United States v. Jason Harriman , 491 F. App'x 782 ( 2012 )

United States Court of Appeals
For the Eighth Circuit
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No. 11-2177
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Jason Harriman
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: November 7, 2012
Filed: November 9, 2012
[Unpublished]
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Before BYE, GRUENDER, and BENTON, Circuit Judges.
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PER CURIAM.
Jason Harriman appeals the district court’s1 judgment, entered upon a jury
verdict, finding him guilty of two counts of being a felon in possession of a firearm,
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and sentencing him to a total of
180 months in prison and 3 years of supervised release. Harriman’s attorney has filed
a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and Harriman has filed
a pro se supplemental brief. For the reasons that follow, we affirm.
The evidence at the January 2011 jury trial established that law enforcement
officials arrested Harriman and searched his home on September 28, 2009, and found
in a box on the back porch a Ruger .22-caliber rifle, the same rifle that Harriman had
won in a raffle at a charitable event months earlier. Although Harriman had made
arrangements with his brother to pick up the rifle and store it until Harriman’s son
was old enough to receive it as a gift, Harriman’s brother had at some point brought
it to Harriman’s residence and left it there at Harriman’s request. The following
month, after asking a friend to help him acquire a handgun, Harriman purchased a
Glock .40-caliber pistol from an undercover law enforcement officer on October 25,
2009. The parties stipulated that, during the relevant time, Harriman had been
convicted of felony crimes punishable by imprisonment for a term exceeding 1 year,
and that both firearms had been transported in interstate commerce. This evidence,
viewed in the light most favorable to the government, was sufficient to convict
Harriman of both felon-in-possession counts. See United States v. Spears, 454 F.3d
830, 832 (8th Cir. 2006) (standard of review for sufficiency of evidence after jury
trial); United States v. Brown, 422 F.3d 689, 691-92 (8th Cir. 2005) (felon-in-
possession conviction requires proof beyond reasonable doubt that defendant had
previously been convicted of crime punishable by term of imprisonment exceeding
1 year, that he knowingly possessed firearm, and that firearm had been in or had
affected interstate commerce); United States v. Sianis, 275 F.3d 731, 733-34 (8th Cir.
2002) (constructive possession of firearm is established where defendant has
dominion over premises where firearm is located, or has control, ownership, or
dominion over firearm itself; possession need not be exclusive). We also conclude
that government counsel’s questions during cross-examination and statements during
closing argument, to the extent they were improper, did not warrant a mistrial. See
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United States v. Beeks, 224 F.3d 741, 745 (8th Cir. 2000) (prosecutorial misconduct
is grounds for mistrial where remarks are improper and prejudicially affect
defendant’s substantial rights so as to deprive him of fair trial; to determine whether
defendant was deprived of fair trial, reviewing court considers cumulative effect of
misconduct, strength of properly admitted evidence, and curative actions taken by
district court).
Harriman’s pro se arguments that he was denied his right to a speedy trial and
to present an entrapment defense, and his challenges to the district court’s
jurisdiction, his arrest, the search of his home, his pretrial detention, his access to
discovery, and to evidentiary rulings, are all either unpreserved, meritless, or moot.
In addition, the record is not sufficiently developed to permit review of any claim of
ineffective assistance of counsel. See United States v. Thompson, 690 F.3d 977, 992-
93 (8th Cir. 2012).
In reviewing the sentence imposed, this court must first ensure that the district
court committed no significant procedural error, and then consider the substantive
reasonableness of the sentence under an abuse-of-discretion standard. See Gall v.
United States, 552 U.S. 38, 51 (2007). Following a two-day sentencing hearing, the
district court found insufficient evidence to sustain the government’s request for an
enhancement based on Harriman’s purported intent to use the pistol he possessed to
murder his ex-wife. The court otherwise adopted the presentence report’s Guidelines
calculations; applied enhancements for Harriman’s aggravating role and obstruction
of justice; calculated a Guidelines imprisonment range of 100-120 months, as capped
by the statutory maximum; considered the 18 U.S.C. § 3553(a) sentencing factors;
and found that Harriman’s criminal history score did not reflect the seriousness of his
past criminal conduct, or the likelihood that he would commit further crimes in the
future, and that he was a danger to the community. The court sentenced Harriman to
a prison term of 120 months on each count of conviction, with 60 months of the term
imposed on the second count to be served consecutively to the term imposed on the
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first count, for a total of 180 months in prison; and 3 years of supervised release.
Assuming without deciding that application of the role enhancement based on
Harriman’s enlisting his brother to help him acquire the rifle was improper, see
U.S.S.G. § 3B1.1, comment. (nn. 1-2) (requirement of either multiple participants, or
management responsibility over criminal organization; person who is not criminally
responsible for offense is not participant), we find no plain error, or reasonable
probability that Harriman would have received a lighter sentence but for the error.
See United States v. Olano, 507 U.S. 725, 733-35 (1993); United States v. Richart,
662 F.3d 1037, 1046-47 (8th Cir. 2011) (concluding that any error in applying
§ 3B1.1(c) enhancement was harmless, in part because--in listing its reasons for
departing upward from Guidelines range--district court did not include any reference
to defendant’s leadership role), cert. denied, 132 S. Ct. 1942 (2012); United States
v. Molnar, 590 F.3d 912, 914-15 (8th Cir. 2010) (in sentencing context, error is
prejudicial only if defendant proves reasonable probability that he would have
received lighter sentence but for error).
We have reviewed the record independently under Penson v. Ohio, 488 U.S.
75, 80 (1988), including Harriman’s remaining pro se sentencing arguments, and we
have found no nonfrivolous issues.
The judgment of the district court is affirmed, and counsel is granted leave to
withdraw.
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