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United States of America v. Theodore Stevie Varner

May 18, 2012

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
THEODORE STEVIE VARNER, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the District of Minnesota.

The opinion of the court was delivered by: Bright, Circuit Judge.

Submitted: March 16, 2012

Before MURPHY, BRIGHT, and GRUENDER, Circuit Judges.

A jury in the district of Minnesota convicted Theodore Varner of being a felon in possession of a firearm. The district court sentenced him to 235 months (19 years *fn1 and 7 months) in prison. On appeal, Varner argues (1) the evidence was insufficient to support the verdict, (2) the district court abused its discretion in admitting evidence of a crack pipe, and (3) the district court abused its discretion at sentencing by declining to depart or vary downward on account of his physical condition. We affirm.

I. Background

On the morning of September 22, 2010, Officers Douglas Whittaker and Benjamin Lego of the Saint Paul police department responded to a 911 weapons call. The 911 caller described the suspect as a black male with braids, wearing blue jeans and a dark hooded sweatshirt. When the officers arrived at the apartment building, Officer Lego saw a green Ford Explorer leaving the parking lot with the passenger in the vehicle matching the description provided by the 911 caller. Officer Lego ordered the driver to stop three times, but the driver did not comply and left the parking lot. Officer Lego radioed a request for assistance in stopping the vehicle, providing the description of the Explorer and its direction of travel. Officer Lego and Officer Whittaker then got back in their squad car to follow the vehicle. Another officer drove up to the apartment building as the Explorer was leaving and pursued the vehicle, but by the time he caught up, it had stopped and the passenger had fled.

Officer Carl Schwartz was also in the area and responded to a call to stop a black male in jeans and a hooded sweatshirt running west on a specific street. Officer Schwartz saw a person matching the description, who was later identified as Varner, cross the street in front of the police car and run south. As Officer Schwartz turned into an alley, he saw Varner climb over a fence and fall into the alley about 100 feet in front of him. Officers Whittaker and Lego also drove into the alley in time to see Varner fall over the fence. Officer Whittaker saw a black item fall off Varner's waistband as he landed in the alley.

Varner got up and kept running while Officer Schwartz got out of his squad car and gave chase. Officer Schwartz noticed a small black case on the ground as he ran by the location where Varner came over the fence. As Varner ran across a gravel driveway by a blue car, he fell again. Officer Schwartz did not see anything drop from Varner when he fell, but the officer saw a brown-handled semi-automatic handgun lying in the gravel as he ran by the car where Varner had fallen. Officer Schwartz continued to chase Varner for approximately another half-block, yelling at him to stop, before Varner finally complied. Officer Schwartz detained Varner until Officer Lego arrived to arrest Varner.

Officer Schwartz, Officer Whittaker, and another officer retraced the path Varner ran in order to recover any items Varner may have dropped and to take photos of the route. Near the blue car, the officers recovered the firearm Officer Schwartz had seen as he chased Varner. Approximately 12-14 inches away from the firearm the officers also found a crack pipe. As the officers continued to follow the route, they found a black cell phone case where Varner had jumped over the fence. The case contained a credit card with Varner's name on it. The officers also recovered a green lighter and two black shoes.

A grand jury charged Varner with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). At the two-day jury trial, four officers involved with apprehending Varner testified. Two analysts who tested the firearm for fingerprints and DNA evidence also testified that the tests were negative. The person who owned the house and the blue car next to where the police recovered the firearm also testified that the gun was not his and that nobody in his household owned a firearm. Finally, a special agent with the Bureau of Alcohol, Tobacco, Firearms, and Explosives stated the weapon was manufactured in France and traveled in interstate and foreign commerce.

Before trial, Varner filed a motion in limine to exclude evidence that a crack pipe was found in the alley near the gun under Rule 404(b) of the Federal Rules of Evidence. The district court denied the motion. At the close of the government's case, Varner moved to dismiss the case pursuant to Rule 29 of the Federal Rules of Criminal Procedure, arguing a reasonable jury could not conclude Varner possessed the firearm. The district court also denied that motion. The jury subsequently found Varner guilty.

At sentencing Varner argued for a downward departure due to extraordinary physical impairments under U.S.S.G. § 5H4.1. The Presentence Report (PSR) noted Varner suffered from serious back problems after being robbed by two assailants in February 2010. During the robbery, Varner was rammed into a door frame and kicked repeatedly in the back. Consequently, he was diagnosed with mobile spondylolisthiesis. The PSR indicated Varner experiences significant pain when sitting and standing. He cannot stand or walk for more than seven or eight minutes without experiencing pain. The district court denied Mr. Varner's motion and imposed a sentence of 235 months (19 years and 7 months), the bottom of the advisory range. This appeal follows.

II. Discussion

On appeal, Varner argues (1) the evidence was insufficient to support the verdict, (2) the district court abused its discretion in admitting evidence of the crack pipe, and (3) the district court abused its discretion at sentencing by declining ...


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