United States v. Little

• Decision Date: 19 July 2016
• Docket Number: No. 15–2019,15–2019
• Citation: 829 F.3d 1177
• Parties: United States of America, Plaintiff–Appellee, v. Cody Little, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

829 F.3d 1177

United States of America, Plaintiff–Appellee

v.Cody Little, Defendant–Appellant.

No. 15–2019

United States Court of Appeals, Tenth Circuit.

Filed July 19, 2016

Andre Poissant, Assistant Federal Public Defender, Office of the Federal Public Defender, Las Cruces, New Mexico, for Defendant–Appellant.

Shaheen P. Torgoley, Assistant United States Attorney (Damon P. Martinez, United States Attorney, Office of the United States Attorney, Albuquerque, New Mexico with him on the brief), for Plaintiff–Appellee.

Before TYMKOVICH, Chief Judge, LUCERO and HOLMES, Circuit Judges.

LUCERO, Circuit Judge.

After police discovered stolen weapons in Cody Little's residence, a jury convicted him of being a felon in possession of a firearm and of possessing a stolen firearm. Little appeals, challenging several jury instructions. We agree with Little that constructive possession requires proof of intent to exercise dominion and control over an object following the Supreme Court's opinion in Henderson v. United States , ––– U.S. ––––, 135 S.Ct. 1780, 191 L.Ed.2d 874 (2015). However, because the evidence presented at trial compels the conclusion that Little intended to exercise control over the weapons, we hold the district court's error in omitting the intent element from its jury instruction was harmless. We further conclude that the district court permissibly issued instructions regarding aiding and abetting and possible guilt of others, and that a deliberate indifference instruction was harmless. Finally, we hold that the district court erroneously relied on the Sentencing Guidelines' residual clause in calculating Little's offense level. Thus, exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(2), we affirm Little's convictions but vacate his sentence and remand for resentencing.

I

On the night of October 24, 2011, seven firearms were stolen from Southwest Arms in Lovington, New Mexico. The store owner received an anonymous tip that Little was the burglar. She passed the tip on to investigating authorities. Law enforcement learned that Little was residing on the property of Lacosta Blythe, not far from Southwest Arms.

On November 1, 2011, several law enforcement officials, including Agent Anthony Budrow, visited Blythe's property. Blythe, her boyfriend, and two minor children lived in a residential trailer on her lot. Little resided nearby in a six-by-eight foot “well house” he rented from Blythe. Several storage sheds were also located on the property.

Upon arriving at the scene, Budrow activated a recording device. The officers spent several minutes speaking to two or three individuals on the porch of Blythe's trailer. Seven and a half minutes after arriving, Budrow made eye contact with Little as Little was exiting the well house. Two officers pursued Little down a walkway and behind the trailer. Budrow remained at the front of the property and observed that no one else entered or exited the well house. One of the officers who pursued Little escorted him back to the front of the trailer. The other officer stayed behind, where he observed assault rifle hand guards inside of an open shed. Upon seeing the guards, the officers sought a search warrant. They cleared the premises and ensured no one entered any building on the property while they waited for the warrant to issue, although Little indicated he wanted to go back into the well house.

The officers received and executed a warrant later that day. Upon entering the well house, they saw two plainly visible shotgun shells on a shelf below eye level. They also recovered two firearms matching guns stolen in the burglary. One of the weapons—a loaded assault rifle—was found inside a duffel bag under or inside a sleeping bag on a bed. The other weapon—a shotgun—was found under the bed. Officers described the well house as cramped. The bed, which ran almost the entire length of the well house, was the only place to sit.

No other firearms were discovered on the premises. However, officers found a small bag of methamphetamine in the trailer. They agreed that the trailer's residents would not be charged for possession of the drugs if they cooperated with the officers—particularly by recovering any other stolen firearms. One day after the search, Blythe turned over a third gun found between two sheds on the property. The gun was missing its hand guard, and matched the guard found inside the shed.

Little was indicted for being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Following his first trial, the jury deadlocked and a mistrial was declared. The government then filed a superseding indictment adding a count for possession of stolen firearms, §§ 922(j) and 924(a)(2). The superseding indictment also charged aiding and abetting as to both counts. Little again proceeded to trial.

At the second trial, the government presented testimony from several law enforcement officers describing the foregoing search and seizure. Blythe testified that the last time she had entered the well house was in mid-September 2011, a week after Little moved in. She saw Little access the well house on a daily basis, but never saw anyone else enter. Blythe further testified that Little installed a lock on the well house door about a week before the search—around the time Southwest Arms was burgled—but did not give her a key. However, officers did not recall seeing the lock, and testified that the well house was not locked when they performed their search. Blythe also averred that when she showed Little the police inventory report after the search, he responded, “[t]hey only found two?” The jury also heard a recorded phone call Little placed from jail during which he described another burglary suspect as a “snitch,” and angrily accused him of “snitch[ing] me out.”

The jury convicted Little on both counts.¹ The district court calculated a total offense level of 28, based in part on Little's prior convictions for crimes of violence. It imposed a within-Guidelines sentence of 150 months' imprisonment. Little timely appealed.

II

We review de novo whether jury instructions, as a whole, correctly state the law and provide the jury with an understanding of the issues. United States v. Wittgenstein , 163 F.3d 1164, 1168 (1998). We will disturb a judgment only if we have “substantial doubt that the jury was fairly guided.” United States v. Smith , 13 F.3d 1421, 1424 (10th Cir. 1994).

A

Little challenges the instruction on constructive possession. Conviction for possession of a firearm pursuant to § 922 requires proof of “knowing possession.” See United States v. Heckard , 238 F.3d 1222, 1228 (10th Cir. 2001). Such possession may be either actual or constructive. See United States v. Mills , 29 F.3d 545, 549 (10th Cir. 1994). The district court used the unmodified Tenth Circuit Criminal Pattern Jury Instruction § 1.31 (2011), which provides that constructive possession exists when a person not in actual possession “knowingly has the power at a given time to exercise dominion or control over an object.” Little argues that the court should have instead instructed that constructive possession exists when a person knowingly has the power and the intention to exercise dominion or control.

In United States v. Colonna , 360 F.3d 1169 (10th Cir. 2004), we held that for purposes of constructive possession “[i]t is not necessary to show that the defendant intended to exercise ... dominion or control.” Id. at 1179. We have subsequently reaffirmed that holding. See, e.g. , United States v. Jameson , 478 F.3d 1204, 1211 n. 2 (10th Cir. 2007). As we explained in United States v. Ledford , 443 F.3d 702 (10th Cir. 2005), a panel may not overrule Colonna “[a]bsent intervening Supreme Court or en banc authority to the contrary.” Id. at 716.

Little argues that Henderson v. United States , ––– U.S. ––––, 135 S.Ct. 1780, 191 L.Ed.2d 874 (2015), provides the intervening Supreme Court authority lacking in Ledford .² In Henderson , the Court held that an individual convicted of being a felon in possession of a firearm may direct the transfer of a seized firearm to a third party, provided that the third party would not grant the individual access to the weapon. 135 S.Ct. at 1784–85. It rejected the government's argument that allowing such a transfer would place the felon in constructive possession of the weapon. Id. at 1785. Crucially, for our purposes, the Court observed that “[c]onstructive possession is established when a person, though lacking physical custody, still has the power and intent to exercise control over the object.” Id. at 1784 (emphasis added) (citing Black's Law Dictionary 1047 (5th ed. 1979) and 2A K. O'Malley, J. Grenig, & W. Lee, Federal Jury Practice and Instructions, Criminal § 39.12, p. 55 (6th ed. 2009)). The Court further observed that “the very hallmark of possession” is that a defendant have “broad [ ] command over the gun's location and use.” Id. at 1785 n. 3.

We agree that Henderson changes the law of constructive possession in our circuit. In Henderson , the Court squarely held that constructive possession requires both power to control an object and intent to exercise that control. Id. at 1784. Because Colonna 's disavowal of an intent requirement is incompatible with the Supreme Court's decision in Henderson , we overrule that point of law. See United States v. White , 782 F.3d 1118, 1123 n. 2 (10th Cir. 2015) (“Although typically, one panel of this court cannot overrule the judgment of another panel, we may do so if an intervening decision from the Supreme Court invalidates our previous analysis.”). We thus hold that constructive possession exists when a person not in actual possession knowingly has the power and intent at a given time to exercise dominion or control over an object. Accord Henderson , 135 S.Ct. at 1784.³

This holding aligns our circuit not only with Supreme Court precedent but with every other circuit but one that has...