United States v. Tremayne D. Crawford ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-14483 ELEVENTH CIRCUIT
MARCH 26, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 07-00116-CR-WSD-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TREMAYNE D. CRAWFORD,
a.k.a. Truman Deon Crawford, etc.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(March 26, 2009)
Before TJOFLAT, BIRCH and HULL, Circuit Judges.
PER CURIAM:
A Northern District of Georgia jury found Tremayne D. Crawford guilty of
possession of a firearm by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1). Because Crawford had previously been convicted of three felony
drug offenses, he was subject to the penalty prescribed by 18 U.S.C. § 924(e), and
the court sentenced him to prison for a term of 235 months. He now appeals his
conviction and sentence.
Crawford challenges his conviction on three grounds, two of which merit
discussion1 : (1) the evidence was insufficient to prove that he “possessed” the
firearm for purposes of § 922(g), and (2) the district court erred by instructing the
jury that one may constructively possess an object by exercising dominion or
control over the vehicle in which the object is located. We consider them in turn.
Sufficiency of the evidence
We review de novo the sufficiency of evidence to support a conviction.
United States v. Ortiz, 318 F.3d 1030, 1036 (11th Cir. 2003). We take “the
evidence in the light most favorable to the government, with all reasonable
inferences and credibility choices made in the government’s favor,” Ortiz, 318
F.3d at 1036 (quotation omitted), and, doing so, we affirm the conviction if “any
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Crawford moved the district court to dismiss the indictment on the ground that §
922(g) was unconstitutional, exceeding the limits of the Commerce Clause. He conceded that
this challenge was foreclosed by Eleventh Circuit precedent. We reject the challenge for that
reason. See e.g., United States v. McAllister, 77 F.3d 387, 388, 390 (11th Cir. 1996) (holding
that the statute was facially valid, and that, “[b]ecause the government demonstrated that the
firearm possessed by [the defendant] previously had traveled in interstate commerce, the statute
is not unconstitutional as applied to him”)
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rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” United States v. Hunt, 187 F.3d 1269, 1270 (11th Cir. 1999)
(quotation omitted). Crawford argues that the evidence failed to show that he had
the intention or power to exercise dominion or control over the firearm because
police officers prevented him from placing his hand on it.
To convict a defendant under 18 U.S.C. § 922(g)(1), the government must
prove (1) the defendant was a convicted felon, (2) the defendant knowingly
possessed a firearm or ammunition, and (3) the firearm or ammunition was part of
interstate commerce. United States v. Palma, 511 F.3d 1311, 1315 (11th Cir.),
cert. denied, 129 S.Ct. 215 (2008). “Possession can be shown by circumstantial as
well as direct evidence . . . [and] can be either actual or constructive . . . . .” United
States v. Crawford, 906 F.2d 1531, 1535 (11th Cir. 1990) (citations omitted). “A
defendant has constructive possession if he exercises ownership, dominion, or
control over the firearm. A defendant also has constructive possession if he has the
power and intention to exercise dominion or control.” United States v. Gunn, 369
F.3d 1229, 1235 (11th Cir. 2004) (citations omitted). Constructive possession
exists when a defendant “has knowledge of the thing possessed coupled with the
ability to maintain control over it or reduce it to his physical possession even
though he does not have actual personal dominion,” or has “ownership, dominion,
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or control over the contraband itself or dominion or control over the premises or
the vehicle in which the contraband was concealed.” United States v. Derose, 74
F.3d 1177, 1185 (11th Cir. 1996) (quotation omitted). Mere presence near
contraband, or awareness of its location, is insufficient to establish possession.
United States v. Gardiner, 955 F.2d 1492, 1495 (11th Cir. 1992). A firearm “need
not be on or near the defendant’s person in order to amount to knowing
possession.” United States v. Wright, 392 F.3d 1269 (11th Cir. 2004). A
defendant can have “knowing possession of a firearm when driving a car with the
weapon beneath the driver’s seat.” Id. at 1273-74.
Crawford rammed the vehicle he was driving into a police car. After the
police approached his vehicle and while he was still in the driver’s seat, the police
observed a firearm on the floor in front of the adjacent passenger’s seat. Crawford
argues that the evidence was insufficient to show that he had the intention or power
to exercise dominion or control over the firearm because the officers prevented him
from placing his hand on it.
We disagree. The evidence showed that Crawford had the ability and the
intention to grab the firearm. Since he does not dispute the remaining elements of
the § 922(g) offense, we conclude that the evidence was sufficient to convict him
knowing, constructive possession of the firearm.
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Jury instruction
Crawford argues that the court’s instruction that a person who “has both the
power and the intention to exercise dominion and control over an object or over a
vehicle in which the object is located, . . . is in constructive possession of it” was
misleading and inaccurate. Specifically, he contends that the instruction was not
the Eleventh Circuit Pattern Jury Instruction for the § 922(g) offense, and thus
allowed the jury to convict him without proof that he knew the firearm was present
in the car he was driving.
Crawford did not object to the instruction; we therefore review it for plain
error. For an error to be “plain,” it “must either have been clear under the law at
the time the error was made, or clearly contrary to the law at the time of the
appeal.” United States v. Prieto, 232 F.3d 816, 823 (11th Cir. 2000).
A person has constructive possession over an object if he has knowledge of
the object and “ownership, dominion, or control over the [object] itself or
dominion or control over the premises or the vehicle in which the [object] was
concealed.” Derose, 74 F.3d at 1185. Mere presence near an object is insufficient
to establish possession. Gardiner, 955 F.2d at 1495. The pattern jury instruction
on the meaning of constructive “possession” is, in relevant part, as follows: “A
person . . . who has both the power and the intention to later take control over
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something . . . is in constructive possession of it.” Pattern Crim. Jury Instr. 11th
Cir. SI 6.
Although the court deviated from the pattern jury instruction, the instruction
was a correct statement of the law. In sum, the instruction was not erroneous,
much less plainly so.
Crawford challenges his sentence as unreasonable. See United States v.
Booker, 543 U.S. 220, 264, 125 S.Ct. 738, 767, 160 L.Ed.2d 621 (2005). He says
that it was greater than necessary and unjustified in light of the 18 U.S.C. § 3553(a)
sentencing factors. In particular, he argues that (1) the statutory minimum sentence
of fifteen years’ imprisonment would have been adequate, (2) his sentence was
disproportionately higher than sentences of more violent offenders and other armed
career criminals, such as he, and (3) his status as an armed career criminal was
based on predicate crimes that he committed when he was relatively young and
immature.
If the district court committed no significant procedural error at sentencing,
we evaluate a sentence’s substantive reasonableness under an abuse-of-discretion
standard, considering the totality of the circumstances. Gall v. United States, 552
U.S. __, __, 128 S.Ct. 586, 597, 169 L.Ed. 445 (2007).
Pursuant to § 3553(a), the court must impose a sentence “sufficient, but not
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greater than necessary, to comply with the purposes set forth in paragraph (2) of
this subsection,” namely to reflect the seriousness of the offense, promote respect
for the law, provide just punishment for the offense, deter criminal conduct, protect
the public from future crimes of the defendant, and provide the defendant with
needed educational or vocational training or medical care. See 18 U.S.C. §
3553(a)(2). The court must also consider the following factors in determining a
particular sentence: the nature and circumstances of the offense and the history
and characteristics of the defendant, the kinds of sentences available, the guidelines
range, the pertinent policy statements of the Sentencing Commission, the need to
avoid unwanted sentencing disparities, and the need to provide restitution to
victims. See 18 U.S.C. § 3553(a)(1), (3)-(7).
The record reflects that the court considered all of the § 3553(a) factors,
particularly Crawford’s history and characteristics, the nature and circumstances of
the offense, and the needs to avoid unwarranted sentence disparities, deter
Crawford, and protect the public. In light of these factors and the range of
reasonable sentences, it was not an abuse of discretion for the court to conclude
that a prison term of 235 months, the low end of the Guidelines sentence range,
was necessary to comply with the purposes of 18 U.S.C. § 3553. We therefore
reject Crawford’s argument that his sentence is unreasonable.
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For the foregoing reasons, Crawford’s conviction and sentence are
AFFIRMED.
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