United States v. Garcia

• Decision Date: 10 July 2014
• Docket Number: No. 13–1344.,13–1344.
• Citation: 758 F.3d 714
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Victor Lamont GARCIA, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

758 F.3d 714

UNITED STATES of America, Plaintiff–Appellee,

v.Victor Lamont GARCIA, Defendant–Appellant.

No. 13–1344.

United States Court of Appeals, Sixth Circuit.

Argued: Nov. 20, 2013.

Decided and Filed: July 10, 2014.

ARGUED:Dennis J. Clark, Clark Law Firm PLLC, Detroit, Michigan, for Appellant. Tessa K. Hessmiller, United States Attorney's Office, Grand Rapids, Michigan, for Appellee. ON BRIEF:Dennis J. Clark, Clark Law Firm PLLC, Detroit, Michigan, for Appellant. Sean C. Maltbie, United States Attorney's Office, Grand Rapids, Michigan, for Appellee.

Before: MOORE, GIBBONS, and SUTTON, Circuit Judges.

GIBBONS, J., delivered the opinion of the court, in which SUTTON, J., joined and MOORE, J., joined in part. MOORE, J. (pp. 725–27), delivered a separate opinion concurring in the judgment.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

When officers arrived at an apartment complex to investigate reported gunfire, Victor Garcia fled. The officers pursued Garcia, and one officer saw objects fall from his person as he scrambled over a fence. Once the officers had subdued and arrested Garcia, they returned to the fence and discovered two items among other snow-covered debris: a silver revolver nestled in the snow and a baseball cap perched atop the snow. A federal indictment and two-day trial followed, and the jury convicted Garcia of one count of being a felon in possession of a firearm. The district court subsequently sentenced Garcia to a Guidelines sentence of ninety-six months of imprisonment. Garcia now appeals. He maintains that the evidence was insufficient to establish that he possessed the revolver, the prosecutor improperly vouched for the credibility of a Government witness during closing arguments, and the sentence imposed by the district court was substantively unreasonable. We affirm Garcia's conviction and sentence.

I.

Shortly before midnight, a woman in Kalamazoo, Michigan, awoke to the sound of gunfire—one initial shot followed by between two and four more. She immediately called 911, and as she was making the call she heard additional gunshots. She peered through her front window and saw someone “dart off.” She described that person as wearing a baseball cap and an orange, thigh-length coat with fur around the hood. Officer Joseph Boutell and his partner were dispatched to the apartment complex, and as they pulled into its parking lot about three minutes later they saw a man—later identified as Garcia—wearing a white jacket ¹ and walking through the complex. As far as the officers could tell, Garcia was not wearing a baseball cap.

Garcia looked in the direction of the officers' vehicle and quickened his pace. The officers parked and exited their vehicle, intent on following Garcia to investigate his involvement in the gunfire. As Garcia approached the building's corner, he stretched into a full sprint. The officers pursued Garcia but could not keep pace. Sergeant Chad VanderKlok had arrived on the scene, however, and he continued the pursuit. Garcia climbed over a fence and fell to the ground, and as he stood up, VanderKlok noticed that “some objects had fallen from his person.” Garcia then continued to run toward a large pile of brush, and as he fell into the brush, VanderKlok caught Garcia and jumped onto his back. Garcia resisted arrest, but when Boutell caught up with them, the two officers were able to subdue Garcia, take him into custody, and place him in a squad car. An officer drove Garcia to the police station, and throughout the trip Garcia expressed concern about “his hat.”

Meanwhile, VanderKlok searched the area where he had seen objects fall from Garcia's person. In the snow, he discovered a baseball cap and a silver revolver. The revolver was resting on top of an old boot, and both its handle and part of its barrel were buried in the snow.² The snow had fallen within the past twenty-four hours, and there were no tracks in the snow other than those of Garcia and the officers. The temperature at the time was twenty-three degrees, but beads of water appeared on the revolver. VanderKlok inferred at trial that “the gun was warmer than the snow because the water had not frozen, and obviously the temperature [was] below freezing.” According to VanderKlok, the baseball cap and revolver were “the only two objects that appeared to have recently settled on top of the snow.” But there were other objects in the area submerged beneath the snow, including a plastic jug and a cigar or jewelry box.

Three unfired rounds and two spent casings were inside the revolver's cylinder when it was seized. No fingerprints were found on the gun or the casings. No gunshot residue tests were performed, and although the gun was swabbed for DNA, no follow-up tests were conducted.

A federal grand jury returned an indictment charging Garcia with one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and a jury convicted Garcia after a two-day trial in November 2012. The probation office's presentence investigation report recommended a base offense level of 24, then applied a two-level increase because the revolver was stolen.³ That produced a total offense level of 26. Based on a criminal history category of IV, the report stated that the applicable Guidelines sentencing range was 92 to 115 months of imprisonment.

At the March 2013 sentencing hearing, the district court expressed concern about Garcia's vacillation between stages of articulateness and intelligence, on the one hand, and immaturity and violence on the other hand. In the district court's mind, Garcia was proving himself to be incorrigible. He was written up eighteen times while he was incarcerated awaiting trial and sentencing, for example. The district court concluded that neither a departure nor a variance was warranted and sentenced Garcia to ninety-six months of imprisonment. Garcia timely appealed.

II.

Garcia advances three arguments on appeal. He first contends that the evidence was insufficient to establish that he possessed the revolver because there was no direct evidence of his possession and the circumstantial evidence of possession is belied by a photograph showing that portions of the revolver were buried in the snow. Garcia next argues that the prosecutor improperly vouched for the credibility of a Government witness. And third, he challenges the substantive reasonableness of the sentence imposed by the district court. We take each argument in turn.

A.

Garcia maintains that the evidence presented at trial was insufficient to establish beyond a reasonable doubt that he possessed the revolver. We review de novo a challenge to the sufficiency of the evidence in a criminal case. United States v. Howard, 621 F.3d 433, 459 (6th Cir.2010). The evidence must be viewed in the light most favorable to the prosecution, and we ask whether any rational trier of fact could have found the contested elements of the crime beyond a reasonable doubt. Id. The defendant “bears a ‘very heavy burden’ when he challenges the sufficiency of the evidence.” United States v. Owens, 426 F.3d 800, 808 (6th Cir.2005) (quoting United States v. Spearman, 186 F.3d 743, 746 (6th Cir.1999)). We can neither independently weigh the evidence, nor make our own assessment of the credibility of the witnesses who testified at trial. Howard, 621 F.3d at 460.

A defendant's conviction under 18 U.S.C. § 922(g)(1) may be premised on either actual or constructive possession of a firearm. United States v. Campbell, 549 F.3d 364, 374 (6th Cir.2008). “Actual possession requires that a defendant have immediate possession or control of the firearm, whereas constructive possession exists when the defendant ‘does not have possession but instead knowingly has the power and intention at a given time to exercise dominion and control over an object, either directly or through others.’ ” Id. (quoting United States v. Grubbs, 506 F.3d 434, 439 (6th Cir.2007)). “The element of possession can be proven by either direct or circumstantial evidence.” Id. “ ‘Circumstantial evidence alone is sufficient to sustain a conviction.’ ” United States v. Wettstain, 618 F.3d 577, 583 (6th Cir.2010) (quoting Spearman, 186 F.3d at 746).

The prosecution's case against Garcia was premised on a theory of actual rather than constructive possession. The United States posited that the revolver fell from Garcia's person as he clambered over a fence in an effort to avoid apprehension by the officers who pursued him. The Government acknowledged the absence of direct evidence proving actual possession: No one saw Garcia holding the weapon, and VanderKlok acknowledged that he never saw Garcia drop the gun. The prosecution instead relied on circumstantial evidenceand a chain of inferences to establish Garcia's possession of the revolver: Garcia fled when the officers approached. He resisted arrest. VanderKlok saw objects fall from Garcia as he fell from the fence. When VanderKlok returned to that area to see what had fallen, he discovered the baseball cap and silver revolver sitting about eighteen inches apart. Those objects, and only those objects, rested on the freshly-fallen snow. Despite the sub-freezing air temperature, small droplets of water were visible on the revolver's surface. Officers found no contraband on Garcia's person and no other evidence to explain his flight. The Government's witnesses recited these facts to the jurors, and the prosecution asked them to infer that Garcia possessed the revolver while fleeing the officers.

We have found similar circumstantial evidence to be sufficient to sustain a conviction for actual possession of a firearm. In United States v. Barnett, we sustained a defendant's conviction where the officers saw the defendant throw a long black object to the ground as he fled. 398 F.3d 516, 522 (6th Cir.2005). The officers subsequently discovered a black and chrome rifle in the front yard, and we held that the prosecution had presented...