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The Honorable Richard H. Kyle, United States District Judge for the District

of Minnesota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-1849

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United States of America,

Appellee,

v.

Augustus Quintrell Light,

Appellant.

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Appeal from the United States

District Court for the

District of Minnesota.

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Submitted: December 14, 2004 

 Filed: May 9, 2005

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Before BYE, HANSEN, and GRUENDER, Circuit Judges. 

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GRUENDER, Circuit Judge.

 Augustus Quintrell Light appeals his conviction for being a felon in possession

of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) and 924(e). Light

contends that there was insufficient evidence to support the jury’s finding that he

possessed the gun and that the district court1

 denied his right to self-representation.
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In addition, Light raises for the first time on appeal the argument that his sentence,

based on the application of the United States Sentencing Guidelines in a mandatory

fashion, was unconstitutional. For the reasons discussed below, we affirm the

conviction and sentence.

I. BACKGROUND

Just before 4:00 p.m. on a clear and sunny day, two Duluth, Minnesota police

officers in a squad car made a traffic stop on a sport-utility vehicle going the wrong

way on a one-way street. As the vehicle stopped, a passenger, later identified as

Augustus Quintrell Light, jumped out of the vehicle and ran. Officer Davis observed

that Light was holding his midsection as though he were cradling something. Officer

Davis exited the squad car to pursue Light on foot, while Officer McCullough

pursued in the squad car. At least one of the officers had Light in view during the

entire pursuit.

The officers and various bystanders observed Light dropping items as he ran.

As Light came around the front (northwest) corner of a building known as Winslow’s,

both officers observed Light drop something on the ground. Light then reversed

direction, and Officer Davis ran around the back of the building to cut him off. As

a result, Officer Davis did not immediately run past the dropped object.

Officer Davis caught up with Light on the other side of the street, pulled his

gun and ordered Light to stop. Light did not submit. Officer Davis tackled Light,

and Officer McCullough arrived to help subdue him. The officers testified that the

pursuit lasted two or three minutes, and the struggle to subdue Light lasted one or two

more minutes. After Light was subdued, the officers found marijuana, cash and other

items under Light’s body. Bystanders later helped police recover hundreds of dollars

in cash discarded by Light during the pursuit.
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As Light was being subdued, Officer Holton arrived on the scene. Officer

Holton testified that after he had been there no longer than three or four minutes, a

bystander handed him a handgun and loaded magazine. The bystander, Mark Cohen,

had watched the pursuit from his apartment window overlooking the street. Cohen

had observed Light stumble at the northwest corner of Winslow’s and reverse

direction. Cohen testified that he immediately went down to the street to collect

money that Light had dropped. He discovered the gun at the northwest corner of

Winslow’s, where he had observed Light stumble and where the officers had

observed Light drop something. 

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

18 U.S.C. §§ 922(g)(1), 924(a)(2) and 924(e). Light stipulated to having been

previously convicted of a felony offense. The jury returned a verdict of guilty. The

district court, applying the Sentencing Guidelines in a mandatory fashion, sentenced

Light to 235 months in prison and five years of supervised release. On appeal, Light

contends that there was insufficient evidence to support the jury’s finding that he

possessed the gun and that the district court denied his right to self-representation.

Light also raises for the first time on appeal the argument that he was sentenced

unconstitutionally under mandatory Sentencing Guidelines.

II. DISCUSSION

A. Sufficiency of the Evidence

We review the sufficiency of the evidence to sustain a conviction de novo.

United States v. Fitz, 317 F.3d 878, 881 (8th Cir. 2003). “We will uphold a jury

verdict if substantial evidence supports it.” Id. (quoting United States v. Cruz, 285

F.3d 692, 697 (8th Cir. 2002)). We view the evidence in the light most favorable to

the verdict and accept as established all reasonable inferences supporting the verdict.

Id.
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Light contends that there was insufficient evidence for the jury to find that he

possessed the gun. Although both officers observed Light drop something at the spot

where the gun was recovered, neither officer was close enough to identify the object

dropped. The bystander who recovered the gun at that spot did not observe Light

drop anything at all but did see Light stumble there. The gun was tested for

fingerprints, but no usable prints were found.

Despite the absence of a direct observation of Light possessing the gun, we

conclude it was a reasonable inference that the unidentified object the officers saw

Light drop at the northwest corner of Winslow’s was the gun Cohen recovered there

approximately three to eight minutes later. The facts here are almost identical to

those in United States v. Echols, 144 F.3d 584 (8th Cir. 1998), in which a police

officer pursued a suspect fleeing the scene of gunfire. The officer kept Echols in

sight throughout the pursuit and observed him reaching for his waistband several

times. Echols was apprehended and subdued in an alley. Police then recovered a gun

from the alley where Echols was apprehended. No one claimed to have seen Echols

actually drop a gun or to have kept an eye on the spot where the gun was found.

Nevertheless, we held that this evidence was sufficient to support a conviction for

being a felon in possession of a firearm. Id. at 585. The instant case differs from

Echols only in the fact that an alert bystander recovered the gun before the police had

a chance to complete the arrest and recover the gun themselves.

Echols relied in part on an earlier case, United States v. Rankin, 902 F.2d 1344

(8th Cir. 1990), in which two police officers observed the fleeing suspect bring his

hands to the front of his waist, remove a dark object, and let it fall to the ground.

While one officer chased Rankin, the other officer ran to the area where the dark

object had been dropped and found a handgun. Rankin argued that there was

insufficient evidence to support a conviction for being a felon in possession of a

firearm because no one witnessed him actually possessing or discarding the gun. We

disagreed, holding that the immediate recovery of the gun from the spot where Rankin
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was observed dropping an object was sufficient to support the conviction. Id. at

1345-46. Again, the instant case differs from Rankin only in that an alert bystander

recovered the gun first.

Light relies on a Sixth Circuit case, United States v. Beverly, 750 F.2d 34 (6th

Cir. 1984), to support his claim of insufficient evidence. In Beverly, a police officer

executing a search warrant discovered Beverly and another man standing in the

kitchen of a third person’s residence with a waste basket between their feet. There

were two guns in the waste basket, one of which had Beverly’s fingerprint on it. The

Sixth Circuit panel held that this evidence only showed that Beverly had, at some

point, touched a gun in someone else’s residence. The panel found this to be

insufficient evidence to support a jury’s finding that Beverly had “possessed” the gun.

Id. at 35-37. 

We first note that Beverly does not reflect the law of this circuit as expressed

in Echols and Rankin. In addition, the facts of the instant case are easily

distinguishable from Beverly. First, two police officers observed Light drop an object

at the spot where the gun was found, while no one saw Beverly place anything in the

waste basket. Second, another potential possessor of the gun was standing next to

Beverly within reach of the waste basket, while Light was unaccompanied at the

northwest corner of Winslow’s. These differences are sufficient to make Beverly

inapplicable to the instant case.

Finally, Light argues that two other people observed in the area were potential

sources for the gun. Two Winslow’s employees testified that they saw two

unidentified people milling around Winslow’s parking lot and dumpsters at about

4:30 p.m., a half-hour after Light’s arrest. However, Cohen testified that when he

handed the recovered gun to Officer Holton, Officers Davis and McCullough were

still in the process of arresting Light. According to the time-line established by both

Cohen and the officers, the two unidentified people were not observed in the area
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until well after Cohen had found the gun and given it to the officers. Viewing this

evidence in the light most favorable to the verdict, it was reasonable for the jury to

disregard Light’s theory of alternate sources for the gun.

Following Echols and Rankin, we conclude that there was sufficient evidence

for the jury to infer that Light possessed the gun.

B. Right to Self-Representation

“A defendant who wishes to waive his right to counsel, and thereby to proceed

pro se, must do so clearly and unequivocally.” United States v. Webster, 84 F.3d

1056, 1062 (8th Cir. 1996). A defendant must knowingly and intelligently choose

self-representation after being made aware of the “dangers and disadvantages of selfrepresentation.” Reese v. Nix, 942 F.2d 1276, 1280 (8th Cir. 1991) (quoting Faretta

v. California, 422 U.S. 806, 835 (1975)). Courts must be cautious in this area

because: 

The tension created by the mutual exclusivity of the right to counsel and

the right to self-representation places a trial court in a precarious

position. If it grants a request for self-representation, the defendant can

argue on appeal that [he] did not knowingly and intelligently waive [his]

right to counsel.

Reese, 942 F.2d at 1280.

Light contends that the district court foreclosed his ability to represent himself.

Prior to trial, the district court warned Light about misbehavior in the courtroom.

During this exchange, Light asked the district court, “What’s the rule on representing

yourself?” The district court responded that Light had the option to represent himself

but listed the potential negatives of such a decision. The district court then said, “Mr.

Williams is your lawyer and he is the individual who will speak for you during the
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court proceedings.” The district court went on to explain how Light would be able

to communicate his ideas to the lawyer during trial. Light did not question his

attorney’s representation again until his sentencing hearing, when he asked for an

appointed lawyer to represent him on appeal.

We conclude that Light did not clearly and unequivocally express a wish to

represent himself. In Reese, after the trial court denied the defendant’s motion for

substitute counsel, the defendant stated, “Well, I don’t want no counsel then.” The

trial judge responded, “You’re going to have counsel, and these are the two you’re

going to have. Now, whether you want to consult with them or not, that is up to you.

If you choose to sit here and not consult with them, fine, but they are going to be in

the courtroom when this case is tried because I’m not going to try the case without

adequate counsel present.” The defendant contended in a habeas petition that the trial

court improperly ignored his request to represent himself. We concluded that Reese

was merely expressing frustration and not clearly invoking his right to selfrepresentation. Since the right was never properly invoked, it was never improperly

denied. Reese, 942 F.2d at 1281.

In the instant case, Light asked the district court, “What’s the rule on

representing yourself?” Because Light only asked the district court for information

about “the rule” on self-representation and then manifested no intention to actually

represent himself, this is an even more equivocal statement than the one we

considered and rejected in Reese. As in Reese, the right to self-representation could

not have been denied improperly because Light did not clearly and unequivocally

invoke it. Furthermore, the district court’s ensuing dialogue with Light cannot

reasonably be read as having foreclosed Light’s ability to ask to represent himself.

In the context of the entire exchange, it appears that the district court was simply

explaining the role of counsel to Light. The district court left Light plenty of room

to express himself on the issue without feeling intimidated. The district court did not

interfere with Light’s right to self-representation.
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C. Sentencing Issues

Light argues that his sentence, pronounced under mandatory Sentencing

Guidelines, is erroneous under United States v. Booker, 543 U.S. ---, 125 S. Ct. 738

(2005). Before the district court, Light did not argue Apprendi or Blakely error or that

the Guidelines were unconstitutional. Therefore, we review his sentence for plain

error. United States v. Pirani, No. 03-2871, slip op. at 6 (8th Cir. Apr. 29, 2005) (en

banc).

We apply the plain-error test as set forth in United States v. Olano, 507 U.S.

725, 732-36 (1993). The test has been stated as follows:

before an appellate court can correct an error not raised at trial, there

must be (1) error, (2) that is plain, and (3) that affects substantial rights.

If all three conditions are met, an appellate court may then exercise its

discretion to notice a forfeited error, but only if (4) the error seriously

affects the fairness, integrity, or public reputation of judicial

proceedings.

Pirani, slip op. at 7 (quoting Johnson v. United States, 520 U.S. 461, 466-67 (1997)).

As in Pirani, the first two factors are satisfied because the district court

committed error in applying the Sentencing Guidelines in a mandatory fashion, and

the error is plain at the time of appellate consideration. See Pirani, slip op. at 8. To

satisfy the third Olano factor, Light must demonstrate “a reasonable probability that

he would have received a more favorable sentence with the Booker error eliminated

by making the Guidelines advisory.” Id. at 10.
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Light had an extensive history of violent felonies and serious drug offenses.

He was subject to a 15-year mandatory minimum under 18 U.S.C. § 924(e). Under

U.S.S.G. § 4B1.4(b)(3)(B), the Armed Career Criminal provision, his base offense

level was 33. His criminal history category was VI. From the resulting Guidelines

range of 235 to 293 months, Light was sentenced to 235 months.

After carefully reviewing the record on appeal, we conclude that Light cannot

demonstrate a reasonable probability that the district court would have imposed a

more favorable sentence under advisory Guidelines. The district court sentenced

Light to the lower end of the applicable Guidelines range. However, a sentence at the

bottom of the range “is insufficient, without more, to demonstrate a reasonable

probability that the court would have imposed a lesser sentence absent the Booker

error.” Id. at 12. 

While the district court stated that “my discretion is limited to that 235 to 293”

by “congressional mandate,” it also made note of Light’s “long, exhaustive” criminal

history. There is no indication in the record that, given broader discretion, the district

court would have given a lesser sentence. “‘[W]here the effect of the error on the

result in the district court is uncertain or indeterminate–where we would have to

speculate–the appellant has not met his burden of showing a reasonable probability

that the result would have been different but for the error.’” Id. at 13 (quoting United

States v. Rodriguez, 398 F.3d 1291, 1301 (11th Cir. 2005)). 

We conclude that Light cannot satisfy his burden under the third Olano factor.

We need not reach the fourth factor. Light’s sentence was not plain error under

Booker.
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III. CONCLUSION

Sufficient evidence supports Light’s conviction for being a felon in possession

of a firearm. In addition, the district court did not deny Light’s right to selfrepresentation, and Light’s sentence under mandatory Sentencing Guidelines was not

plain error under Booker. Therefore, we affirm the conviction and sentence. 

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