United States v. Travis Monte Nelson , 380 F. App'x 899 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 27, 2010
No. 09-14108 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-00099-CR-WBH-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TRAVIS MONTE NELSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(May 27, 2010)
Before EDMONDSON, CARNES and ANDERSON, Circuit Judges.
PER CURIAM:
Travis Monte Nelson appeals his convictions and 280-month total sentence
for illegal possession of a firearm by a felon with three prior convictions for
serious drug offenses, 18 U.S.C. §§ 922(g) and 924(e), and illegal possession of a
stolen firearm, 18 U.S.C. § 922(j).
I.
Nelson challenges the sufficiency of the evidence supporting his
convictions. We review de novo the sufficiency of the evidence, viewing the
evidence “in the light most favorable to the government, with all inferences and
credibility choices drawn in the government’s favor.” United States v. LeCroy,
441 F.3d 914, 924 (11th Cir. 2006). We must affirm the defendant’s conviction if
“any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. Garcia-Bercovich, 582 F.3d 1234,
1237 (11th Cir. 2009) (quotation marks omitted). The evidence does not have to
“exclude every hypothesis of innocence or be completely inconsistent with every
conclusion other than guilt because a jury may select among constructions of the
evidence.” United States v. Bailey, 123 F.3d 1381, 1391 (11th Cir. 1997).
To convict a defendant of possession of a firearm by a felon under 18 U.S.C.
§ 922(g)(1), the government must establish that: (1) the defendant was a convicted
felon (2) in knowing possession of a firearm (3) that was in or affecting interstate
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commerce. United States v. Deleveaux, 205 F.3d 1292, 1296–97 (11th Cir. 2000).
To obtain a conviction under § 922(j), the government must prove that: (1) the
defendant possessed a stolen firearm; (2) the firearm was part of interstate
commerce; and (3) the defendant knew or had reason to know that the firearm was
stolen. United States v. Smith, 532 F.3d 1125, 1129 (11th Cir. 2008).
Nelson only challenges the possession element of the offenses. “Possession
may be actual or constructive, joint or sole.” United States v. Gunn, 369 F.3d
1229, 1234 (11th Cir. 2004). “To prove actual possession the evidence must show
that the defendant either had physical possession of or personal dominion over the
thing allegedly possessed.” United States v. Leonard, 138 F.3d 906, 909 (11th Cir.
1998). The government may show possession through direct eyewitness testimony
linking the defendant to the object, as well as circumstantial evidence. See United
States v. Sweeting, 933 F.2d 962, 965 (11th Cir. 1991).
Nelson’s sufficiency challenge lacks merit. A reasonable juror could have
found that he was in actual possession of the firearm based on Officer Rodriguez’s
testimony that, while conducting an unrelated traffic stop, he observed Nelson
shooting the firearm from the back of a Dodge pickup truck. See Sweeting, 933
F.2d at 965. We conclude that sufficient evidence supported Nelson’s convictions.
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II.
Nelson also contends that the district court erred in admitting Investigator
Griffin’s testimony concerning his 2003 arrest for possession of a firearm under
Federal Rule of Evidence 404(b). We review evidentiary rulings for an abuse of
discretion. United States v. Duran, 596 F.3d 1283, 1296 (11th Cir. 2010). “In
reviewing 404(b) decisions, we apply a three-part test for admissibility of such
evidence: (1) the evidence must be relevant to an issue other than the defendant’s
character; (2) there must be sufficient proof that the factfinder could find that the
defendant committed the extrinsic act; and (3) the evidence must possess probative
value that is not substantially outweighed by undue prejudice.” United States v.
Perez, 443 F.3d 772, 779 (11th Cir. 2006).
Nelson argues that the second and third prongs are not met. Investigator
Griffin’s testimony provided a sufficient basis for the jury to find that Nelson
committed the extrinsic offense. Griffin testified that Nelson had a key to the
apartment in which the firearm was found. Based on that testimony, a reasonable
juror could infer that he exercised control over the apartment and therefore had
constructive possession of the firearm inside. See United States v. Thompson, 473
F.3d 1137, 1142 (11th Cir. 2006); United States v. Harris, 20 F.3d 445, 454 (11th
Cir. 1994) (noting that defendant’s “unrestricted access to the home permitted the
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jury to reasonably infer that he exercised control over the house and therefore
maintained constructive possession of the cocaine found at the house”).
Griffin’s testimony was also more probative than prejudicial because the
past and charged offenses were substantially similar. “Whether the probative value
of Rule 404(b) evidence outweighs its prejudicial effect depends upon the
circumstances of the extrinsic offense.” United States v. Edouard, 485 F.3d 1324,
1345 (11th Cir. 2007) (quotation marks and alterations omitted). Relevant
circumstances include the “overall similarity between the extrinsic act and the
charged offense, as well as temporal remoteness.” United States v. Jernigan, 341
F.3d 1273, 1282 (11th Cir. 2003). The charged offenses involved the same
conduct as the extrinsic act, and the incidents occurred within a three year time
period. See United States v. Pollock, 926 F.2d 1044, 1048 (11th Cir. 1991)
(concluding that a five-year span did not render the extrinsic conduct too remote
for proper consideration). The district court also gave two limiting instructions to
the jury reducing the risk of undue prejudice. See Edouard, 485 F.3d at 1346. We
conclude that no abuse of discretion occurred.
III.
Nelson also contends that his 280-month total sentence was substantively
unreasonable. We review a sentence for reasonableness under a “deferential
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abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41, 128 S.Ct.
586, 591 (2007). A sentence must be both procedurally and substantively
reasonable. United States v. Livesay, 525 F.3d 1081, 1090–91 (11th Cir. 2008). In
assessing the substantive reasonableness of a sentence, we review the totality of the
circumstances “including the extent of any variance from the Guidelines range.”
See Gall, 552 U.S. at 51, 128 S.Ct. at 597. If the district court’s sentence is within
the guidelines range, we may, but are not required to, presume the sentence is
reasonable. Id.; see United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005)
(“After Booker, our ordinary expectation [of reasonableness] still has to be
measured against the record, and the party who challenges the sentence bears the
burden of establishing that the sentence is unreasonable in the light of both that
record and the factors in section 3553(a).”); see also United States v. Hunt, 526
F.3d 739, 746 (11th Cir. 2008) (“Although we do not automatically presume a
sentence within the guidelines range is reasonable, we ‘ordinarily . . . expect a
sentence within the Guidelines range to be reasonable.’” (quoting Talley, 431 F.3d
at 788)).
Nelson argues that his sentence was substantively unreasonable because the
district court relied on Officer Rodriguez’s testimony in imposing its sentence.
The district court’s reliance on Officer’s Rodriguez’s testimony was entirely
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proper. See United States v. Wilson, 884 F.2d 1355, 1356 (11th Cir. 1989) (noting
that “[t]he findings of fact of the sentencing court may be based on evidence heard
during trial”). We cannot say that Nelson’s sentence, which was near the low end
of his Guidelines range, was unreasonable.
IV.
Finally, Nelson contends that the district court violated his Fifth and Sixth
Amendment rights when it sentenced him under the enhanced penalties of the
Armed Career Criminal Act, 18 U.S.C. § 924(e), based on prior convictions that
were not proven to the jury. Because Nelson did not raise this argument before the
district court, we review only for plain error. United States v. Camacho-Ibarquen,
410 F.3d 1307, 1312 (11th Cir. 2005). “An appellate court may not correct an
error the defendant failed to raise in the district court unless there is: (1) error, (2)
that is plain, and (3) that affects substantial rights. If all three conditions are met,
an appellate court may then exercise its discretion to notice a forfeited error, but
only if (1) the error affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (quotation marks omitted).
We conclude that no error occurred, plain or otherwise. Neither the Fifth
nor the Sixth Amendment prevented the district court from finding the fact of
Nelson’s prior convictions or using them to designate him an Armed Career
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Criminal under 18 U.S.C. § 924(e)(1). See Almendarez-Torres v. United States,
523 U.S. 224, 228, 118 S.Ct. 1219, 1223 (1988); see also United States v. Gibson,
434 F.3d 1234, 1246 (11th Cir. 2006) (“The government need not allege in its
indictment and need not prove beyond a reasonable doubt that a defendant had
prior convictions for a district court to use those convictions for purposes of
enhancing a sentence.”) (quotation marks omitted); United States v. Shelton, 400
F.3d 1325, 1330 (11th Cir. 2005) (“[A] district court does not err by relying on
prior convictions to enhance a defendant’s sentence.”).
AFFIRMED.
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