## Facts

- Terrence Anthony Dean, a convicted felon, lived in an Iowa apartment with his adult daughter, Myishia Maxwell.
- On December 27, 2013, Maxwell (about seven months pregnant) and her friend, Tiffany Bass, were at the apartment caring for several minor children while Dean drank alcohol.
- Maxwell and Bass reported that Dean, while intoxicated, fired a handgun outside the apartment earlier that night.
- After Maxwell returned from a grocery trip, Dean played music loudly. An argument started, and Dean went into the kitchen and cursed at Maxwell.
- Maxwell threw a handful of shredded cheese at Dean. Dean struck Maxwell with a skillet, causing injury and bleeding; Bass witnessed the altercation.
- Maxwell left the apartment and called 911, reporting that Dean had hit her with the skillet, had been waving a gun around, and had the gun in his pocket.
- When police arrived, Maxwell was visibly upset and injured. She told officers Dean had a gun and that officers would find it inside the apartment.
- Officers conducted a consent search and found a loaded Cobra .32 caliber handgun wrapped in a towel and hidden under aluminum cans inside a garbage can. Officers also observed food splattered on the kitchen walls.
- Maxwell provided a written statement describing Dean’s conduct, including that he had a gun, fired shots into the air, and hit her with a pot or skillet.
- Dean was indicted for being a felon in possession of a firearm. Before trial, Maxwell testified under oath before a grand jury that she saw Dean holding a gun that night.
- At trial, Maxwell testified on direct examination that she did not see Dean with a gun, and later testified that she could not remember whether she saw a gun. Over Dean’s hearsay objection, the district court allowed the government to introduce Maxwell’s grand-jury testimony.
- A jury convicted Dean. The district court sentenced him to 72 months and applied a four-level increase under U.S.S.G. § 2K2.1(b)(6)(B) based on possession of the firearm in connection with another felony offense (the assault).

## Issues

1. Did the district court err by admitting Maxwell’s prior grand-jury testimony after she testified inconsistently (including claiming lack of memory) at trial?
2. Did the district court err by applying the four-level increase under U.S.S.G. § 2K2.1(b)(6)(B) for possessing the firearm “in connection with another felony offense”?

## Decision

- The Eighth Circuit affirmed Dean’s conviction and 72-month sentence.
- The court held the district court did not abuse its discretion by admitting Maxwell’s grand-jury testimony as a prior inconsistent statement when Maxwell testified at trial and was subject to cross-examination.
- The court rejected Dean’s hearsay challenge, concluding Maxwell’s trial testimony was sufficiently inconsistent with her earlier sworn testimony to permit admission of the grand-jury statement.
- The court upheld the four-level increase under § 2K2.1(b)(6)(B), concluding the district court did not clearly err in finding Dean possessed the firearm in connection with another felony offense arising from the assault on Maxwell.

## Legal Principles

- Under Federal Rule of Evidence 801(d)(1)(A), a witness’s prior statement is not hearsay when the witness testifies at trial, is subject to cross-examination about the statement, the statement was made under oath in a prior proceeding, and the statement is inconsistent with the witness’s trial testimony.
- A witness’s claimed lack of memory at trial can qualify as “inconsistent” with the witness’s earlier statement for purposes of Rule 801(d)(1)(A), depending on the circumstances.
- Appellate courts review evidentiary rulings for abuse of discretion.
- U.S.S.G. § 2K2.1(b)(6)(B) applies when the defendant used or possessed a firearm in connection with another felony offense; the firearm must facilitate or have the potential to facilitate that other offense.
- Sentencing factfinding supporting guideline adjustments is reviewed for clear error.

## Conclusion

United States v. Dean, 823 F.3d 422 (8th Cir. 2016), affirmed a felon-in-possession conviction where the district court admitted the defendant’s daughter’s prior sworn grand-jury testimony after she recanted and claimed memory loss at trial, and it also affirmed a four-level sentence increase under U.S.S.G. § 2K2.1(b)(6)(B) based on a finding that Dean possessed the firearm in connection with a contemporaneous felony assault.


United States v. Dean, 823 F.3d 422 (2016)