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The Honorable Howard F. Sachs, United States District Judge for the Western

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 05-4235

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri.

Antonio Clemmons, *

*

Appellant. *

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Submitted: May 19, 2006

Filed: August 29, 2006

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Before WOLLMAN, BOWMAN, and RILEY, Circuit Judges.

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WOLLMAN, Circuit Judge.

Antonio Clemmons pleaded guilty to one count of being a felon in possession

of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He appeals from

his conviction, contending that the district court1

 erred in denying his motion to

exclude statements, that the district court imposed a sentence in violation of the Ex

Post Facto and Due Process clauses, and that the district court erred in classifying his

Missouri felony conviction for first degree tampering as a crime of violence. We

affirm.
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I.

On August 30, 2002, Jamil Williams reported a burglary of his apartment to the

Independence, Missouri, police department, stating that a Smith & Wesson .40 caliber

semi-automatic pistol, serial number PAZ6099, was one of the items stolen. Williams

told the police that he believed that Clemmons had burglarized his apartment and that

he had seen Clemmons outside of the apartment, though not on the date in question.

On October 20, 2002, Officers Steven Lester and Lawrence Cory were

dispatched to an address in Kansas City, Missouri. When they arrived, they found

Williams lying on the ground with a pool of blood gathering on his right leg. Officer

Lester testified that Williams was talking on his cell phone in a calm voice. Officer

Lester, who could tell that Williams had been shot, approached Williams and asked

him to end the call. Williams did so, whereupon Lester asked Williams who had shot

him. Williams answered that Antonio Clemmons had shot him and had stolen his

Mac-11 pistol. Williams verified the identification of his assailant by telling the

officers that Clemmons had attempted to rob him a month earlier in Independence.

The Mac-11 pistol stolen from Williams was a Cobray, Model PM-11, 9mm semiautomatic pistol, serial number 940022835

Between October 20, 2002, and October 31, 2002, Clemmons gave Eugene

Calvert a Smith & Wesson pistol, serial number PAZ6099, in exchange for marijuana.

After Calvert was arrested and law enforcement officers recovered the pistol, Calvert

told the officers that he had received the gun from a man known as “40.” An

examination of the firearm revealed that it matched two cartridge cases recovered

from the scene of the Williams shooting. The officers learned that the moniker “40”

corresponded to the name Antonio Clemmons and established surveillance at the

residence where they believed Clemmons had been staying. On November 12, 2002,

Clemmons was arrested for assault and robbery as he left the residence. 
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A detective returned to the address and asked for consent to search the

premises. A resident consented to the search and showed the detective the room

where Clemmons had been staying. The detective found a Mac-11 pistol, serial

number 940022835, on the shelf. 

 

On December 5, 2003, Williams was murdered. Clemmons, who was

incarcerated in the Jackson County jail at the time, was released because the only

witness to the assault and robbery, Williams, had died.

In a superseding indictment, Clemmons was charged with (1) being a felon in

possession of a Cobray, Model PM-11, 9mm semi-automatic pistol, and (2) being a

felon in possession of a Smith & Wesson .40 caliber semi-automatic pistol.

Clemmons entered a conditional guilty plea to count one of the superseding

indictment, reserving the right to appeal the district court’s denial of his pretrial

motions. 

The Presentence Investigation Report (PSR) recommended a base offense level

of 24 because Clemmons had previously sustained two felony convictions for crimes

of violence, including a Missouri conviction for tampering in the first degree. The

PSR also recommended a two-level enhancement because the firearm was stolen, a

four-level enhancement because the firearm was used in connection with another

felony offense, and a two-level reduction for acceptance of responsibility. Explaining

the four-level enhancement, the PSR stated that: 

Clemmons was involved in the burglary of Jamil Williams’ residence (at which

time he stole the firearm), the aggravated assault of Jamil Williams (at which

time he shot Williams with the gun he had previously stolen from him), and the

robbery of Jamil Williams (at which time he stole the second firearm). 
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Clemmons objected to the characterization of first-degree tampering as a crime of

violence and to the enhancements recommended in the PSR.

The district court ruled that Clemmons’s prior conviction for tampering

qualified as a crime of violence and that his base offense level was 24. The district

court applied the recommended enhancements and reduction, resulting in a total

offense level of 28. With a criminal history category of VI, the district court

determined that Clemmons’s sentencing range was between 140 and 175 months, but

that the statutory maximum of 120 months controlled. The district court sentenced

Clemmons to 120 months’ imprisonment. 

II. 

Clemmons argues that the district court erred in denying his pretrial motion to

exclude the statements made by Williams to Officer Lester on October 20, 2002. 

A.

We review de novo the denial of an objection to the admission of evidence

based on the Confrontation Clause of the Sixth Amendment. United States v. Brun,

416 F.3d 703, 706 (8th Cir. 2005).

The Sixth Amendment states that in all “criminal prosecutions, the accused

shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const.

amend. VI. In Crawford v. Washington, the Supreme Court held that the

Confrontation Clause bars the “admission of testimonial statements of a witness who

did not appear at trial unless he was unavailable to testify, and the defendant had had

a prior opportunity for cross-examination.” 541 U.S. 36, 53-54 (2004). The Court

declined, however, to offer a comprehensive definition of “testimonial,” stating that

“[w]hatever else the term covers, it applies at a minimum to prior testimony at a
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preliminary hearing, before a grand jury, or at a former trial; and to police

interrogations.” Id. at 68. 

In Davis v. Washington, the Supreme Court revisited the Confrontation Clause

and distinguished between testimonial and nontestimonial statements in the context

of police interrogations. 126 S. Ct. 2266 (2006). There, the trial court had admitted

into evidence a recording of a victim’s exchange with a 911 operator. The Supreme

Court affirmed, holding that:

Statements are 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 circumstances 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 prosecution.

Id. at 2273-74. The Court went on to draw distinctions between the interrogations in

Crawford and Davis, noting that the nature of the questions in Davis elicited answers

that were necessary to be able to resolve the ongoing emergency. Davis, 126 S. Ct.

at 2276. “That is true even of the operator’s effort to establish the identity of the

assailant, so that the dispatched officers might know whether they would be

encountering a violent felon.” Id.

Viewing the facts in the light of the Supreme Court’s decision in Davis, we

conclude that Williams’s statements to Officer Lester were nontestimonial. The

circumstances, viewed objectively, indicate that the primary purpose of Lester’s

questions was to enable him to assess the situation and to meet the needs of the victim.

Officer Lester testified that he had parked his vehicle several houses away from the

address to which he was dispatched “due to the fact that there could be a party armed.”

Sentencing Tr. at 15. When the officers arrived at the scene, Williams was lying in

front of a neighbor’s house, suffering from multiple gunshot wounds. Officer Lester
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further testified that his purpose in speaking to the victim was, “[t]o investigate, one,

his health to order him medical attention and, two, try[] to figure out who did this to

him.” Sentencing Tr. at 16-17. Any reasonable observer would understand that

Williams was facing an ongoing emergency and that the purpose of the interrogation

was to enable police assistance to meet that emergency. Accordingly, because

Williams’s statements were nontestimonial, they do not implicate Clemmons’s right

to confrontation.

B.

The district court determined that the excited utterance exception to the hearsay

rule applied to Williams’s statements and denied Clemmons’s motion to exclude. We

review the district court’s evidentiary ruling for abuse of discretion. United States v.

Water, 413 F.3d 812, 818 (8th Cir. 2005). 

Rule 803 (2) of the Federal Rules of Evidence provides that excited utterances,

statements relating to a startling event and made while under the stress of excitement

caused by the event, are not excluded by the hearsay rule. “For the excited utterance

exception to apply, the declarant’s condition at the time of making the statement must

be such that the statement was spontaneous, excited or impulsive rather than the

product of reflection and deliberation.” Reed v. Thalacker, 198 F.3d 1058, 1061 (8th

Cir. 1999) (internal quotation omitted). In determining whether a declarant was still

under the stress of excitement when he made the statement, we consider “the lapse of

time between the startling event and the statement, whether the statement was made

in response to an inquiry, the age of the declarant, the physical and mental condition

of the declarant, the characteristics of the event, and the subject matter of the

statement.” Id. 

Given the circumstances and nature of the conversation, we conclude that the

district court did not abuse its discretion in ruling that the hearsay statements were
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admissible as excited utterances. Although Officer Lester testified that Williams was

talking on his cell phone in a calm manner, Williams had suffered five gunshot

wounds and lay bleeding on the ground. As the district court stated, “[i]t would be

unreasonable to conclude that someone recently suffering multiple gun-shot wounds

and awaiting the arrival of paramedics is so nonchalant ab[o]ut his condition that he

is likely to calculate who he might unfairly blame for his injuries.” D. Ct. Order of

June 28, 2005, at 3. We agree, and we thus affirm the district court’s order denying

Clemmons’s motion to exclude Williams’s statements. 

III.

Clemmons next argues that his sentence violates his right to fair warning under

the Ex Post Facto and Due Process clauses. He contends that the district court erred

in applying Booker’s remedial holding to an offense that predated the Supreme

Court’s decisions in Blakely v. Washington, 542 U.S. 296 (2004), and United States

v. Booker, 543 U.S. 220 (2005), and that the resulting sentence was unforeseeable.

Clemmons argues that the Sixth Amendment requires that the district court sentence

him under the mandatory guidelines based on facts found by the jury or admitted by

him and that the district court erred in applying sentencing enhancements (1) for the

use of the firearm in connection with another felony offense and (2) for the stolen

nature of the firearm. We review de novo Clemmons’s constitutional challenges.

United States v. Wade, 435 F.3d 829, 831 (8th Cir. 2006) (per curiam). 

After Clemmons filed his appeal, we rejected these exact arguments in United

States v. Wade. 435 F.3d at 832. First, the Ex Post Facto Clause does not apply here

because the changes wrought by Booker were by judicial decision, not by statute. Id.

Although due process concerns require that the application of judicial decisions to a

pending case complies with the “concepts of notice, foreseeability, and, in particular,

the right to fair warning,” Rogers v. Tennessee, 532 U.S. 451, 459 (2001), the

Supreme Court directed the courts below to apply the Booker holdings—“both the
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Sixth Amendment holding and [the] remedial interpretation of the Sentencing Act—to

all cases on direct review.” Booker, 543 U.S. at 268. We thus reject Clemmons’s

constitutional claims and reiterate the conclusion reached in Wade, “the Supreme

Court would not direct us to violate the Constitution.” Wade, 435 F.3d at 832.

IV. 

 Finally, Clemmons argues that the district court erred in finding that his 1990

Missouri state conviction for tampering in the first degree was a crime of violence.

We review de novo whether a prior conviction constitutes a crime of violence under

the sentencing guidelines. United States v. Bockes, 447 F.3d 1090, 1092 (2006).

Under Missouri law, a person commits the crime of tampering if he “knowingly

receives, possesses, sells, alters, defaces, destroys or unlawfully operates an

automobile . . . without the consent of the owner thereof.” Mo. Rev. Stat. § 569.080.1

(2). The statute thus criminalizes both tampering by operation and tampering by

possession. In United States v. Bockes, we held that tampering by operation in

violation of Missouri law constituted a crime of violence under § 4B1.2 of the U.S.

Sentencing Guidelines. 447 F.3d at 1092-93.

Clemmons does not argue that he was tampering by possession, but rather urges

us to reconsider our holding that tampering by operation is a crime of violence.

Appellant’s Br. at 26 (“Clemmons’s offense involved knowingly and without the

consent of the other unlawfully operating an automobile.”) This panel, however,

cannot overrule the decision of a prior panel, United States v. Sun Bear, 307 F.3d

747, 753 (8th Cir. 2002), and Clemmons’s state conviction thus qualifies as a crime

of violence. 

The judgment is affirmed.

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