U.S. v. Michel

• Decision Date: 10 May 2006
• Docket Number: No. 04-2214.,04-2214.
• Citation: 446 F.3d 1122
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mauricio MICHEL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

446 F.3d 1122

UNITED STATES of America, Plaintiff-Appellee, v. Mauricio MICHEL, Defendant-Appellant.

No. 04-2214.

United States Court of Appeals, Tenth Circuit.

May 10, 2006.

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Bernadette Sedillo of Las Cruces, NM, for Defendant-Appellant.

David N. Williams, Assistant United States Attorney (David C. Iglesias, United States Attorney, with him on the brief), Albuquerque, NM, for Plaintiff-Appellee.

Before O'BRIEN, SEYMOUR, and BALDOCK, Circuit Judges.

SEYMOUR, Circuit Judge.

Mauricio Michel brings this appeal challenging, on sufficiency of the evidence grounds, his convictions for various gun possession and aiding and abetting charges pursuant to 18 U.S.C. §§ 2, 922(g)(1), 924(a)(2); 26 U.S.C. §§ 5841, 5845(a)(2), 5861(d), 5861(i), 5871. He also claims that his sentence should not have been enhanced under the Armed Career Criminal Act (ACCA). 18 U.S.C. § 924(e); see also U.S.S.G. § 4B1.4. We affirm in part, reverse in part, and remand for resentencing.

I

On December 31, 2001, an officer for the Lovington, New Mexico, police department observed Clinton Laughrin at a convenience store putting gasoline in a gas can. The officer, Brad Riley, watched Mr. Laughrin drive away from the store in his two-door Pontiac, accompanied by a passenger, Mr. Michel. Mr. Laughrin had agreed to help Mr. Michel obtain fuel for his vehicle after his car ran out of gas. Officer Riley knew Mr. Laughrin from past traffic violations and was aware his license had previously been suspended. The officer followed the vehicle for approximately half a mile before pulling Mr. Laughrin over to determine whether he was driving with a valid license. When Officer Riley turned on his emergency lights, he observed Mr. Michel moving around in the front seat of the car and reaching toward the back seat area. Mr. Laughrin subsequently stopped his car under a light post, and Officer Riley illuminated the vehicle with his own lights.

As Officer Riley approached the vehicle, Mr. Michel continued to move around and reach toward the rear of the vehicle. When Officer Riley reached the car, he asked Mr. Laughrin for his driver's license, car registration, and proof of insurance. Mr. Laughrin admitted he did not have any paperwork with him regarding the car, but stated he had renewed his licence. A subsequent computerized driver's license check indicated Mr. Laughrin's license was valid.

As Officer Riley was speaking to Mr. Laughrin, the officer used his flashlight to see inside the vehicle. He noticed what appeared to be the barrel of a gun behind the driver's seat, pointed toward the driver's side door. The gun was easily within reach of both Mr. Laughrin and Mr. Michel. Officer Riley immediately stepped back from the vehicle and ordered the men to place their hands on the dashboard and not to move. He then called for the assistance of a backup officer. Despite his directions to the men, Officer Riley observed Mr. Michel attempt to reach behind the seat toward the area where the weapon was located. The officer had to tell Mr. Michel several times to keep his hands on the car's dashboard. Officer Riley testified he did not see how close Mr. Michel got to the shotgun, nor whether he was actually specifically reaching for the gun. The officer also testified he did not have any knowledge as to how the gun came to be in Mr. Laughrin's car.

When the backup officer arrived, Mr. Laughrin and Mr. Michel were told to exit the vehicle and were temporarily handcuffed while the officers removed the gun. Mr. Laughrin said the gun belonged to a friend, whom he did not identify. The gun, which neither had a serial number nor was registered with the National Firearms Registration and Transfer Record, was a Mossberg .410 gauge shotgun with an overall length of seventeen and a half inches and a barrel length of ten and three eights inches. The weapon was thus a sawed off shotgun.

Neither man was arrested. After the gun was secured, one of the other officers retrieved the gas can from Mr. Laughrin's car and drove Mr. Michel back to his own vehicle. Mr. Laughrin was also permitted to leave the scene. The gun was not processed for fingerprints, but it was successfully test fired.

Over a year later, a grand jury issued a seven count indictment against Mr. Michel and Mr. Laughrin. Mr. Michel was charged with being a felon in possession of a Mossberg .410 gauge shotgun in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); possessing and aiding and abetting the possession of an unregistered firearm in violation of 26 U.S.C. §§ 5841, 5845(a)(2), 5861(d), 5871 and 18 U.S.C. § 2; and possessing and aiding and abetting the possession of a firearm not identified by a serial number in violation of 26 U.S.C. §§ 5861(i), 5871, and 18 U.S.C. § 2. A jury found Mr. Michel guilty on all counts.¹ In calculating his sentence, the district court classified Mr. Michel as an armed career criminal, see 18 U.S.C. § 924(e), U.S.S.G. § 4B1.4, and gave him concurrent sentences of 240 months on each count.

On appeal, Mr. Michel contends the evidence presented at trial was insufficient for a jury to find him guilty beyond a reasonable doubt of the charges against him. He also argues that the ACCA sentencing enhancement was erroneously applied to him in violation of the Sixth Amendment. We address each claim in turn.

II

We review sufficiency of the evidence claims de novo. See United States v. Higgins, 282 F.3d 1261, 1274 (10th Cir. 2002). "In doing so, we view the evidence in the light most favorable to the government and determine whether a reasonable jury could have found the defendant guilty of the crime beyond a reasonable doubt." United States v. Hamilton, 413 F.3d 1138, 1143 (10th Cir.2005) (internal citations and quotations omitted). We do not "weigh conflicting evidence or second-guess the fact-finding decisions of the jury," United States v. Summers, 414 F.3d 1287, 1293 (10th Cir.2005), but instead must determine whether "based on the direct and circumstantial evidence, together with the reasonable inferences to be drawn therefrom," the jury's verdict was supported by sufficient evidence. United States v. Smith, 133 F.3d 737, 742 (10th Cir.1997).

Juries are not permitted to convict a defendant based on speculation or mere suspicion.

While the jury may draw reasonable inferences from direct or circumstantial evidence, an inference must be more than speculation and conjecture to be reasonable, and caution must be taken that the conviction not be obtained by piling inference on inference. . . . A jury will not be allowed to engage in a degree of speculation and conjecture that renders its finding a guess or mere possibility. Such [an inference] is infirm because it is not based on the evidence.

United States v. Jones, 44 F.3d 860, 865 (10th Cir.1995) (citation and quotation marks omitted). Our prohibition against piling inference upon inference "indicates that at some point along a rational continuum, inferences may become so attenuated from underlying evidence as to cast doubt on the trier of fact's ultimate conclusion." Summers, 414 F.3d at 1295. Certainly, reasonable inferences supported by other reasonable inferences which have an evidentiary basis may warrant a conviction. Nonetheless, where a conviction appears to be based on multiple and successive inferences, we must exercise caution and "measure the `gap' between fact and conclusion before acquiescing in the jury's leap." Id.

We conclude the evidence presented by the government was sufficient to support the jury's determination that Mr. Michel was a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). Under § 922(g), it is

unlawful for any person — (1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

18 U.S.C.A. § 922(g)(1). In order to obtain a conviction against Mr. Michel under § 922(g), the government was required to prove that he had previously been convicted of a felony, he thereafter knowingly possessed a firearm, and such possession was in or affected interstate commerce. See United States v. Taylor, 113 F.3d 1136, 1144 (10th Cir.1997); United States v. Mains, 33 F.3d 1222, 1228 (10th Cir. 1994); United States v. Shunk, 881 F.2d 917, 921 (10th Cir.1989). At trial, Mr. Michel stipulated to the first and third elements required for a conviction under § 922(g). We therefore focus our analysis solely on whether the government proved he knowingly possessed a firearm. See Mains, 33 F.3d at 1228 ("the only knowledge required for a § 922(g) conviction is knowledge that the instrument possessed is a firearm").

For the purposes of § 922,

[t]he term "firearm" means (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm.

18 U.S.C. § 921(a)(3). Possession can either be actual or constructive. United States v. Mills, 29 F.3d 545, 549 (10th Cir.1994). Constructive possession of an object exists when a person "knowingly hold[s] the power and ability to exercise dominion and control over it." United States v. Lopez, 372 F.3d 1207, 1211 (10th Cir.2004)(quotation and citation omitted). When a defendant has "`exclusive possession of the premises' where the object is found," the additional factors of knowledge, dominion, and control can be properly inferred. United States v. Avery, 295 F.3d 1158, 1177 (10th Cir.2002) (quoting Mills, 29 F.3d at 549). If two or more people occupy a given space,...