United States v. Taylor

• Decision Date: 25 August 2015
• Docket Number: No. 14–6048.,14–6048.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Anthony TAYLOR, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

800 F.3d 701

UNITED STATES of America, Plaintiff–Appellee

v.Anthony TAYLOR, Defendant–Appellant.

No. 14–6048.

United States Court of Appeals, Sixth Circuit.

Argued: June 12, 2015.

Decided and Filed: Aug. 25, 2015.

ARGUED:M. Dianne Smothers, Federal Public Defender's Office, Memphis, Tennessee, for Appellant. Victor L. Ivy, United States Attorney's Office, Jackson, Tennessee, for Appellee. ON BRIEF:M. Dianne Smothers, Federal Public Defender's Office, Memphis, Tennessee, for Appellant. Victor L. Ivy, United States Attorney's Office, Jackson, Tennessee, for Appellee.

Before: KEITH and CLAY, Circuit Judges; MARBLEY, District Judge.^*

OPINION

MARBLEY, District Judge.

Defendant–Appellant, Anthony Taylor, appeals his conviction and sentence of 262 months, following a jury trial for one count of possession of a stolen firearm, in violation of 18 U.S.C. § 922(j), and one count of felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Taylor argues that: (1) the district court erred in giving a jury instruction for constructive possession of the firearm, in addition to an actual possession instruction, because the only supported legal theory at trial was one of actual possession; (2) there was insufficient evidence to convict Taylor of possession of a stolen firearm, in violation of 18 U.S.C. § 922(j) ; and (3) the district court's sentencing was procedurally unreasonable because the court did not explicitly discuss on the record the argument that a shorter sentence was warranted because the age at which Taylor would be released would decrease his danger to the community.

Finally, Taylor requests, as a separate matter, that this Court hold his appeal in abeyance pending a decision in Johnson v. United States, –––U.S. ––––, 135 S.Ct. 939, 190 L.Ed.2d 718 (2015), which, at the time in which Taylor filed his appeal, was considering whether the residual clause in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii) ( “ACCA”), was unconstitutionally vague. Taylor contends that his prior convictions which were counted as predicate offenses for the purposes of his ACCA enhancement may no longer be predicate offenses if the Supreme Court finds the residual clause is unconstitutionally vague. The Supreme Court has since determined that the residual clause is unconstitutionally vague. Johnson v. United States, ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015).

Since Taylor has not demonstrated that: (1) the district court abused its discretion in giving a constructive possession jury instruction; (2) there was insufficient evidence to convict him of possession of a stolen firearm; and (3) his sentence was procedurally unreasonable, this Court AFFIRMS the district court's decision. Additionally, the holding in Johnson that the residual clause is unconstitutionally vague does not affect Taylor's ACCA enhancement.

I. BACKGROUND

A. Factual Background

Bridget Hayden got into trouble with the law in Martin, Tennessee, and the Martin Police Department brought her in for questioning. In exchange for dismissal of her charges, she agreed to become a confidential informant to assist an investigator in conducting an undercover investigation into felons in possession of firearms. At the trial, Hayden testified that the investigator asked her whether she knew of any firearms Taylor might have stolen or might have for sale. Hayden knew Taylor because they had attended school together. Hayden contacted Taylor, and she testified that he told her that he had two stolen pistols, as well as a shotgun. The investigator and his team wired Hayden's car with an audio transmitter, and she met with Taylor to try to purchase the guns. She was given $130.00 in controlled funds.

The first attempt was unsuccessful. Taylor took Hayden to an abandoned house and told her that the two pistols were behind it, but he returned to the car without the pistols, stating that someone was watching him, and so he would return later. Taylor then told Hayden that the shotgun was at Clyde's. Clyde is Lee Smith's nickname. Smith is Taylor's very close family friend, and a man with whom Taylor once lived.

Taylor and Hayden drove to Smith's home. Taylor went into the house, but he returned sometime later to Hayden's car without the shotgun. The two parted, and met back up two hours later, at which time they drove to Smith's home again. Taylor told Hayden that he owed Smith $30.00, so Hayden have him $30.00 of the controlled funds. Taylor entered Smith's house, and after approximately ten minutes, exited with the shotgun under his jacket, disassembled into two pieces. Taylor got into Hayden's vehicle and the two drove off.

Taylor pulled the disassembled shotgun out of his jacket and put it down between the passenger seat and the car door. The police subsequently stopped Hayden's vehicle and apprehended Taylor. Officers reported they found the shotgun between the seat and the door where Taylor had been sitting.

At the trial, Smith testified that when Taylor entered his home the second time that day, he gave Smith the $30, stating the money was in repayment for his debt. Smith explained that he told Taylor that he “would put [the money] up for him until the morning because he—I said—he said, I owe you money, Unc. I said, I know you owe me money, but I don't want your $30. I said, take that $30 and put it over the TV and you get it in the morning.” Smith testified that Taylor was welcome to anything in his home, but that he did not give Taylor permission to take his shotgun that day.

That evening, the police went to Smith's home to question him about Taylor. The police asked Smith where he kept his shotgun, and he told them in his bedroom, where it no longer was located. They asked him if he saw Taylor take the shotgun, and Smith said no. He informed the police that Taylor did not have permission to take the gun. Smith confirmed that Taylor had been at his house, and that Taylor had given him $30 in repayment for a debt, which the police found on the television set. At trial, Smith confirmed that the shotgun found with Taylor upon his arrest was Smith's.

B. Procedural Background

1. Jury Instruction

During the trial, the defense objected to the district court instructing the jury on constructive possession of the firearm, arguing that the government had only presented evidence of actual possession. The government retorted that the constructive possession instruction was necessary because when Taylor was stopped, the gun was beside him in the vehicle, and not actually on his physical person. The court's initial response was to permit the constructive possession instruction to stand because at the time of Taylor's arrest “he did not physically have possession of the firearm, it was sitting beside him....” The defense then argued that insofar as a requirement for constructive possession included “knowing you have the power to exercise control over the gun,” the allegation that the gun had been stolen could not coexist with a theory of constructive possession, because if the gun had been stolen, Taylor “never had the power to exercise control over the gun.”

Finally, the defense argued that the district court should forgo a constructive possession instruction under United States v. James, 819 F.2d 674 (6th Cir.1987), which held it was reversible error to include a constructive possession jury instruction when no evidence supported that theory. The district court determined that James was distinguishable because in James there was no question that the only kind of possession at issue was actual possession. The district court further reasoned: “I'm certain that the defendant doesn't intend to argue that he wasn't in possession of it, but if you did, or wanted to infer that, I think the jury could consider constructive possession.”

The district court noted that there was some question regarding whether James was still good law, referencing United States v. Mari, 47 F.3d 782 (6th Cir.1995). The district court explained that Mari cited a Supreme Court case, Griffin v. U.S., 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991), which held that where a jury is instructed that a defendant may be found guilty on a factual theory that is not supported by the evidence, and is charged with a factual theory that is so supported, and the only claimed error is the lack of evidence to support the first theory, the error is harmless as a matter of law. See Mari, 47 F.3d at 786. Accordingly, the district court permitted the constructive possession instruction to be given to the jury.

2. Motion for Judgment of Acquittal

During trial, at the close of the government's case in chief, which was also the close of all evidence, the defense moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. The defense argued that the evidence adduced did not show that Taylor possessed the shotgun knowing it was stolen. The district court denied the motion.

3. Sentencing

The presentence report (“PSR”) found that Mr. Taylor qualified for armed career criminal status based on four, prior violent felonies¹ within the meaning of the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”). Consequently, his total offense level was 34. His criminal history category was VI. With a total offense level of 34 and a criminal history category of VI, the Guidelines' imprisonment range was 262 to 327 months.

Taylor's Position Paper in response to the PSR did not raise the age-recidivism objection at issue. Instead, in the Position Paper, Taylor maintained his contention at trial that he did not steal or possess the firearm in question, objected to sentencing enhancements pursuant to the ACCA, and included mitigating personal characteristics such as blindness in one eye, little education, and learning disabilities. The Position Paper also included a request that Taylor be placed in a medical facility.

Defense raised the age-recidivism objection at the beginning of the sentencing hearing in support of its...