598 F.3d 1158 (9th Cir. 2010), 06-50485, United States v. Nevils

Docket Nº:06-50485.
Citation:598 F.3d 1158
Opinion Judge:IKUTA, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Earl Anthony NEVILS, a/k/a Earl Nevils, Jr., Earl Bowman, Earl Johnson, Alfred Johnson,
Attorney:Elizabeth A. Newman, Deputy Federal Public Defender, for the appellant. Sandy N. Leal, Assistant United States Attorney, and Daniel B. Levin, Assistant United States Attorney, for the appellee.
Judge Panel:Before: ALEX KOZINSKI, Chief Judge, PAMELA ANN RYMER, SIDNEY R. THOMAS, BARRY G. SILVERMAN, RAYMOND C. FISHER, RONALD M. GOULD, RICHARD C. TALLMAN, JOHNNIE B. RAWLINSON, RICHARD R. CLIFTON, MILAN D. SMITH, JR. and SANDRA S. IKUTA, Circuit Judges.
Case Date:March 19, 2010
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1158

598 F.3d 1158 (9th Cir. 2010)

UNITED STATES of America, Plaintiff-Appellee,

v.

Earl Anthony NEVILS, a/k/a Earl Nevils, Jr., Earl Bowman, Earl Johnson, Alfred Johnson, " Babycriptoe," " Lilamigo" and " Baby Frog" , Defendant-Appellant.

No. 06-50485.

United States Court of Appeals, Ninth Circuit.

March 19, 2010

Argued and Submitted Sept. 22, 2009.

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[Copyrighted Material Omitted]

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Elizabeth A. Newman, Deputy Federal Public Defender, for the appellant.

Sandy N. Leal, Assistant United States Attorney, and Daniel B. Levin, Assistant United States Attorney, for the appellee.

Appeal from the United States District Court for the Central District of California, Consuelo B. Marshall, District Judge, Presiding. D.C. No. CR-03-01269-CBM.

Before: ALEX KOZINSKI, Chief Judge, PAMELA ANN RYMER, SIDNEY R. THOMAS, BARRY G. SILVERMAN, RAYMOND C. FISHER, RONALD M. GOULD, RICHARD C. TALLMAN, JOHNNIE B. RAWLINSON, RICHARD R. CLIFTON, MILAN D. SMITH, JR. and SANDRA S. IKUTA, Circuit Judges.

IKUTA, Circuit Judge:

Earl Anthony Nevils appeals from his conviction for being a felon in possession of firearms and ammunition in violation of 18 U.S.C. § 922(g)(1).1 Nevils argues that the evidence presented at trial is constitutionally insufficient to support his conviction because it is susceptible to an innocent explanation. Contrary to Nevils's argument that we should construe the evidence in the light most favorable to innocence, we are obliged to construe the evidence " in the light most favorable to the prosecution," and only then determine whether " any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Here, viewing the evidence as required by Jackson, we hold there was sufficient evidence to permit a rational juror to conclude beyond a reasonable doubt that Nevils knowingly possessed firearms and ammunition. We therefore affirm.

I

Late in the evening of April 14, 2003, three officers of the Los Angeles Police Department's Special Enforcement Unit were on patrol in a high-crime area of south Los Angeles. Driving past an apartment building known for criminal activity associated with the " Rollin' 30s" gang, the officers encountered three men and two women standing on the sidewalk. Officer Jason De La Cova asked the group about its activities that evening. One of the men answered that they were doing " [n]othing." Upon being asked whether any of the

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group lived in the apartment building, the same man responded " It's okay. We're out of here right now." He abruptly turned and ran " at a high rate of speed" down the center path of the apartment complex. Officer De La Cova and his partner Officer Jason Clauss followed the man up the apartment walkway and observed him turn left in the walkway to grasp the door-handle of Apartment 6. Upon seeing the officers in his wake, the man quickly let go of the door, crossed the walkway to Apartment 2, and entered. He then closed and locked the door.

After trying and failing to convince the man to open the door to Apartment 2, the officers turned their attention to Apartment 6. First, they asked two women standing in the walkway who lived there; the women indicated that no one did. Approaching the door to Apartment 6, Officer De La Cova noted that the black security gate was ajar by several inches, and that the main wooden door was open and leaning off its hinges against the living-room wall. Looking through the security door, Officer De La Cova was able to see into the well-lit apartment. There, lying upon the couch, was Nevils, apparently asleep, with his right leg dangling off of the couch. A " machine gun" sitting on Nevils's lap was clearly in view from De La Cova's position at the front door. A handgun leaning against Nevils's right leg was also visible.

Officer De La Cova gave a hand-sign to his partner and the two jointly entered the apartment, weapons drawn. No one else was there. As the officers approached Nevils, he woke up, and as Officer Clauss testified, " his eyes ... fully opened and for a brief second he appeared like he was going to, you know, grab towards his lap and then he stopped and put his hands up." On command of the officers, Nevils got on the ground, leaving the firearms lying on the couch. Officer De La Cova retrieved the firearms, discovering that both were loaded. A coffee table, laden with marijuana packaged for sale, ecstasy, over $500 in cash, and a cell-phone, was situated one foot away from the couch where Nevils had been sleeping.

Other officers arrived on the scene shortly thereafter, including Sergeant Jean Coleman, who asked Nevils whether he was injured or sick. Nevils indicated he was not, and instead cursed absent cohorts, saying that he couldn't believe that " [they] left me sleeping and didn't wake me." The loaded firearms found in Nevils's possession later were identified as a Tec-9 semi-automatic weapon, loaded and chambered with 14 live rounds of ammunition, and a .40-caliber handgun, also loaded and chambered with 13 live rounds of ammunition.

Initially booked on charges of possession of marijuana for sale, Nevils was charged on a single count of being a felon in possession of firearms and ammunition in violation of 18 U.S.C. § 922(g)(1). At trial, the defense stipulated to Nevils's prior felony conviction, and did not attempt to rebut testimony that the weapons and ammunition had traveled in interstate commerce. Rather, the defense pursued a theory that Nevils could not have known of the loaded firearms because he was drunk and asleep.

To support this theory, Nevils offered the testimony of Jonnetta Campbell. Campbell testified that in the early afternoon of April 14, she and Nevils attended a baby shower for a friend. After the baby shower ended, she, Nevils, and several other people lingered to drink alcohol (in Nevils's case, " a lot" of Remy Martin). Sometime after dark, though Campbell could not remember exactly when, Nevils got " [r]eal drunk," to the point that " [h]e couldn't stand." Campbell and two female friends carried Nevils into Apartment 6

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and laid him on his side on the couch. Campbell testified that she saw no firearms or drugs in the apartment when she left Nevils there, and that she and her friends closed the front door to Apartment 6 when they departed. On cross examination, Campbell clarified that at no time did she see Nevils " passed out," that she continued drinking after leaving Nevils in Apartment 6, and that she did not have any further interaction with him that evening.

During the jury charge, the jury was permitted to hold and examine the firearms that had been found on or near Nevils's body in Apartment 6, as well as the ammunition with which they were loaded. The jurors examined that evidence again during their deliberations. After three days of deliberations, the jury returned a unanimous verdict, finding Nevils guilty of the single count of possession with which he was charged.

The district court sentenced Nevils to 77 months' imprisonment, at the lowest limit of the applicable range specified by the Sentencing Guidelines. During the sentencing hearing, the district court discussed the need to avoid unwarranted sentence disparities among defendants. The court noted that there was possibly a " difference in the sentence the defendant might have received in state court for the same offense and the sentence in federal court," but stated that " [w]e're not permitted to consider the state court [sentence] when we impose our [sentence]." Defense counsel did not raise any objection to this ruling.

Nevils filed a timely notice of appeal, raising two issues. First, Nevils argues that the government failed to produce evidence sufficient to prove every element of his crime beyond a reasonable doubt. Second, Nevils contends that the district court erred in refusing to consider analogous state sentences in its calculations, and therefore the sentence imposed by the district court was unreasonable. We address these contentions in turn.

II

The federal felon-in-possession statute makes it unlawful for a person " who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year" to " possess in or affecting commerce, any firearm or ammunition" which " has been shipped or transported in interstate or foreign commerce." 18 U.S.C. § 922(g). Conviction under this provision requires that the government prove three elements: " (1) that the defendant was a convicted felon; (2) that the defendant was in knowing possession of a firearm [or ammunition]; and (3) that the firearm [or ammunition] was in or affecting interstate commerce." United States v. Beasley, 346 F.3d 930, 933-34 (9th Cir.2003). " To establish that a defendant acted ‘ knowingly,’ the prosecution need not prove that the defendant knew that his possession of a firearm was unlawful; the prosecution need only prove that the defendant consciously possessed what he knew to be a firearm." Id. at 934. For purposes of this appeal, Nevils contests only this element of knowledge. According to Nevils, the government failed to prove beyond a reasonable doubt that he knowingly possessed the firearms and ammunition at issue because there was insufficient evidence to establish that he was aware of the loaded firearms found on or near his body in the apartment.

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