped in March was
registered to Robinson made the second event in June relevant to Thibeaux’s defense.
The court asked, “What do you suggest we do?” Counsel responded, “I would simply
offer” the ATF agent’s investigative report of the June incident. The government had
not objected to evidence of the March incident involving Murray, PCP, and a Bersa
handgun because of its proximity to the February 2013 incident at issue in the trial.
But the government objected to evidence relating to the June incident, citing Rule 403
of the Federal Rules of Evidence and arguing that this was a collateral issue that
would lead to confusion of the issues and an undue waste of time. The district court
agreed and denied defense counsel’s request.

      On appeal, Thibeaux argues the district court abused its discretion by not
allowing him to present evidence regarding the second incident because it tended to
negate the defendant’s guilt. See United States v. McGilberry, 620 F.3d 880, 886 (8th
Cir. 2010) (standard of review). Evidence of other crimes committed by another
person to show that person committed the crime at issue is admissible, provided the
circumstances of the other crime are sufficiently similar to make it relevant. See



                                         -6-
United States v. Seals, 419 F.3d 600, 607 (7th Cir. 2005), and 611-13 (Posner, J.,
concurring), cert. denied, 546 U.S. 1047. However, such evidence “may be excluded
where it does not sufficiently connect the other person to the crime, as, for example,
where the evidence is speculative or remote, or does not tend to prove or disprove a
material fact in issue.” Holmes v. South Carolina, 547 U.S. 319, 327 (2006)
(quotation omitted).

       Here, the June 2013 incident was months removed in time and involved
different circumstances and a different model handgun. Thibeaux’s request was
untimely, and no person present at trial had first-hand knowledge of the June crime.
That incident was likely to be complex, resulting in a mini-trial regarding a collateral
matter. Moreover, evidence that Murray had PCP and a handgun in June would be
cumulative to Officer Clark’s testimony regarding the March incident, so denying
Thibeaux’s belated request in no way prevented him from proving his defense. In
these circumstances, there was no abuse of the district court’s Rule 403 discretion.
See United States v. Battle, 774 F.3d 504, 512-14 (8th Cir. 2014), cert. denied, 2015
WL 1289842 (2015).2

                               III. Sentencing Issues

       Thibeaux’s Presentence Investigation Report recommended a base offense
level of 24 because he had committed two prior offenses that were either a crime of
violence or a controlled substance offense. See USSG § 2K2.1(a)(2). The PSR also
recommended an enhancement under § 4B1.4(b)(3) because Thibeaux was an Armed
Career Criminal, resulting in a total offense level of 33 and an advisory guidelines


      2
       Thibeaux also argues the court abused it discretion by not continuing the trial
while he found witnesses and officers involved in the June event. As no continuance
was explicitly requested, this issue was not preserved.


                                          -7-
range of 235 to 293 months in prison. Thibeaux objected to the enhancement and to
the base offense level determination under § 2K2.1(a)(2), arguing that his base
offense level should be 20 under § 2K2.1(a)(4).

        At sentencing, the district court found that the Armed Career Criminal Act does
not apply. But it overruled Thibeaux’s objection to base offense level 24 under
§2K2.1(a)(2), finding that his previous felon-in-possession conviction was a crime
of violence because the firearm possessed was a sawed-off shotgun. The court
sentenced Thibeaux to 120 months, the statutory maximum for his offense, expressly
stating, “even if I would have . . . found him at . . . category 20 my sentence would
still be the same in this case under the [18 U.S.C. §] 3553(a) analysis.”

       A. The Claim of Procedural Error. On appeal, the parties agree the district
court committed procedural error when it determined that Thibeaux’s prior felon-in-
possession offense was a crime of violence under § 2K2.1(a)(2). We accept the
government’s concession without considering that issue. Without this enhancement,
the base offense level was 20, not 24, resulting in an advisory guidelines range of 70
to 87 months. The government contends the sentence should nonetheless be affirmed
because the procedural error was harmless. We agree.

       “Incorrect application of the Guidelines is harmless error where the district
court specifies the resolution of a particular issue did not affect the ultimate
determination of a sentence.” United States v. Straw, 616 F.3d 737, 742 (8th Cir.
2010). The § 3553(a) factors the district court emphasized were Thibeaux’s
substantial criminal history over an extensive period of time, and the fact that in
serving every previous felony conviction his probation, parole, or supervised release
had been revoked, showing a lack of respect for the law and the need for a longer
sentence to deter further criminal activity. The court “clearly identified the contested
crime-of-violence issue . . . and adequately explained its overall sentence applying



                                          -8-
18 U.S.C. § 3553(a).” United States v. Sayles, 674 F.3d 1069, 1072 (8th Cir. 2012).
Therefore, the procedural error was harmless.

       B. Substantive Reasonableness. Thibeaux argues the 120-month sentence
is substantively unreasonable because the district court did not give sufficient weight
to the fact that his last felony conviction occurred in 2004 and that he had been
employed since 2009. We review substantive reasonableness for abuse of discretion.
The district court has wide latitude to weigh the § 3553(a) factors and assign some
factors greater weight than others. United States v. Roberts, 747 F.3d 990, 992 (8th
Cir. 2014). Here, the district court did not abuse its wide sentencing discretion in
placing particular emphasis on Thibeaux’s extensive criminal history and
demonstrated lack of respect for the law.

      The judgment of the district court is affirmed.
                     ______________________________




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