U.S. v. Anderson

• Decision Date: 11 February 2009
• Docket Number: No. 08-40160.,08-40160.
• Citation: 559 F.3d 348
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lionel ANDERSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

559 F.3d 348

UNITED STATES of America, Plaintiff-Appellee, v. Lionel ANDERSON, Defendant-Appellant.

No. 08-40160.

United States Court of Appeals, Fifth Circuit.

February 11, 2009.

Stevan Buys (argued), Sherman, TX, for U.S.

Denise S. Benson, Asst. Fed. Public Defender (argued), Sherman, TX, Amy R.

Blalock, Asst. Fed. Public Defender, Tyler, TX, for Anderson.

Appeal from the United States District Court for the Eastern District of Texas.

Before: SMITH and SOUTHWICK, Circuit Judges, and RODRIGUEZ, District Judge.¹

JERRY E. SMITH, Circuit Judge:

Lionel Anderson was convicted of being a felon in possession of a firearm. He appeals his conviction and sentence. We affirm.

I.

A.

Officers Sonny Martin and Joseph Hooten of the McKinney, Texas, police department responded to a call at 906 Murray Place. As they drove away afterwards, they heard a shot fired. They called for backup and determined that the shot had come from an apartment in the 905 Murray Place duplex. The bullet had passed through the screen on the side bedroom window and hit the corner of the duplex at 903 Murray Place; if it had been fired several inches to the left, according to expert trajectory analysis presented at trial, it could have struck Martin's marked police vehicle.

After other officers arrived, Martin and Hooten went to 905 Murray Place, knocked, and ordered the occupants out. A few minutes later, Kenneth Whitley, Frankie Brown, and Anderson emerged. Anderson was wringing his hands, which were wet and smelled of soap — he explained to the officers that he had just washed them — and when he had difficulty following the officers' instructions, he explained that his ears were ringing.² The officers performed a protective sweep inside the residence and found a plastic rifle-sized gun case containing ammunition and a crack pipe. Whitley directed the officers to an air vent, where the officers found a Norinco SKS rifle.

Whitley, who lived in the apartment and whose name was on its lease, testified that he had seen Anderson bring guns and the gun case to the apartment on various occasions — including, apparently, the day of the incident — and that he had heard Anderson wonder out loud, just before the shooting, "what them mother******s would think if I shot a hole in" the police car parked across the street. Whitley said he had been in the bathroom when the shot was fired, but he saw Anderson and Brown leaving the bedroom, the butt of the rifle visible under Anderson's jacket. Anderson hustled Whitley and Brown into the bathroom to give them the crack cocaine he had in his possession. Whitley then saw Anderson hide the gun in the air vent after the shooting, and Anderson urged him not to open the apartment door to the police.

Anderson was arrested, and on the way to jail he told Martin that because the police had not found a shell casing, they had no case against him.³ One of Anderson's fellow inmates, Christopher Ramsey, testified that in jail, Anderson had admitted to having "shot at a cop." Ramsey told the jury that Anderson described covering up the shot by washing gunshot residue off his hands, placing the gun in the air vent, and hiding the shell case in his rectum until he could flush it away in jail. Ramsey also testified that he had bought crack cocaine from Anderson before they were incarcerated together and that Anderson had shown him pictures of guns he had bought as a result of a disagreement with a rival drug dealer.⁴

B.

Anderson was charged with being a felon in possession of (1) a firearm and (2) ammunition, both in violation of 18 U.S.C. § 922(g)(1). At the close of evidence, he moved for a judgment of acquittal, which the district court denied. Anderson presented no evidence. The jury found him guilty on both counts.

The presentence report ("PSR") established a base offense level of 22, including an increase under U.S.S.G. §§ 2K2.1(a)(3) and 4B1.2(a) because his previous felony conviction was for a crime of violence ("COV"), specifically, assault of a public servant in violation of TEX. PEN.CODE § 22.01(a)-(b). The PSR recommended a four-level increase pursuant to U.S.S.G. § 2K2.1(b)(6) for using or possessing the firearm in connection with another felony, namely, the manufacture or delivery of a controlled substance; it also applied a six-level increase pursuant to U.S.S.G. § 3A1.2(c)(1) for assaulting a police officer during the course of the offense "in a manner creating a substantial risk of serious bodily injury" while "knowing or having reasonable cause to believe that" the person was a police officer.⁵

The PSR placed Anderson in criminal history category VI, yielding a guideline range of 210-262 months' imprisonment. The district court adopted the PSR in its entirety and sentenced Anderson to 120 months for each count — the statutory maximum — to be served consecutively, for a total of 240 months, plus a three-year period of supervised release and $200 in special assessments.

II.

A.

Anderson asserts that 18 U.S.C. § 922(g) impermissibly infringes on his Second Amendment right to keep and bear arms. We review the constitutionality of federal statutes de novo. United States v. Rasco, 123 F.3d 222, 226 (5th Cir.1997).

Anderson's argument, as he acknowledges, was foreclosed in this circuit by United States v. Darrington, 351 F.3d 632, 633-34 (5th Cir.2003) (holding that § 922(g) "does not violate the Second Amendment"). He attempts to revive it by drawing our attention to District of Columbia v. Heller, ___ U.S. ___, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). But Heller provides no basis for reconsidering Darrington.⁶ We therefore reaffirm Darrington and the constitutionality of § 922(g).

B.

Anderson raises, in effect, two arguments purporting to show insufficiency of evidence: (1) that the "government did not affirmatively link" him to the firearm or ammunition and (2) that Whitley was an unreliable witness. Anderson faces a heavy burden. We determine "whether the jury's verdict was reasonable, not whether we believe it to be correct," reviewing the evidence "in the light most favorable to the government with all reasonable inferences and credibility choices made in support of a conviction;" if the evidence would permit "a rational fact finder to find every element of the offense beyond a reasonable doubt," we must affirm. United States v. Redd, 355 F.3d 866, 872 (5th Cir.2003) (internal citations and quotation marks omitted). "Our review of the sufficiency of the evidence does not include a review of the weight of the evidence or of the credibility of the witnesses." United States v. Myers, 104 F.3d 76, 78-79 (5th Cir.1997). We review de novo the denial of a motion for judgment of acquittal. Id.

"In order to convict one for felon in possession of a firearm, the government must prove that the defendant (1) has been convicted of a felony; (2) possessed a firearm in or affecting interstate commerce; and (3) knew that he was in possession of the firearm." United States v. Ybarra, 70 F.3d 362, 365 (5th Cir.1995) (citing United States v. Dancy, 861 F.2d 77, 81 (5th Cir. 1988)). The first two prongs are not in question.⁷ Anderson claims instead that because he was found with other men, all of whom had access to the firearm and ammunition, in an apartment that did not belong to him, with no physical evidence directly connecting him to the rifle or ammunition, there was insufficient evidence to show knowing possession.

Anderson analogizes this case to those in which a defendant is found, together with others, in a place where all had access to a firearm and where the government establishes no more than "proximity" of a firearm to the defendant, bringing neither physical nor testimonial evidence specifically linking the defendant to the firearms or establishing his knowledge of their presence. In such circumstances, the government has failed to prove "constructive" possession of the firearm — i.e., "ownership, dominion, or control over the contraband itself or dominion or control over the premises in which the contraband is concealed" — and acquittal is required as a matter of law.⁸

But that analogy fails. Taken together, Anderson's authorities establish that possession can be established by (1) actual, physical possession of the firearm, (2) sole control and occupancy of a place where a firearm is found, or (3) joint occupancy of a place where a firearm is found, combined with some evidence of the defendant's access to and knowledge of the firearm. See Mergerson, 4 F.3d at 348-49.

The government's evidence was sufficient to establish possession by either the first or third standard. The jury heard Whitley testify that he had seen Anderson with the gun case, and perhaps the gun itself, at times before the shooting; that Anderson had made remarks about shooting at the police on the date of the charged event; that after hearing a gunshot, Whitley had seen Anderson, carrying the gun come out of the room from which the shot was fired; and that Whitley saw Anderson hide the gun in the air vent, where the police found it.

Ramsey's testimony corroborated Whitley's account and provided an explanation, consistent with gun possession, of Anderson's wet, soapy hands. The jury also heard the recording of Anderson's taunting the officers with their failure to find a shell casing and Ramsey's testimony as to what Anderson said he had done with the casing. In light of this, Anderson's assertion that "[t]he government did not affirmatively link the firearm to Mr. Anderson, beyond the evidence of his presence in the residence where the firearms were found," is obviously wrong.

Anderson's attack on Whitley's reliability as a witness fails also. Whitley admitted on direct examination that he is a drug user, that he is mentally ill, that he takes psychotropic medication daily, and that he is a convicted felon. He allowed Anderson to stay in his apartment for weeks at a time, apparently accepting crack cocaine as rent. Whitley...