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United States of America v. VIRGIL J. WINSTON
Case Number: 06-3399
Judge: Jerome A. Holmes
Court: UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
Plaintiff's Attorney: Not Listed
Denver, CO - Criminal defense lawyer represented defendant with one count of being a Felon in Possession of a Firearm charge.
A brief overview of the evidence is sufficient. On March 10, 2005,
Kansas City, Kansas, police officers executed a search warrant at the residence
Mr. Winston shared with Sara DeWeese and their daughter. The officers found
two loaded pistols in a bedroom dresser drawer that also contained several
personal items belonging to Mr. Winston, as well as some items belonging to
Ms. DeWeese. The officers also found some ammunition in a closet and another
pistol inside a bag in the garage.
Mr. Winston denied to police that the weapons belonged to him.
Ms. DeWeese testified at trial that the weapons in the bedroom dresser belonged
to her, not to Mr. Winston, but she had told the police on the day after the search
that she was aware of only one weapon in the dresser, and it belonged to
Mr. Winston. She testified that she put the ammunition in the closet, but the bag
in the garage belonged to Mr. Winston. DNA testing on the weapons was
Mr. Winston argues on appeal that: (1) the evidence was insufficient to
support the verdict; (2) his prior conviction for second degree burglary is not a
crime of violence under U.S.S.G. § 4B1.4 and 18 U.S.C. § 924(e)(2)(B), and
therefore could not support the sentence enhancement; (3) his prior conviction for
distribution of cocaine, when the sentence was eight years’ imprisonment, is not a
Appellate Case: 06-3399 Document: 010131962 Date Filed: 09/13/2007 Page: 2
serious drug offense under U.S.S.G. § 4B1.4 and 18 U.S.C. § 924(e)(2)(B), and
therefore could not support the sentence enhancement; and (4) the district court
relied on certain facts to increase his sentence that were not proved to the jury
beyond a reasonable doubt, in violation of United States v. Booker, 543 U.S. 220
Mr. Winston’s counsel concedes that issues two through four are without
merit, but explains that he included them in the brief at Mr. Winston’s request to
preserve his appellate rights. Aplt. Br. at 14, 16, 17-18. We have undertaken an
independent review of the record and agree that these issues are without merit and
do not warrant discussion. As to Mr. Winston’s remaining issue,
[w]e review sufficiency of the evidence claims de novo, asking only
whether, taking the evidence—both direct and circumstantial,
together with the reasonable inferences to be drawn therefrom—in
the light most favorable to the government, a reasonable jury could
find [Mr. Winston] guilty beyond a reasonable doubt.
United States v. Allen, 235 F.3d 482, 492 (10th Cir. 2000) (quotations omitted).
Viewing the evidence in the light most favorable to the government, the verdict
was amply supported by the evidence.
Appellate Case: 06-3399 Document: 010131962 Date Filed: 09/13/2007 Page: 3
Mr. Winston’s pro se motion for appointment of new counsel is denied.
Mr. Winston’s pro se motion for leave to proceed on appeal without prepayment
of costs or fees is denied as moot.