U.S. v. Barnett

• Decision Date: 16 February 2005
• Docket Number: No. 04-5252.,04-5252.
• Citation: 398 F.3d 516
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Yervin K. BARNETT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 516

398 F.3d 516

UNITED STATES of America, Plaintiff-Appellee, v. Yervin K. BARNETT, Defendant-Appellant.

No. 04-5252.

United States Court of Appeals, Sixth Circuit.

Argued: January 26, 2005.

Decided and Filed: February 16, 2005.

COPYRIGHT MATERIAL OMITTED

ARGUED: Stephen B. Shankman, Office of the Federal Public Defender for the Western District of Tennessee, Memphis, Tennessee, for Appellant. David N. Pritchard, Assistant United States Attorney, Memphis, Tennessee, for Appellee. ON BRIEF: Stephen B. Shankman, Needum L. Germany, Office of the Federal Public Defender for the Western District of Tennessee, David N. Pritchard, Assistant United States Attorney, Memphis, Tennessee, for Appellant.

Before: BOGGS, Chief Judge; MARTIN, Circuit Judge; GWIN, District Judge.^*

MARTIN, J., delivered the opinion of the court. GWIN, D.J. (pp. 531-34), delivered a separate concurring opinion. BOGGS, C.J. (pp. 534-39), delivered a separate opinion concurring in part and dissenting in part.

BOYCE F. MARTIN, JR., Circuit Judge.

Yervin K. Barnett appeals his conviction and sentence for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). For the following reasons, we AFFIRM Barnett's conviction. However, we VACATE the sentence of the district court and REMAND for resentencing consistent with the Supreme Court's decision in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, ___ L.Ed.2d ___ (2005).

I.

In the early morning hours of July 4, 2002, Officer Corey Jefferson of the Memphis Police Department responded to a burglary call at 661 Shel Lane. When Jefferson arrived at the address, he flashed his spotlight at the residence and observed a black male kneeling in front of a window with a long black object in his hand (although Jefferson initially testified that he may have seen the suspect climbing out of the window). The suspect, upon seeing Jefferson, threw the object down and ran to a nearby car and drove away. Officer Jefferson gave pursuit. Jefferson testified that the object in the suspect's hand looked like a shotgun, but he was not sure. He further testified that he was able to get "a pretty good look" at the suspect as he ran toward the car. During the pursuit, the suspect lost control of his car on a curve and ran over a curb and into a house. He then began to flee on foot. Jefferson pursued the suspect on foot for a short period of time, until Jefferson was unable to jump a fence and lost sight of the suspect. Jefferson then radioed to other officers the location where he last saw the suspect and returned to his squad car in an effort to form a perimeter around the area.

Within ten minutes, Officer Jane Martin, a member of the department's canine unit, arrived on the scene and began searching the area. Martin's dog apparently followed a trail to a shed where Yervin Barnett was hiding. Martin took Barnett into custody. Jefferson testified that upon seeing Barnett detained, he was able to recognize Barnett as the same individual he observed at 661 Shel Lane earlier that evening crouched in front of the window with the long dark object in his hand. While Barnett was in custody at the scene, he apparently told the officers that he was not acting alone that night. In response, Jefferson testified that he told Barnett that he was the only one he saw at the scene.

Officer Tina Crowe testified that she responded to 661 Shel Lane to perform a crime scene investigation on July 4, 2002. During her investigation, she recovered a black and chrome rifle from the front yard of that address. At trial, Jefferson testified that the recovered gun featured in a picture (exhibit two) was the long black object that he saw the suspect holding in his hand.

The only witness called by the defense was Janice Bell. Bell testified that she was with Barnett on the evening of July 3 until around 11:00 p.m. or 12:00 a.m., and that Barnett had left in the presence of another man, James Molist, who subsequently died before trial.

At trial, the district court instructed the jury on the applicable law regarding possession of a firearm by a felon under 18 U.S.C. § 922(g). The court instructed:

You should find that the Defendant had possession of the firearm, if he had control of it, even though it was not physically in his possession. But, it is not enough that the Defendant may have known about the firearm. A defendant possess [sic] a firearm only if he had control of it either alone or together with someone else. Next, I will talk about actual and constructive possession. Next, I want to explain something further about possession. The government does not necessarily have to prove that the Defendant physically possessed the firearm for you to find him guilty of this crime.

The law recognizes two kinds of possession, actual possession and constructive possession. Either one of these, if proved by the Government, is enough to convict. To establish actual possession, the Government must prove that the Defendant had direct and physical control over the firearm and knew that he had control of it. To establish constructive possession, the Government must prove that the Defendant had the right to exercise physical control over the firearm and knew that he had this right. And that he intended to exercise physical control over it at sometime either directly or through other persons. For example, if you left something with a friend intending to come back later to pick it up or intending to send someone else to come and pick it up for you, you would have constructive possession of that thing, while it was in the actual possession of your friend. But, understand that just being present where something is located does not equal possession. The Government must prove that the Defendant had actual or constructive possession of the firearm and knew that he did....

Counsel for Barnett stated in closing argument:

We all know that people do burglaries when they are accompanied by other people. It could happen, right. We all know that every time a burglary happens, it is not just one person. It could be another person.... We also heard the statements made by Mr. Barnett given to Officer Jefferson. What did he tell you? Did you all catch anybody else? ... Maybe, there was somebody else. Maybe there was. What did Officer Jefferson say? He didn't look for another person. Well, yes. I guess that there could have been somebody else....

You heard the testimony of Janice Bell. Janice Bell said, that Mr. Barnett was accompanied by another man. His name was James Molist. And I submitted his death certificate in this case. At 11:00 at night, 11:00 or 12:00 o'clock at night, that's pretty late. You remember the burglary happened about around 4:00, just a few hours later. I submit to you, that it is possible, that Mr. Molist was with Mr. Barnett that night. And that was possibly the other person.

In rebuttal closing, counsel for the United States stated:

So, if you conspire with someone else to go and kick in the front door of a citizen's home, and invade that home, and take property from that home, without the permission of the homeowner or either you or your partner decide to grab a rifle from the home, then, both of you, under the law, have exercised control over it.

The defense objected and the district court sustained the objection to the use of the word "conspiracy," as there was no conspiracy charge in the case. The court instructed the jury to disregard anything the prosecutor said about conspiracy and that line of argument. Counsel for the United States did not use the word "conspiracy" again in commenting on the defense theory of the case.

Returning to his closing, counsel for the United States again argued: "If you and Mr. Molist, the Defendant and Mr. Molist, went to the home and broke into the home; and let's say that, it was Mr. Molist, who had the gun, the Defendant is still responsible." Counsel for Barnett again objected. In a side bar, the court responded to the government's argument: "Those are facts, that are not in evidence. There is no evidence, anything in the record.... [D]o we know that these were the two that did that? You didn't argue that on Direct." During the course of this bench conference, counsel for Barnett admitted that he had argued the theory that Molist, rather than Barnett, had been in possession of the firearm at the time of the apparent burglary. With the court's permission, counsel for the United States continued his closing by responding to the defense's argument as follows: "Just, hypothetically, if two people broke into a home, and one of them possessed the gun, and then under this law, as the Judge has read it to you, both can be charged with possession of it. Because if your partner exercises control and possession, controlling possession, hypothetically, then, you do as well, under the law, as has been instructed to you by Her Honor."

On November 6, 2003, the jury convicted Barnett of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). At the sentencing hearing on February 25, 2004, the district court calculated Barnett's base offense level under the United States Sentencing Guidelines for "felon in possession of a firearm" to be 24 under section 2K2.1, but then added 2 points for his possession of a stolen firearm under section 2K2.1(b)(4), and 2 more points for reckless endangerment during flight under section 3C1.2. This yielded an adjusted offense level of 28. However, because Barnett had been convicted of at least three aggravated or violent felonies in the past, the district court was required to sentence him as an armed career criminal, which increased his offense level to 33 under section 4B1.4 of the Guidelines and imposed a statutory mandatory minimum of 180 months of imprisonment, see 18 U.S.C. § 924(e). With a criminal history category of VI, and an offense level of 33, the Guidelines required the district court to sentence Barnett within the...