Petition for Writ of Certiorari — Cedric Antonio Wright, Petitioner v. United States

NO. _________

__________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2021

__________________________________________________

Cedric Wright- Petitioner,

vs.

United States of America - Respondent.

__________________________________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

__________________________________________________

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

__________________________________________________

Cory Goldensoph

425 Second Street SE

Suite 803

Cedar Rapids, Iowa 52401

Telephone No. (319) 364-5525

Facsimile No. (319) 286-1137

E-mail: cory@goldensophlaw.com

ATTORNEY FOR PETITIONER

United States Court of Appeals

For the Eighth Circuit

___________________________

No. 19-3190

___________________________

United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Cedric Antonio Wright

lllllllllllllllllllllDefendant - Appellant

____________

Appeal from United States District Court

for the Northern District of Iowa - Cedar Rapids

____________

Submitted: December 18, 2020

Filed: April 16, 2021

____________

Before SMITH, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.

____________

SMITH, Chief Judge.

Cedric Antonio Wright was arrested after he robbed a cellphone store. The car

used during the robbery had been stolen by a carjacker the previous day. Wright’s

involvement in the robbery thus implicated him in the carjacking, as well as several

firearm counts. He pleaded guilty to Hobbs Act robbery and conspiracy to commit

Hobbs Act robbery. See 18 U.S.C. §§ 2, 1951. A jury convicted him of carjacking, see

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18 U.S.C. § 2119(1); two counts of carrying a firearm during and in relation to a

crime of violence, see 18 U.S.C. § 924(c)(1)(A)(i)–(ii); and possession of a firearm

by a prohibited person, see 18 U.S.C. § 922(g)(1).

Wright moved for a judgment of acquittal and a new trial, arguing that there

was insufficient evidence to support the verdicts and that the district court gave

erroneous jury instructions and made erroneous evidentiary rulings. The district court1

denied both motions. At sentencing, the district court enhanced Wright’s sentence

pursuant to U.S.S.G. §§ 2K2.1(b)(1)(A) and 2B3.1(b)(5). On appeal, Wright argues

that the district court erred by (1) denying his motion for a new trial, (2) denying his

motion for a judgment of acquittal, and (3) applying the sentencing enhancements.

We affirm.

I. Background

JB, who was driving a black Honda, had her car stolen from her at gunpoint in

Cedar Rapids, Iowa, on October 22, 2017. JB identified the attacker as a black male

wearing a black mask and camouflage. The attacker had pointed a black handgun at

JB’s head and told her to exit the car. She complied, and her assailant drove away in

her car. JB’s cellphone, credit cards, purse, and personal items remained in the car.

The day after the carjacking, JB’s mother used a cellphone location app to

locate JB’s stolen phone. The app located JB’s phone at 12th Avenue and 15th Street

SE in Cedar Rapids. The same day, Wright visited a friend, Gage Rupp, at a residence

located two doors away from that address. This was the home of Cecilia Givens,

Rupp’s girlfriend.

1

The Honorable Leonard T. Strand, Chief Judge, United States District Court

for the Northern District of Iowa.

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While Wright was there, Rupp asked Derek Ford to pick him up at Givens’s

home. When Ford arrived in his white van, Rupp and Wright both entered the van.

Wright told Ford to drive across town so they could “use [his] sister’s car.” Trial Tr.,

Vol. 2, at 143:8–9, United States v. Wright, No. 1:18-cr-00015-LTS-MAR-1 (N.D.

Iowa 2019), ECF No. 282. What he called his “sister’s car” was actually JB’s stolen

Honda. Wright, Rupp, and Ford got into the Honda, and Ford then drove them to a

Sprint cellphone store in Cedar Rapids.

As the store was closing, Wright and Rupp exited the car. Ford stayed in the

car while Wright and Rupp robbed the store. Security cameras captured Wright

entering the store with his hand in the air, while Rupp kept his hand around his

waistband. The security footage did not show a gun. A Sprint employee was the only

person in the store at the time. He later testified that he “could not say for certain that

there was a gun in [either of their] hand[s],” but that Wright and Rupp were “carrying

themselves in a way that they had one.” Trial Tr., Vol. 1, at 87:9–10, 21–22, United

States v. Wright, No. 1:18-cr-00015-LTS-MAR-1 (N.D. Iowa 2019), ECF No. 281.

Wright and Rupp soon emerged from the store with stolen phones, including a “bait”

phone that allowed the police to track them.

Ford testified that when Wright and Rupp got back into the Honda, Rupp said

it was “sweet” that they did not need to use a gun. Trial Tr., Vol. 2, at 150:8. Wright

then revealed that the Honda was stolen and instructed Ford to drive back to Ford’s

van. After they reentered Ford’s van and attempted to flee, the police stopped them.

Ford testified that as he stopped the van for the police, Wright took out a handgun and

told Ford to stow it away inside the van. When Ford refused, Wright tossed the gun

towards the front of the van, where it landed behind the driver’s seat. Police

recovered a loaded black Smith & Wesson .40-caliber handgun from the floor of the

van, as well as cash and cellphones—valued at over $38,000—that had been taken

from the store.

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Wright eventually admitted his involvement in the robbery but denied

involvement in the carjacking and firearms offenses.

After determining that the car used in the robbery was JB’s car, police informed

JB’s family. JB used an app called “MobilePatrol” to try to identify the person who

carjacked her. “MobilePatrol” displays pictures of people who were recently arrested.

JB found Wright on the app and asked her mother if he was involved in the Sprint

store robbery. Her mother confirmed that he was. Around the same time, JB saw a

news story stating that two people were arrested in connection with the robbery. The

story featured pictures of Rupp, who is white, and Wright, who is black. A few days

later, police presented JB with a photo line-up that included a photo of Wright. It did

not include a photo of Ford, who is also black. JB identified Wright as the carjacker.

Investigators discovered that shortly after the carjacking, someone attempted

to purchase shoes online using JB’s stolen credit card. The shoes were to be shipped

to Indiana. The phone number associated with the attempted purchase belonged to

Rupp, and his call history included a call to an Indiana phone number. Investigators

also discovered that the handgun found in Ford’s van after the robbery was registered

to an individual named Saleem El-Amin and that El-Amin and Wright were “friends”

on Facebook.

Wright’s Facebook account contained a photo of him wearing camouflage

shorts, several photos of a black Smith & Wesson handgun, a video of Wright holding

a black handgun and counting cash, a photo of a black male wearing a black ski mask

and holding cash, photos of Wright holding a partially silver handgun, and a photo

of Wright holding one gun with three more guns at his feet. His Facebook entries also

contained conversations in which Wright discussed the Smith & Wesson handgun and

indicated that he wanted to trade it, writing that he had a “40 for trade.”

Government’s Trial Ex. 16, at 1, United States v. Wright, No. 1:18-cr-00015-LTSMAR-1 (N.D. Iowa 2019), ECF No. 185-25. In one conversation regarding the gun,

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El-Amin said to Wright, “Let me know before you do anything wit that b**ch.” Id.

at 2.

Wright was charged with carjacking, in violation of 18 U.S.C. § 2119(1)

(“count 1”), two counts of carrying a firearm during and in relation to a crime of

violence, in violation of 18 U.S.C. § 924(c)(1)(A)(i)–(ii) (“count 2” and “count 7”);

possession of a firearm by a prohibited person, in violation of 18 U.S.C. § 922(g)(1)

(“count 3”); interference and attempted interference with commerce by threats and

violence, in violation of 18 U.S.C. §§ 2 and 1951 (“count 5”); and conspiracy to

interfere and attempt to interfere with commerce by threats and violence, in violation

of §§ 2 and 1951 (“count 6”).

Wright pleaded guilty to counts 5 and 6, but he proceeded to trial on counts 1,

2, 3, and 7. Regarding count 3, the parties stipulated that Wright was a “prohibited”

person within the meaning of § 922(g)(1). A jury found him guilty on all counts.

Wright moved for a judgment of acquittal, arguing that there was insufficient

evidence to sustain any of the jury’s verdicts. He also moved for a new trial, arguing

that (1) the guilty verdicts were against the weight of the evidence; (2) the district

court erroneously instructed the jury regarding the “intent” requirement for carjacking

under § 2119(1) and the definition of “carrying” a firearm under § 924(c);2 and (3) the

district court erroneously admitted several prejudicial government exhibits.

The district court rejected both motions. It concluded that (1) there was

sufficient evidence to sustain each conviction; (2) even under the “more lenient

standards for a motion for new trial,” Wright failed to show that the verdicts were

2

The jury instruction for the § 2119(1) count was jury instruction 5. The

instructions for the § 924(c) counts were jury instructions 6 and 8.

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against the weight of the evidence, Order Den. Mot. Acquittal at 10, United States v.

Wright, No. 1:18-cr-00015-LTS-MAR-1 (N.D. Iowa 2019), ECF No. 219; (3) its jury

instructions properly stated the law as articulated by the Supreme Court and Eighth

Circuit;3 and (4) it did not err in admitting the challenged government exhibits.

At sentencing, the district court imposed a two-level enhancement pursuant to

U.S.S.G. § 2K2.1(b)(1)(A) because it found that Wright was responsible for three to

seven firearms in relation to his § 922(g)(1) conviction. It concluded that this

enhancement was supported by a preponderance of the evidence, including a photo

of Wright with four different handguns and his “direct involvement with other

firearms.” Sentencing Tr. at 40:7, United States v. Wright, No. 1:18-cr-00015-LTSMAR-1 (N.D. Iowa 2019), ECF No. 280. The district court also imposed a two-level

sentencing enhancement for carjacking pursuant to U.S.S.G. § 2B3.1(b)(5).

Wright timely appeals. On appeal, he argues that the district court erred by

(1) denying his motion for a new trial based on its erroneous admission of prejudicial

government exhibits and erroneous jury instructions; (2) denying his motion for a

judgment of acquittal based on sufficiency of the evidence; and (3) imposing

sentencing enhancements pursuant to § 2K2.1(b)(1)(A) and § 2B3.1(b)(5).

II. Discussion

A. Admissibility of Government Exhibits at Trial

We review the district court’s evidentiary rulings for an abuse of discretion,

giving “great deference to the district court’s balancing of the probative value and

3

The district court explained that it relied on Holloway v. United States, 526

U.S. 1 (1999), in crafting jury instruction 5, and on the Eighth Circuit Model Criminal

Jury Instruction 6.18.924C and United States v. Nelson, 109 F.3d 1323 (8th Cir.

1997), in crafting jury instructions 6 and 8. See Order Den. Mot. Acquittal at 11.

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prejudicial impact of the evidence.” United States v. Huyck, 849 F.3d 432, 440 (8th

Cir. 2017) (quotation omitted).

Generally, relevant evidence is admissible at trial. Fed. R. Evid. 402. “Relevant

evidence is evidence having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than

it would be without the evidence. The threshold for relevance is quite minimal.”

United States v. Croghan, 973 F.3d 809, 823–24 (8th Cir. 2020) (quotation omitted).

Even when evidence is relevant, however, the trial court may exclude it “if its

probative value is substantially outweighed by a danger of . . . unfair prejudice,

confusing the issues, misleading the jury, undue delay, wasting time, or needlessly

presenting cumulative evidence.” Fed. R. Evid. 403. But “Rule 403 does not offer

protection against evidence that is merely prejudicial in the sense of being detrimental

to a party’s case. The rule protects against evidence that is unfairly prejudicial.”

Huyck, 849 F.3d at 440 (quotation omitted). “Unfair prejudice means an undue

tendency to suggest decision on an improper basis, including evidence which is so

inflammatory on its face as to divert the jury’s attention from the material issues in

the trial.” Id. (cleaned up).

Under Rule 404(b), evidence of wrongful conduct other than the specific

conduct at issue is only admissible in certain circumstances. Fed. R. Evid. 404(b).

Rule 404(b)(1) prohibits using “[e]vidence of any other crime, wrong, or act . . . to

prove a person’s character in order to show that on a particular occasion the person

acted in accordance with the character.” Such extrinsic evidence is only allowed to

“prov[e] motive, opportunity, intent, preparation, plan, knowledge, identity, absence

of mistake, or lack of accident.” Id. 404(b)(2).

Rule 404(b) does not apply, however, to evidence of other wrongful conduct

if that evidence is intrinsic to the charged offense. United States v. Brooks, 715 F.3d

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1069, 1076 (8th Cir. 2013). Evidence of other wrongful conduct is intrinsic when it

is offered to “provide[] the context in which the charged crime occurred” and

“complete[] the story or provide[] a total picture of the charged crime.” Id. (quotation

omitted); see also United States v. Phelps, 168 F.3d 1048, 1057 (8th Cir. 1999) (“Bad

acts that form the factual setting of the crime in issue or that form an integral part of

the crime charged are not part of Rule 404(b)’s coverage.” (cleaned up)). “Where

evidence of other crimes is so blended or connected or tends logically to prove any

element of the crime charged, it is admissible as an integral part of the immediate

context of the crime charged.” United States v. Jackson, 913 F.3d 789, 792 (8th Cir.

2019) (cleaned up).

Wright argues that the district court abused its discretion in admitting

government exhibits 14, 16, 17, 21, and 29–32. We address his arguments in turn.

1. Exhibit 14

Exhibit 14 is a photo from Wright’s Facebook account of a black male with

arm tattoos wearing a black mask and holding cash. Wright argues that this photo was

irrelevant, cumulative, and unfairly prejudicial. However, we find that it was relevant

for two reasons: (1) the arm tattoos helped identify Wright as the subject of the photo

because the same tattoos are visible on Wright in Exhibit 21, and (2) the photo

corroborated JB’s physical description of the carjacker, including that he wore a

similar black mask. The photo’s probative value was not outweighed by the danger

of unfair prejudice; even if the presence of cash was prejudicial, it was not “so

inflammatory on its face as to divert the jury’s attention from the material issues in

the trial.” See Huyck, 849 F.3d at 440 (quotation omitted).

Wright further contends that the photo was inadmissible under Rule 404(b)

because “the Government clearly meant to imply that Mr. Wright obtained that cash

in an illegal fashion.” Appellant’s Br. at 9. But Rule 404(b) is not applicable here

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because the photo does not contain evidence of extrinsic wrongful conduct; the

government introduced it to help identify Wright as the carjacker—not as evidence

of another “crime, wrong, or act” to prove Wright’s character. See Fed. R. Evid.

404(b)(1).

2. Exhibits 16 and 17

Exhibit 16 contains Facebook conversations from September 25, 2017,

between Wright and Rupp, and Wright and El-Amin. In relevant part, Wright says he

has a “40 for trade” and is “trad[ing] only for a glizzy.” Government’s Trial Ex. 16,

at 1. El-Amin says to Wright, “Let me know before you do anything wit that b**ch,”

an apparent reference to Wright’s gun. Id. at 2. Wright also says, “You know I need

glizzy.” Id. Exhibit 17 features another Facebook conversation from the same day, in

which Wright sends several photos of a black handgun and says it is a “sdve smith

and Wesson 40.” Government’s Trial Ex. 17, at 1, United States v. Wright, No. 1:18cr-00015-LTS-MAR-1 (N.D. Iowa 2019), ECF No. 185-26. The other party asks if

Wright is “tryna get ah glick,” to which Wright replies, “Yea.” Id. The investigating

officer testified that “glizzy” and “glick” mean a “Glock pistol,” Trial Tr., Vol. 2, at

221:15–16, 224:5–8, and that a “40 for trade” means a .40-caliber gun for trade, id.

at 221:9–22.

Wright argues that these exhibits were irrelevant, confusing, and contained

inadmissible hearsay. We disagree. These were relevant because they showed that

Wright had a black .40-caliber Smith & Wesson handgun—the exact type of gun

found in Ford’s van after the robbery—prior to the carjacking and robbery. This is

similar to the challenged evidence in Brooks and Jackson, where images showed the

defendants with the firearms they used during their crimes. Brooks, 715 F.3d at 1077

(holding that images of the defendant holding a firearm were “highly probative as the

firearm in the photos and video matched the firearm that police recovered from the

scene of the van theft”); Jackson, 913 F.3d at 792 (holding that videos of the

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defendant with firearms recovered from the robbery were “highly probative” because

they “linked [him] to the acquisition of the firearm and ammunition days before the

robbery, [and] showed [his] knowledge of [his co-defendant’s] use and possession of

the firearm in the days leading up to the robbery”).

The fact that these conversations occurred one month prior to the carjacking

does not, as Wright contends, render them irrelevant. See, e.g., United States v.

Rembert, 851 F.3d 836, 839 (8th Cir. 2017) (finding that a video from over two years

prior to the charged offense was not “overly remote in time”); United States v.

Bassett, 762 F.3d 681, 687 (8th Cir. 2014) (finding that a prior act that occurred about

eleven years before the charged offense was admissible). And although some terms

in the conversations may have been foreign to the jury, we agree with the district

court that any confusion would have been mitigated by the testimony of the

government’s witness, who explained the meaning of the terms.

Finally, these conversations did not contain inadmissible hearsay. Statements

made by other parties in online chat conversations are not hearsay if they “were not

offered for their truth but rather to provide context for [the defendant’s] responses.”

Manning v. United States, 738 F.3d 937, 943 (8th Cir. 2014). Here, the statements of

the other persons in the conversations were not introduced for their truth but to

provide context for Wright’s statements.

3. Exhibit 21

Wright argues that Exhibit 21—a video of him with a firearm in his lap while

counting a large amount of cash—was inadmissible under Rule 403 because it was

cumulative and unnecessary. We find that this video was probative because (1) the

gun in Wright’s lap matched the gun seized by police, and (2) the visible tattoo

helped identify Wright as the masked individual in Exhibit 14. As in Exhibit 14, any

potential prejudice from the cash was not “so inflammatory” as to substantially

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outweigh the video’s probative value. See Huyck, 849 F.3d at 440 (quotation

omitted).

Wright also contends that Exhibit 21 was inadmissible under Rule 404(b). This

argument fails, however, because the video depicted a gun resembling the one seized

by the police. “Possession of a firearm is intrinsic to all of [Wright’s] charges,”

Brooks, 715 F.3d at 1077, and the video “is admissible as an integral part of the

immediate context of the crime charged,” Jackson, 913 F.3d at 792 (quotations

omitted). It qualified as intrinsic evidence tending to prove the actual commission of

the charged offense, not merely a propensity to do so.

4. Exhibits 29–32

Finally, Wright argues that the district court erred in admitting a series of

Facebook conversations between Wright and various individuals between October 18,

2017, and October 23, 2017. He argues that Exhibits 29–32 were irrelevant and

contained inadmissible hearsay. To the contrary, these were relevant to show that

Wright associated with Rupp around the time of the carjacking and robbery. Exhibit

29, for example, depicts a conversation in which Wright invites someone to “Gage

crib.”4 Government’s Trial Ex. 29, United States v. Wright, No. 1:18-cr-00015-LTSMAR-1 (N.D. Iowa 2019), ECF No. 185-34. And in Exhibits 30–32, Wright mentions

that he is, or has been, with Rupp. Wright’s association with Rupp around the date

of the incident was relevant—both because Rupp was his co-defendant in the robbery

and because JB’s stolen phone was traced to an address next to Rupp’s girlfriend’s

home the morning after the carjacking. These exhibits did not contain hearsay

because the other parties’ responses were not introduced for their truth but to provide

context for Wright’s statements. See Manning, 738 F.3d at 943.

4

Rupp’s first name is Gage. The investigating officer explained that “crib”

means “house.” Trial Tr., Vol. 2, at 236:7–9.

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For these reasons, we conclude that the district court did not abuse its

discretion in admitting the challenged exhibits.

B. Jury Instructions

We review jury instructions for an abuse of discretion. United States v.

Petroske, 928 F.3d 767, 772 (8th Cir. 2019). “In conducting such review, this court

must determine whether the instructions, taken as a whole and viewed in light of the

evidence and applicable law, fairly and adequately submitted the issues in the case

to the jury.” Id. (quotation omitted). “A conviction will not be reversed due to

allegedly erroneous jury instructions unless, viewed in their entirety, the instructions

fail to correctly state the law.” United States v. Paul, 217 F.3d 989, 997 (8th Cir.

2000). “Further, jury instructions are evaluated in the context of the entire charge and

a jury is presumed to follow all instructions.” Id.

Wright challenges jury instruction 5, in which the district court instructed the

jury on the “intent” element of carjacking. The carjacking statute, 18 U.S.C. § 2119,

prohibits taking a motor vehicle “with the intent to cause death or serious bodily

harm.” The Supreme Court has explained this element as follows:

The intent requirement of § 2119 is satisfied when the Government

proves that at the moment the defendant demanded or took control over

the driver’s automobile the defendant possessed the intent to seriously

harm or kill the driver if necessary to steal the car (or, alternatively, if

unnecessary to steal the car).

Holloway v. United States, 526 U.S. 1, 12 (1999); see also United States v. Wright,

246 F.3d 1123, 1127 (8th Cir. 2001).

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The district court’s instruction tracked the Supreme Court’s language almost

verbatim. Therefore, it properly stated the law as articulated by both the Supreme

Court and this circuit. Wright acknowledges that the district court’s instruction was

based on current precedent but contends that Holloway was decided incorrectly.

Wright’s disagreement with the law does not render the instruction incorrect or

provide a basis for a new trial.

Wright also challenges jury instructions 6 and 8, in which the district court

instructed the jury that the phrase “carried a firearm” in 18 U.S.C. § 924(c) could

include “knowingly transport[ing] a firearm in the passenger compartment of a car.”

Jury Instrs. at 10, 16, United States v. Wright, No. 1:18-cr-00015-LTS-MAR-1 (N.D.

Iowa 2019), ECF No. 181-1. He argues that the definition of “carry” should not

include transportation of a firearm in a car. Wright is incorrect, however, because

these instructions properly stated the law.

The Supreme Court has held that “the ‘generally accepted contemporary

meaning’ of the word ‘carry’ includes the carrying of a firearm in a vehicle.”

Muscarello v. United States, 524 U.S. 125, 139 (1998) (affirming convictions under

§ 924(c) in two drug trafficking cases where officers found guns in petitioners’ trunk

or glove compartment). Before Muscarello, we held that transporting a firearm in a

vehicle meets the definition of “carry[ing] a firearm” within the meaning of § 924(c):

“[W]hen a motor vehicle is used, ‘carrying a weapon’ takes on a less restrictive

meaning than carrying on the person. The means of carrying is the vehicle.” United

States v. Freisinger, 937 F.2d 383, 387 (8th Cir. 1991) (quotation omitted),

overruling on other grounds recognized by United States v. Beaman, 361 F.3d 1061,

1064 (8th Cir. 2004)).

Furthermore, the district court’s instructions were consistent with the Eighth

Circuit Model Jury Instructions for § 924(c). The Notes on Use state that “[w]here

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‘carry’ is charged in the indictment, it should be noted, ‘carrying’ does not require

that the defendant had the weapon on his person. ‘Carries,’ within the meaning of

[§] 924(c)(1), includes carrying a weapon in a vehicle.” Model Crim. Jury Instr. 8th

Cir. 6.18.924C n.3 (2020) (emphasis added) (citations omitted).

Wright argues in the alternative that jury instructions 6 and 8 were confusing.

He maintains that the jury might have believed that in order to find Wright guilty of

§ 924(c), all it needed to find was that he transported the firearm in the car—without

any connection to the robbery itself. We are not persuaded by this theory, however,

because the district court instructed the jury that the firearm had to be carried “in

relation to the commission of” the underlying robbery and explained that this meant

the firearm had to have “some purpose or effect with respect to the robbery crime.”

Jury Instrs. at 15, 16.

C. Sufficiency of the Evidence

A district court may enter a judgment of acquittal after a jury verdict only if the

“evidence is insufficient to sustain a conviction.” Fed. R. Crim. P. 29(a). “We review

sufficiency of the evidence in a criminal case de novo, viewing the evidence in the

light most favorable to the government, resolving conflicts in the government’s favor,

and accepting all reasonable inferences that support the verdict.” United States v.

Parsons, 946 F.3d 1011, 1013–14 (8th Cir. 2020) (emphasis omitted) (quotation

omitted). This standard “is very strict, and the jury’s verdict is not to be lightly

overturned.” United States v. Hayes, 391 F.3d 958, 961 (8th Cir. 2004). “Reversal is

warranted only when no reasonable jury could find all the elements beyond a

reasonable doubt.” Parsons, 946 F.3d at 1014 (cleaned up). We address the

challenged counts in turn.

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1. Counts 1 and 2

Wright contends that JB’s identification of him as the carjacker was unreliable

and that without her identification, no reasonable jury could have convicted him of

carjacking or the related firearm count. He argues that several factors cut against the

reliability of JB’s identification testimony, such as (1) difficulty seeing her assailant

because his face was partially covered by a mask, it was nighttime, and the entire

interaction lasted only 20 seconds; (2) her distracted attention, caused by having a

gun pointed at her while her possessions were stolen; and (3) the possibility that she

was influenced by seeing Wright on “MobilePatrol” and her mother’s statement that

Wright was involved with the robbery.

The district court correctly concluded that these are all factors the jury could

have considered when reaching its verdict. “[W]e will not weigh evidence or witness

credibility[] because those jury determinations are ‘virtually unreviewable on

appeal.’” United States v. Hollingshed, 940 F.3d 410, 417 (8th Cir. 2019) (quoting

United States v. Alexander, 714 F.3d 1085, 1090 (8th Cir. 2013)). Because “[t]he jury

is the final arbiter of the witnesses’ credibility, . . . we will not disturb that

assessment.” Hayes, 391 F.3d at 961.

Furthermore, the jury’s verdict was not based solely on JB’s identification.

Other evidence also linked Wright to the carjacking: (1) Ford testified that Wright

directed him to JB’s stolen car and referred to it as his “sister’s car,” Trial Tr., Vol.

2, at 143:9; (2) JB said the carjacker used a black handgun, police seized a black

handgun from the van after the robbery, and Ford testified that the gun belonged to

Wright; (3) Facebook images showed Wright with a black handgun resembling the

one seized by police; (4) JB described the carjacker as wearing a black mask and

camouflage clothing, and Facebook photos showed Wright in a black mask and

camouflage clothing; and (5) JB’s stolen phone was traced to an address two doors

down from the home of Rupp’s girlfriend the morning after the carjacking—the same

-15Appendix pg. 15

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day that Ford picked up Wright and Rupp from that location. In addition, although

both Wright and Rupp were linked to JB’s stolen car through their involvement in the

robbery, Rupp is white and therefore did not match JB’s description of a black male.

Viewing this evidence in the light most favorable to the government and

accepting all reasonable inferences that support the verdict, we conclude that there

was sufficient evidence for a reasonable jury to convict Wright of carjacking and

carrying a firearm during and in relation to the carjacking.

2. Count 7

Wright also challenges the sufficiency of the evidence for his § 924(c)

conviction related to the Sprint store robbery, but his argument fails on several

grounds. First, he again asks us to reassess the credibility of a trial witness, arguing

that Ford’s testimony—that Wright had a gun in the van, that Rupp commented how

“sweet” it was that they did not have to use it, Trial Tr., Vol. 2, at 150:8, and that

Wright threw the gun towards the front of the van—was false. Wright’s credibility

argument is unconvincing and we decline to take on the jury’s role. See Hollingshed,

940 F.3d at 417.

Second, other evidence corroborated Ford’s testimony. Police found a black

Smith & Wesson .40-caliber handgun in the van after the robbery. Facebook photos

showed Wright with a black Smith & Wesson .40-caliber handgun, identical to the

one found in the van, and a Facebook conversation revealed that Wright attempted

to trade that gun for a Glock pistol one month before the robbery. Additionally,

Wright communicated on Facebook with El-Amin, the registered owner of the Smith

& Wesson handgun, who said to Wright, “Let me know before you do anything wit

that b**ch.” Government’s Trial Ex. 16, at 2. Regardless of Ford’s testimony, there

was sufficient evidence for a reasonable jury to conclude that Wright possessed the

handgun from the van.

-16Appendix pg. 16

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Third, Wright relies on the Sprint employee’s testimony and the store’s security

footage to argue that he did not display a gun during the robbery. This is irrelevant,

however, because Wright did not have to display, or even carry, a gun inside the store

to be found guilty of § 924(c). As noted above, the district court properly instructed

the jury that the term “carried a firearm,” as used in § 924(c), “means that, during the

commission of the crime, the defendant had a firearm on or about his person or

knowingly transported a firearm in the passenger compartment of a car.” Jury Instrs.

at 16. Therefore, the jury needed only to conclude that Wright knowingly had a gun

on him or in the van during the robbery, and there was ample evidence to support this

conclusion.

3. Count 3

Finally, Wright contends that there was insufficient evidence to convict him of

possessing a firearm as a prohibited person under § 922(g). His only argument is that

it was “Ford who actually committed the carjacking and possessed the firearm on the

evening of the robbery and as such, [] Wright could not be found guilty of possessing

that firearm.” Appellant’s Br. at 20. We disagree.

“To convict an individual of being a felon in possession of a firearm, the

government must prove the individual (1) was previously convicted of a felony and

(2) knowingly possessed a firearm, and (3) the firearm was transported in interstate

commerce.” United States v. Johnson, 745 F.3d 866, 869 (8th Cir. 2014).5 Wright

stipulated to being a prohibited person under § 922(g) and that the firearm was

5

Since Wright’s conviction, the Supreme Court has held that the government

must prove an additional element: “[I]n a prosecution under 18 U.S.C. § 922(g) . . . ,

the Government must prove both that the defendant knew he possessed a firearm and

that he knew he belonged to the relevant category of persons barred from possessing

a firearm.” Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019). Wright does not

challenge his conviction on this ground, however.

-17Appendix pg. 17

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transported in interstate commerce. Therefore, the government only had to prove the

second element, and we have already found sufficient evidence for a reasonable jury

to conclude that Wright knowingly possessed a firearm and carried it during or in

relation to the robbery of the Sprint store.

Accordingly, the district court did not err in denying Wright’s motion for a

judgment of acquittal.

D. Sentencing Enhancement under U.S.S.G. § 2K2.1(b)(1)

Wright argues that there was insufficient evidence to support a two-level

enhancement under § 2K2.1(b)(1). We review factual findings with regards to a

sentencing enhancement for clear error. United States v. Sesay, 937 F.3d 1146, 1153

(8th Cir. 2019). Section 2K2.1(b)(1) applies a sentencing enhancement for a firearmpossession conviction “[i]f the offense involved three or more firearms.” The statute

then prescribes various levels of increase based on the number of firearms, including

a two-level increase if the offense involved three to seven firearms. U.S.S.G.

§ 2K2.1(b)(1)(A).

Wright acknowledges that “several photos show[] him holding a firearm on his

Facebook page” but argues that there is “no proof that those [photos] are not [of] the

same firearm.” Appellant’s Br. at 21. The record flatly contradicts this assertion. At

trial, the government presented photos of Wright with (1) one black-and-silver

handgun, and (2) one black Smith & Wesson .40-caliber handgun. The latter appears

to be the same weapon found in Ford’s van after the robbery. At sentencing, the

government presented another photo of Wright holding one black handgun with three

more guns at his feet—two black, and one black-and-silver. The district court did not

clearly err in concluding that he possessed between three and seven firearms.

-18Appendix pg. 18

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E. Sentencing Enhancement under U.S.S.G. § 2B3.1(b)(5)

Wright argues that the district court erred in applying the carjacking offense

characteristic under § 2B3.1(b)(5). He contends that the carjacking offense was

already factored into his base offense level and that applying the carjacking offense

characteristic constituted impermissible double counting. We review de novo the

district court’s application of the Sentencing Guidelines and the question of double

counting. United States v. Canamore, 916 F.3d 718, 720 (8th Cir. 2019) (per curiam).

“A court impermissibly double counts when precisely the same aspect of a

defendant’s conduct factors into his sentence in two separate ways.” United States v.

Mays, 967 F.3d 748, 753 (8th Cir. 2020) (cleaned up). “Double counting occurs when

one part of the Guidelines is applied to increase a defendant’s punishment on account

of a kind of harm that has already been fully accounted for by application of another

part of the Guidelines.” United States v. Hawkins, 181 F.3d 911, 912 (8th Cir. 1999)

(quotation omitted). But “double counting is permissible if the Sentencing

Commission so intended and each guideline section furthers an independent purpose

of sentencing.” Canamore, 916 F.3d at 720 (quotation omitted).

Section 2B3.1 is the relevant sentencing guideline for a carjacking conviction

under 18 U.S.C. § 2119(1). It covers sentencing guidelines for robbery, applying a

base offense level of 20 for that crime. Under § 2B3.1(b)(5), the statute prescribes a

two-level increase “[i]f the offense involved carjacking.” Because § 2B3.1 and the

corresponding base level of 20 apply to the crime of robbery generally—not

carjacking—that section does not fully account for Wright’s conduct. Carjacking is

a specific type of robbery for which the Guidelines add two levels, resulting in an

offense level of 22.

The Eleventh Circuit addressed this issue in United States v. Naves, concluding

that adding two levels under § 2B3.1(b)(5) did not constitute impermissible double

counting. 252 F.3d 1166, 1169 (11th Cir. 2001). The court explained:

-19Appendix pg. 19

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Clearly the Sentencing Commission could have added to the Manual a

separate section for carjacking with a base offense level of 22. It elected

not to do so. Instead the Commission utilized the robbery section,

§ 2B3.1, which established a base offense level of 20 for the culpability

incident to an offense involving robbery in general. The Commission

then provided a two level increase to reflect the heightened seriousness

of a robbery involving the violation of § 2119, the carjacking statute. In

doing so, the Sentencing Commission acted within its statutory

authority.

Id. The Fourth Circuit came to the same conclusion in United States v. Cunningham,

221 F. App’x 258 (4th Cir. 2007) (per curiam). We are persuaded by the reasoning

of our sister circuits. Accordingly, we conclude that the district court did not err in

applying the carjacking offense characteristic when it calculated Wright’s sentence.

III. Conclusion

For the foregoing reasons, we affirm the district court’s decision.

______________________________

-20Appendix pg. 20

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United States Court of Appeals

For The Eighth Circuit

Thomas F. Eagleton U.S. Courthouse

111 South 10th Street, Room 24.329

St. Louis, Missouri 63102

VOICE (314) 244-2400

FAX (314) 244-2780

www.ca8.uscourts.gov

Michael E. Gans

Clerk of Court

April 16, 2021

West Publishing

Opinions Clerk

610 Opperman Drive

Building D D4-40

Eagan, MN 55123-0000

RE: 19-3190 United States v. Cedric Wright

Dear Sirs:

A published opinion was filed today in the above case.

Counsel who presented argument on behalf of the appellant and appeared on the brief

was Cory Jon Goldensoph, of Cedar Rapids, IA.

Counsel who presented argument on behalf of the appellee and appeared on the brief was

Richard L. Murphy, AUSA, of Cedar Rapids, IA.

The judge who heard the case in the district court was Honorable Leonard T. Strand. The

judgment of the district court was entered on September 26, 2019.

If you have any questions concerning this case, please call this office.

Michael E. Gans

Clerk of Court

ALK

Enclosure(s)

cc: MO Lawyers Weekly

District Court/Agency Case Number(s): 1:18-cr-00015-LTS-1

Appendix pg. 21

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United States Court of Appeals

For The Eighth Circuit

Thomas F. Eagleton U.S. Courthouse

111 South 10th Street, Room 24.329

St. Louis, Missouri 63102

VOICE (314) 244-2400

FAX (314) 244-2780

www.ca8.uscourts.gov

Michael E. Gans

Clerk of Court

April 16, 2021

Mr. Cory Jon Goldensoph

CORY GOLDENSOPH, P.C.

Suite 803

425 Second Street, S.E.

Cedar Rapids, IA 52401

RE: 19-3190 United States v. Cedric Wright

Dear Counsel:

The court has issued an opinion in this case. Judgment has been entered in accordance

with the opinion. The opinion will be released to the public at 10:00 a.m. today. Please hold the

opinion in confidence until that time.

Please review Federal Rules of Appellate Procedure and the Eighth Circuit Rules on postsubmission procedure to ensure that any contemplated filing is timely and in compliance with the

rules. Note particularly that petitions for rehearing and petitions for rehearing en banc must be

received in the clerk's office within 14 days of the date of the entry of judgment. Counsel-filed

petitions must be filed electronically in CM/ECF. Paper copies are not required. No grace period

for mailing is allowed, and the date of the postmark is irrelevant for pro-se-filed petitions. Any

petition for rehearing or petition for rehearing en banc which is not received within the 14 day

period for filing permitted by FRAP 40 may be denied as untimely.

Michael E. Gans

Clerk of Court

ALK

Enclosure(s)

cc:

Mr. Clerk, U.S. District Court, Northern Iowa

Mr. Martin Joseph McLaughlin

Mr. Cedric Antonio Wright

District Court/Agency Case Number(s): 1:18-cr-00015-LTS-1

Appendix pg. 22

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UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

___________________

No: 19-3190

___________________

United States of America

Plaintiff - Appellee

v.

Cedric Antonio Wright

Defendant - Appellant

______________________________________________________________________________

Appeal from U.S. District Court for the Northern District of Iowa - Cedar Rapids

(1:18-cr-00015-LTS-1)

______________________________________________________________________________

JUDGMENT

Before SMITH, Chief Judge, WOLLMAN, and LOKEN, Circuit Judges.

This appeal from the United States District Court was submitted on the record of the

district court, briefs of the parties and was argued by counsel.

After consideration, it is hereby ordered and adjudged that the judgment of the district

court in this cause is affirmed in accordance with the opinion of this Court.

April 16, 2021

Order Entered in Accordance with Opinion:

Clerk, U.S. Court of Appeals, Eighth Circuit.

____________________________________

/s/ Michael E. Gans

Appendix B: pg. 1

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Adopted April 15, 2015

Effective August 1, 2015

Revision of Part V of the Eighth Circuit Plan to Implement the Criminal Justice Act of

1964.

V. Duty of Counsel as to Panel Rehearing, Rehearing En Banc, and Certiorari

Where the decision of the court of appeals is adverse to the defendant in whole or in part, the

duty of counsel on appeal extends to (1) advising the defendant of the right to file a petition for

panel rehearing and a petition for rehearing en banc in the court of appeals and a petition for writ

of certiorari in the Supreme Court of the United States, and (2) informing the defendant of

counsel's opinion as to the merit and likelihood of the success of those petitions. If the defendant

requests that counsel file any of those petitions, counsel must file the petition if counsel

determines that there are reasonable grounds to believe that the petition would satisfy the

standards of Federal Rule of Appellate Procedure 40, Federal Rule of Appellate Procedure 35(a)

or Supreme Court Rule 10, as applicable. See Austin v. United States, 513 U.S. 5 (1994) (per

curiam); 8th Cir. R. 35A.

If counsel declines to file a petition for panel rehearing or rehearing en banc requested by the

defendant based upon counsel's determination that there are not reasonable grounds to do so,

counsel must so inform the court and must file a written motion to withdraw. The motion to

withdraw must be filed on or before the due date for a petition for rehearing, must certify that

counsel has advised the defendant of the procedures for filing pro se a timely petition for

rehearing, and must request an extension of time of 28 days within which to file pro se a petition

for rehearing. The motion also must certify that counsel has advised the defendant of the

procedures for filing pro se a timely petition for writ of certiorari.

If counsel declines to file a petition for writ of certiorari requested by the defendant based on

counsel's determination that there are not reasonable grounds to do so, counsel must so inform

the court and must file a written motion to withdraw. The motion must certify that counsel has

advised the defendant of the procedures for filing pro se a timely petition for writ of certiorari.

A motion to withdraw must be accompanied by counsel's certification that a copy of the motion

was furnished to the defendant and to the United States.

Where counsel is granted leave to withdraw pursuant to the procedures of Anders v. California,

386 U.S. 738 (1967), and Penson v. Ohio, 488 U.S. 75 (1988), counsel's duty of representation is

completed, and the clerk's letter transmitting the decision of the court will notify the defendant of

the procedures for filing pro se a timely petition for panel rehearing, a timely petition for

rehearing en banc, and a timely petion for writ of certiorari.

Appendix pg. 2

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