U.S. v. Nance, 05-6036.

Citation481 F.3d 882
Decision Date06 April 2007
Docket NumberNo. 05-6036.,05-6036.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Elton NANCE, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

ARGUED: Jeff Mueller, Mueller & Ellis, Jackson, Tennessee, for Appellant. R. Leigh Grinalds, Assistant United States Attorney, Jackson, Tennessee, for Appellee. ON BRIEF: Jeff Mueller, Mueller & Ellis, Jackson, Tennessee, for Appellant. R. Leigh Grinalds, Assistant United States Attorney, Jackson, Tennessee, for Appellee.

Before: GIBBONS and ROGERS, Circuit Judges; HOLSCHUH, District Judge.*

GIBBONS, J., delivered the opinion of the court, in which ROGERS, J., joined. HOLSCHUH, D.J. (pp. 889-95), delivered a separate opinion concurring in part and dissenting in part.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

Defendant-appellant Richard Nance was convicted by a jury of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). The district court determined that Nance was an armed career criminal and sentenced him to 235 months, which was at the bottom of the advisory guidelines range. Nance appeals his conviction and sentence. For the following reasons, we affirm the district court's judgment.

I.

On December 12, 2003, members of the Jackson police department's gang task force went to 228 Shelby Street in Jackson, Tennessee to serve an arrest warrant on Martedis McPhearson, who lived at the residence. The officers arrested McPhearson. As a result of a routine patdown of McPhearson during which drugs were discovered, some officers went for and obtained a search warrant for the residence. While the warrant was being obtained, officers secured the residence and, in so doing, found Nance in a bathroom. Upon executing the search warrant, officers discovered a locked safe containing a firearm. Nance told the officers which key to use to open the safe.

Nance was subsequently indicted and charged with being a felon in possession of a firearm "on or about December 12, 2003," which was the date of Nance's arrest. At trial, two of the investigating officers testified as to the events of December 12—specifically, the discovery of Nance in the house and the subsequent search and discovery of the locked safe containing the firearm. Lieutenant Patrick Willis then testified that Nance told the investigating officers which key would unlock the safe containing the firearm. Terry Wayne Curry, an informant who had been assisting the gang task force, testified that he had seen Nance open the same safe using a key on a prior occasion. Curry also testified that he had seen a firearm at the residence on a prior occasion that was similar to the one recovered from the safe. Lieutenant Willis also testified that, after Nance was arrested, he provided a statement to the police in which he admitted handling the firearm in question. Nance stated that four days prior to his December 12 arrest he had been asked to put the gun away by Nicole Parker, who was at the house, and that he did so because children were sometimes at the house. Nance explained in his statement that his fingerprints would therefore be found on the gun and the safe because of his handling of it four days prior. Nicole Parker testified that she never handled the firearm nor asked Nance to put the firearm away.

The jury convicted Nance of the single count of being a felon in possession of a firearm. At sentencing, the district court found Nance to be an armed career criminal. The district court applied the armed career criminal enhancement and sentenced Nance to 235 months imprisonment. Nance timely appealed his conviction and sentence.

II.

On appeal, Nance argues that the district court erred by: (1) denying his request for a jury instruction on the required nexus between the firearm and interstate commerce; (2) admitting evidence that Nance possessed the firearm four days prior to the date charged in the indictment, thereby permitting a constructive amendment to or unlawful variance from the indictment; (3) applying the armed career criminal enhancement; and (4) imposing an unreasonable sentence.1

We turn first to Nance's challenge to the jury instruction regarding the requirement of the firearm's nexus to interstate commerce. At trial, Nance requested that the jury instructions state as an element of the offense that the firearm affected, as opposed to traveled in, interstate commerce. The district court denied Nance's request. The district court instructed the jury that the government must prove that the firearm in question had traveled in interstate commerce prior to Nance's possession of it and that this fact could be proven by showing that prior to the date of the crime the firearm had crossed a state line. Where a proper request for a jury instruction is made in the district court, this court reviews the denial of that request under the abuse-of-discretion standard. See United States v. Ursery, 109 F.3d 1129, 1136 (6th Cir.1997). The jury was not required to find that the firearm had a substantial effect on interstate commerce. See United States v. Henry, 429 F.3d 603, 619-20 (6th Cir. 2005). Rather, the instruction given was sufficient to establish an interstate nexus. See id. The district court did not abuse its discretion in denying Nance's request.

Nance next argues that the court permitted a constructive amendment to or unlawful variance from the charge set forth in his indictment. According to Nance, because the jury had before it evidence that he actually possessed the firearm on December 8, there is a substantial likelihood that he was convicted on that basis rather than for constructively possessing the firearm on December 12, which is the date alleged in the indictment. We review de novo whether there has been an amendment to the indictment or a variance. United States v. Manning, 142 F.3d 336, 339 (6th Cir.1998).

"The Fifth Amendment guarantees that an accused be tried only on those offenses presented in an indictment and returned by a grand jury." Id. (citing Stirone v. United States, 361 U.S. 212, 217-19, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960)). There are "two basic categories of indictment modification: `An amendment of the indictment occurs when the charging terms of the indictment are altered, either literally or in effect, by prosecutor or court after the grand jury has last passed upon them. A variance occurs when the charging terms of an indictment are left unaltered, but the evidence offered at trial proves facts materially different from those alleged in the indictment.'" Martin v. Kassulke, 970 F.2d 1539, 1542 (6th Cir. 1992) (quoting United States v. Ford, 872 F.2d 1231, 1235 (6th Cir.1989)) (emphasis omitted). An amendment is considered per se prejudicial because it "directly infringes the defendant's right to know of the charges against him by effectively allowing the jury to convict the defendant of a different crime than that for which he was charged." Martin, 970 F.2d at 1542 (citing Ford, 872 F.2d at 1235).

In contrast to an amendment, a "variance occurs when the charging terms are unchanged, but the evidence at trial proves facts materially different from those alleged in the indictment." Manning, 142 F.3d at 339 (citing United States v. Hathaway, 798 F.2d 902, 910 (6th Cir. 1986)). A variance is not reversible error unless the defendant demonstrates prejudice. See Martin, 970 F.2d at 1542. If a variance "infringes too greatly upon" the defendant's Sixth Amendment right to be "informed of the nature and cause of the accusation" against him, then it is considered a constructive amendment and is accorded the per se prejudicial treatment of an amendment. Id. (citing Ford, 872 F.2d at 1235). "A variance crosses the constructive amendment line only when the variance creates `a substantial likelihood' that a defendant may have been convicted of an offense other than that charged by the grand jury." Manning, 142 F.3d at 339 (quoting Hathaway, 798 F.2d at 911).

In this case, there was not a constructive amendment to the indictment. Nance was charged with and convicted of being a felon in possession of a firearm on or about December 12, 2003. The terms of the indictment were not altered.

Nance's variance argument more closely approximates what occurred in this case. Put simply, the jury heard evidence that could permit an inference of possession on two different dates—one charged in the indictment and one not charged. The evidence as to the charged date, December 12, was that Nance told officers on the day of his arrest which key would unlock the safe containing the firearm. The evidence of possession on December 8 came from Nance's December 12 statement to police in which he admitted putting the gun away in the safe four days earlier. The December 8 evidence was relevant to establish Nance's access to the safe and his ability to exercise control over the weapon on December 12 and properly admissible. If this evidence could be considered a variance, its admission did not prejudice defendant.2

Nance next challenges the district court's application of the armed career criminal enhancement. This court reviews de novo a district court's determination that a defendant should be sentenced as an armed career criminal. United States v. Sawyers, 409 F.3d 732, 736 (6th Cir.2005). Under the advisory sentencing guidelines, the minimum offense level for an armed career criminal is 33. See U.S.S.G. § 4B1.4(a), (b)(3)(B). A person possessing a firearm after three prior convictions for serious drug offenses or violent felonies is an armed career criminal under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). See Shepard v. United States, 544 U.S. 13, 15, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). The district court found that Nance had four prior violent felonies as listed in his PSR: two armed robberies, one aggravated burglary, and one facilitation of armed robbery. Nance does not dispute the two armed...

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