                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-4434
                                   ___________

United States of America,               *
                                        *
      Plaintiff-Appellee,               *
                                        *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Minnesota.
William Joseph Headbird,                *
                                        *
      Defendant-Appellant.              *
                                   ___________

                             Submitted: June 13, 2006
                                Filed: August 31, 2006
                                 ___________

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

MELLOY, Circuit Judge.

      Following a jury trial, William Joseph Headbird was convicted of one count of
unlawful possession of a firearm as a previously convicted felon, in violation of 18
U.S.C. § 922(g)(1). Applying the Armed Career Criminal Act, 18 U.S.C. § 924(e),
and considering United States Sentencing Guideline Section 4B1.4, the district court1
sentenced Headbird to 327 months’ imprisonment. Headbird appeals. On appeal,
Headbird claims there was insufficient evidence supporting the jury’s verdict,


      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
contends evidence of his prior convictions was erroneously admitted at trial under
Federal Rule of Evidence 609, and alleges a number of flaws regarding the
determination of his sentence. We affirm.

I.    Background

       On January 1, 2005, Headbird attended a party at Lena Morgan’s home in Cass
Lake, Minnesota. A fight broke out at the party and Headbird became involved in the
fracas. Morgan asked Headbird to leave the party; Headbird left, stating he would be
back to “settle it.”

       About ten or fifteen minutes later, Morgan’s home was peppered with gunfire.
Nearby officers heard the gunfire and responded to the scene. Deputy William
Connor arrived about thirty to forty-five seconds after the last shot was fired. Upon
arriving, Deputy Connor observed Headbird holding a long gun. Headbird dropped
the gun by his car when he saw Deputy Connor. Deputy Connor ordered Headbird to
the ground; Headbird ignored the order, cursed at the deputy, and took flight.

       After Deputy Connor apprehended Headbird, he returned to the scene and
recovered a .22 caliber rifle from the location where he had observed Headbird drop
the long gun. Deputy Connor then entered the Morgan home, where he saw at least
thirteen bullet holes in a window and four bullet holes in a door. He recovered four
shell casings, which were found to have cycled through the recovered .22 caliber rifle.

        Subsequent to Headbird’s arrest, he called Amanda Hartgerink from jail on
January 2, 2005. During that call, a tape of which was entered into evidence at trial,
Headbird admitted to getting caught with a gun and shooting up a house the night
before.




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       At trial, Headbird called Dana Moose as an alibi witness. Moose, who was
impeached with his prior felony convictions, testified that Headbird was inside the
house when the shots were fired at Morgan’s home. Headbird also testified, providing
the jury with an alternate account of the evening’s events. Headbird denied shooting
at Morgan’s home, denied possessing or dropping the .22 caliber rifle, stated he ran
from Deputy Cooper because he was frightened, and explained his admissions to
Hartgerink were lies intended to impress her. Over Headbird’s objections, the district
court permitted the government to impeach Headbird with his prior felony
convictions.

       The jury found Headbird guilty of possessing a firearm after previously being
convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). At sentencing, the district
court determined Headbird was subject to the enhanced penalty provisions of the
Armed Career Criminal Act because Headbird had at least three prior convictions for
violent felonies. Additionally, the court found Headbird used or possessed the firearm
in connection with a crime of violence, specifically the shooting of an occupied house.
As a result, Headbird’s advisory guideline range was 262 to 327 months, and the court
imposed a term of 327 months.

II.   Discussion

      A.     Sufficiency of the Evidence

        Headbird appeals the sufficiency of the evidence presented by the government
in support of his conviction for possession of a firearm as a felon, alleging there was
little evidence showing he possessed the firearm in question. Headbird “confronts a
high hurdle with this argument, as we must employ a very strict standard of review on
this issue.” United States v. Spencer, 439 F.3d 905, 913 (8th Cir. 2006) (quotation
omitted). In considering the sufficiency of the evidence, we “view the evidence in the
light most favorable to the government, resolving evidentiary conflicts in favor of the

                                          -3-
government, and accepting all reasonable inferences drawn from the evidence that
support the jury’s verdict.” United States v. Blazek, 431 F.3d 1104, 1107 (8th Cir.
2005) (quotation omitted). We will only reverse if no reasonable jury could have
found Headbird guilty. United States v. Walker, 393 F.3d 842, 846 (8th Cir. 2005).

       To be convicted of being a felon in possession of a firearm a defendant must
have previously been convicted of a crime punishable by imprisonment for more than
one year and must have knowingly possessed a firearm that had been in or affected
interstate commerce. United States v. Brown, 422 F.3d 689, 691-92 (8th Cir. 2005).
At trial, Headbird stipulated that he had been convicted of a felony and that the
firearm in question had traveled in interstate commerce, making possession the only
contested element. Headbird asserts there was insufficient evidence to support the
jury’s conclusion that he possessed the firearm recovered near his car. Considering
the evidence in the light most favorable to the verdict, we conclude that the evidence
is sufficient to support the jury’s conclusion.

       There was more than sufficient evidence presented at trial to demonstrate
Headbird possessed the .22 caliber rifle Deputy Connor recovered. Significantly,
Deputy Connor saw Headbird drop the gun. While Deputy Connor’s testimony at trial
was that he saw Headbird drop what appeared to be a long gun, the fact that Deputy
Connor recovered the .22 caliber rifle – and not a stick or a bat – from the location
where he saw Headbird drop the item reinforces Deputy Connor’s testimony. Further,
Headbird admitted to Hartgerink that he had been caught with a gun. Finally, the
evidence connecting Headbird with the shooting, including the timing between his
departure from the party and the shooting, his statement that he would be back to
“settle it,” his admission to Hartgerink that he shot up a house, and the shells matching
the .22 caliber rifle found inside Morgan’s home, provide further support for the
conclusion that Headbird possessed the firearm.




                                          -4-
      The jury was entitled to discredit testimony provided by Moose as inconsistent
with that of other witnesses, and “in light of impeachment evidence elicited by the
government.” United States v. Red Bird, 450 F.3d 789, 793 (8th Cir. 2006). A
reasonable jury could also disregard Headbird’s denial of possession of the firearm
and explanation of his statements to Hartgerink as self-serving. See United States v.
Howard, 413 F.3d 861, 864 (8th Cir. 2005). We thus conclude there was sufficient
evidence to prove beyond a reasonable doubt that Headbird possessed the firearm.

      B.     Admission of Prior Conviction Evidence under Rule 609

      Headbird contends the district court erred in admitting evidence of his prior
convictions for impeachment purposes pursuant to Federal Rule of Evidence 609.
Further, Headbird argues the district court erroneously allowed the government to
cross-examine Headbird too broadly regarding his prior convictions. Finally,
Headbird contends the district court failed to properly instruct the jury on the
permissible use of Rule 609 evidence. Headbird argues these alleged errors warrant
reversal of his conviction and remand for a new trial. We disagree.

      Under Rule 609(a)(1), “evidence that an accused has been convicted of [a crime
punishable by death or more than one year in prison] shall be admitted if the court
determines that the probative value of admitting this evidence outweighs its
prejudicial effect.” Fed. R. Evid. 609(a)(1). “Whether evidence of a prior conviction
should be admitted is left to the discretion of the trial court.” United States v.
Valencia, 61F.3d 616, 618 (8th Cir. 1995). Thus, we apply an abuse of discretion
standard when considering whether Headbird’s prior convictions were properly
admitted for impeachment purposes. United States v. Chauncey, 420 F.3d 864, 874
(8th Cir. 2005).

     Prior to trial Headbird moved in limine to prevent admission of evidence of
Headbird’s prior convictions under Rules 404(b) or 609; Headbird argued the

                                         -5-
evidence of the convictions was unduly prejudicial. In ruling before trial, the district
court granted Headbird’s motion as to Rule 404(b), but stated it likely would admit
the evidence for impeachment purposes under Rule 609, should Headbird decide to
take the stand. After Headbird testified on direct, the government sought and was
specifically granted permission to question Headbird about his prior convictions. The
court so ruled after a sidebar at which defense counsel restated concerns about the
prejudicial effect of the evidence of Headbird’s prior convictions.

        The district court did not abuse its discretion in admitting evidence of
Headbird’s prior convictions for impeachment purposes. First, the district court’s
exclusion of the evidence under Rule 404(b) is irrelevant to its subsequent ruling
regarding Rule 609. Valencia, 61 F.3d at 619. Further, while the district court did not
make a specific on-the-record determination as to the balancing of the probative value
and prejudicial effect of the admission of the convictions under Rule 609, the context
of its rulings demonstrates it considered this necessary factor. See United States v.
Key, 717 F.2d 1206, 1208-09 (8th Cir. 1983) (holding that despite a lack of an on-the-
record finding regarding the balancing test, the bench conference regarding the
prejudice and probative value immediately prior to the ruling foreclosed a conclusion
that the court abused its discretion). Credibility was a key factor in the jury’s
consideration of the case. Defense and government witnesses presented contradictory
testimony regarding possession of the firearm, and possession was the only contested
element of the offense. Headbird’s prior convictions were highly probative of his
credibility “because of the common sense proposition that one who has transgressed
society’s norms by committing a felony is less likely than most to be deterred from
lying under oath.” Chauncey, 420 F.3d at 874 (quotation omitted). Considering the
record as a whole, we cannot conclude the district court abused its discretion in
admitting Headbird’s prior convictions for impeachment purposes.

      Additionally, the scope of the cross examination regarding Headbird’s
convictions was proper. The government elicited little beyond the fact and nature of

                                          -6-
Headbird’s prior offenses. See United States v. Moore, 735 F.2d 289, 293 (8th Cir.
1984) (stating that both the fact and nature of a defendant’s conviction may be used
for impeachment purposes). The limited additional information presented was drawn
out in response to Headbird’s statement denying recollection of a conviction. When
a defendant denies guilt, or otherwise minimizes his culpability for an offense, a more
detailed cross examination is permissible. See United States v. Amahia, 825 F.2d 177,
180 (8th Cir. 1987). Because of Headbird’s denial, the district court was within its
discretion to allow more specific questions. Moreover, Headbird did not
contemporaneously object to the questioning, and it was not plain error to allow the
additional evidence. See United States v. Whitetail, 956 F.2d 857, 861 (8th Cir. 1992)
(explaining that plain error review applies when an appeal is based upon admitted
evidence not objected to at trial).

       Finally, although counsel failed to object to the jury instructions at trial,
Headbird now alleges the court erred in instructing the jury regarding the use of the
evidence of his prior convictions. Because there was no objection, we review the
instructions for plain error. United States v. Rice, 449 F.3d 887, 894 (8th Cir. 2006).

         The relevant instruction stated: “The testimony of a witness may be discredited
or impeached by evidence showing that the witness has been convicted of a felony .
. . . Prior convictions of a crime that is a felony is one of the circumstances which you
may consider in determining the credibility of that witness.” Although the instruction
is not specifically tailored to a defendant’s testimony, it is a correct statement of the
law and provides guidance to the jury as to the permissible use of the prior conviction
evidence. Thus, we find no error in the instruction and certainly no plain error.

      C.     Sentencing

      Headbird appeals the district court’s determination of his sentence, on a number
of grounds. On all issues related to Headbird’s sentence, we affirm the district court.

                                          -7-
In considering all of Headbird’s sentencing claims, we review the district court’s
factual findings for clear error and its application of the Sentencing Guidelines to the
facts de novo. United States v. Mathijssen, 406 F.3d 496, 498 (8th Cir. 2005).

       As an initial matter, Headbird alleges the district court erred in increasing his
sentence based upon judicial findings regarding the fact and nature of his prior
convictions and the aggravating circumstances surrounding his firearm possession.
We have previously rejected these arguments. See United States v. Johnson, 408 F.3d
535, 540 (8th Cir. 2005) (noting that the Supreme Court has not overruled
Almendarez-Torres v. United States, 523 U.S. 224 (1988), and that Shepard v. United
States, 544 U.S. 13 (2005), did not alter the rule that a district court may consider
prior criminal history in fashioning a sentence); United States v. Patterson, 412 F.3d
1011, 1015-16 (8th Cir. 2005) (explaining that once a court determines a prior
conviction exists, it properly considers the legal question as to the offense’s
characterization as a violent felony); United States v. Pirani, 406 F.3d 543, 552 n.4
(8th Cir. 2005) (noting that sentencing enhancement determinations need not be
submitted to a jury and that “[n]othing in Booker suggests that sentencing judges are
required to find sentence-enhancing facts beyond a reasonable doubt under the
advisory Guidelines regime”); United States v. Marcussen, 403 F.3d 982, 984 (8th
Cir. 2005) (holding that neither the existence or nature of a prior conviction need be
proven to a jury beyond a reasonable doubt for sentencing enhancement purposes).

        Next, Headbird asserts the district court erred in finding that his prior
convictions for escape and theft of a vehicle qualified as crimes of violence under the
Armed Career Criminal Act and Guidelines section 4B1.2. We have previously held
that a conviction for escape, regardless of the facts and circumstances surrounding the
escape, qualifies as a crime of violence for purposes of applying the Armed Career
Criminal Act and section 4B1.2. United States v. Abernathy, 277 F.3d 1048, 1051
(8th Cir. 2002) (“[E]scape is always a violent crime.”); United States v. Nation, 243
F.3d 467, 472 (8th Cir. 2001) (noting that “every escape, even a so-called ‘walk away’

                                          -8-
escape, involves a potential risk of injury to others” and concluding that escape
convictions qualify as crimes of violence). Likewise, we have held that a conviction
for theft of a vehicle qualifies as a crime of violence for sentencing enhancement
purposes. United States v. Johnson, 448 F.3d 1017, 1018 (8th Cir. 2006); United
States v. Sun Bear, 307 F.3d 747, 753 (8th Cir. 2002). Thus, the district court did not
err in finding that Headbird’s prior convictions for theft of a vehicle and escape
constituted crimes of violence and sentencing Headbird pursuant to the Armed Career
Criminal Act and U.S.S.G. §4B1.4.2

      Finally, Headbird alleges there was insufficient evidence to support the court’s
finding that Headbird used or possesed a firearm in connection with a crime of
violence. Considering the evidence presented at trial, the district court did not err in
concluding Headbird possessed a firearm in connection with a crime of violence and
therefore determining Headbird’s offense level pursuant to U.S.S.G. §4B1.4(3)(A).
The evidence discussed above that demonstrated possession of the firearm also
supports the finding regarding the use of the firearm. Briefly, the evidence supporting
the court’s conclusion included: Deputy Connor’s testimony that he saw Headbird
hold and then drop what appeared to be a long gun thirty to forty-five seconds after
he heard shots fired, that he recovered a .22 caliber rifle from the location where he
saw Headbird drop the long gun, that he found seventeen bullet holes in the Morgan
home, and that the four shell casings found at the scene were found to have cycled
through the recovered .22 caliber rifle; Lena Morgan’s testimony that shots were fired
at her home ten to fifteen minutes after she had kicked Headbird out of a party and he
threatened to return and “settle it”; and Headbird’s recorded telephone admission to

      2
       Because we conclude that Headbird was properly sentenced as an armed career
criminal using U.S.S.G. §4B1.4, Headbird’s claim regarding the obstruction of justice
enhancement is moot and therefore will not be addressed.

                                          -9-
Amanda Hartgerink that he shot at a house. Further, the district court based its
determination in large part on its conclusion that the evidence presented by the
government witnesses at trial was credible, while the alibi evidence offered by
Headbird was not, a conclusion that “is virtually unreviewable on appeal.” United
States v. Sarabia-Martinez, 276 F.3d 447, 450 (8th Cir. 2002).


      For the forgoing reasons, we affirm the district court on all points.
                       ______________________________




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