U.S. v. Vereen

• Decision Date: 05 April 2019
• Docket Number: No. 17-11147,17-11147
• Citation: 920 F.3d 1300
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ernest VEREEN, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

920 F.3d 1300

UNITED STATES of America, Plaintiff-Appellee,

v.Ernest VEREEN, Jr., Defendant-Appellant.

No. 17-11147

United States Court of Appeals, Eleventh Circuit.

April 5, 2019

Todd B. Grandy, David Charles Waterman, Natalie Hirt Adams, James A. Muench, U.S. Attorney's Office, TAMPA, FL, for Plaintiff-Appellee.

Christophir A. Kerr, Christophir A. Kerr, Esq., LARGO, FL, for Defendant-Appellant.

Before MARCUS, NEWSOM and ANDERSON, Circuit Judges.

MARCUS, Circuit Judge:

Ernest Vereen, Jr. appeals his conviction and sentence for possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(e). Vereen challenges the district court's decision not to give a jury instruction on what Vereen terms the innocent transitory possession ("ITP") defense, through which he sought to argue that his faultless and brief possession of a firearm did not constitute "possession" under § 922(g)(1). He adds that the failure of our Court to clarify whether the ITP defense is available in firearms offenses has created unconstitutional ambiguity. Vereen also raises three arguments foreclosed by our precedent—that the government failed to establish that his prior aggravated battery convictions qualified as violent felonies under the Armed Career Criminal Act ("ACCA"); that his sentence violates the Fifth and Sixth Amendments because it was enhanced based on facts not charged in the indictment or proven to a jury beyond a reasonable doubt; and that § 922(g) is unconstitutional, facially and as applied to him. Finally, Vereen claims that his felony battery conviction does not qualify as a violent felony under the ACCA.

After careful review, we affirm.

I.

Vereen was charged by a federal grand jury sitting in the Middle District of Florida in a single-count indictment with possession of a firearm by a convicted felon. The indictment listed several prior Florida felony convictions, including one for child abuse, two aggravated battery convictions, and a felony battery conviction.

The essential facts adduced at trial were these. Samuel South, a letter carrier for the United States Postal Service who delivered mail to a residential housing complex in Tampa where Vereen lived, testified that on September 19, 2015, while delivering mail he noticed a gun in the mailbox of Apartment 43. Apparently startled by a firearm that was pointed outward, and concerned that the mailbox might be booby-trapped, South notified his supervisor and locked the mailbox door. Shortly thereafter, he met with two police officers and provided them with keys to open the mailbox.

Three police officers from the Tampa Police Department, Michael Hinson, Taylor Hart and Sergeant Eric Defelice, testified in turn about the events leading up to Vereen's arrest. All three said they had observed Vereen exit Apartment 43 and walk quickly to the mailbox while looking all around. After watching Vereen struggle with the lock, Officers Hinson and Defelice saw Vereen open the box. Defelice could see Vereen reach in and retrieve a firearm from the box, close the box and place the gun in his right back pocket. Vereen then began walking towards his apartment complex. Upon seeing a signal from another officer, Officers Hinson and Hart—who were in plainclothes, but wearing tactical vests that said "police" across the chest—emerged and took Vereen into custody. Officer Hinson identified himself as a police officer and ordered Vereen to put his hands in the air and get on the ground. According to Officers Hinson and Hart, Vereen did not immediately comply with the command, but rather hesitated. Hinson related that "[b]oth hands went into the air and his right hand went slowly back to his right pocket." Eventually Vereen complied with the officer's command. Officer Hinson testified that he subsequently recovered a firearm from that pocket and a cellphone from Vereen's person.

Vereen testified on his own behalf. He described how, on the day in question, he left his condominium apartment to walk to the mailbox. He had to try several keys until finally he found the working key and the lock opened, revealing to his surprise, a firearm. He claimed he thought, "I'm in trouble. This is crazy. What can you do?," and removed the gun with the tips of his fingers and looked at it. He explained that when he walked back to the condo, he decided he did not want his children to see him with a gun in his hand, and so he placed the firearm in his back pocket. Vereen offered that his intention was to take the gun and report it to the police, but, as soon as he walked across the street, law enforcement officers came running at him. He said he immediately put his hands up and tried to tell them that he found the gun in his mailbox and was planning to report it. Although he had a cellphone on him at the time he discovered the firearm, he reasoned that he did not want to stand at the mailbox and call the police because when "[s]omebody was bold enough to put a gun in your mailbox, you ain't going to stand there and try to call no police. You are going to get someplace safe before someone come and try to shoot you." Vereen also testified that, when the police approached him, he put his hands up and told them "look, this is what I found in my mailbox."

Vereen agreed that he was a convicted felon, that he took the firearm out of the mailbox and placed it in his back pocket, and that the firearm had crossed state lines. Vereen also conceded on cross-examination that initially he told law enforcement officers he had "received a mysterious call that there was a gun in [his] mailbox," but he couldn't identify the call in his cellphone records. He also admitted that initially he told the police "that somebody named Furquan Hubbard had set [him] up."

As part of its rebuttal, the government re-called Officer Hinson, who testified that, after Vereen's arrest, he participated in a search of Apartment 43, which was about 500 square feet in all and had one bedroom. Hinson detailed that officers had recovered from the bedroom closet a black shotgun, as well as men's and women's clothes. Hinson added that officers also recovered from the closet a box of ammunition matching the caliber of the firearm taken by Vereen from the mailbox.

During a charging conference, Vereen requested an "innocent transitory possession" instruction. The district court declined to give one, noting that Vereen could have locked the gun in the mailbox or used his cellphone to call the police. The jury found Vereen guilty.

Before sentencing, the probation office prepared a presentence investigation report ("PSI") using the 2016 United States Sentencing Guidelines Manual. The PSI assigned Vereen a base offense level of 24, pursuant to U.S.S.G. § 2K2.1(a)(2), because Vereen committed the instant offense after sustaining at least two felony convictions for crimes of violence. Vereen received a two-level increase under § 2K2.1(b)(4)(A) because the firearm was stolen, bringing his total offense level to 26. The probation officer further determined that Vereen qualified as an armed career criminal under the Armed Career Criminal Act, relying on several prior Florida felony convictions, including one for child abuse, two aggravated battery convictions, and a felony battery conviction. All of this yielded a total offense level of 33, which, when combined with a criminal history category of VI, resulted in an advisory guideline range of 235-293 months' imprisonment.

During the sentencing hearing, the district court overruled Vereen's objections to the PSI, concluding that, among other things, the PSI correctly scored the guidelines and that all four prior convictions qualified as ACCA predicates. The district court sentenced Vereen to 293 months' imprisonment, followed by five years' supervised release.

This timely appeal follows.

II.

First, Vereen argues that the district court abused its discretion in refusing his request for a jury instruction on the innocent transitory possession defense, although he acknowledges that our Court has never approved or foreclosed this defense. We review a district court's refusal to give a defendant's requested jury instruction for abuse of discretion. United States v. Hill, 799 F.3d 1318, 1320 (11th Cir. 2015). We examine whether a proposed instruction misstates the law or misleads the jury to the prejudice of the objecting party de novo. United States v. Chandler, 996 F.2d 1073, 1085 (11th Cir. 1993).¹

In order for the denial of a requested instruction to constitute reversible error, a defendant must establish three things: that the request correctly stated the law; that the charge given did not substantially cover the proposed instruction; and, finally, that the denial substantially impaired the defendant's ability to present an effective defense. United States v. Palma, 511 F.3d 1311, 1315 (11th Cir. 2008). Although a district court has broad discretion in formulating its instructions, a defendant is entitled to an instruction relating to a theory of defense so long as there is some evidential foundation, even if the evidence was weak, inconsistent, or of doubtful credibility. Id. In making this determination, we take the evidence in a light most favorable to the accused. Id.

Vereen claims that the district court should have instructed the jury about his "innocent" and "transitory" possession of a firearm. We remain unpersuaded, however, having carefully considered the language of the statute and the way other courts have interpreted it. Most critically, we can find nothing in the text to suggest the availability of an ITP defense to a § 922(g)(1) charge. The statute does not invite any kind of inquiry into the purpose or the timespan of a defendant's possession of the firearm. Allowing for this kind of defense would effectively cause us to rewrite the text of § 922(g) and the statutory scheme, so we have little difficulty concluding that innocent transitory possession is not available as a defense against § 922(...