                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 18-2017
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                                   Rico V. Gilliam

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

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

                             Submitted: April 17, 2019
                              Filed: August 20, 2019
                                  ____________

Before SMITH, Chief Judge, KELLY and KOBES, Circuit Judges.
                              ____________

SMITH, Chief Judge.

      Rico Gilliam was convicted by a jury on two counts of being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and
sentenced to two consecutive 90-month imprisonment terms. On appeal, he argues
four points: that he was charged with multiplicitous crimes in error, that prejudicial
hearsay was admitted at trial, that his criminal history category was miscalculated,
and that a prior Missouri second-degree robbery conviction should not have counted
as a crime of violence when calculating his Guidelines base offense level. Finding no
error, we affirm the district court.1

                                      I. Background
       On October 17, 2014, near midnight, Harding “Pops” Jeffrey called Gilliam to
his residence. Jeffrey called Gilliam because he was concerned for his own safety
following the angry departure—and likely return—of an intoxicated Joe Scrivo. Carla
Offield was also present at Jeffrey’s apartment. Scrivo returned and began arguing
with Gilliam. Gilliam drew a .40 caliber Glock Model 23 from his waistband and
fired three times. The third shot hit Scrivo in the leg. Scrivo left, reported the incident
to the police, and told them that Gilliam shot him.

       After shooting Scrivo, Gilliam fled Jeffrey’s residence but left the gun there.
Witness accounts differ, but apparently Gilliam either threw the gun on the couch or
handed it to Jeffrey before he left. Afterward, Jeffrey picked up the shell casings he
could find and then took the gun to Donna Bailey’s apartment, known by
acquaintances as “the funny farm.”2 Trial Tr., Vol I., at 60, United States v. Gilliam,
No. 4:15-cr-00354-BP (W.D. Mo. May 22, 2018), ECF No. 78. Police investigating
the disturbance at Jeffrey’s residence found a .40 caliber shell casing that had been
fired from the gun.




       1
      The Honorable Beth Phillips, Chief Judge, United States District Court for the
Western District of Missouri.
       2
       Gilliam argues in his brief that parts of the record support the possibility that
Gilliam left with Jeffrey and the gun, and that Jeffrey took both him and the gun to
the Bailey’s apartment. But this contention was a misstatement by the prosecutor in
closing argument at trial; the record and testimony reflect that Gilliam left, alone and
to an unknown destination, after leaving the gun.

                                           -2-
      On November 6, 2014, a confidential informant relayed to Kansas City,
Missouri Police Detective Brandon Bray that Gilliam, now with an outstanding arrest
warrant, was staying at Bailey’s apartment. Detective Bray began watching the
apartment and confirmed Gilliam’s presence. Detective Bray knocked at the
apartment door and spoke to Bailey. Bailey acknowledged that Gilliam was inside the
apartment and that he had a gun. Detective Bray then instructed everyone to leave.
Gilliam refused. Because of Gilliam’s refusal, Detective Bray called for tactical
backup and directed that a downstairs apartment be evacuated for occupant safety.
The apartment’s occupants reported to Detective Bray that Gilliam had a gun. About
30 minutes later, Gilliam voluntarily came out of the apartment and surrendered. He
was unarmed and coated with drywall and insulation.

      Bailey consented to a search of her apartment. Once inside, law enforcement
observed a hole in the ceiling in one room, next to the attic access. It appeared as
though someone had fallen through the ceiling. Officers observed a pile of clothes
coated in drywall dust beneath the hole. Bailey told officers the ceiling had no hole
before she left the apartment. In the attic, officers found a handgun—the same
handgun used to shoot Scrivo—underneath some insulation.

       After his arrest, Gilliam admitted to shooting Scrivo at Jeffrey’s house but
denied possessing the handgun after he gave it to Jeffrey. Gilliam was charged with
two counts of being a felon in possession of a firearm for the shooting at Jeffrey’s
house and for possessing the weapon again at Bailey’s apartment. While in prison
awaiting trial, Gilliam spoke to April Calvillo. The call was recorded. Gilliam
instructed Calvillo to write a letter to the prosecutor explaining that she hid the gun
in the attic at Bailey’s apartment two days before Gilliam’s arrest. Calvillo did as
directed.

      At trial, Detective Bray testified on direct examination about evacuating the
neighbors below Bailey’s apartment as a precaution in case of gunfire in the building.

                                         -3-
Without a question from the prosecution, Detective Bray volunteered that he “was
also advised by people inside that place that [Gilliam] had a gun possibly on him.”
Trial Tr., Vol. II, at 14, United States v. Gilliam, No. 4:15-cr-354-BP (W.D. Mo. May
22, 2018), ECF No. 79. Gilliam objected to the hearsay. The court overruled
Gilliam’s objection. The court agreed with Gilliam that the response was hearsay, but
it determined the statement was unintentional and not so prejudicial that an
instruction to the jury to disregard it was necessary.

       At the conclusion of trial, the jury found Gilliam guilty of both counts. At
sentencing, after hearing objections, the district court adopted the presentence
investigation report (PSR) and its recommended total offense level of 30. This
calculation was based in part on Gilliam having two prior crime-of-violence
convictions. The district court sentenced Gilliam to a total of 180 months’
imprisonment.

                                    II. Discussion
       Gilliam appeals the judgment and the sentence. He argues that the district court
(1) plainly erred by not merging his firearm possession counts; (2) erred by admitting
Detective Bray’s hearsay concerning the neighbors’ statements that Gilliam had a
gun; (3) miscalculated Gilliam’s criminal history score, resulting in a higher sentence;
and (4) miscalculated Gilliam’s Guidelines base offense level because one of his prior
convictions was not a crime of violence.

                                      A. Multiplicity
        Gilliam first argues that the district court plainly erred by not merging the two
firearm possession counts into a single count. Gilliam can prevail on this argument
if he shows either (1) that he did not possess the firearm at Bailey’s apartment, or (2)
that even if he did possess the gun, his possession had been continuous from the time
he shot Scrivo at Jeffrey’s apartment. See United States v. Woolsey, 759 F.3d 905,
908 (8th Cir. 2014). We review only for plain error because Gilliam raises this

                                          -4-
argument for the first time on appeal.3 See id. at 907. Gilliam must prove under plain
error review “that the district court committed an error that is plain, i.e., clear under
current law, that he was prejudiced by the error, and that the error seriously affects
the fairness, integrity, or public reputation of judicial proceedings.” United States v.
Delgado, 653 F.3d 729, 735 (8th Cir. 2011).

                              1. Two Dates of Possession
       Gilliam argues that the government failed to prove two separate possessions.
“[W]here the prosecution seeks more than one charge under section 922(g), separate
acquisition and storage of the weapons is an element of the crimes charged.” Woolsey,
759 F.3d at 908 (internal quotation omitted). Gilliam admits to possessing the gun at
Jeffrey’s apartment, but he asserts that the government did not produce enough
evidence at trial to support a finding that he possessed the gun at Bailey’s apartment.
He contends that firearm possession ended after he shot Scrivo and left the gun at
Jeffrey’s apartment.

       The government presented sufficient evidence from which a reasonable jury
could find that Gilliam possessed the gun at Bailey’s apartment. The evidence is
circumstantial but nonetheless convincing. “Evidence that [Gilliam] used the firearm
previously is highly probative of his ownership or subsequent control over it.” United
States v. Battle, 774 F.3d 504, 511 (8th Cir. 2014). When Detective Bray asked Bailey
if Gilliam had a gun, she said that he did. When Gilliam eventually surrendered by

      3
       The government argues that Gilliam has waived this claim because Federal
Rule of Criminal Procedure 12(b)(3) requires that a motion based on multiplicity be
sought before trial if “the motion can be determined without a trial on the merits.”
Here, the motion would not have been proper because it was bound up in facts that
required jury determination; therefore, Gilliam did not waive his claim by not making
the Rule 12 motion prior to trial. See United States v. Turner, 842 F.3d 602, 604 (8th
Cir. 2016) (“A motion is capable of pretrial determination if trial of the facts
surrounding the commission of the alleged offense would be of no assistance in
determining the validity of the motion.” (internal quotation omitted)).

                                          -5-
coming out of the apartment, he had drywall dust and insulation on him. This
evidence strongly links him to the previously nonexistent hole in the drywall ceiling
and the insulation pile in the attic under which the gun was found. Additionally, the
government introduced Gilliam’s phone call to Calvillo from jail, in which he
instructed Calvillo to take responsibility for possessing the gun. A reasonable jury
could have concluded Gilliam possessed the gun while at Bailey’s apartment.

                             2. Continuous Possession
      Gilliam’s alternative argument is that even if he possessed the gun on two
occasions, the government never proved that his possession of the firearm was
broken. He contends the government proved only that he possessed the firearm one
time until his arrest because he kept continuous possession. “[T]he continuous
possession of the same firearm constitutes a single offense.” United States v. Jones,
403 F.3d 604, 606 (8th Cir. 2005). If Gilliam was in continuous possession of the
gun, he can only be subjected to one count. See id.

       Possession “may be actual or constructive.” Id. In this case, Gilliam did not
have actual continuous possession because he surrendered physical control when he
placed the gun in Jeffrey’s care after shooting Scrivo. Cf. id. (stating that officer
taking gun from defendant to check its ownership “may have caused [the defendant]
to lose actual possession of the weapon”).

      Constructive possession means that a person “has ownership, dominion or
control over the [firearm] itself, or dominion over the premises in which the [firearm]
is concealed.” United States v. Brett, 872 F.2d 1365, 1369 (8th Cir. 1989) (internal
quotation omitted). To succeed, therefore, Gilliam must show that he somehow
maintained “ownership, dominion or control” over the firearm during the entirety of
events in this case. See id.




                                         -6-
       Gilliam has made no such showing. When he left Jeffrey’s apartment, he gave
no instruction for the gun’s transport or disposition. There are no facts in the record
to demonstrate that Gilliam knew where the gun would be after leaving Jeffrey’s
apartment or controlled how it would arrive to any new location. See, e.g., United
States v. Ellis, 622 F.3d 784, 794 (7th Cir. 2010) (intentionally directing the actions
of a person with physical possession of a known firearm constitutes constructive
possession of the firearm). Gilliam essentially asserts that the lack of evidence about
what the gun was doing during the interim of its two appearances means that the
government failed to establish a definitive break in possession. The evidence places
Gilliam in possession of the same firearm in different locations and on different days
with the weapon in someone else’s (Jeffrey’s) exclusive possession for at least some
period of time in the interim. There are no contrary facts, only Gilliam’s phone call
seeking false testimony from a friend about the weapon’s possession. Gilliam did not
constructively possess the firearm after leaving it at Jeffrey’s because he had no
dominion over Jeffrey’s apartment. Gilliam also had no dominion over Bailey’s
apartment. No evidence in the record suggests otherwise. The district court did not
commit plain error by not merging his firearm possession counts.4

                                     B. Hearsay
        Gilliam’s second point on appeal is that the district court erred by refusing to
instruct the jury to disregard Detective Bray’s testimony that the occupants of a
neighboring apartment also commented about Gilliam’s gun possession. The
prosecutor questioned Detective Bray about whether, before the tactical squad
arrived, he had “contact[ed] any residents of any other apartments?” Trial Tr., Vol.
II, at 14. Detective Bray responded that he “was also advised by people inside [the
downstairs apartment] that [Gilliam] had a gun possibly on him.” Id.



      4
       Gilliam does not challenge the district court’s failure to instruct the jury on
multiplicity, and therefore we express no opinion on the issue.

                                          -7-
       Gilliam objected to the statement on hearsay grounds. The district court agreed
with the hearsay assessment, but it declined to tell the jury to disregard the statement,
saying, “I don’t think it’s gotten to that point yet.” Id. at 15. “This court reviews a
district court’s evidentiary rulings for abuse of discretion.” United States v. DeMarce,
564 F.3d 989, 995 (8th Cir. 2009).

       According to Rule 801(c) of the Federal Rules of Evidence, “‘hearsay’ means
a statement that: (1) the declarant does not make while testifying at the current trial
or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted
in the statement.” Detective Bray’s testimony meets this definition of hearsay. The
record does not show that it was admitted under any exception to Rule 801.

       Because no hearsay exception applies, the district court abused its discretion
in declining to tell the jury to disregard the statement. See DeMarce, 564 F.3d at 997.
But we “will not reverse an erroneous evidentiary ruling if the error was harmless.”
Id. (internal quotation omitted). “An evidentiary error is harmless when, after
reviewing the entire record, this court determines that the substantial rights of the
defendant were unaffected, and that the error did not influence or had only a slight
influence on the verdict.” Id. “[I]mproper admission of evidence which is cumulative
of matters shown by admissible evidence is harmless error.” United States v. King,
898 F.3d 797, 807 (8th Cir. 2018) (internal quotation omitted).

       The government presented several other significant pieces of evidence to
demonstrate that Gilliam possessed the firearm at Bailey’s apartment. See supra
Section II.A.1. The downstairs neighbors’ statements about Gilliam having the gun
were therefore cumulative and not so prejudicial as to affect Gilliam’s substantial
rights. See King, 898 F.3d at 806–07. The testimony’s admission was harmless error.




                                          -8-
                           C. Criminal History Calculation
                     1. Crime-of-Violence Criminal History Point
       Third, Gilliam argues that the district court erred at sentencing when
calculating his criminal history score. We review the district court’s calculation only
for plain error because Gilliam did not object to the calculation. See Woolsey, 759
F.3d at 907. Gilliam carries the burden to prove the error was prejudicial to him and
that there is “a ‘reasonable probability’ that the district court would have imposed a
more favorable sentence” but for the calculation error. United States v. Pirani, 406
F.3d 543, 547 (8th Cir. 2005) (en banc).

      The PSR assigned Gilliam a criminal history score of 13. Among these points,
Gilliam received four criminal history points based on four prior Missouri convictions
stemming from his arrest on July 4, 2002. These convictions included: (1) first-degree
burglary (ten years’ imprisonment); (2) armed criminal action relating to the burglary
(three years’ imprisonment); (3) attempted first-degree robbery (ten years’
imprisonment); and (4) armed criminal action relating to the robbery (three years’
imprisonment). Gilliam’s sentences ran concurrently. The PSR cited U.S.S.G.
§§ 4A1.1(a) and 4A1.1(e) in support of the four criminal history points; however, the
PSR did not state which convictions received the designated points. The district court
adopted the PSR without modification.

       Section 4A1.1(a) provides that three criminal history points must be added “for
each prior sentence of imprisonment exceeding one year and one month.” Gilliam
does not challenge that the sentences he received for his four prior Missouri
convictions should be treated as a single “prior sentence.” See U.S.S.G.
§ 4A1.2(a)(2). Because Gilliam’s “prior sentences are treated as a single sentence”
under § 4A1.1(a), the court is directed to “use the longest sentence of imprisonment
if concurrent sentences were imposed.” Id. In this case, both Gilliam’s first-degree
burglary and attempted first-degree robbery convictions carried ten-year
sentences—“the longest sentence of imprisonment” that Gilliam received. See id. The

                                         -9-
PSR, however, does not state whether it attributed the three criminal history points
to the first-degree burglary sentence or the attempted first-degree robbery sentence.

       Gilliam now claims that the district court erred by including a fourth criminal
history point for this single “prior sentence.” Section 4A1.1(e) provides that one
criminal history point is added “for each prior sentence resulting from a conviction
of a crime of violence that did not receive any points under [§ 4A1.1(a)] . . . because
such sentence was treated as a single sentence.” (Emphasis added.)5 Gilliam’s
conviction for attempted first-degree robbery qualifies as a crime of violence. See
United States v. Shine, 910 F.3d 1061, 1063 (8th Cir. 2018) (holding defendant’s
prior Missouri conviction of attempted first-degree robbery was a “crime of violence”
under U.S.S.G. § 4B1.2(a)).

        Gilliam presumes that the fourth point was applied to his conviction for armed
criminal action, which he argues does not qualify as a crime of violence. However,
it is equally likely that the PSR attributed the first three points under § 4A1.1(a) to
Gilliam’s first-degree burglary conviction and attributed the fourth point to his
attempted first-degree robbery conviction. The PSR does not state either way.
Because the contested fourth point could be added for the first-degree robbery
conviction, Gilliam has not shown that there was an error, much less one that is plain.

                             2. Second Degree Robbery
      Lastly, Gilliam challenges the district court’s conclusion that his conviction for
second-degree robbery in Missouri qualifies as a crime of violence. Our decision in
United States v. Swopes, 886 F.3d 668 (8th Cir. 2018) (en banc), forecloses this
argument. In Swopes, we held that Missouri second-degree robbery constitutes a
crime of violence. Id. at 672.


      5
       “For purposes of this guideline, ‘crime of violence’ has the meaning given that
term in § 4B1.2(a).” Id. § 4A1.1 cmt. n.5.

                                         -10-
                                  III. Conclusion
      For the foregoing reasons, we affirm the judgment of the district court. Gilliam
has not shown that the district court erred by failing to merge his counts for
possession, in calculating his criminal history score, or accepting that his prior
second-degree Missouri robbery was a crime of violence. And any error Gilliam has
shown regarding the admission of hearsay at trial was harmless.
                      ______________________________




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