Court: Court of Appeals for the Eighth Circuit; January 28, 2002; Federal Appellate Court
Gary Abernathy appeals his conviction and 293-month sentence for possession of a firearm by a felon, a violation of 18 U.S.C. § 922(g)(1). The conviction arose from an incident on July 15, 2000, where he allegedly threatened his family with a shotgun. The district court based Abernathy's sentence on his prior convictions, implementing the enhanced penalties under 18 U.S.C. § 924(e).
On appeal, Abernathy raises four arguments:
1. He contends that the determination of his three prior violent felonies should have been submitted to the jury, citing Apprendi v. New Jersey. However, the court finds that this issue is related to sentencing, not an element of the offense, and Abernathy did not request a jury determination or object to the jury instructions.
2. Abernathy argues there was insufficient evidence to establish his possession of the shotgun, noting that the firearm was not introduced as evidence and questioning the credibility of witnesses. The appellate court reviews the sufficiency of evidence by considering it in a light favorable to the verdict, giving the government the benefit of reasonable inferences.
The appellate court ultimately affirms the district court's judgment and sentence, rejecting Abernathy's arguments regarding jury determination of prior convictions, sufficiency of evidence for possession, and the classification of his prior escape conviction as a violent felony.
Five witnesses testified that Abernathy possessed a .410 shotgun, including the individual who gave him the gun, those present during its transfer, and individuals threatened by Abernathy with the firearm. The jury found this testimony credible, which established sufficient evidence of possession, even though the shotgun itself was not presented in court. Abernathy contended that his conviction for being a felon in possession of a firearm was invalid due to a lack of proof of the firearm's connection to interstate commerce. However, testimony confirmed that the shotgun was purchased in Massachusetts, satisfying the interstate commerce nexus required under 18 U.S.C. § 922(g)(1). Abernathy's constitutional challenge to this statute was deemed meritless, as it was upheld as a valid exercise of Congress's Commerce Clause power.
Additionally, Abernathy argued that his escape conviction should not qualify as a crime of violence under 18 U.S.C. § 924(e). The district court's classification of his escape as a crime of violence was reviewed de novo. Citing precedent, the court noted that all forms of escape, including nonviolent walkaways, inherently carry a serious potential risk of injury to others. This reasoning led to the conclusion that Abernathy's escape conviction meets the criteria for a violent felony under the statute. Consequently, the judgment of the district court was affirmed in all respects.
