Appeal from the United States District Court for the Western District of Wisconsin. No. 07 CR 61-Barbara B. Crabb, Chief Judge.
The opinion of the court was delivered by: Williams, Circuit Judge.
Before CUDAHY, MANION, and WILLIAMS, Circuit Judges.
Marcus Canady, a convicted felon, was found by a police officer in an overturned SUV with a semi-automatic weapon in his waistband. He was charged with unlawful possession of a firearm and ammunition. At trial, in addition to the officer's testimony, the government introduced evidence linking Canady to a home invasion and shooting earlier that night, where he used the same weapon. The jury convicted Canady.
Canady appeals his conviction and sentence because, he contends, the home invasion and shooting evidence was inadmissible, the district court improperly denied his theory of defense jury instruction, and the evidence did not support the district court's determination at sentencing that he used the gun in an attempted murder. We reject Canady's first argument because the home invasion and shooting evidence were integral in establishing his possession of the firearm. Next, we agree with the district court's determination that the evidence did not support Canady's theory of defense instruction, and we also conclude that the evidence supported the district court's findings during sentencing. Therefore, we affirm Canady's conviction and sentence.
In the early morning on April 2, 2007, Brent Krause woke to discover an intruder, later identified as Duane Vance, in his living room bleeding from his face. Moments later, Krause heard the sound of breaking glass and saw another man enter through the front door. According to Krause, the second intruder displayed a small handgun and commanded him to follow Vance who, by that time, had fled toward the kitchen. Eventually, the commotion downstairs woke Krause's roommate who proceeded to yell at the intruders, threatening to call the police. The second armed intruder then ran out of the house through the front door. At the same time, Krause ran to the garage to get his shotgun and then outside to pursue him. Krause never caught up, but, through the scope of his shotgun, Krause saw him enter a light gray compact SUV and take off swerving down the road. Vance, who was still bleeding from his face, ran across the street and collapsed by the side of the road.
That morning, Tony Pucillo, a Madison, Wisconsin police officer, received an emergency call regarding the home invasion at Krause's residence. He turned on his emergency lights and headed towards the scene of the crime. On the way, approximately a mile and a half from Krause's home, he spotted a gray Nissan Murano SUV rolled over at the side of the road. Officer Pucillo testified that the headlights were on, and, based on the smoke and dust coming from the vehicle, it appeared that the accident had "just happened." He stopped to investigate and found Canady inside the vehicle. Officer Pucillo said that he immediately noticed a semi-automatic nine millimeter handgun tucked in Canady's waistband and that he "ran" the gun back to the hood of his car. Kathryn Becker, a City of Fitchburg police officer, also saw the overturned SUV while responding to the home invasion. She testified that she accompanied Canady to the hospital, and, although he wasn't bleeding, she saw blood on Canady's jacket, pants, and shoes. Based on the evidence from the accident, a grand jury returned a superseding indictment charging Canady with possession of a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g).
The government believed that the home invasion and accident that occurred in the early morning on April 2 were related. Specifically, its theory was that Canady was the second intruder who entered the house with the gun, and that he had shot Vance in the head after a dis-agreement about drugs, followed him into Krause's home, and escaped in the Nissan Murano after Krause's roommate threatened to call the police. Nonetheless, the government filed a motion in limine to exclude evidence of the home invasion and shooting, provided that Canady did not present a defense denying that the officer found him with the gun in his waistband. The government eventually withdrew its motion in limine, however, becauseCanady indicated that he planned to use evidence of the events that occurred before the accident to demonstrate that Officer Pucillo's story was false.
As a result, the government presented evidence at trial to link Canady to both the home invasion and Vance's shooting. This included the testimony of Brent Krause who stated that the second intruder had hair styled in cornrows, wore a North Carolina jacket, and escaped in a light gray compact SUV-all of which closely matched the officers' observations at the accident scene. The government also presented a DNA analyst who testified that Vance's blood was found in the SUV and on the muzzle of the gun. Canady, on the other hand, denied that he had a gun in his waistband and argued that a third person was responsible for the shooting and home invasion. The jury found Canady guilty.
At the sentencing hearing, the district court adopted the presentence report's ("PSR") determination that Canady used the gun in connection with the attempted murder of Vance. This allowed the court, under U.S.S.G. § 2K2.1(c)(1), to sentence Canady using the base offense level for attempted murder, which was 27. See U.S.S.G. § 2A2.1(a)(2). The court also added two levels because the victim sustained serious bodily injury, U.S.S.G. § 2A2.1(b)(1), and, combined with Canady's criminal history, this resulted in an advisory guideline range of 188-235 months. As an alternative, the court noted that even without the attempted murder finding, Canady would have qualified for a four level enhancement for breaking into Krause's home with a gun, and an additional two level enhancement for using a large capacity semiautomatic firearm. U.S.S.G. § 2K2.1(a)(3). The court sentenced Canady to 120 months, the statutory maximum term of imprisonment for his charge. Canady appeals his conviction and sentence.
A. Admission of Home Invasion Evidence Was Proper
During trial, the government presented testimony linking Canady to the home invasion and shooting. At the time, Canady did not object to the introduction of this testimony. He now argues, however, that the district court erred in admitting this evidence because it only showed his propensity to commit the crime charged, and, as a result, deprived him of a fair trial. Before reaching the merits, we first address the govern-ment's claim that Canady waived this argument. The government initially presented a motion in limine to exclude evidence of the home invasion and shooting on the condition that Canady did not present a defense denying that he possessed the firearm. Canady did not agree to these terms and indicated that he intended to use "evidence of a series of events" that occurred before the ...