United States v. Green

Citation842 F.3d 1299
Decision Date30 November 2016
Docket NumberNo. 14-12830,14-12830
Parties United States of America, Plaintiff–Appellee, v. Robert William Green, Defendant–Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Edwin F. Knight, Lennard B. Register, III, Robert G. Davies, Tiffany H. Eggers, Pamela C. Marsh, U.S. Attorney's Office, PENSACOLA, FL, Terry Flynn, Stephen M. Kunz, Assistant U.S. Attorney, U.S. Attorney's Office, TALLAHASSEE, FL, for PlaintiffAppellee.

Chet Kaufman, Richard Michael Summa, Randolph Patterson Murrell, Federal Public Defender's Office, TALLAHASSEE, FL, Thomas S. Keith, Federal Public Defender's Office, PENSACOLA, FL, for DefendantAppellant.

Robert William Green, TALLADEGA, AL, pro se.

Before JORDAN and JULIE CARNES, Circuit Judges, and ROBREÑO,* District Judge.

JULIE CARNES, Circuit Judge:

A jury convicted defendant Robert Green of being a felon in possession of a firearm or ammunition in violation of 18 U.S.C. § 922(g)(1). The district court sentenced Defendant to 262 months in prison followed by 3 years of supervised release. Defendant appeals his conviction and sentence. After careful review, we affirm.

I. BACKGROUND
A. Facts

In early 2013, Defendant was charged with various state offenses. While on pre-trial release, Defendant wore a court-ordered GPS monitoring bracelet that reported his location to the Santa Rosa County Sheriff's Office. On April 3, 2013, the Sheriff's Office discovered that Defendant was no longer wearing the GPS bracelet. A week later, several officers went to the home of Jodi Simmons, where they believed they would find Defendant,1 to arrest him. Initially, Ms. Simmons denied that Defendant was inside, but she gave the officers permission to enter the trailer and search for him. When they entered the master bedroom, the officers discovered a man's camouflage jacket hanging on the bedpost. The jacket was a large jacket and Jodi Simmons was not a large person. On the floor next to the bed, and on the same side of the room as the closet, the officers observed a pair of men's shoes. On a nearby nightstand, the officers saw a firearm loaded with .22 caliber ammunition, two pipes of the type typically used to smoke methamphetamine, a camouflage bag, and a washcloth. The camouflage bag contained a digital scale, .6 grams of methamphetamine, .22 caliber ammunition, and empty plastic baggies of the type used to hold drugs or ammunition. On the floor of the bedroom, near the man's jacket and pair of shoes, the officers also found a blue bag containing tools and ingredients used to manufacture methamphetamine, as well as more .22 caliber ammunition. The blue bag contained an identification card in the blue bag that did not belong to Defendant or Simmons.

Confronting Simmons with their belief that Defendant was in fact in the trailer, Simmons said, "He went that way," and pointed the officers back toward the master bedroom. An ATF agent who had accompanied the deputies to the trailer found Defendant hiding in the master bedroom closet under a pile of clothes. He was wearing no shoes.

Defendant resisted arrest and struggled with the officers, but eventually they were able to handcuff and place him in a patrol car. While Defendant was seated in the car, the ATF agent opened the car door and knelt down to speak to Defendant, reading to him Miranda rights and indicating that he wanted to talk to Defendant about the firearm that had been discovered. Defendant told him that he had only recently acquired the gun, having traded some methamphetamine for it. A local deputy, who had been summoned to transport Defendant to the jail, was standing at the back of the car at the time, but did not overhear the conversation between Defendant and the ATF agent. Several months later, when the same ATF agent transported Defendant from local custody to federal court on the present charge, Defendant volunteered to the agent that the firearm discovered in Simmons's trailer was not his, but that instead he owned only a BB gun.

B. Procedural History

The Government charged Defendant with being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1).2 In support of Defendant's alleged felon status, the indictment listed 12 prior felony convictions. Before trial, Defendant stipulated to being a convicted felon. Accordingly, the district judge redacted the indictment to remove the listing of Defendant's 12 prior convictions in the copy of the indictment to be submitted to the jury. Over Defendant's objection, however, the district judge declined to remove the following sentence in the indictment: "For each of these crimes, ROBERT WILLIAM GREEN was subject to punishment by a term of imprisonment exceeding one year."

Also before trial, the Government notified Defendant that it planned to introduce Defendant's 2006 Florida conviction for being a felon in possession of a firearm or ammunition under Federal Rule of Evidence 404(b). Defendant moved in limine to exclude the evidence because the conviction resulted from a plea of nolo contendere . After a lengthy colloquy with counsel, the district judge denied Defendant's motion and admitted Defendant's prior conviction.

Nonetheless, pursuant to a request by defense counsel and a stipulation between the parties, the jury was informed only that Defendant had been convicted of possession of ammunition by a convicted felon and that the ammunition in question was shotgun shells. The district judge then gave the jury the standard cautionary instruction regarding Rule 404(b) evidence, explaining to them that they could not consider the above evidence to decide if Defendant had committed the acts charged in the indictment, but instead they must first find beyond a reasonable doubt from the other evidence whether Defendant had committed those acts. The court instructed that if the jury first found that Defendant had committed the charged acts, then it could consider the prior conviction to decide whether Defendant had the state of mind or intent necessary to commit the charged act.

At the close of the Government's case, Defendant moved for a judgment of acquittal. He argued that the Government's evidence was insufficient to show that he had actual or constructive possession of the firearm or ammunition. Regarding his confession, Defendant asserted that it was unreliable, uncorroborated by the other evidence, and therefore insufficient to establish constructive possession. The district judge denied Defendant's motion. The jury returned a guilty verdict.

The United States Probation Office prepared a Presentence Investigation Report (PSR). The PSR set an adjusted base offense level of 28. Based on a lengthy and violent criminal record, Defendant had 26 criminal history points.3 The PSR also recommended that Defendant be sentenced under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), based on the existence of four prior qualifying Florida convictions: (1) aggravated assault with intent to commit a felony; (2) resisting an officer with violence; (3) third-degree felony battery; and (4) felony battery causing great bodily harm. The ACCA enhancement resulted in a total offense level of 34. With a criminal history category of VI, the PSR yielded a sentencing range of 262 to 327 months' imprisonment.

Defendant objected to the ACCA classification, arguing that his two felony battery convictions were not categorically violent and questioning whether the PSR's descriptions of the facts underlying the two convictions were drawn from Shepard documents. In response, the Government provided the statutory basis, charging document, and judgment for each conviction. The district court overruled Defendant's objection and sentenced Defendant to 262 months' imprisonment.

Defendant now appeals his conviction and sentence.

II. DISCUSSION

On appeal, Defendant argues that the district court erred by (1) denying his motion for a judgment of acquittal; (2) refusing to change the word "crimes," in the indictment's reference to Defendant's prior convictions, to the singular "crime"; (3) admitting evidence of his 2006 conviction under Rule 404(b) ; and (4) sentencing him under the ACCA.

A. Judgment of Acquittal

Defendant argues that the district court erred by denying his motion for a judgment of acquittal. "We review de novo the denial of a motion for judgment of acquittal, viewing the evidence in the light most favorable to the government and drawing all reasonable inferences in favor of the jury's verdict." United States v. Martin , 803 F.3d 581, 587 (11th Cir. 2015). "The issue is not whether a jury reasonably could have acquitted but whether it reasonably could have found guilt beyond a reasonable doubt." Id. (quoting United States v. Thompson , 473 F.3d 1137, 1142 (11th Cir. 2006) ).

To prove that Defendant violated § 922(g)(1), the Government had to show (1) that Defendant knowingly possessed a firearm or ammunition, (2) that Defendant was a convicted felon, and (3) that the firearm or ammunition was in or affecting interstate commerce. United States v. Palma , 511 F.3d 1311, 1315 (11th Cir. 2008). Defendant contests only the first element: his knowing possession of the firearm and ammunition.

The parties agree that Defendant did not have actual possession of the firearm or ammunition at the time the officers found him: Defendant was in the closet, and the gun and ammunition were nearby. "[But] [t]he government need not prove actual possession in order to establish knowing possession; it need only show constructive possession through direct or circumstantial evidence." United States v. Beckles , 565 F.3d 832, 841 (11th Cir. 2009) (quoting United States v. Greer , 440 F.3d 1267, 1271 (11th Cir. 2006) ). A defendant constructively possesses a firearm or ammunition if he (1) is aware of or knows of the firearm's or ammunition's presence and (2) has the ability and intent to exercise control over that firearm or ammunition. United States v. Perez , 661 F.3d 568, 576 (11th Cir. 2011) (per...

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