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United States v. Fogg

United States Court of Appeals, Eighth Circuit

September 8, 2016

United States of America Plaintiff- Appellee
Corey Vampelt Fogg Defendant-Appellant

          Submitted: June 16, 2016

         Appeal from United States District Court for the District of Minnesota - St. Paul

          Before MURPHY, BRIGHT, and SHEPHERD, Circuit Judges.

          MURPHY, Circuit Judge.

         A jury found Corey Fogg guilty of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court[1] enhanced his sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), based on his three prior violent felony convictions and sentenced him to 235 months imprisonment. Fogg appeals, arguing that the district court abused its discretion in excluding evidence during his trial and that his prior conviction for attempted drive by shooting is not a violent felony under the ACCA. We affirm Fogg's conviction and sentence.


         On May 30, 2014 two police officers were dispatched to north Minneapolis on a report that two men had been seen with a gun. When the police approached the men, one of them fled, later identified as Corey Fogg. Officer Richard Walker chased Fogg on foot into an alley where he pulled out what appeared to be a gun and looked back toward the officer. Walker then fired two shots at Fogg, striking him in the foot and lower back. Walker testified that as Fogg fell he threw the object in his hand over a fence and into an adjacent yard. Police officers later found a handgun in that yard.

         Fogg was indicted on one count of being a felon in possession of a handgun. The government filed a motion in limine seeking to exclude officer Walker's alleged use of excessive force while Fogg moved to admit evidence of Walker's alleged use of such force in previous cases. The district court allowed Fogg to present evidence that an officer who uses excessive force can face serious consequences, but any evidence attempting to show Walker's alleged use of excessive force in previous cases was excluded under Rule 403. The jury found Fogg guilty.

         The presentence report concluded that Fogg was an armed career criminal due to his prior convictions for first degree manslaughter, simple robbery, and attempted drive by shooting. Fogg objected to this finding at sentencing, arguing that his attempted drive by shooting conviction under Minn. Stat. § 609.66, subd. le did not qualify as a violent felony under the ACCA. The district court rejected this argument, determined that Fogg was an armed career criminal, and sentenced him to 23 5 months imprisonment.


         Fogg argues that the district court abused its discretion by excluding evidence under Rule 403 of prior allegations of excessive force by officer Walker. We review evidentiary rulings for abuse of discretion. United States v. Condon, 720 F.3d 748, 754 (8th Cir. 2013). A district court's application of Rule 403 is entitled to great deference unless it "unfairly prevent[s] a party from proving" its case. Id. (internal quotation marks omitted). Fogg contends that this evidence was relevant to his defense theory that the officers had planted a gun in the yard to cover up their own excessive use of force. The court did not abuse its discretion in excluding this evidence because Fogg was entitled to present his defense theory.


         Fogg next argues that the district court erred by concluding that his prior conviction under Minnesota's drive by shooting statute, Minn. Stat. § 609.66, subd. le, qualifies as a violent felony under the force clause of the ACCA. The ACCA requires a mandatory minimum fifteen year sentence if a defendant has been convicted as a felon in possession of a firearm "and has three previous convictions ... for a violent felony." 18 U.S.C. § 924(e)(1). A prior conviction "cannot qualify as an ACCA predicate offense if its elements are broader than, " the definition of a "violent felony." See Mathis v. United States, 136 S.Ct. 2243, 2251 (2016). A violent felony under the ACCA's force clause must have "as an element the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 924(e)(2)(B)(i).


         Fogg first contends that the drive by shooting statute is not an ACCA violent felony because it does not criminalize the use of force "against the person of another." See 18 U.S.C. § 924(e)(2)(B)(i). We review this issue de novo. See United States v. Cole, 778 F.3d 1055, 1055 (8th Cir. 2015). In determining whether a prior conviction's elements are broader than the ACCA's definition of "a violent felony, courts should start with the formal categorical approach and look only to the fact of conviction and the statutory definition of the prior offense." See United States v. Schaffer, 818 F.3d 796, 797 (8th Cir. 2016) (internal quotation marks omitted). When a "statute criminalizes both conduct that does and does not qualify as a violent felony and the statute is divisible, we apply the modified categorical approach and may review certain judicial records to identify which section of the statute supplied the basis for a defendant's conviction." United States v. Headbird, F.3d, No. 15-3718, 2016 WL 4191186, at *1 (8th Cir. Aug. 9, 2016) (internal quotation marks omitted).

         We begin our analysis by determining the elements of Fogg's predicate offense of drive by shooting. A person is guilty of drive by shooting under subdivision le(a) if "while in or having just exited from a motor vehicle, [he] recklessly discharges a firearm at or toward another motor vehicle or a building." Minn. Stat. § 609.66, subd. 1 e(a). A conviction under subdivision 1 e(a) is a felony with a maximum punishment of three years imprisonment, but the maximum penalty is increased to twenty years imprisonment under subdivision le(b) if the defendant discharged the firearm "at or toward a person, or an occupied building or motor vehicle" Id. subd. le. A review of Fogg's plea hearing transcript shows that he was convicted under subdivision 1 e(b) because his offense involved firing a gun at a person. See United States v. Vinton, 631 F.3d 476, 485 (8th Cir. 2011).

         In State v. Hayes, 826 N.W.2d 799');">826 N.W.2d 799, 803-05 (Minn. 2013), the Minnesota Supreme Court discussed the relationship between subdivision le(a) and le(b). The court concluded that subdivision le(b) is not a "separate, aggravated offense" which can be charged by itself, rather "subdivision le(b) operates only when all of the elements in subdivision le(a) have been satisfied." Id. at 804-06. The Hayes court adopted the straightforward reading of Minn. Stat. § 609.66 that "subdivision le(b) provides for a sentence enhancement when a person, while committing a drive-by shooting [under subdivision le(a)], discharges a firearm at or toward an occupied building, an occupied motor vehicle, or person." 826 N.W.2d at 804.

         Because subdivision le(a) and le(b) are linked to each other, we must determine whether subdivision le(b) supplies an additional "element" to subdivision le(a) in cases where the state is attempting to impose a higher fine or increase the statutory maximum. See 18 U.S.C. § 924(e)(2)(B)(I). An element of a crime is something "the prosecution must prove to sustain a conviction, " meaning either something the jury must find beyond a reasonable doubt or something the defendant must admit during a guilty plea. Mathis, 136 S.Ct. at 2248 (internal quotation marks omitted). The United States Supreme Court has held that "when the term 'sentence enhancement' is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury's guilty verdict." Apprendi v. New Jersey, 530 U.S. 466, 494 n.19 (2000). Subdivision le(b) is thus considered an additional element to subdivision le(a) because it increases the statutory maximum punishment for a drive by shooting from three years to twenty years. See Mathis, 136 S.Ct. at 2256 (noting that" [i]f statutory alternatives carry different punishments, then under Apprendi they must be elements" under the ACCA).

         The dissent argues that subdivision le(b) is not an element because Hayes labeled that subdivision a "sentence-enhancement provision." 826 N.W.2d at 805. The dissent misreads Hayes. The court used the phrase "sentence-enhancement provision" only as a label to distinguish between two rival interpretations of the statute. Id. at 804-05. It went on to conclude that Hayes's conviction for first degree murder while committing a drive by shooting should be reversed because the state had not established the elements of subdivision le(a), even though it had established the elements of subdivision le(b). Id. at 804-06. The court was not considering the application of Apprendi to the Minn. Stat. § 609.66. See 826 N.W.2d at 799-808. If it had, it would have concluded that subdivision le(b) is an element because the Minnesota Supreme Court has stated in no uncertain terms that a sentencing enhancement that increases the statutory maximum term of imprisonment must either be "found by a jury beyond a reasonable doubt" or admitted by the defendant. State v. Dettman, 719 N.W.2d 644');">719 N.W.2d 644, 649 (Minn. 2006); see also State v. Shattuck, 704 N.W.2d 131, 153 n.4 (Minn. 2005) (citing Apprendi, 530 U.S. at 494 n.19).

         Following Mathis and Hayes we conclude that subdivision le(b) of Minnesota's drive by shooting offense contains the following elements: 1) the defendant "was in or had just exited a motor vehicle"; 2) the defendant "recklessly discharged a firearm at or toward another motor vehicle or a building"; and 3) the defendant fired "at or toward a person, or an occupied building or motor vehicle." See Haves, 826 N.W.2d at 806; Minn. Stat. § 609.66, subd. le; Minn. Jury Instruction Guides-Criminal (CRIMJIG) § 32.04 (2016). In determining whether subdivision le(b)'s elements are ...

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