United States v. McCutchen , 150 F. App'x 517 ( 2005 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 05a0856n.06
Filed: October 18, 2005
No. 04-6262
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
ANDREW MCCUTCHEN, WESTERN DISTRICT OF TENNESSEE
Defendant-Appellant.
/
BEFORE: CLAY and GIBBONS, Circuit Judges and STEEH, District Judge.*
CLAY, Circuit Judge. Defendant appeals his conviction and sentence for being a convicted
felon in possession of a firearm in violation of 18 U.S.C. § 922 (g). For the reasons set forth below,
we AFFIRM Defendant’s conviction; however, in light of the Supreme Court’s recent opinion in
United States v. Booker, 125 S.Ct. 738 (2005), we VACATE Defendant’s sentence and REMAND
the case for resentencing in a manner consistent with this opinion.
I. BACKGROUND
*
The Honorable Judge George Caram Steeh, United States District Court Judge for the Eastern District of
Michigan, sitting by designation.
No. 04-6262
Procedural History
On July 21, 2003, a grand jury sitting in the Western District of Tennessee returned an
indictment against Defendant. The indictment charged Defendant with being a felon in possession
of a firearm shipped and transported in interstate commerce, in violation of 18 U.S.C. § 922(g). The
case proceeded to trial. The district court denied Defendant’s motion for a judgment of acquittal
under Federal Rule of Criminal Procedure 29 at the close of the Prosecution’s case, but Defendant
did not renew the motion at the close of all evidence. The jury convicted Defendant on March 23,
2004. Defendant was sentenced to 115 months imprisonment, followed by 2 years supervised
release. The district court entered final judgment on October 14, 2004. Defendant timely filed a
Notice of Appeal with this Court on the same day.
Substantive Facts
On December 6, 2001, five police officers executed a search warrant at 2513 Spangler Drive
in Humboldt, Tennessee. When the officers knocked on the door, Defendant answered and
permitted them to enter. Defendant told Officer Danny Lewis that his sister and brother-in-law,
Jerry and Angela Allen, were also present in the house. After confirming that the Allens were
indeed present, the officers searched the house. Officer Lewis asked Defendant where the “weed”
was. Defendant took Lewis to a kitchen cabinet where he pulled out a bag of marijuana.
In a cabinet above the refrigerator, about six to seven feet away from the cabinet in which
the marijuana was found, the officers found two loaded firearms – a nine millimeter Hi-Point and
a .44-caliber Ruger Blackhawk Revolver. In the Allens’ bedroom, the officers found a box of .44
caliber ammunition.
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No. 04-6262
The 2513 Spangler Drive residence was leased to the Allens. However, after being read his
Miranda warnings and agreeing to give a statement to Lewis, Defendant listed the residence as his
home address. Defendant told Lewis that he stayed at the residence “on and off” and admitted to
having slept there the night before the search. Defendant also said he went to the residence “every
day,” in part to assist his brother-in-law, whose left arm is paralyzed. Angela Allen testified that
Defendant “was living with [her] at the time” but did not have an assigned bedroom at the 2513
Spangler Drive residence. Jerry Allen testified that Defendant slept on the couch in the living room.
After the ammunition was discovered in the Allens’ bedroom, and for the apparent purpose
of ensuring the officers’ safety, Lewis asked Jerry something to the effect of “where are the guns?”
Jerry denied knowing about any guns. Jerry was later charged by the state of Tennessee with
marijuana possession. In subsequent state court proceedings held pursuant to that charge, Jerry told
the judge that he owned the two firearms uncovered in the search of his residence. Jerry also signed
a notarized statement to this effect. At Defendant’s trial, Jerry again testified that he owned the
firearms, that the ammunition found in his bedroom belonged to him, and that he put the firearms
in the kitchen cabinet in which they were found because nobody in the house used that cabinet.
Jerry further testified that the cabinet was so high off the ground that someone would need to stand
on a chair and reach up to open it.
Jerry claimed that he obtained the guns when he and Defendant ran into a “peddler” on the
street who was pawning a sweater that caught Jerry’s eye. Jerry asked the peddler to follow him
home so that he could get some money. In the meantime, according to Jerry, Defendant left. Jerry
says that he bought the sweater, and when the peddler asked him about an abrasion on his face, he
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No. 04-6262
explained that he had been “sucker-punched” a couple of days earlier. The peddler then went out
to his truck and produced a bag that contained the two guns. Jerry testified that he bought the guns
and immediately stored them in the upper kitchen cabinet.
At trial the jury was read, in its entirety, a transcript of the recorded statement Defendant
gave to the police at the station immediately following his arrest. In the statement, Defendant gave
responses that linked him to the purchase of the two guns. When asked whether or not he knew
anything about the Ruger Blackhawk .44 magnum, Defendant replied “yes.” When asked, “What
did he know,” Defendant replied, “See, I got that – I bought that like – well, like I said, he – I got
that for him.” When pressed further and asked whether or not he bought the gun for Jerry,
Defendant answered, “I got – I didn’t buy it at no store. I can’t buy no gun . . . . But you can go –
but you can go to pawn – I mean the First Monday sale and just catch them out of town. I go to
town, you know what I’m saying.” Defendant went on to state later that the gun was not his, but that
he “put money into” buying it.
The officer then proceeded to question Defendant about the Hi-Point 9 mm. When asked to
whom the gun belonged, Defendant replied, “Now that there, I got that off a dude selling in the
street.” When asked the follow up question, “You bought this guy off a dude in the street,”
Defendant then tried to make a distinction between “bought” and “got,” insisting that “ I got it. Got
it and bought it is a different thing.” At one point Defendant even responded, “Uh huh” when the
officer asked him, “So this is your gun?” Defendant suggested that the gun was for the protection
of his paralyzed brother-in-law, Jerry.
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No. 04-6262
Prior to trial, the Defendant filed a motion in limine seeking to prohibit the government from
introducing any evidence of drug activity or other state law violations in the case-in-chief. Defense
counsel argued that the marijuana found at the residence was not relevant, and should be excluded
pursuant to Rule 404(b) of the Federal Rules of Evidence. The district court denied Defendant’s
motion, finding that Defendant’s knowledge of where the marijuana was located was evidence that
the Defendant had familiarity with the house, with the kitchen, and with the contents of the cabinets.
The judge instructed the jury during Officer Lewis’s testimony however, that the Defendant was
not on trial for any controlled substance offense, and that they were not to consider the presence of
drugs as relevant to the issue of the firearms. Defense counsel did not renew his objection to the
testimony regarding the marijuana at trial, and Defendant’s statement was read to the jury in its
entirety.
Defendant unsuccessfully moved for a judgment of acquittal pursuant to Federal Rule of
Criminal Procedure 29, at the close of the government’s case-in-chief, but did not renew the motion
at the close of all evidence. The jury convicted Defendant, and Defendant was sentenced to 115
months’ imprisonment, in part due to a 4-level enhancement imposed by the district court. The
judge also sentenced Defendant to two years supervised release.
II. DISCUSSION
Defendant raises several issues on appeal. First, Defendant challenges his conviction,
alleging the government failed to prove beyond a reasonable doubt that he possessed a firearm on
or about December 6, 2001. Defendant secondly contends that he was prejudiced by the admission
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No. 04-6262
into evidence of testimony related to his having voluntarily gone to the kitchen cabinet and located
and removed a bag of marijuana. Finally, Defendant argues that the district court improperly
sentenced him under what the court perceived as mandatory provision of the U.S. Sentencing
Commission Guidelines. We address each of these arguments in turn.
A. Sufficiency of the Evidence
1. Standard of Review
This Court’s review is only for “manifest injustice” because Defendant failed to renew his
motion for a judgment of acquittal at the close of the evidence under Federal Rule of Criminal
Procedure 29. United States v. Frederick, 406 F.3d 754, 765 (6th Cir. 2005); United States v.
Wagner, 382 F.3d 598, 611, n.2 (6th Cir. 2004); United States v. Kolley, 330 F.3d 753, 756 (6th Cir.
2003); United States v. Price, 134 F.3d 340, 350 (6th Cir. 1998); United States v. Morrow, 977 F.2d
222, 230 (6th Cir. 1992) (en banc). Accordingly, this Court may reverse the conviction “only if the
record is devoid of evidence pointing to guilt.” Price, 134 F.3d at 350; United States v. McBride,
362 F.3d 360, 369 (6th Cir. 2004); United States v. Carnes, 309 F.3d 950, 956 (6th Cir. 2002).
2. Analysis
This Circuit’s seminal decision regarding proof of possession remains United States v.
Craven, 478 F.2d 1329 (6th Cir. 1973), where we stated:
Possession may be either actual or constructive and it need not be exclusive but may
be joint. Actual possession exists when a tangible object is in the immediate
possession or control of the party. Constructive possession exists when a person
does not have actual possession but instead knowingly has the power and the
intention at a given time to exercise dominion and control over an object, either
directly or through others. Both actual possession and constructive possession may
be proved by direct or circumstantial evidence. It is not necessary that such evidence
remove every reasonable hypothesis except that of guilt.
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No. 04-6262
Id. at 1333 (citations omitted). In Craven, we held that constructive possession of the multiple
firearms discovered throughout the house was established where the defendant had constructive
possession of the house and one of the rooms in which a firearm was discovered and made
statements that he collected guns. Id. at 1333-34.
In addition, as this Court very recently reiterated, “[t]he government may prove constructive
possession by presenting evidence that the person has dominion over the premises where the firearm
was located.” United States v. Arnold, 410 F.3d 895, 904 (6th Cir. 2005) (citing United States v.
Kincaide, 145 F.3d 771, 782 (6th Cir. 1998)) (noting that there was evidence that the defendant and
another person used the apartment in which the gun was found to process heroin and stash cocaine);
see also United States v. Clemis, 11 F.3d 597, 601 (6th Cir. 1993) (per curiam); United States v.
Snyder, 913 F.2d 300, 304 (6th Cir. 1990).
Applying these standards to the present case, the record contains ample evidence to support
a finding that Defendant had constructive possession of the house and the firearms found inside the
cabinet. See, e.g., Price, 134 F.3d at 350. First, the evidence establishes that Defendant had
dominion and control over the residence at 2513 Spangler Drive. Defendant listed 2513 Spangler
Drive as his home address, referred to the residence as “my house,” to the kitchen table as the place
where “I sit,” and to the cabinet in which the firearms were found as “my cabinet.” Defendant also
spoke of staying at the residence “off and on” and admitted he went to the residence “every day.”
Furthermore, Angela Allen, Defendant’s sister, testified that he “was living with [her] at the time
[of the search].” It is undisputed that he had stayed at the residence the night before the search
occurred.
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No. 04-6262
Even more damaging, not only did Defendant have dominion and control over the residence,
but Defendant’s own statements connected him to the firearms. He admitted having obtained the
Ruger “at a pawn shop” and the Hi-Point “off a dude selling in the street.” Defendant’s insistence
that the firearms were for Jerry’s protection does not mean that Defendant did not have access to
them or dominion and control over the area in which they were stored. Possession, as this Court said
in Craven, “need not be exclusive and may be joint.” 478 F.2d at 1333. Therefore we find
Defendant’s argument that the record is devoid of evidence to be without merit.
B. Admission of Testimony Regarding Defendant’s Retrieval of Marijuana From a
Kitchen Cabinet
1. Standard of Review
Defendant filed a motion in limine to exclude any evidence or testimony relating to “drug
activity.” The district court denied the motion, and defense counsel failed to renew the objection
during Lewis’s testimony about Defendant’s retrieval of the bag of marijuana. Accordingly, this
Court “must apply a ‘plain error’ standard of review.” United States v. Kelly, 204 F.3d 652, 655 (6th
Cir. 2000) (holding that motions in limine do not preserve evidentiary objections for appeal; a
contemporaneous objection is required).
As this Court recently articulated: “Under [the plain error] test, before an appellate court can
correct an error not raised at trial, there must be (1) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s]
substantial rights.’ ” Johnson v. United States, 520 U.S. 461, 466-67 (1997) (quoting United States
v. Olano, 507 U.S. 725, 732 (1993)); see also, United States v. Cotton, 535 U.S. 625, 626 (2002).
If we find that “all three conditions are met, [we] may then exercise [our] discretion to notice a
forfeited error, but only if [ ] the error seriously affect[s] the fairness, integrity, or public reputation
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No. 04-6262
of judicial proceedings.” Johnson, 520 U.S. at 467 (quoting United States v. Young, 470 U.S. 1, 15
(1985)); Cotton, 535 U.S. at 631-32; United States v. Milan, 398 F.3d 445, 451 (6th Cir. 2005).
“‘Plain error’ is defined as an egregious error, one that directly leads to a miscarriage of
justice. The ‘plain error’ doctrine is to be used sparingly, only in exceptional circumstances and
solely to avoid a miscarriage of justice. A reviewing court should apply the ‘plain error’ doctrine
to reverse only if errors were so rank that they should have been apparent to the trial judge without
objection, or that strike at fundamental fairness, honesty, or public reputation of the trial.” United
States v. Carney, 387 F.3d 436, 453 (6th Cir. 2004) (internal quotation marks and citations omitted).
2. Analysis
The district court denied Defendant’s motion in limine on the ground that Defendant’s having
retrieval of the bag of marijuana from one of the kitchen cabinets “was [ ] some evidence that the
defendant has familiarity with that house, with that kitchen, and with the contents of the cabinets.”
In the district court’s view, this evidence was relevant to a material issue in the case – constructive
possession of the firearm – because the gun was found in another cabinet some six or seven feet
away. As stated, when Lewis testified about Defendant’s retrieval of the marijuana and read the
portions of Defendant’s statement, the defense did not object. Moreover, the district judge
instructed the jury as follows:
If there’s testimony about drugs being found in the kitchen, or controlled substances,
let me remind you that the defendant is not on trial for any sort of controlled
substances offense. You won’t consider the presence or absence of controlled
substances or drugs of any kind as being relevant on the issue of whether or not the
defendant possessed a firearm . . . . So remember, the defendant’s not on trial for any
controlled substances offense, and any testimony about that is not relevant on the
issue of the firearm.
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No. 04-6262
Defendant contends that the admission of Lewis’s testimony regarding the marijuana and the
portion of Defendant’s statement regarding the same was erroneous under Federal Rule of Evidence
404(b), which permits the admission of “other acts” evidence if the other act occurred, evidence of
it is probative to a material issue other than character, and if the evidence’s probative value is not
substantially outweighed by its potential prejudicial effect. See United States v. Jenkins, 345 F.3d
928, 939 (6th Cir. 2003); United States v. Haywood, 280 F.3d 715, 720 (6th Cir. 2002). Other than
to recite these requirements, Defendant does not present a discernable argument specifically as to
how this evidence is in fact Rule 404(b) evidence. Defendant argues only that the evidence of his
retrieval of the marijuana was prejudicial and should have been excluded.
The question, then, is whether the admission of Lewis’s and Defendant’s references to the
retrieval of the marijuana rose to the level of plain error in light of Rule 404(b)’s requirements.
There is no dispute that the other act – the marijuana retrieval – occurred, and there appears to be
no dispute that evidence of it was probative of a material issue in the case. Evidence that Defendant
knew that one of the kitchen cabinets contained marijuana is, at the very least, probative of
knowledge, and absence of mistake or accident with respect to constructive possession of the guns
found in a cabinet nearby. See Fed. R. Evid. 404(b). Indeed, evidence that Defendant had access
to, and dominion and control over, one kitchen cabinet is probative on the issue of his access to, and
dominion and control over, other cabinets; specifically, the one where the firearms were stored.
Thus, we do not believe that the district court plainly erred in determining Defendant’s retrieval of
the marijuana was probative of a material issue other than character.
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No. 04-6262
The final Rule 404(b) requirement is simply that Rule 403 must be satisfied, i.e., the
probative value of Defendant’s retrieval of the marijuana must not be “substantially outweighed by
its potential prejudicial effect.” Haywood, 280 F.3d at 720; see also United States v. Brown, 147
F.3d 477, 483 (6th Cir. 1998); Fed. R. Evid. 403. In conducting this inquiry, this Court remembers
that Rule 403 is a rule of inclusion. Accordingly, we must view the evidence in the light most
favorable to its proponent, the government, and maximize its probative value. United States v.
Logan, 250 F.3d 350, 368 (6th Cir. 2001). Against this backdrop, the implicit conclusion that the
probative value of this evidence was not substantially outweighed by its potential prejudicial effect
cannot be said to have been an error “so rank that [it] should have been apparent to the trial judge
without objection.” Carney, 387 F.3d at 452.
The central issue in the case was whether Defendant had constructive possession of a
firearm. Two firearms were found in a cabinet six or seven feet away from the cabinet that
Defendant willingly identified as containing marijuana. Therefore, the marijuana retrieval has
significant probative value. In addition, the district court provided the jury with a clear limiting
instruction (quoted above) to the effect that the marijuana evidence was not relevant to Defendant’s
guilt or innocence of the crime charged. Such instructions minimize any potential prejudicial effect
a piece of other act evidence might cause. See United States v. Gaitan-Acevedo, 148 F.3d 577, 592
(6th Cir. 1998); United States v. Myers, 123 F.3d 350, 364 (6th Cir. 1997); United States v. Feinman,
930 F.2d 495, 499 (6th Cir. 1990). Given the strong probative value of Defendant’s retrieval of the
marijuana and the district court’s limiting instruction, we find that admission of the evidence was
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No. 04-6262
not error, and was specifically not an error so rank as to offend the “fairness, integrity, or public
reputation of judicial proceedings.” Milan, 398 F.3d at 451.
C. Sentencing Guidelines
1. Standard of Review
Anticipating the Supreme Court’s holding in Booker, Defendant objected to the 4-level
enhancement at sentencing. Accordingly, this Court’s standard of review is de novo. United States
v. McDaniel, 398 F.3d 540, 546-47 (6th Cir. 2005); United States v. Hazelwood, 398 F.3d 792 (6th
Cir. 2005).
2. Analysis
Both parties agree that the case must be remanded for re-sentencing in connection with the
imposition of a 4-level enhancement for possessing “any firearm or ammunition in connection with
another felony offense,” U.S.S.G. § 2K2.1(b)(5), because the district court engaged in the sort of
judicial fact-finding that we now know violates the Sixth Amendment. See Booker, 125 S. Ct. at
756; Milan, 398 F.3d at 450-51; United States v. Oliver, 397 F.3d 369, 377-78 (6th Cir. 2005).
Indeed, the district court itself agreed that if the Supreme Court applied the rationale of Blakely v.
Washington, 542 U.S. 296 (2004) to the Sentencing Guidelines, re-sentencing of Defendant would
be required.
In any event, our Barnett rule requires re-sentencing because the district court plainly erred
in sentencing Defendant under the impression that the Guidelines were mandatory. United States
v. Barnett, 398 F.3d 516, 527-29 (6th Cir. 2005); see also United States v. Hudson, 405 F.3d 425,
444 (6th Cir. 2005). As indicated, the government concedes that a remand for re-sentencing is
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No. 04-6262
necessary, so there is no basis to rebut Barnett’s presumption that the sentencing error affected
Defendant’s substantial rights. See Barnett, 398 F.3d at 527-29.
III. CONCLUSION
For the reasons set forth above, we AFFIRM Defendant’s conviction under 18 U.S.C. § 922(g), but VACATE Defendant’s sentence and REMAND this case for resentencing in a manner
consistent with this opinion.
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