United States v. Henry F. Parrish ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
------------------------------------------- U.S. COURT OF APPEALS
No. 07-15272 ELEVENTH CIRCUIT
FEBRUARY 18, 2009
Non-Argument Calendar
THOMAS K. KAHN
-------------------------------------------- CLERK
D.C. Docket No. 07-00006-CR-1-MMP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HENRY F. PARRISH,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(February 18, 2009)
Before EDMONDSON, Chief Judge, HULL and ANDERSON, Circuit Judges.
PER CURIAM:
Defendant-Appellant Henry F. Parrish appeals his conviction and 235-
month sentence for possession of a firearm by a convicted felon, 18 U.S.C. §
922(g)(1). No reversible error has been shown; we affirm.
On appeal, Parrish argues that the evidence failed to show that he possessed
a firearm. We review de novo a preserved sufficiency-of-the-evidence challenge,
“viewing the evidence in the light most favorable to the government, with all
reasonable inferences and credibility choices made in the government’s favor.”
United States v. Wright, 392 F.3d 1269, 1273 (11th Cir. 2004) (internal quotation
omitted). And we consider all of the evidence produced at trial against Parrish in
evaluating his claim of insufficient evidence. See United States v. Thomas, 8 F.3d
1552, 1558 n.12 (11th Cir. 1993).
Here, the government had to prove that Parrish knowingly possessed the
firearm. See United States v. Deleveaux, 205 F.3d 1292, 1296-97 (11th Cir. 2000)
(listing the elements of a section 922(g)(1) offense).1 Knowing possession can be
shown by either actual or constructive possession, as long as there is a reasonable
inference that the accused maintained “dominion and control” over the weapon.
See United States v. Sweeting, 933 F.2d 962, 965 (11th Cir. 1991).
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The other elements -- that Parrish had the qualifying felony conviction and that the gun
affected interstate commerce -- are not in dispute.
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We conclude that sufficient evidence existed for a jury to conclude that
Parrish either actually or constructively possessed a firearm based on the
following things: (1) law enforcement officers patrolling a state park to prevent
illegal night hunting observed a truck registered to and driven by Parrish driving
back and forth several times; (2) after hearing a gun shot, an officer stopped the
truck; (3) though a gun was not found in the truck, a gun was found on the side of
the road on the driver’s side; (4) an officer testified that the truck’s passenger,
Michael Colson, told him that Parrish fired the gun at a deer and then threw the
gun out the truck window upon seeing police lights; (5) Colson testified that he
put his shotgun in Parrish’s truck because they were going hunting and that
Parrish shot at a deer and threw the gun out the window when he saw police lights;
and (5) Parrish testified that the shotgun was Colson’s and stated “I wasn’t in
charge of [the shotgun] but I guess you could say I had control of it somewhat, it
being in my vehicle.”
While Parrish argues that Colson’s testimony was self-serving and
incredible and Parrish himself testified that he did not shoot the gun, the jury was
free to choose among reasonable constructions of the evidence, and we will not
disturb the jury’s credibility determinations. See United States v. Williams, 390
F.3d 1319, 1323 (11th Cir. 2004). Adequate, consistent evidence existed --
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including the officer’s testimony about Colson’s statement, Colson’s testimony,
the statement Colson made to police after being stopped, and the location of the
gun -- for the jury to infer that Parrish possessed the gun.
The district court enhanced Parrish’s sentence under 18 U.S.C. § 924(e)(1),
the Armed Career Criminal Act (“ACCA”), because Parrish had three qualifying
convictions for burglary of a structure. On appeal, Parrish argues that the district
court improperly enhanced his sentence under section 924(e) because (1) his prior
burglary convictions were not for generic burglary and, thus, did not qualify as
violent felonies; (2) his juvenile convictions should not have been counted as
predicate offenses under the ACCA; and (3) his prior convictions should not have
been counted separately because the convictions were consolidated for sentencing.
We review de novo whether a particular conviction is a violent felony for
purposes of the ACCA. United States v. Day, 465 F.3d 1262, 1264 (11th Cir.
2006). And we review de novo a district court’s determination of whether two
crimes constitute a single criminal episode or two separate felonies for purposes of
section 924(e). United States v. Spears, 443 F.3d 1358, 1360 (11th Cir. 2006).
The ACCA provides that “[i]n the case of a person who violates section 922(g) . . .
and has three previous convictions by any court . . . for a violent felony or a
serious drug offense, or both, committed on occasions different from one another,
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such person shall be . . . imprisoned not less than fifteen years.” 18 U.S.C.
§ 924(e)(1).
A “violent felony” includes, among other things, generic burglary. See §
924(e)(2)(B)(ii); Taylor v. United States, 110 S.Ct. 2143, 2158 (1990). But even
if burglary is not generic burglary, it still may qualify as a crime of violence if it
“involves conduct that presents a serious potential risk of physical injury to
another.” James v. United States, 127 S.Ct. 1586, 1591 (2007) (quoting section
924(e)(2)(B)(ii)). In Florida, burglary of the curtilage of a structure is a violent
felony under section 924(e) because of the possibility of face-to-face
confrontation. United States v. Matthews, 466 F.3d 1271, 1275 (11th Cir. 2006).
And attempted burglary of a structure also is a violent felony under the ACCA.
James, 127 S.Ct. at 1597-98. We conclude that Parrish’s Florida convictions for
burglary of a structure -- even if they were not for generic burglaries -- qualify as
violent felonies because the criminal acts posed the risk that Parrish would have a
face-to-face confrontation with another person while crossing the curtilage or
within the interior of the structure.
We reject Parrish’s second contention that his juvenile offenses should not
count towards his armed career criminal designation. When a defendant commits
a crime as a juvenile and (1) is convicted and sentenced as an adult, and (2)
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sentenced to a term greater than one year, then the conviction may be used to
determine that the defendant is an armed career criminal under section 924(e). See
Spears, 443 F.3d at 1360-61. That Parrish was convicted as an adult and his
sentences for each burglary conviction exceeded one year is undisputed. Thus, the
district court properly used these convictions in determining Parrish’s armed
career criminal status.
We also conclude that the district court committed no error in treating
Parrish’s prior convictions separately because the three burglaries occurred on
three different dates; that they were consolidated for sentencing is unimportant.2
See United States v. Jackson, 57 F.3d 1012, 1018 (11th Cir. 1995) (separate
convictions must be committed on different occasions but the convictions need not
be obtained on separate days).
AFFIRMED.
2
To the extent Parrish argues that his prior convictions were related for purposes of
calculating his criminal history category, we reject his argument because an arrest separated the
criminal acts for which Parrish was assigned criminal history points; thus, the acts were
unrelated. See United States v. Hunter, 323 F.3d 1314, 1322-23 (11th Cir. 2003).
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