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The Honorable Donald J. Stohr, United States District Judge for the Eastern

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No.04-1899

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United States of America, * 

* 

Appellee, * 

* Appeal from the United States

v. * District Court for the 

* Eastern District of Missouri.

Larry Flenoid, * 

* [PUBLISHED]

Appellant. * 

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Submitted: January 11, 2005

Filed: July 29, 2005

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Before MELLOY, SMITH, and COLLOTON, Circuit Judges.

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SMITH, Circuit Judge.

Larry Flenoid was found guilty by a jury of being a felon in possession of a

firearm and escape. Flenoid was sentenced to life in prison1

 for felon in possession

and five years for escape, to run concurrently. On appeal, Flenoid argues that he

should be resentenced in accordance with Blakely v. Washington, 542 U.S. 296

(2004) and that the district court erred in admitting testimony of the shooting. We

disagree and affirm. 
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I. Background

In May 2000, while residing in a halfway house pending release from federal

prison, Flenoid went to see his girlfriend, Ursula Page, on a weekend pass. When

Page was late picking him up, Flenoid became enraged, then punched, verbally

abused, and threatened to kill her. Page took the threat seriously and sought refuge

with her brother-in-law, Rickey Forehand. 

About three a.m., Flenoid appeared at Forehand's residence. Fearful, Page ran

upstairs to hide under a bed with her niece. Page heard a gunshot downstairs. Flenoid

had shot and killed Forehand with a .357 magnum revolver. After the shooting,

Flenoid found Page and threatened her, pointing the gun at her niece. Still armed,

Flenoid dragged Page out of the residence and put Page in her car. As Flenoid began

to drive away, Page attempted to jump from the car. Flenoid grabbed Page's hand,

dragging her while driving the car for about 150 feet. 

About that time, a St. Louis County patrolman arrived on the scene. When the

officer arrived at Forehand's house, he observed Page's car leave the area and Page

attempt to jump from it. The patrolman pursued the car until it crashed into a utility

pole a short time later. The officer commanded Flenoid to exit Page's car. Instead,

Flenoid attempted to free the car from the pole and when he failed, Flenoid fled into

a wooded area nearby.

Flenoid was not apprehended for more than three years. In the meantime,

investigators recovered Flenoid's bloody fingerprint and palm print on a door and a

wall of the basement where Forehand was killed. Police also recovered Flenoid's .357

revolver which contained five spent shell casings. Fragments of five bullets were

retrieved from the basement of Forehand's house and from Forehand's body. 

Flenoid was indicted for being a felon in possession of a firearm in violation

of 18 U.S.C. § 922(g)(1) and also for escape. Prior to trial, Flenoid filed several
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Flenoid had seven prior convictions for violent felonies or drug trafficking

crimes. 

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motions in limine, one of which sought to exclude what he considered unfairly

prejudicial testimony regarding the bloody fingerprints found in the basement of

Forehand's home. The district court denied the motion, but did restrict the

Government's ability to introduce evidence related to Forehand's murder to such

evidence as was necessary to prove Flenoid possessed the .357 firearm. A jury found

Flenoid guilty of both felon in possession of a firearm and escape. 

At sentencing, the district court determined that Flenoid was an armed career

criminal2

 pursuant to 18 U.S.C. § 924(e) on April 9, 2004. As an armed career

criminal, Flenoid was subject to the sentencing range of fifteen years to life provided

in § 924(e). The district court sentenced Flenoid pursuant to United States Sentencing

Guideline (U.S.S.G.) § 2K2.1, which is applicable to violations of 18 U.S.C. §

922(g)(1). Section 2K1.2 (c)(1)(B) provides a cross-reference to the most analogous

homicide guideline when death results from the defendant's use or possession of a

firearm. Based on the trial evidence of Flenoid's murder of Forehand, the district

court found that § 2A1.1, the guideline for first degree murder, was most applicable.

Section 2A1.1 requires a sentence of life in prison. Flenoid objected to the presentence report because the sentence recommendation recited facts related to

Forehand's murder not determined by a jury.

II. Discussion

A. Admission of Testimony

A district court's decision to admit evidence over a defendant's objection that

the evidence is unduly prejudicial would be reviewed for abuse of discretion. United

States v. Walrath, 324 F.3d 966, 970 (8th Cir. 2003). Flenoid failed to object to the

admission of the evidence from the shooting after having filed a motion in limine. The

government argues that "[a] motion in limine is not a substitute for an objection and
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does not alone preserve error for review." United States v. Lee, 274 F.3d 485, 493

(8th Cir. 2001). We disagree.

In 2000, Federal Rule of Evidence 103(a) was amended. In United States v.

Malik, 345 F.3d 999 (8th Cir. 2003), we were faced with a situation similar to the one

presented here. In Malik, the defendant moved in limine to exclude evidence. When

his motion was denied the defendant did not object further. We held that "'[o]nce the

court makes a definitive ruling on the record admitting or excluding evidence, either

at or before trial, a party need not renew an objection . . . to preserve a claim of error

for appeal.' Fed. R. Evid. 103(a) (2000)." Id. at 1001. We indicated that a motion in

limine is an objection. We believe that Malik correctly explains Rule 103(a). We

therefore hold that Flenoid properly objected to the admission of the evidence at trial.

However, we hold that the admitted evidence was not unfairly prejudicial. The

district court, in denying Flenoid's motion in limine, restricted the government's

introduction of evidence related to the murder to only what was necessary to prove

Flenoid possessed the .357 firearm. The court's instruction sufficiently circumscribed

the testimony. The admitted evidence was highly probative of Flenoid's possession

of a prohibited firearm because it established that he used it. Flenoid's use of the

firearm to commit murder does not alter its probative value on the crucial issue of

possession. The district court did not abuse its discretion.

B. Sentencing

Flenoid argues that the district court erred in sentencing him to life in prison

pursuant to U.S.S.G. § 2K2.1(c)(1)(B), the first-degree murder cross-reference,

because the jury made no first-degree murder findings. However, Flenoid forfeited

a claim of error based on the Sixth Amendment or the mandatory Guidelines by his

"failure to make timely assertion of the right." United States v. Olano, 507 U.S. 725,

731 (1993) (internal quotation omitted). His claim will only be reviewed for plain

error. Id.; Fed. R. Crim. P. 52(b).
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In reviewing Flenoid's claim under the plain error standard, we consider

whether Flenoid has shown a reasonable probability, based on the record as a whole,

that but for the district court's error in applying the mandatory Sentencing Guidelines,

he would have received a more favorable sentence. United States v. Pirani, 406 F.3d

543, 551 (8th Cir. 2005) (en banc). We conclude upon review of this record that

Flenoid has not met his burden. The district court found by a preponderance of the

evidence that Flenoid’s "shooting of Ricky Forehand was committed in the

perpetration of kidnapping of Ursula Page and/or the burglary of the Forehand

residence and so constitutes a first degree murder for the purposes of Sentencing

Guideline cross reference." (S. Tr. at 14). The court's principal comment on the

sentencing of life imprisonment was as follows:

Based upon the serious nature of the instant offense that involved the

defendant's escape from federal custody and his possession of a revolver

that he used to kill the victim, and in view of the defendant's extensive

criminal history, the following sentence would seem to address the

sentencing objectives of punishment, general deterrence, and

incapacitation.

(S. Tr. at 45–46). We find nothing in the comments or any other part of the record

suggesting a reasonable probability that the district court would have imposed a more

lenient sentence under the advisory guideline scheme announced in Booker.

Therefore, we affirm the judgment of the district court. 

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