633 Fed.Appx. 713 (11th Cir. 2015), 14-13628, United States v. Gibson

Docket Nº:14-13628
Citation:633 Fed.Appx. 713
Opinion Judge:PER CURIAM:
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JERMAINE GIBSON, Defendant-Appellant
Attorney:For UNITED STATES OF AMERICA, Plaintiff - Appellee: Tracia M. King, Dahil Dueno Goss, Lawrence R. Sommerfeld, Sally Yates, U.S. Attorney's Office, ATLANTA, GA. For JERMAINE GIBSON, Defendant - Appellant: Jeffrey Lyn Ertel, Stephanie A. Kearns, Federal Defender Program, Inc., ATLANTA, GA.
Judge Panel:Before ED CARNES, Chief Judge, TJOFLAT and WILSON, Circuit Judges.
Case Date:November 19, 2015
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 713

633 Fed.Appx. 713 (11th Cir. 2015)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

JERMAINE GIBSON, Defendant-Appellant

No. 14-13628

United States Court of Appeals, Eleventh Circuit

November 19, 2015

DO NOT PUBLISH. (See Federal Rule of Appellate Procedure Rule 32.1)

Appeal from the United States District Court for the Northern District of Georgia. D.C. Docket No. 1:13-cr-00440-TWT-JSA-1.

AFFIRMED.

For UNITED STATES OF AMERICA, Plaintiff - Appellee: Tracia M. King, Dahil Dueno Goss, Lawrence R. Sommerfeld, Sally Yates, U.S. Attorney's Office, ATLANTA, GA.

For JERMAINE GIBSON, Defendant - Appellant: Jeffrey Lyn Ertel, Stephanie A. Kearns, Federal Defender Program, Inc., ATLANTA, GA.

Before ED CARNES, Chief Judge, TJOFLAT and WILSON, Circuit Judges.

OPINION

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PER CURIAM:

Jermaine Gibson appeals his conviction for being a felon in possession of a firearm, in violation of 18 U.S.C. § § 922(g)(1) and 924(a)(2), and his 72-month prison sentence. He first challenges his conviction on Batson grounds. Next he contends that the government improperly vouched for its witnesses in closing argument and that the district court improperly instructed the jury on the meaning of " constructive possession." Finally, he challenges

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the substantive reasonableness of his sentence, contending that the district court's application of the 18 U.S.C. § 3553(a) factors violated his First Amendment rights.

I.

The firearm Gibson was convicted of possessing was discovered in a home that he was unlawfully occupying in Lithonia, Georgia. A woman purchased that home from a bank in January 2013, with the closing date set for April 26, 2013. Gibson, along with several other people, unlawfully moved into the home during that time period. The purchaser and the bank's listing agent tried to get Gibson to leave. He refused. When the police visited it to investigate his occupancy, he told them that he owned the home. He claimed ownership based on a number of documents that he posted on the front door and windows of the home.1 The gist of those documents was that Gibson owned the home and that he was a " sovereign citizen" not subject to the jurisdiction of the United States or any state.2

Gibson continued to occupy the home through the closing date. The purchaser and the bank then went to court in DeKalb County, Georgia to settle the ownership dispute. Gibson attended those proceedings. The court ordered him to leave the home immediately. At the end of those proceedings, law enforcement officers arrested Gibson for various state law charges related to his occupation of the home. That same day the officers searched the home. They found fraudulent identification documents with Gibson's name on them and a Smith & Wesson revolver under the bedsheets in the master bedroom.

The officers also interviewed Gibson twice on the day of his arrest. During those interviews, Gibson insisted that he owned the home, citing some of the documents that he had posted on the windows and door. He stated that he slept in the master bedroom most of the time and pointed to the location of that bedroom on a schematic drawing of the home.

The officers also asked him whether there were any firearms in the home. Gibson replied that another occupant had a shotgun. When asked about the handgun (which the officers did not describe in detail) that had been found during the search, Gibson described it as a five-shot, black-handled revolver and stated that he had moved it around the home. His description of the handgun matched the revolver the officers found in the master bedroom.

The government charged Gibson with one count of being a convicted felon who knowingly possessed a firearm (the handgun) in violation of 18 U.S.C. § § 922(g)(1) and 924(a)(2). He agreed to stipulate at trial that he was a convicted felon at the time of the indictment.3 However, he continued to assert his sovereign citizen status. On the first day of trial, he filed pro se an " affidavit of competency," which alleged (among other things) that the court

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was a " tribunal operated as a private corporation" instead of a real court. At the end of trial Gibson stated that the district court lacked jurisdiction over him because he was a sovereign citizen. The jury found Gibson guilty of being a felon in possession of a firearm, and the district court sentenced him to 72 months imprisonment. This is his appeal.

II.

Gibson first contends that the district court clearly erred when it rejected his Batson challenge to the government's strikes of five African American venire members. He focuses particularly on the strike of Prospective Juror 1, a 24-year-old African American. When asked by the district court to provide a race-neutral reason for that strike, the government stated that he was young, unemployed, previously worked at a grocery store, and did not own a home. Based on those characteristics, the government did not believe that he would be a " suitable juror" for the case because of the evidence relating to Gibson's fraudulent deeds to the home where he had been residing. Gibson agreed that Prospective Juror 1 was a renter but argued that the government's explanation was mere pretext for discrimination. The district court accepted the government's explanation, stating that Prospective Juror 1's " youth and lack of experience with real estate transactions of any kind" was a " legitimate, non-discriminatory reason" for striking him.

The Supreme Court held in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), that...

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