U.S. v. Greer

• Decision Date: 24 February 2006
• Docket Number: No. 05-11295. Non-Argument Calendar.,05-11295. Non-Argument Calendar.
• Citation: 440 F.3d 1267
• Parties: UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant, v. Ronnie J. GREER, Defendant-Appellant-Cross-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

440 F.3d 1267

UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant, v. Ronnie J. GREER, Defendant-Appellant-Cross-Appellee.

No. 05-11295. Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

February 24, 2006.

COPYRIGHT MATERIAL OMITTED

William J. Mason, Columbus, GA, for Greer.

Dean S. Daskal, Columbus, GA, for U.S.

Appeals from the United States District Court for the Middle District of Georgia.

On Petition for Rehearing

Before BLACK, CARNES and PRYOR, Circuit Judges.

CARNES, Circuit Judge:

We vacate our prior opinion in this appeal, 435 F.3d 1327 (11th Cir.2006), and substitute for it this one. In all other respects the appellant's petition for a rehearing, insofar as it is addressed to the panel, is denied.

The Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), provides a mandatory minimum sentence of fifteen years for anyone who violates 18 U.S.C. § 922(g) after three convictions for a violent felony or a serious drug offense. In this case the jury convicted Ronnie J. Greer of violating 18 U.S.C. § 922(g)(1), and it also found that he had been convicted of at least one of the three previous felonies listed in the indictment. Those three listed state court felony convictions were for three separately committed offenses of terroristic threats in violation of Ga.Code Ann. § 16-11-37(a) (2003). There is no dispute that certified copies of state court documents evidencing those convictions, which were introduced without objection at trial, proved the three prior convictions.

The district court nonetheless refused to impose the mandatory minimum sentence on Greer because the jury had not determined—and it was never asked to determine—whether Greer's three prior convictions were for violent felony crimes. The district court believed that United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), require that the jury, and not the judge, find that a previous conviction was for a violent crime for ACCA purposes. As a result of that belief, the district court imposed a sentence of only 78 months, instead of the 180 months mandated by the ACCA. Greer has appealed his conviction, and the government has cross-appealed the 78-month sentence and the Booker ruling underlying it.

I.

On July 6, 2002, a five-year-old boy, who was outside with his sister playing on a utility trailer was killed when a pipe bomb that had been stored in a box on the trailer exploded. Greer's residence was next door, he had been overheard in the past talking about "blowing people up," and he was a former employee of a business that used pipes consistent with the type used in the explosive device. He quickly became a suspect. Three days after the fatal explosion federal and state law enforcement officers searched Greer's residence pursuant to a federal search warrant. They did not find evidence that would support charging him in connection with the bomb, but they did find live ammunition in his house, including one pistol cartridge, two rifle cartridges, and a shotgun shell, all in plain view on a table just inside the front door.

No guns were found in the house, but the ammunition was enough to charge Greer with a violation of 18 U.S.C. § 922(g)(1), which prohibits a felon from possessing ammunition. To establish the "felon" part of the charge, the indictment alleged that Greer had three prior felony convictions for making terroristic threats. It also charged that the provisions of 18 U.S.C. § 924(e)(1) were applicable, subjecting Greer to a fifteen-year mandatory minimum sentence upon conviction.

At trial, Jay Bagwell, who is a special agent for the Bureau of Alcohol, Tobacco, Firearms and Explosives, and David Smith, who is an agent for the Georgia Bureau of Investigation, testified about participating in the search of Greer's residence. They told the jury that four live rounds of ammunition, which had traveled in interstate commerce, were found on a table inside the house. Although Greer had not been at the house when it was searched, the agents described documents and other items they found in the house that indicated Greer lived there: mail; bills; letters Greer had written and signed; and a lot of notebooks he had compiled. Some of the documents had recent dates on them. The agents also told of signs—such as a well-stocked kitchen and toiletries in the bathroom—indicating that the house was occupied.

Brad Donnelly, another ATF agent, testified that Greer had been convicted in the state courts of Georgia three times for the felony of "terroristic threats." Those three separate convictions occurred in 1989, 1993, and 2000. Although that state crime carries the possibility of years in prison, Greer received probation each time.

After the government had presented its case in chief, Greer's counsel failed to move for a judgment of acquittal. Greer then testified as the only witness in his defense. He admitted living in Cusseta, Georgia, at the residence that was searched, and said that he had lived there since 1988. Greer admitted knowing that ammunition was on the table. He first said that the bullets the agents found were not at the house when he moved in four years before the search "unless they were on the outside of the house," but then said that "they could have been [sic] when I moved into the house, the bullets were there." In any event, he acknowledged knowing the ammunition was there. The defense called no other witnesses.

The jury was instructed that it could convict Greer only if it found beyond a reasonable doubt that he had knowingly possessed ammunition which had been shipped or transported in interstate commerce, and before he possessed the ammunition he had been convicted of a crime punishable by imprisonment for a term in excess of one year. The jury found Greer guilty as charged.

As we have mentioned, the district court determined that the ACCA mandatory minimum sentence of fifteen years could not be applied in this case in light of the Booker decision. Having freed itself from the strictures of the ACCA, the court calculated the guideline range to be 63-78 months imprisonment and sentenced Greer to 78 months.

II.

Greer raises several contentions against his conviction. First, he asserts that the government failed to prove beyond a reasonable doubt that he possessed the ammunition found in his home. We review the sufficiency of the evidence de novo, viewing the evidence and making all reasonable inferences in favor of the verdict. United States v. Garcia, 405 F.3d 1260, 1269 (11th Cir.2005).

When a defendant does not move for a judgment of acquittal at the close of the evidence, he must shoulder a somewhat heavier burden: we will reverse the conviction only where doing so is necessary to prevent a manifest miscarriage of justice. United States v. Bender, 290 F.3d 1279, 1284 (11th Cir.2002). "This standard requires the appellate court to find that the evidence on a key element of the offense is so tenuous that a conviction would be shocking." Id. Greer did not move for a judgment of acquittal, but we will put that failure aside here because it does not matter. Even if he had moved for a judgment of acquittal, the result of this appeal would be the same.

The only element of the crime defined in 18 U.S.C. § 922(g)(1) that Greer argues was not proven beyond a reasonable doubt is knowing possession of the ammunition. See generally United States v. Wright, 392 F.3d 1269, 1273 (11th Cir. 2004), cert. denied, ___ U.S. ___, 125 S.Ct. 1751, 161 L.Ed.2d 615 (2005). The government need not prove actual possession in order to establish knowing possession; it need only show constructive possession through direct or circumstantial evidence. Id. Constructive possession exists when the defendant exercises ownership, dominion, or control over the item or has the power and intent to exercise dominion or control. United States v. Gunn, 369 F.3d 1229, 1235 (11th Cir.2004), cert. denied, 543 U.S. 937, 125 S.Ct. 324, 160 L.Ed.2d 244 (2004).

The ammunition was found in plain view on a table just inside the front door. Even before Greer testified in the defense part of the case, there was sufficient evidence that he lived in the house and had been there not long before the search. There was no evidence in either the government's case or the defense case that anyone else lived in the house with Greer. His argument that the jury could not reasonably find beyond a reasonable doubt from this evidence that he knowingly possessed the ammunition is frivolous.

Greer also contends that the government failed to prove that venue was proper in the Columbus Division of the Middle District of Georgia. The government did not put in evidence that Cusseta, Georgia, where Greer lived and the ammunition was found, was in the territorial jurisdiction of the district court; there was no stipulation to venue; and there was no discussion of whether judicial notice could be taken of the necessary facts relating to venue. The venue issue simply was not raised at trial.

A defendant has a Sixth Amendment right to be tried in the district in which he committed the offense. United States v. Roberts, 308 F.3d 1147, 1151 (11th Cir.2002). However, a defendant waives an objection to venue by failing to raise it before trial, subject to the exception that objecting at the close of evidence is soon enough if the indictment alleges an incorrect venue and the defendant was not aware of that defect until the government presented its case. Id. at 1151-52. Greer did not raise an objection to venue at trial or at the close of evidence, and thus any venue issue was waived.

Greer's final contentions involve his trial counsel's failure to move the district court for a judgment of acquittal and failure to object on venue grounds. He says that those failures deprived him of effective assistance of counsel. Generally, we do not...