                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 04-1178
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Eastern District of Missouri.
Maurice E. Patterson,                    *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: September 14, 2004
                                 Filed: May 13, 2005
                                  ___________

Before BYE, BOWMAN, and MELLOY, Circuit Judges.
                          ___________

BOWMAN, Circuit Judge.

       Maurice E. Patterson was convicted by a jury of being a felon in possession of
a firearm or ammunition in violation of 18 U.S.C. § 922(g)(1) (2000). After
determining that Patterson previously had been convicted of three violent felonies,
see 18 U.S.C. § 924(e) (2000), and was thus an armed career criminal under section
4B1.4 of the United States Sentencing Guidelines, the District Court1 sentenced
Patterson to 188 months' imprisonment. Patterson appeals his conviction, arguing (1)
that the evidence at trial was insufficient as a matter of law to sustain the conviction

      1
       The Honorable Stephen N. Limbaugh, United States District Judge for the
Eastern District of Missouri.
and (2) that the Eighth Circuit Model Jury Instruction on reasonable doubt given at
trial is unconstitutional. Patterson also challenges the constitutionality of his
sentence, arguing (1) that it was premised in part on facts not found by the jury
beyond a reasonable doubt and (2) that it was imposed under a mandatory sentencing
guidelines scheme. For the reasons discussed below, we affirm Patterson's conviction
and sentence.

                                          I.

       In challenging his conviction, Patterson first argues that the evidence
introduced at trial was insufficient to establish that he possessed a gun. We review
the sufficiency of the evidence necessary to sustain a conviction de novo, viewing all
evidence in the light most favorable to the government and accepting all reasonable
inferences that could support the jury's verdict. United States v. Chapman, 356 F.3d
843, 847 (8th Cir. 2004); United States v. Rodriguez-Mendez, 336 F.3d 692, 694, 695
(8th Cir. 2003). We reverse only if no reasonable fact-finder could have found
Patterson guilty beyond a reasonable doubt. United States v. Brown, 346 F.3d 808,
813 (8th Cir. 2003); United States v. Caldwell, 292 F.3d 595, 596 (8th Cir. 2002).

      The evidence at trial was more than sufficient to support Patterson's conviction
for possessing a firearm or ammunition.2 Lakeshaua Hanks testified that while she
and her mother were waiting to be served at a restaurant in Jennings, Missouri,


      2
         Patterson does not dispute that he has previously been convicted of a felony
or that the firearm and cartridges introduced at trial had been in interstate commerce.
Patterson only challenges the sufficiency of the evidence supporting a finding that he
possessed a gun. We note, however, that Patterson's conviction could also be
supported by a finding that he possessed ammunition. See 18 U.S.C. § 922 (g)(1)
(2000) ("It shall be unlawful for any person . . . who has been convicted in any court
of, a crime punishable by imprisonment for a term exceeding one year . . . [to] possess
in or affecting commerce, any firearm or ammunition . . . .").

                                         -2-
Patterson, who was dating Hanks's mother, approached Hanks and attempted to hand
her what appeared to be a gun. Hanks refused to take the gun. Hanks testified that
the restaurant cashier saw Patterson's attempt to give Hanks the gun and began to
scream. The cashier, Shanell Howard, testified that she had seen a man attempt to
hand a gun to a woman in the restaurant. Howard later identified a man who police
had arrested outside the restaurant as the man who she had seen with the gun. Officer
Dennis Oglesby testified that Patterson was the man who Howard identified. Officer
Oglesby further testified that when he arrived at the restaurant in response to a report
that a gun had been brandished, he noticed Patterson standing next to a trash can
outside the restaurant doors. After obtaining a description of the suspect from
Howard, Officer Oglesby and Officer Gary Hemby, who had also arrived at the
restaurant, went outside and saw Patterson standing in the parking lot. Patterson met
the description given by Howard, and the officers detained him. Officer Hemby
testified that he searched Patterson and found two .22 caliber long rifle cartridges in
Patterson's pocket. Each officer also testified that Officer Oglesby recovered a .22
caliber semi-automatic handgun from the trash can outside the restaurant doors.
Finally, St. Louis County firearm and toolmark examiner William George testified
that he examined the gun and the cartridges and determined that the cartridges were
the appropriate ammunition for the gun. The members of the jury were free to
attribute whatever weight they chose to the testimony of these five witnesses. See
United States v. Martinez, 958 F.2d 217, 218 (8th Cir. 1992). Because this testimony
could easily lead a reasonable jury to find beyond a reasonable doubt that Patterson
possessed a gun and ammunition, the District Court properly denied Patterson's
motion for judgment of acquittal.

      Patterson next argues that the Eighth Circuit Model Jury Instruction on
reasonable doubt given at trial violated his due process rights because it is ambiguous
and lowers the government's burden of proof. Specifically, Patterson challenges the




                                          -3-
"mere possibility of innocence" language of the instruction.3 This Court has upheld
the constitutionality of this language in a number of cases making the same claim that
Patterson makes now. See, e.g., United States v. Foster, 344 F.3d 799, 802 (8th Cir.
2003), cert. denied, 124 S. Ct. 2096 (2004); United States v. Rosso, 179 F.3d 1102,
1104 (8th Cir. 1999); United States v. Simms, 18 F.3d 588, 593 (8th Cir. 1994);
United States v. Harris, 974 F.2d 84, 85 (8th Cir. 1992). We are bound by this
precedent and therefore hold that the instruction was proper. See Foster, 344 F.3d at
802; United States v. Olness, 9 F.3d 716, 717 (8th Cir. 1993), cert. denied, 510 U.S.
1205 (1994).

                                           II.

       Patterson's challenges to his sentence are based on the Supreme Court's recent
decision in United States v. Booker, 125 S. Ct. 738 (2005). Because Patterson failed
to make any sentencing objections in the District Court, we review his Booker claims
for plain error under Rule 52(b) of the Federal Rules of Criminal Procedure. See
United States v. Pirani, No. 03-2871, slip op. at 6 (8th Cir. April 29, 2005) (en banc).
Plain error review is governed by the four-part test set forth in United States v. Olano,
507 U.S. 725, 732–36 (1993):



      3
       The Eighth Circuit Model Jury Instruction on reasonable doubt states:

      A reasonable doubt is a doubt based upon reason and common sense,
      and not the mere possibility of innocence. A reasonable doubt is the
      kind of doubt that would make a reasonable person hesitate to act. Proof
      beyond a reasonable doubt, therefore, must be proof of such a
      convincing character that a reasonable person would not hesitate to rely
      and act upon it. However, proof beyond a reasonable doubt does not
      mean proof beyond all possible doubt.

Eighth Circuit Manual of Model Jury Instructions – Criminal, Instruction 3.11 (2003).

                                          -4-
      before an appellate court can correct an error not raised at trial, there
      must be (1) error, (2) that is plain, and (3) that affects substantial rights.
      If all three conditions are met, an appellate court may exercise its
      discretion to notice a forfeited error, but only if (4) the error seriously
      affects the fairness, integrity, or public reputation of judicial
      proceedings.

Id. at 7 (quoting Johnson v. United States, 520 U.S. 461, 466–67 (1997)). The burden
is on Patterson to prove plain error. Id. at 8. "Appellate review under the plain-error
doctrine, of course, is circumscribed and we exercise our power under Rule 52(b)
sparingly." Jones v. United States, 527 U.S. 373, 389 (1999).

       Patterson first argues that his Sixth Amendment rights were violated when the
District Court based his sentence, in part, on prior convictions that were not charged
in the indictment or found by a jury. Patterson argues that the Supreme Court's
decision in Almendarez-Torres v. United States, 523 U.S. 224 (1998), ruling that a
prior conviction is a sentencing factor for the court rather than a fact issue for the
jury, has been undermined by Apprendi v. New Jersey, 530 U.S. 466 (2000), and
Blakely v. Washington, 124 S. Ct. 2531 (2004). To the contrary, the Supreme Court
reaffirmed the Almendarez-Torres principle in Booker, 125 S. Ct. at 756, noting that
the fact of "a prior conviction" need not be admitted by the defendant or proved to a
jury beyond a reasonable doubt. See also Shepard v. United States, 125 S. Ct. 1254,
1264 (2005) (Thomas J., concurring) (noting that the Court has not reconsidered its
decision in Almendarez-Torres). Patterson also argues that categorizing a prior
conviction as a "violent felony" requires a factual finding beyond simply finding a
prior conviction. But we previously have rejected the argument that the nature of a
prior conviction is to be treated differently from the fact of a prior conviction. United
States v. Kempis-Bonola, 287 F.3d 699, 703 (8th Cir.), cert. denied, 537 U.S. 914
(2002); United States v. Davis, 260 F.3d 965, 969 (8th Cir. 2001), cert. denied, 534
U.S. 1107 (2002). Once the sentencing court determines that a prior conviction
exists, the characterization of that conviction as a violent felony is a legal matter for

                                           -5-
the court. United States v. Marcussen, 403 F.3d 982, 984 (8th Cir. 2005); United
States v. Nolan, 397 F.3d 665, 667 n.2 (8th Cir. 2005). The District Court did not
commit a Sixth Amendment violation, let alone plain error, when it sentenced
Patterson as an armed career criminal based on his prior convictions for violent
felonies.

       As his second ground for appealing his sentence, Patterson asserts that the
District Court committed plain error in sentencing him under a mandatory guidelines
scheme. As Patterson notes, the Supreme Court in Booker held that the mandatory
nature of the United States Sentencing Guidelines ran afoul of the Sixth Amendment
insofar as a sentencing judge, based on certain facts found by the judge, was required
to impose a more severe sentence than could have been imposed based on facts found
by the jury or admitted by the defendant. 125 S. Ct. at 749. Because of Booker's
further holding that the constitutional parts of the guidelines could not be saved by
severing them from the parts that cannot be mandatorily applied without violating the
Sixth Amendment, the Court declared the entirety of the guidelines "effectively
advisory." Id. at 757. The effect of this remedy is a guidelines system in which
sentencing judges continue to "take account of the Guidelines together with other
sentencing goals" enumerated in 18 U.S.C. § 3553(a). Id. at 764.

       Patterson argues that the District Court's application of the guidelines as
mandatory "violates the Booker remedy of 'advisory' guidelines." Supp. Br. of
Appellant at 7. As in Pirani, it is undisputed in this case that the first two Olano
factors are satisfied: "The district court (understandably) committed Booker error by
applying the Guidelines as mandatory, and the error is plain, that is, clear or obvious,
at this time." Pirani, slip op. at 8. To prove the third Olano factor, however,
Patterson has the burden of demonstrating, based on the appellate record as a whole,
that there is a "reasonable probability that, but for Booker error, [he] would have
received a more favorable sentence under an advisory guidelines regime." Id. at 12.
This is a fact-specific inquiry. Id.

                                          -6-
       In an attempt to meet this heavy burden, Patterson notes that the District Court
imposed a sentence at the bottom of the armed-career-criminal guidelines range. But
our Court has deemed sentencing at the bottom of the range "insufficient, without
more, to demonstrate a reasonable probability that the court would have imposed a
lesser sentence absent the Booker error." Id. Patterson also points to the District
Court's statements at the sentencing hearing that "the legislative branch of
government is severally [sic] tying the hands of the judicial system, right or wrong"
by implementing a mandatory criminal sentencing scheme and that "it is a little bit
unfair" to base an enhancement on Patterson's "aged convictions" that occurred prior
to 1987. Tr. at 304, 305. We note, however, that the District Court stated, in the
same discussion, that "Congress cannot be faulted terribly in a situation like we have
here because . . . one of [the prior convictions involved] a sawed-off shotgun which
to me is a very, very serious problem," while another prior conviction was for
burglary of a residence in which Patterson assaulted the victim. Id. at 304. In these
circumstances, involving serious offenses, we cannot say there is a reasonable
probability that the District Court would have imposed a more favorable sentence but
for the Booker error.

       Because Patterson has not met his burden of showing a reasonable probability
of prejudice, our inquiry ends and we do not reach the fourth Olano factor. See
Pirani, slip op. at 13. Patterson's sentence is upheld.

      The judgment of the District Court is affirmed.
                     ______________________________




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