United States v. Tinker ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4917
DOUGLAS FARREL TINKER,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Robert E. Payne, District Judge.
(CR-96-62)
Submitted: November 25, 1997
Decided: January 28, 1998
Before ERVIN and MICHAEL, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Alan H. Yamamoto, Alexandria, Virginia, for Appellant. Helen F.
Fahey, United States Attorney, Marcus J. Davis, Assistant United
States Attorney, Alexandria, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Douglas Farrel Tinker appeals his convictions for possession of a
firearm by a convicted felon, 18 U.S.C.A. § 922(g)(1) (West Supp.
1997), and aiding and abetting false statements to a licensed firearms
dealer, 18 U.S.C.A. §§ 924(a)(1)(A), (a)(2) (West Supp. 1997). Tin-
ker also appeals his concurrent sentences of thirty-three months. We
affirm.
I
The convictions arise from the straw purchase by Tinker's girl-
friend of a semi-automatic pistol. Tinker, a convicted felon, asked his
girlfriend to make the purchase. At first she was reluctant, but she
relented when Tinker threatened to end their relationship if she
refused his request. Tinker telephoned a federally licensed firearms
dealer about purchasing a gun. He informed the dealer that he could
not place the pistol in his own name, and that his girlfriend would buy
the gun. Suspicious, the dealer contacted federal agents, who told him
to proceed with the sale. The dealer then telephoned Tinker to set up
an appointment.
Tinker drove his girlfriend to the store. At his direction, she
ordered a Glock 9 mm. semi-automatic pistol. The purchase price of
the gun was $488.53. Tinker paid $400; his girlfriend contributed the
remainder of the purchase price. Tinker gave the dealer his name and
telephone number so that the dealer could contact him when the gun
arrived. Tinker's girlfriend received a receipt for the purchase in her
name.
The dealer contacted Tinker when the pistol arrived. Tinker and his
girlfriend went to pick the gun up. Tinker's girlfriend executed the
transaction. Tinker drove her to her residence and continued, with the
pistol, to his home. After agents confronted him, he confessed that he
had threatened his girlfriend that he would withhold his affection if
she did not make the purchase for him.
2
At trial, the dealer, Tinker's girlfriend, and a police officer who had
participated in the surveillance of Tinker on the day he picked up the
gun testified. Tinker stipulated to a felony conviction in Texas. He
also stipulated that the gun was a firearm as defined in 18 U.S.C.
§ 921(a)(3) (1994) and that it had been shipped or transported in inter-
state commerce.
Tinker testified in his defense. He admitted to having his girlfriend
make the straw purchase, admitted to felony convictions in Texas and
Illinois, and claimed that he had purchased the gun for use in an antic-
ipated new career as a bodyguard.
II
Tinker acknowledged, in response to his attorney's question on
direct examination, that he was convicted of a felony in Alexandria,
Virginia, after the straw purchase. On cross-examination, the prosecu-
tor informed the court that he wished to pose a question about that
"felony narcotic conviction." The district court did not permit the
prosecutor to ask the question. Tinker contends now that the district
court should have either instructed the jury to disregard the statement
or declared a mistrial. Tinker maintains that the statement implied that
the straw purchase also was drug-related, thereby prejudicing his
chance for a fair trial. Because Tinker did not object, our review is
for plain error. See Fed. R. Civ. P. 52(b); United States v. Lamarr, 75
F.3d 964, 969 (4th Cir.), cert. denied, ___ U.S. ___, 65 U.S.L.W.
3309 (U.S. Oct. 21, 1996) (No. 95-9398).
Tinker opened the door to this interchange when he testified on
direct that he had been convicted of the felony. See United States v.
Boyce, 611 F.2d 530, 530-31 (4th Cir. 1979). In any event, the discus-
sion occupied only a few moments of a trial in which overwhelming,
eyewitness testimony was offered against Tinker. In these circum-
stances, there was no danger that the remark so infected the trial as
to result in a miscarriage of justice, and there was no plain error. See
Lamarr, 75 F.3d at 969.
III
Prior to trial, persons apparently acting on Tinker's behalf distrib-
uted to potential jurors a pamphlet on jury nullification. Tinker asserts
3
that the district judge erred when he inquired whether the potential
jurors could put aside what they might have read in the pamphlet and
reach a verdict based on the evidence presented at trial. Again, as Tin-
ker did not object to this inquiry, our review is for plain error. See
United States v. Moore, 11 F.3d 475, 481 (4th Cir. 1993).
The question was entirely appropriate. "Although a jury is entitled
to acquit on any ground, a defendant is not entitled to inform the jury
that it can acquit him on grounds other than facts in evidence, i.e. a
jury has the power of nullification, but defense counsel is not entitled
to urge the jury to exercise that power." United States v. Muse, 83
F.3d 672, 677 (4th Cir.), cert. denied, ___ U.S. ___, 65 U.S.L.W.
3264 (U.S. Oct. 7, 1996) (No. 96-5589). Nor should others acting on
behalf of a defendant be entitled to encourage jury nullification. The
district judge acted properly when he ascertained that the potential
jurors would decide the case on the facts presented at trial and the law
as given by the court.
IV
Tinker raises four challenges to his sentence. He asserts that he was
entitled to a reduction in his base offense level under U.S. Sentencing
Guidelines Manual § 2K2.1(b)(2) (1995) because he allegedly used
the pistol solely for lawful sporting purposes. Tinker represented both
at trial and at sentencing that he intended to use the gun for target
practice until he secured a job as a bodyguard. We review the district
court's factual determination that the firearm was not intended solely
for sporting use for clear error. See United States v. Daughtrey, 874
F.2d 213, 217-18 (4th Cir. 1989). Possessing a gun that one hopes to
use in future employment does not constitute a sport. See United
States v. Gresso, 24 F.3d 879, 880-81 (7th Cir. 1994). The district
court's determination was not clearly erroneous.
Tinker maintains that he was entitled to a reduction in his offense
level for acceptance of responsibility. However, a defendant who puts
the government to its proof at trial is rarely entitled to the reduction.
See USSG § 3E1.1, comment. (n.2). The facts of this case do not war-
rant a deviation from the general rule, and the district court's refusal
to reduce the offense level was not clearly erroneous. See United
States v. Miller, 77 F.3d 71, 74 (4th Cir. 1996).
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Nor did the district court clearly err in enhancing Tinker's offense
level by two levels upon the determination that he was a leader or
supervisor of the crime. See USSG § 3B1.1(c); United States v.
Melton, 970 F.2d 1328, 1334 (4th Cir. 1992). Tinker readily admitted
that he recruited his girlfriend to make the straw purchase and that he
overcame her initial hesitancy by threatening to withhold his affec-
tion.
Finally, Tinker argues that the district court abused its discretion in
refusing to depart downward from his guideline range because his
case lies outside the heartland of typical felon-in-possession cases.
We are without jurisdiction to review the district court's failure to
depart. See United States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir.
1990).
V
We accordingly affirm Tinker's convictions and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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