[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH C IRCUIT

________________________
No. 13

- 12190 Non

- Argument Calendar

________________________ D.C. Docket No. 3:10

- cr
- 00191

- TJC

- MCR

- 1

UNITED STATES OF AMERICA , Plaintiff

- Appellee

versus

WILLIE LEE DANIELS , Defendant

- Appellant.

________________________ Appeal from the United States District Court for the Middle District of Florida

_ _______________________ (February 10, 2014) Case: 13-12190 Date Filed: 02/10/2014 Page: 1 of 102 Before TJOFLAT , PRYOR and MARTIN , Circuit Judges.
PER CURIAM: A jury found Willie Lee Daniels guilty of possession of a firearm by a
convicted felon , in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) , and was
sentenced as an armed career criminal to a prison term of 180 months. He appeals
his conviction and sentence. He challenges his conviction on the grounds that : (1) the district court erred in denying his motion to suppress the firearm; (2) the court
abused its discretio n in admitting a n anonymous 911 call into evidence ; (3) admitting the 911 call into evidence violated his rights un der the Confrontation Clause; (4 ) the evidence was insufficient to support his conviction; and the (5 ) the
court abused its discretion in den ying his motion for a new trial . He challenges his

sentence on the ground that the court erroneously based it in part on finding that
his prior conviction for aggravated fleeing and eluding constituted a violent felony under the Armed Career Criminal Act (“ACCA”). We address in turn the challenges to Daniel’s conviction and sentence

. I. Motion to suppress

.

“As rulings on motions to supp ress involve mixed questions of fact and law, the district court's factual findings are reviewed under the clearly erroneous

Case: 13-12190 Date Filed: 02/10/2014 Page: 2 of 103 standard, while that court’s application of the law is subject to de novo review.”
United States v. Ramos , 12 F.3d 1019, 1022 (11t h Cir. 1994 ). In challenging a search under the Fourth Amendment, the defendant bears the burden of establishing “both a subjective and an objective expectation of privacy” in the area or object searched. United States v. Segura

- Baltazar , 448 F.3d 1281, 1286 (11th Cir. 2006). “The subjective component requires that a person exhibit an actual expectation of privacy, while the objective component requires that the privacy expectation be one that society is prepared to recognize as
reasonable.” Id. “[O]nly individuals who actually enjoy the reasonable expectation of privacy have standing to challenge the validity of a government
search.” United States v. King , 509 F.3d 1338, 1341 (11th Cir. 2007). The facts giving rise to Daniel’ s motion to suppress as esta blished at the suppression hearing . Officer Hudson r e ceived a call from the police dispatcher , who was responding to a 911 call, stating that a man was c has i n g a woma n at gunpoint at an apartment complex. He drove to and into the co m plex, w i thout siren or lights

act i vated, and once inside the complex, he observed Daniels and a woman, later
identified as Clarissa Wat s on, wal k ing toward his patrol car. Although Daniels a n d
Watson fit the dispatcher’s description of the individ u als referred to in the 911 call,
to Hudson they “look[ed] ap p arently normal” and “ c asual.” He was therefore “puzzled” and did not confront them. W hen he made eye contact with the m, Case: 13-12190 Date Filed: 02/10/2014 Page: 3 of 104 however, D a niels turned and ran around the corner of a nearby buildin g
. Hudson
became suspicious that Daniels could be the man with the gun, so he drove toward Watson, exited his vehicle, and directed her to the ground , and radioed for backup. At this point, Daniels r e turned f r o m around the corner of the buildin g ; he had been
gone for only a few seconds. After arresting Daniels, Hudson w e nt around the corner of the building where
Daniels had disappear ed and found a p r i v acy f e nce. Looking over the top of the fence, he saw a semiautomatic pistol, which he retrie v ed. That was the firearm
described in Daniels’s indictment

. At the suppression hearing, Daniels testified that he had been standing beside
Watson when Hudson ordered her to t h e ground . Because Hudson ordered her to the ground at gunpoint, he “ c ompl[ied].” He testified that he had never possessed a g un that day, that he had seen the gun that he was charged with possessing only in photographs, a n d that he had not gone behind the building or thrown anything over the fence.
The district court , crediting Hudson’s testimony and rejecting Daniels’s , denied
Daniels’s motion to suppress on the ground that he lacked standing under the F ourth
Amendment

. We conclude that the ruling did not constitute an abuse of discretion;
Daniels , having deni ed see ing or possessing the firearm , did not have an expectation of privacy. Case: 13-12190 Date Filed: 02/10/2014 Page: 4 of 105 The 911 call.
We review trial court rulings admitting hearsay into evidence for abuse of discretion, United States v. Miles , 290 F. 3d 1341, 1351 (11th Cir. 2002), and will

not revers e an erroneous evidentiary ruling unless “there is a reasonable likelihood that [it] affected the defendant’s substantial rights.” United States v. Hawkins , 905 F.2d 1489, 1493 (11th Cir. 1990). “Hearsay” means a statement that: (1) is made by the declarant outside the current trial or hearing; and (2) is offered into evidence by a party to prove the truth of the matter asserted in the statement. Fed.R.Evid. 801(c). Hearsay is not admissible unl ess specifically excepted by statute or rule.
Fed.R.Evid. 802. Federal Rule of Evidence 803(1) provides that statements “describing or explaining an event or condition, made while or immediately after the declarant perceived it,” al so known as “present sense impressions,” are exceptions to the rule against hearsay. Fed.R.Evid. 803(1); see United States v.
Scrima , 819 F.2d 996, 1000 (11th Cir. 1987).
The district court did not abuse its discretion in adm itting the anonymous
911 c all because the statements constituted an exception to hearsay as the present sense impressions of the caller.
The 911 call and the Confrontation Clause.

We review de novo the question of whether statements are “testimonial” for purposes of the Confrontation Clause. United States v. Lamons , 532 F.3d 1251,

Case: 13-12190 Date Filed: 02/10/2014 Page: 5 of 106 1261 n. 15 (11th Cir. 2008). The Sixth Amendment protects an accused’s right, in a criminal prosecution, to “be confronted with the witnesses against him.” U.S.
Const. amend. VI. The Clause’s protection applies to testimonial statements, which may include statements taken by police during interrogations. Crawford v. Washington , 541 U.S. 36, 51

- 52, 124 S.Ct. 1354, 1364, 158 L.Ed.2d 177 (2004). . The Supreme Court has distinguished between nontestimonial and
testimonial statements in this manner:

Statements ar e nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstan ces objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. Davis v. Washington , 547 U.S. 813, 822, 126 S.Ct. 2266, 2273

- 74, 165 L.Ed.2d 224 (2006).
The admission of the 911 call into evidence did not infringe Daniels’s rights
under the Confrontation Clause because the caller’s statements were

n ontestimonial ; their primary purpose was to enable the police to mee t an ongoing
emergency. Sufficiency of the evidence. Case: 13-12190 Date Filed: 02/10/2014 Page: 6 of 107 We review the sufficiency of the evidence de novo

. United States v. Maxwell, 579 F.3d 1282, 1299 (11th Cir. 2009). In determining whether there is sufficient evidence to support a conviction, we “view the evidence in the light most favorable to the government and decide whether a reasonable fact finder could have reached a conclusion of guilt beyond a reasonable doubt.” United States v.
Herrera , 931 F.2d 761, 762 (11th Cir. 1991). “Credibility determinations are the exclusive province of the jury.” United States v. Parrado , 911 F.2d 1567, 1571 (11th Cir. 1990). We draw all reasonable inferences tending to support th e prosecution’s case and assume that the jury made all credibilit y choices in support
of the verdict. Maxwell , 579 F.3d at 1299

. To obtain a conviction for being a felon in possession of a firearm, the government must prove that (1) the defendant was a convicted felon, (2) the defendant knowing ly possessed a firearm, and (3) the firearm was in or affecting interstate commerce. 18 U.S.C. § 922(g)(1); United States v. Deleveaux , 205 F.3d 1292, 1296

- 97 (11th Cir. 2000). “ Possession can be shown by circumstantial as
well as d irect evidence.” Crawford , 906 F.2d at 1535. There was sufficient evidence to support Daniels’s conviction for possession of a firearm by a convicted felon. Daniels’s girlfriend , Watson, testified that Daniels took a gun from her dresser and later got rid of the gun behind a building

Case: 13-12190 Date Filed: 02/10/2014 Page: 7 of 108 in their apartment complex

. Officer Hudson recovered a gun near that location , and Watson identified it as the gun Daniels took from her apartment.
M otion for new trial.
A district court’s denial of a motion for a new trial is reviewed for abuse of
discretion. United States v. Perez

- Oliveros , 479 F.3d 779, 782 (11th Cir. 2007). In evaluating a motion for a new trial, the district court “may weigh th e evidence and consider the credibility of the witnesses.” United States v. Martinez , 763 F.2d 1297, 1312 (11th Cir. 1985). However, “[t]he court may not reweigh the evidence and set aside the verdict simply because it feels some other result would be mo re reasonable.” Id. at 1312

- 13. If the court concludes that the evidence preponderates sufficiently heavily against the verdict that a serious miscarriage of justice may have occurred, the court may set aside the verdict, grant a new trial,
and submit th e issues for determination by another jury. Id. at 1312. Motions for new trials based on the weight of the evidence are not favored and are granted “sparingly,” “with caution,” and only in “exceptional cases.” Id. at 1313.
The district court did not abuse its discretion in denying Daniels’s motion
for a new trial . The evidence of guilt was strong and did not preponderate heavily against the verdict.
II.
The Sentence : Aggravated Fleeing and Eluding under the ACCA

. Case: 13-12190 Date Filed: 02/10/2014 Page: 8 of 109 Whether a defendant’s prior conviction qualifies as a violent felony under
the ACCA is a question of law that we review de novo

. United States v. Petite , 703 F.3d 1290, 1292 (11th Cir. 2013). The ACCA defines a “violent felony” as “any crime punishable b y imprisonment for a term exceeding one year” that . . . “ is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. ” 18
U.S.C. § 924(e)(2)(B).
Under F lorida Statute § 316.1935(1), simple fleeing and eluding occurs when “any person . . . willfully flees or attempts to elude law enforcement in an authorized law enforcement patrol vehicle.” Fla. Stat. § 316.1935(1). Under Florida Statute § 316.1935(4), a person commits aggravated fleeing or eluding when that person: in the course of unlawfully leaving or attempting to leave the scene of a crash . . . , having knowledge of an order to stop by a duly authorized law en forcement officer, willfully refuses or fails to stop in compliance with such an order, or having stopped in knowing compliance with such order, willfully flees in an attempt to elude such officer and, as a result of such fleeing or eluding: (a) causes inj ury to another person or causes damages to any property belonging to another person . .

. or . . . (b) causes serious bodily injury or death to another person. Fla. Stat. § 316.1935(4). In United States v. Petite , we addressed the issue of whether the Florida offense of simple fleeing and eluding constitutes a violent felony. 703 F.3d 1290, 1301 (11th Cir. 2013). We concluded that, in light of the

Case: 13-12190 Date Filed: 02/10/2014 Page: 9 of 1010 Supreme Court’s detailed analysis in Sykes v. United States , __ U.S.

__ , 131 S.Ct. 2267, 18 0 L.Ed.2d 60 (2011) , regarding the substantial risks inherent in any confrontational act of intentional vehicle flight, simple vehicle flight presented a serious risk of physical injury. Id. In light of our prior determination that the Florida offense of simple fleeing and eluding presents a potential risk of injury and co nstitutes a violent felony, the significantly more serious Florida offense of aggravated fleeing and eluding also constitutes a violent felony.
III.
For the foregoing reasons, Daniels’ s conviction and sentence are
AFFIRMED. Case: 13-12190 Date Filed: 02/10/2014 Page: 10 of 10