No. 22-1284 ___________________________

United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Johnnie Lamar Haynes

lllllllllllllllllllllDefendant - Appellant ____________

Appeal from United States District Court for the District of Minnesota ____________

Submitted: December 15, 2022 Filed: March 13, 2023 ____________ Before LOKEN, ERICKSON, and KOBES, Circuit Judges. ____________ LOKEN, Circuit Judge.

After a three-day trial, a jury convicted Johnnie Lamar Haynes of being a felon in possession of a firearm and, in a separate count, of being a felon in possession of ammunition, following a shooting in north Minneapolis. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). The district court imposed concurrent 115-month sentences on each count. Haynes appeals, arguing that there was insufficient evidence of the interstate commerce element of the firearm offense, insufficient evidence of possession of ammunition, and that his sentence is substantively unreasonable. The government’s appeal brief noted that the two counts are multiplicitous and should have been merged for sentencing purposes. We agree the firearm and ammunition convictions are multiplicitous as submitted to the jury. Therefore, one must be vacated to eliminate plain error prejudice, the two $100 special assessments. See Ray v. United States, 481 U.S. 736, 737 (1987). We otherwise affirm.

I. Sufficiency-of-the-Evidence

A. Background. On the afternoon of August 5, 2019, a chiropractic clinic employee called 911 to report a shooting at the intersection of Lowry Avenue and North Logan Avenue. Bullets penetrated the front wall and window of the clinic located directly across the street from the Full Stop gas station. Fortunately, no one was injured in this mid-afternoon shooting at a busy intersection. After an investigation, a grand jury indicted Haynes and his cousin, Cortez Shipp, on charges of being felons in possession of a firearm and ammunition. Shipp pleaded guilty to being a felon in possession of ammunition and testified for the government at Haynes’s trial.

Prior to trial, as in United States v. Obi, Haynes stipulated to two elements of a § 922(g)(1) felon-in-possession offense -- “a prior conviction for a crime punishable by imprisonment exceeding one year, and knowledge he is in a class of persons therefore barred from possessing a firearm or ammunition.” 25 F.4th 574, 577 (8th Cir. 2022). Thus, the issues at trial were knowing possession of a firearm and ammunition “which has been shipped or transported in interstate or foreign commerce.” § 922(g); Obi, 25 F.4th at 577.

The jury convicted Haynes of both charges. On appeal, he argues the evidence was insufficient to prove beyond a reasonable doubt (i) that he possessed a firearm

-2- transported in interstate commerce before or during the shooting,1 and (ii) that the ammunition introduced at trial was connected to the shooting or to Haynes. We summarize the relevant trial evidence in the light most favorable to the jury’s verdict, accepting all reasonable inferences in favor of the verdict. See, e.g., United States v. Druger, 920 F.3d 567, 569 (8th Cir. 2019). “As long as one theory based on the evidence presented could allow for a reasonable jury to find [Haynes] guilty beyond a reasonable doubt, we must uphold the jury verdict.” Id.

Responding Minneapolis police officers obtained surveillance videos from the Full Stop gas station where the shooting incident began.