                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 04-1034
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Eastern District of Missouri.
Rasheen Johnson,                         *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: January 11, 2005
                                 Filed: June 17, 2005
                                  ___________

Before MELLOY, SMITH, and COLLOTON, Circuit Judges.
                           ___________

COLLOTON, Circuit Judge.

        Rasheen Johnson challenges the district court’s1 delivery of an Allen charge,
see Allen v. United States, 164 U.S. 492, 501 (1896), during jury deliberations in his
trial for unlawful possession of a firearm as a previously convicted felon, in violation
of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He also asserts that his sentence of 90
months’ imprisonment was imposed in violation of the Sixth Amendment. We
conclude that Johnson is not entitled to a new trial or to resentencing, and we affirm.


      1
       The Honorable Charles A. Shaw, United States District Judge for the Eastern
District of Missouri.
                                           I.

       The Allen charge draws its name from a Supreme Court decision upholding a
district court’s instruction to deliberating jurors that although they should not simply
acquiesce in a verdict, their duty is to arrive at a verdict if they can conscientiously
do so, and they ought to listen to each other’s arguments with a disposition to be
convinced. Allen, 164 U.S. at 501. An Allen charge is thus “‘a supplemental jury
instruction that advises deadlocked jurors to reconsider their positions.’” United
States v. Walrath, 324 F.3d 966, 970 (8th Cir. 2003) (quoting United States v.
Glauning, 211 F.3d 1085, 1086 n.2 (8th Cir. 2000)). The particular language with
which the district court instructed Johnson’s jury was the Eighth Circuit model Allen
charge, and Johnson does not assert on appeal that any error arises from the district
court’s choice of wording, which we have approved. United States v. Thomas, 946
F.2d 73, 76 (8th Cir. 1991); see Judicial Committee on Model Jury Instructions for
the Eighth Circuit, Manual of Model Criminal Jury Instructions for the District
Courts of the Eighth Circuit, § 10.02, at 479 (2002).

       Johnson does argue, however, that the district court erred by issuing an Allen
charge after only a few hours of jury deliberation, and that in the context of this case,
the charge had the effect of coercing the jury into returning a guilty verdict. He
contends that the court’s decision to give the supplemental instruction constitutes a
violation of his rights to due process and trial by jury under the Fifth and Sixth
Amendments, and requests a remand for a new trial.

      Johnson was tried on the felon-in-possession charge in July 2003, but the jury
could not reach a verdict. A second trial commenced in October 2003 and lasted just
over two days. Following closing arguments, the jury deliberated for slightly over
two hours, took a break, and then deliberated for approximately two more hours. At
that point, the foreperson sent a note advising the district court that the jury had



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reached an impasse, and after hearing from counsel, the district court issued the Allen
charge.

      The jury deliberated for another forty minutes and then took another break.
During this break, while in open court, a juror asked the district court typically how
long deliberations take, to which the court responded “there is no set time.” The juror
then asked how long deliberations could last, and the court indicated that the jury
could take as much time as it needed. After that break, the jury deliberated for
approximately two more hours before reaching a verdict.

       In determining the ultimate question whether a particular Allen charge is
impermissibly coercive, we consider what the record shows concerning the content
of the instruction, the length of deliberation after the Allen charge, the total length of
the deliberations, and any indicia in the record of coercion or pressure on the jury.
E.g., Thomas, 946 F.2d at 76. Examining these considerations in this case leads us
to conclude that the district court committed no error.

       As noted, there is no complaint about the content of the instruction in this case.
The jury deliberated for approximately 2 ½ hours after the district court administered
the Allen instruction, a period of time that we have concluded is not indicative of
coercive effect. See Glauning, 211 F.3d at 1087 (holding that jury’s 2 hours of
deliberation after Allen charge raised no inference of coercion); Thomas, 946 F.2d at
76 (same where jury deliberated 1½ to 2 hours after Allen instruction); United States
v. Young, 702 F.2d 133, 136 (8th Cir. 1983) (same with 2 hours of jury deliberation
after Allen instruction); United States v. Smith, 635 F.2d 716, 721 (8th Cir. 1980)
(same with 45 minutes of jury deliberation after Allen instruction); United States v.
Warfield, 97 F.3d 1014, 1022 (8th Cir. 1996) (concluding that 1 hour of jury
deliberation after Allen instruction, “while somewhat expeditious,” does not raise an
inference of coercion). The total length of deliberations in this case, approximately
6 hours, also fails to demonstrate coercive effect. See United States v. Johnson, 114

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F.3d 808, 815 (1997) (holding that 6½ hours of deliberation following a 5½-day trial
was “a period of time that was clearly not so disproportionate as to raise an inference
that the Allen charge coerced the jury”); United States v. Cook, 663 F.2d 808, 811
(8th Cir. 1981) (holding that a total of 6 to 7 hours of deliberation after a 2-day trial
did not indicate coercion); Smith, 635 F.2d at 722 (holding that 4 hours of
deliberation following a 2-day trial was not so disproportionate as to indicate
coercion).

       There are no other indicia of coercion or pressure on the jury in this record. To
the contrary, the district court explicitly told the jury that there was no set time limit
for deliberations and to “take as much time as you need.” The court advised the jury
to reach a verdict only if each member of the jury could conscientiously do so. We
conclude that the Allen charge was administered appropriately, and there was no
violation of Johnson’s constitutional rights.

                                           II.

       Johnson’s brief also argues that the sentence imposed by the district court
violated his Sixth Amendment rights under Blakely v. Washington, 124 S. Ct. 2531
(2004), because the district court, rather than a jury, made findings of fact that
resulted in sentencing enhancements. Since then, the Supreme Court has decided
United States v. Booker, 125 S.Ct. 738 (2005), which held that application of the
mandatory guidelines violated the Sixth Amendment in certain instances, and, as a
remedy, declared the guidelines effectively advisory in all cases.

       Johnson’s base offense level was determined according to USSG
§ 2K2.1(a)(4)(A), which provides that where “the defendant committed any part of
the instant offense subsequent to sustaining one felony conviction of either a crime
of violence or a controlled substance offense,” his base offense level for unlawful
possession of a firearm is 20. The district court applied this section based on

                                           -4-
evidence that Johnson was convicted of first-degree robbery and first-degree
attempted robbery in Missouri in 1996. Johnson argues that the court’s consideration
of the 1996 conviction to establish his base offense level violated the Sixth
Amendment because a jury never determined whether he did in fact have a prior
robbery conviction. This contention fails, because Johnson admitted the fact of
conviction by failing to object to its recitation in the presentence report, see United
States v. Johnson, 2005 WL 1250323, at *4 (8th Cir. May 27, 2005), and in any
event, the Sixth Amendment does not require that the fact of a prior conviction be
determined by a jury. Booker, 125 S. Ct. at 756; United States v. Marcussen, 403
F.3d 982, 984 (8th Cir. 2005).

       Johnson also objects to the determination of his base offense level because
even if the district court properly determined that he was convicted of robbery in
1996, a jury was required to determine whether that robbery was a “crime of
violence” and a “prior felony conviction” within the meaning of § 2K2.1(a)(4)(A).
We reject this contention because once the sentencing court determines that a prior
conviction exists, the characterization of that conviction as a crime of violence or
prior felony conviction is a legal matter for the court, United States v. Patterson, 2005
WL 1123555, at *2 (8th Cir. May 13, 2005), and the court made the correct
determinations. See USSG § 2K2.1, cmt. (n.1) (“‘Crime of violence’ has the meaning
given that term in §4B1.2(a) and Application Note 1 of the Commentary to
§ 4B1.2.”); id. § 4B1.2, cmt. (n.1) (“‘Crime of violence’ includes . . . robbery”); id.
§ 2K2.1, cmt. (n.1) (“‘Prior felony conviction’ means a prior adult federal or state
conviction for an offense punishable by death or imprisonment for a term exceeding
one year.”); Mo. Rev. Stat. §§ 569.020, 558.011 (providing that first degree robbery
is a class A felony and punishable by “a sentence not to exceed 30 years, or life
imprisonment”).

      Johnson next contends that the district court violated the Sixth Amendment by
applying a two-level enhancement, pursuant to USSG § 2K2.1(b)(4), based on a

                                          -5-
finding that the firearm had an obliterated serial number. Johnson lodged no
objection to the factual conclusion in the presentence report that “the defendant was
in possession of a firearm which had its serial number obliterated,” (PSR ¶ 13), so
again the district court’s reliance on this admission poses no constitutional problem.
Booker, 125 S. Ct. at 756.

       Johnson has not raised a claim of non-constitutional error based on the district
court’s application of the mandatory sentencing guidelines, and he has not argued that
his sentence was unreasonable with regard to 18 U.S.C. § 3553(a). See Booker, 125
S. Ct. at 765-66. We note that the district court sentenced Johnson in the middle of
the applicable guideline range, after reciting several convictions sustained by Johnson
between ages 17 and 20, and remarking that “you just won’t quit,” “you need to wake
up at some point in time,” and “you need some time to figure this out.” (S. Tr. at 6-7).

      The judgment of the district court is affirmed.
                     ______________________________




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