          Case: 13-12190   Date Filed: 02/10/2014   Page: 1 of 10


                                                         [DO NOT PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________


                            No. 13-12190
                        Non-Argument Calendar
                      ________________________

              D.C. Docket No. 3:10-cr-00191-TJC-MCR-1


UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee


                                 versus



WILLIE LEE DANIELS,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                           (February 10, 2014)
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Before TJOFLAT, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:

      A jury found Willie Lee Daniels guilty of possession of a firearm by a

convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and was

sentenced as an armed career criminal to a prison term of 180 months. He appeals

his conviction and sentence. He challenges his conviction on the grounds that: (1)

the district court erred in denying his motion to suppress the firearm; (2) the court

abused its discretion in admitting an anonymous 911 call into evidence; (3)

admitting the 911 call into evidence violated his rights under the Confrontation

Clause; (4) the evidence was insufficient to support his conviction; and the (5) the

court abused its discretion in denying his motion for a new trial. He challenges his

sentence on the ground that the court erroneously based it in part on finding that

his prior conviction for aggravated fleeing and eluding constituted a violent felony

under the Armed Career Criminal Act (“ACCA”). We address in turn the

challenges to Daniel’s conviction and sentence.

                                          I.

      Motion to suppress.

       “As rulings on motions to suppress involve mixed questions of fact and law,

the district court's factual findings are reviewed under the clearly erroneous




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standard, while that court’s application of the law is subject to de novo review.”

United States v. Ramos, 12 F.3d 1019, 1022 (11th Cir. 1994).

      In challenging a search under the Fourth Amendment, the defendant bears

the burden of establishing “both a subjective and an objective expectation of

privacy” in the area or object searched. United States v. Segura-Baltazar, 448 F.3d

1281, 1286 (11th Cir. 2006). “The subjective component requires that a person

exhibit an actual expectation of privacy, while the objective component requires

that the privacy expectation be one that society is prepared to recognize as

reasonable.” Id. “[O]nly individuals who actually enjoy the reasonable

expectation of privacy have standing to challenge the validity of a government

search.” United States v. King, 509 F.3d 1338, 1341 (11th Cir. 2007).

      The facts giving rise to Daniel’s motion to suppress as established at the

suppression hearing. Officer Hudson received a call from the police dispatcher, who

was responding to a 911 call, stating that a man was chasing a woman at gunpoint at an

apartment complex. He drove to and into the complex, without siren or lights

activated, and once inside the complex, he observed Daniels and a woman, later

identified as Clarissa Watson, walking toward his patrol car. Although Daniels and

Watson fit the dispatcher’s description of the individuals referred to in the 911 call,

to Hudson they “look[ed] apparently normal” and “casual.” He was therefore

“puzzled” and did not confront them. When he made eye contact with them,

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however, Daniels turned and ran around the corner of a nearby building. Hudson

became suspicious that Daniels could be the man with the gun, so he drove toward

Watson, exited his vehicle, and directed her to the ground, and radioed for backup.

At this point, Daniels returned from around the corner of the building; he had been

gone for only a few seconds.

       After arresting Daniels, Hudson went around the corner of the building where

Daniels had disappeared and found a privacy fence. Looking over the top of the

fence, he saw a semiautomatic pistol, which he retrieved. That was the firearm

described in Daniels’s indictment.

       At the suppression hearing, Daniels testified that he had been standing beside

Watson when Hudson ordered her to the ground. Because Hudson ordered her to the

ground at gunpoint, he “compl[ied].” He testified that he had never possessed a gun

that day, that he had seen the gun that he was charged with possessing only in

photographs, and that he had not gone behind the building or thrown anything over

the fence.

       The district court, crediting Hudson’s testimony and rejecting Daniels’s, denied

Daniels’s motion to suppress on the ground that he lacked standing under the Fourth

Amendment. We conclude that the ruling did not constitute an abuse of discretion;

Daniels, having denied seeing or possessing the firearm, did not have an expectation of

privacy.


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      The 911 call.

      We review trial court rulings admitting hearsay into evidence for abuse of

discretion, United States v. Miles, 290 F.3d 1341, 1351 (11th Cir. 2002), and will

not reverse an erroneous evidentiary ruling unless “there is a reasonable likelihood

that [it] affected the defendant’s substantial rights.” United States v. Hawkins, 905

F.2d 1489, 1493 (11th Cir. 1990). “Hearsay” means a statement that: (1) is made

by the declarant outside the current trial or hearing; and (2) is offered into evidence

by a party to prove the truth of the matter asserted in the statement. Fed.R.Evid.

801(c). Hearsay is not admissible unless specifically excepted by statute or rule.

Fed.R.Evid. 802. Federal Rule of Evidence 803(1) provides that statements

“describing or explaining an event or condition, made while or immediately after

the declarant perceived it,” also known as “present sense impressions,” are

exceptions to the rule against hearsay. Fed.R.Evid. 803(1); see United States v.

Scrima, 819 F.2d 996, 1000 (11th Cir. 1987).

      The district court did not abuse its discretion in admitting the anonymous

911 call because the statements constituted an exception to hearsay as the present

sense impressions of the caller.

      The 911 call and the Confrontation Clause.


      We review de novo the question of whether statements are “testimonial” for

purposes of the Confrontation Clause. United States v. Lamons, 532 F.3d 1251,
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1261 n. 15 (11th Cir. 2008). The Sixth Amendment protects an accused’s right, in

a criminal prosecution, to “be confronted with the witnesses against him.” U.S.

Const. amend. VI. The Clause’s protection applies to testimonial statements,

which may include statements taken by police during interrogations. Crawford v.

Washington, 541 U.S. 36, 51-52, 124 S.Ct. 1354, 1364, 158 L.Ed.2d 177 (2004). .

      The Supreme Court has distinguished between nontestimonial and

testimonial statements in this manner:


      Statements are nontestimonial when made in the course of police
      interrogation under circumstances objectively indicating that the
      primary purpose of the interrogation is to enable police assistance to
      meet an ongoing emergency. They are testimonial when the
      circumstances objectively indicate that there is no such ongoing
      emergency, and that the primary purpose of the interrogation is to
      establish or prove past events potentially relevant to later criminal
      prosecution.

Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 2273-74, 165 L.Ed.2d

224 (2006).

      The admission of the 911 call into evidence did not infringe Daniels’s rights

under the Confrontation Clause because the caller’s statements were

nontestimonial; their primary purpose was to enable the police to meet an ongoing

emergency.

      Sufficiency of the evidence.




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      We review the sufficiency of the evidence de novo. United States v.

Maxwell, 579 F.3d 1282, 1299 (11th Cir. 2009). In determining whether there is

sufficient evidence to support a conviction, we “view the evidence in the light most

favorable to the government and decide whether a reasonable fact finder could

have reached a conclusion of guilt beyond a reasonable doubt.” United States v.

Herrera, 931 F.2d 761, 762 (11th Cir. 1991). “Credibility determinations are the

exclusive province of the jury.” United States v. Parrado, 911 F.2d 1567, 1571

(11th Cir. 1990). We draw all reasonable inferences tending to support the

prosecution’s case and assume that the jury made all credibility choices in support

of the verdict. Maxwell, 579 F.3d at 1299.

      To obtain a conviction for being a felon in possession of a firearm, the

government must prove that (1) the defendant was a convicted felon, (2) the

defendant knowingly possessed a firearm, and (3) the firearm was in or affecting

interstate commerce. 18 U.S.C. § 922(g)(1); United States v. Deleveaux, 205 F.3d

1292, 1296-97 (11th Cir. 2000). “Possession can be shown by circumstantial as

well as direct evidence.” Crawford, 906 F.2d at 1535.

      There was sufficient evidence to support Daniels’s conviction for possession

of a firearm by a convicted felon. Daniels’s girlfriend, Watson, testified that

Daniels took a gun from her dresser and later got rid of the gun behind a building




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in their apartment complex. Officer Hudson recovered a gun near that location,

and Watson identified it as the gun Daniels took from her apartment.

      Motion for new trial.

      A district court’s denial of a motion for a new trial is reviewed for abuse of

discretion. United States v. Perez-Oliveros, 479 F.3d 779, 782 (11th Cir. 2007). In

evaluating a motion for a new trial, the district court “may weigh the evidence and

consider the credibility of the witnesses.” United States v. Martinez, 763 F.2d

1297, 1312 (11th Cir. 1985). However, “[t]he court may not reweigh the evidence

and set aside the verdict simply because it feels some other result would be more

reasonable.” Id. at 1312-13. If the court concludes that the evidence

preponderates sufficiently heavily against the verdict that a serious miscarriage of

justice may have occurred, the court may set aside the verdict, grant a new trial,

and submit the issues for determination by another jury. Id. at 1312. Motions for

new trials based on the weight of the evidence are not favored and are granted

“sparingly,” “with caution,” and only in “exceptional cases.” Id. at 1313.

      The district court did not abuse its discretion in denying Daniels’s motion

for a new trial. The evidence of guilt was strong and did not preponderate heavily

against the verdict.

                                         II.

      The Sentence: Aggravated Fleeing and Eluding under the ACCA.


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      Whether a defendant’s prior conviction qualifies as a violent felony under

the ACCA is a question of law that we review de novo. United States v. Petite,

703 F.3d 1290, 1292 (11th Cir. 2013). The ACCA defines a “violent felony” as

“any crime punishable by imprisonment for a term exceeding one year” that . . . “is

burglary, arson, or extortion, involves use of explosives, or otherwise involves

conduct that presents a serious potential risk of physical injury to another.” 18

U.S.C. § 924(e)(2)(B).

      Under Florida Statute § 316.1935(1), simple fleeing and eluding occurs

when “any person . . . willfully flees or attempts to elude law enforcement in an

authorized law enforcement patrol vehicle.” Fla. Stat. § 316.1935(1). Under

Florida Statute § 316.1935(4), a person commits aggravated fleeing or eluding

when that person:

      in the course of unlawfully leaving or attempting to leave the scene of
      a crash . . . , having knowledge of an order to stop by a duly
      authorized law enforcement officer, willfully refuses or fails to stop in
      compliance with such an order, or having stopped in knowing
      compliance with such order, willfully flees in an attempt to elude such
      officer and, as a result of such fleeing or eluding: (a) causes injury to
      another person or causes damages to any property belonging to
      another person . . . or . . . (b) causes serious bodily injury or death to
      another person.

Fla. Stat. § 316.1935(4). In United States v. Petite, we addressed the issue of

whether the Florida offense of simple fleeing and eluding constitutes a violent

felony. 703 F.3d 1290, 1301 (11th Cir. 2013). We concluded that, in light of the


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Supreme Court’s detailed analysis in Sykes v. United States, __ U.S. __, 131 S.Ct.

2267, 180 L.Ed.2d 60 (2011), regarding the substantial risks inherent in any

confrontational act of intentional vehicle flight, simple vehicle flight presented a

serious risk of physical injury. Id.

      In light of our prior determination that the Florida offense of simple fleeing

and eluding presents a potential risk of injury and constitutes a violent felony, the

significantly more serious Florida offense of aggravated fleeing and eluding also

constitutes a violent felony.

                                               III.

      For the foregoing reasons, Daniels’s conviction and sentence are

      AFFIRMED.




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