United States v. Loudd ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 20, 2009
No. 07-20916
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
HULON JAMES LOUDD
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:06-CR-347-ALL
Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Hulon James Loudd appeals his conviction and sentence for possession of
a firearm by a convicted felon subsequent to three convictions for a violent felony
or serious drug offense. He argues that the district court abused its discretion
by giving a jury instruction on constructive possession because there was no
evidence adduced at trial to support a conviction based upon a constructive
possession theory. He argues that the error was prejudicial because the case
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
No. 07-20916
against him was weak, as indicated by a jury’s inability to reach a verdict in his
first trial.
While the Government’s primary theory of the case was that Loudd had
actual possession of the firearm, Loudd strongly contested this theory. The
Government also produced evidence that the firearm was found next to Loudd’s
driver’s license in the room in which Loudd was apprehended. This evidence,
construed in the light most favorable to the Government, see United States v.
Newell, 315 F.3d 510, 529 (5th Cir. 2002), was sufficient evidence of constructive
possession to support the jury charge as it showed that Loudd had knowledge of
and access to the firearm. See United States v. Fields, 72 F.3d 1200, 1212 (5th
Cir. 1996). Even if the Government presented evidence of Loudd’s driver’s
license in an attempt to prove actual possession as Loudd contends, this is
immaterial because a constructive possession instruction is not improper if the
evidence supports it, even if the Government is seeking to prove actual
possession. See United States v. Munoz, 150 F.3d 401, 415-16 (5th Cir. 1998).
As the evidence supported the jury instruction on constructive possession, Loudd
has not shown that the district court abused its discretion by giving the
instruction. See United States v. Mendoza-Medina, 346 F.3d 121, 132 (5th Cir.
2003).
Loudd argues that the prosecutor’s comments during closing argument
were improper and violated his due process right to a fair trial. Specifically, he
asserts that the prosecutor’s comments about the types of people found in drug
distribution centers and comments about the case being about neighborhood
safety inflamed the passions of the jury and invited the jury to convict him based
on bad character rather than the facts of the case.
Loudd correctly concedes that because he did not object in the district
court, review is for plain error only. United States v. Thompson, 482 F.3d 781,
785 (5th Cir. 2007). To show plain error, Loudd must show an error that is clear
or obvious and that affects his substantial rights. See United States v. Baker,
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538 F.3d 324, 332 (5th Cir. 2008), petition for cert. filed (Dec. 2, 2008) (No. 08-
7559). If Loudd makes such a showing, we have the discretion to correct the
error but will only do so if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. See id.
During closing argument, the prosecutor argued that there were only three
types of people found in drug distribution centers: drug sellers; drug abusers;
and protection. This commentary, however, was based upon the testimony of a
police officer that Loudd was arrested in a drug distribution center and that, in
his experience, there were only three types of people found in a drug distribution
center. In the context of the trial, the prosecutor’s commentary can be
reasonably construed as argument that the jury should draw the conclusion that
Loudd was present in the drug distribution center to provide protection, a role
in which he would be more likely to possess a firearm. Accordingly, this
commentary was permissible argument about the conclusions the jury should
draw from the evidence. See United States v. Thompson, 482 F.3d 781, 785-86
(5th Cir. 2007).
The prosecutor also commented during closing argument that the case was
about cleaning up the severe drug problem in poor neighborhoods where children
live. This commentary was tenuously based upon evidence presented at trial
and amounted to a call for the jury to stand up to pervasive crime that this court
has previous noted that it “would not recommend . . . as a model for prosecutors.”
United States v. Carter, 953 F.2d 1449, 1461 (5th Cir. 1992). Nevertheless, the
majority of the prosecutor’s closing argument was devoted to a discussion of the
elements of the crime and the conclusions that the prosecutor thought that the
jury should draw from the evidence that was presented. Thus, if the challenged
commentary “did go beyond the proper limits of a plea for law enforcement or an
appeal to the jury to act as the conscience of the community, it did not do so
egregiously.” Id. (internal quotation marks and citations omitted). Accordingly,
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No. 07-20916
Loudd has not shown that the prosecutor’s comments amounted to plain error.
See id.
Loudd argues that the application of the sentence enhancement under 18
U.S.C. § 924(e)(1) was unconstitutional pursuant to Apprendi v. New Jersey, 530
U.S. 466, 490 (2000). This argument, as Loudd concedes, is foreclosed. See
United States v. White, 465 F.3d 250, 254 (5th Cir. 2006).
AFFIRMED.
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