U.S. v. Frushon

• Decision Date: 30 November 1993
• Docket Number: 93-10045,Nos. 93-10042,s. 93-10042
• Citation: 10 F.3d 663
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Christopher FRUSHON, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellee, v. Christopher FRUSHON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 663

10 F.3d 663

UNITED STATES of America, Plaintiff-Appellant, v. Christopher FRUSHON, Defendant-Appellee.

UNITED STATES of America, Plaintiff-Appellee, v. Christopher FRUSHON, Defendant-Appellant.

Nos. 93-10042, 93-10045.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 5, 1993.

Decided Nov. 30, 1993.

Jennifer Levy, Asst. U.S. Atty., Washington, DC, for plaintiff-appellant-appellee.

Bram Jacobson, Arizona Federal Public Defenders, Phoenix, AZ, for defendant-appellee-appellant.

Before: CANBY, and NOONAN, Circuit Judges, and ORRICK, ^* District Judge.

Appeal from the United States District Court for the District of Arizona.

NOONAN, Circuit Judge:

Christopher Frushon appeals his conviction of being a felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g). The government appeals the sentence imposed by the district court. We affirm the conviction but remand for resentencing.

THE EVIDENCE

Frushon contends that the evidence was insufficient to support his conviction. We must affirm if any rational trier of fact could have found all the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Viewing the evidence in the light most favorable to the government, the following facts were established:

On December 19, 1991 agents of the Bureau of Alcohol, Tobacco and Firearms executed a search warrant at a mobile home identified in the warrant as that of Christopher Frushon. A woman who identified herself as Mrs. Frushon answered the door and admitted the agents. In the north bedroom they found a Mossberg 12-gauge shotgun leaning against the wall along the headboard of the bed and in a gun rack directly over the bed a Savage 24 Series combination gun, an H & R single barrel Model 58 shotgun and a Mossberg Model 500A 12-gauge shotgun. Ammunition was found in a bag in the night stand within two feet of the bed. Other boxes of ammunition and a bandoleer of shotgun ammunition were found in a chest in a closet in the corner of the bedroom. In a box on the dresser opposite the foot of the bed were two receipts. One was dated September 14, 1991 and made out to Chris Frushon for the purchase of a Mossberg 12-gauge shotgun, serial number K492029. The number was the same as the number of the shotgun leaning against the wall. The other receipt was dated December 18, 1990 and was made out to Chris Frushon for the acquisition of a shotgun from a pawn shop. In a desk drawer of the living room the agents found a California Prison Privilege Card issued The agents also searched with a warrant a service station operated by Frushon, recovering there various types of ammunition including ammunition for a 12-gauge shotgun.

to Frushon and a photograph of him holding a shotgun identifiable as the one leaning against the wall.

Frushon points to the fact that he was not present at either the service station or the mobile home when they were searched and the additional fact that his fingerprints were not found on the weapons. He contends that neither place was under his exclusive control. He concludes there was insufficient evidence of his possession, which "means dominion and control" not "mere proximity." United States v. Ocampo, 937 F.2d 485, 489 (9th Cir.1991) (drugs found in truck at residence owned by defendant not proved to have been possessed by the defendant when he did not have the keys to the truck). Frushon contends that "[f]or almost 30 years this Court has held that joint occupancy of a residence is not enough to show possession." Delgado v. United States, 327 F.2d 641, 642 (9th Cir.1964) (drugs found in drawer of the nightstand in a residence shared by defendant and man she was living with not proved to have been possessed by defendant).

The principles set out by Frushon are incontestable, and the cases he cites are still valid. The facts of his case are different. The purchase receipt for the Mossberg 12-gauge shotgun found in the bedroom connects him beyond dispute with ownership of the shotgun. The photograph equally identifies him as the person whose gun it was. Not the slightest evidence at trial suggested that the woman who identified herself as his wife purchased or possessed the guns. Ample evidence was presented justifying the jury's conclusion that the mobile home belonged to Frushon and that the firearms found in the bedroom belonged to him as well. The jury could properly infer that he possessed the weapons since he must have known of their presence in his home and must have had physical access to, and control over, them.

THE SENTENCE

The district court found that Frushon's crime was at an offense level of 18 and that he had a criminal history category of IV, yielding a sentencing range of 41 to 51 months. The court sentenced him to forty-one months, the low end of the applicable range. In doing so, the district court did not follow the recommendation of the presentence report that Frushon be sentenced as a career criminal. The government appeals, contending that he should be sentenced as a career criminal.

Our starting point must be the statute. Chapter 44 of Title 18 is entitled "Firearms". The provision of Chapter 44 under which the government seeks to sentence Frushon as a career criminal is 18 U.S.C. Sec. 924(e)(1), which begins: "In the case of a person who violates Section 922(g) of this title and has three previous convictions by any court referred to in Section 922(g)(1) of this title for a violent felony ... such person shall be ... imprisoned not less than fifteen years...." The statute then goes on in subsection (e)(2)(B) to define violent felony as "any crime punishable by imprisonment for a term exceeding one year." As a crime punishable for a term exceeding one year is earlier defined in Chapter 44 we turn to that definition.

The very first section of Chapter 44, Sec. 921, is entitled "Definitions" and begins: "As used in this chapter--". The following sections set out a number of definitions. At Section 20 there is this provision:

(20) The term "crime punishable by imprisonment for a term exceeding one year" does not include--

(A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or

(B) any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.

What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

This definitional statute plainly states that what constitutes conviction "of such a crime", meaning "crime punishable by imprisonment for a term exceeding one year," shall be determined in accordance with the law of the jurisdiction in which the conviction was obtained. If the proceedings were state proceedings, state law determines "what constitutes a conviction of such a crime." Unless there is another part of the statute overriding this definition, or controlling case authority to the contrary, we must adhere to the plain language of the statute.

The government argues that we should not use the definition because of a statement in United States v. Sherbondy, 865 F.2d 996, 1004-1005 (9th Cir.1988) that Congress has defined in Section 924(e) itself what constitutes a violent felony. But the government misunderstands the point of Sherbondy. It is true that "violent felony" is explicitly defined in (e)(2)(B)(i) and (ii) as a crime that has, as an element, the use, attempted use, or threatened use of physical violence against the person of another, or is burglary, arson or extortion, or involves the use of explosives, or otherwise involves conduct presenting a serious potential risk of physical harm to anyone. These characteristics of a violent felony are obviously matters of federal law, as Sherbondy held. But neither Sherbondy nor section 924(e) address the meaning of "any crime punishable by imprisonment for a term exceeding one year."

On that point the same judge of this circuit who was the author of Sherbondy explicitly noted that a crime punishable by a term exceeding one year is defined in Section 921(a)(20). United States v. Geyler, 932 F.2d 1330, 1332 (9th Cir.1991). Strictly speaking, neither Sherbondy nor Geyler control, for neither addressed the question now before the court. Nonetheless, Geyler 's emphasis on the statute's plain language, id. at 1335-1336, as well as its general tenor, confirm the result reached here. Not only is the statute clear, but our case law is consistent with the clear language. Whether Frushon has committed a crime punishable by a term of imprisonment exceeding one year must be determined in accordance...