United States v. Mark Jenkins, Jr. , 501 F. App'x 685 ( 2012 )

FILED
NOT FOR PUBLICATION DEC 24 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10585
Plaintiff - Appellee, D.C. No. 3:10-cr-00882-JSW-1
v.
MEMORANDUM *
MARK JENKINS, Jr.,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Argued and Submitted October 18, 2012
San Francisco, California
Before: D.W. NELSON, MURGUIA, and CHRISTEN,** Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
Judge Christen was drawn to replace Judge Betty Binns Fletcher.
Judge Christen has read the briefs, reviewed the record, and listened to oral
arguments that were held on October 18, 2012.
Jenkins was convicted of being a felon in possession of a firearm under of
18 U.S.C. § 922(g)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291 and
affirm.
A defendant has a right to have a jury determine, beyond a reasonable doubt,
that he is guilty of every element of the crime with which he is charged. United
States v. Gaudin, 515 U.S. 506, 522-23 (1995). Jenkins pled no contest in May
2004 when he was charged under California Health and Safety Code Section
11351.5, a felony, and the government argued at trial that this plea satisfied the
felony-conviction element of 18 U.S.C. Section 922(g)(1). In accordance with the
Ninth Circuit’s Model Jury Instructions for a Section 922(g)(1) case, the district
court instructed the jury that the government had to prove each of Section
922(g)(1)’s three elements beyond a reasonable doubt and then informed the jury
that California Heath and Safety Code Section 11351.5 is a felony. Because no
reasonable juror could have interpreted these instructions as requiring him to find
that Jenkins had in fact been convicted under California Health and Safety Code
Section 11351.5, the instructions comported with due process. Francis v.
Franklin, 471 U.S. 307, 315 (1985).
A Section 2K2.1(b)(6)(B) sentencing enhancement may be applied if a
defendant possessed a firearm “in connection with another felony offense.” The
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government must prove by a preponderance of evidence that the firearm “had some
potential” to “embolden[]” the defendant to commit a felony. United States v.
Routon, 25 F.3d 815, 819 (9th Cir. 1994). On the night of his arrest Jenkins was in
a high-crime area notorious for drug dealing standing with another individual next
to an illegally parked car registered to Jenkins’s wife. The car was unlocked and
the keys were in the ignition. The car contained $1,000 in cash, 92 grams of crack
cocaine, and a receipt with Jenkins’s alias on it. When the police approached,
Jenkins immediately ran away from the car while pulling a loaded firearm from his
waistband. The district court did not abuse its discretion in finding, based on all
this evidence, that Jenkins’s firearm possession had some potential to embolden
him to sell crack cocaine.
A district court’s denial of a motion for a continuance will be reversed only
if it was arbitrary and unreasonable and the appellant demonstrates the denial
prejudiced his defense. United States v. Lopez-Patino, 391 F.3d 1034, 1038-39
(9th Cir. 2004). It was neither arbitrary nor unreasonable for the district court to
conclude that Jenkins, who had known for two weeks that the government would
seek a Section 2K2.1(b)(6)(B) enhancement at sentencing, had already received
adequate time to prepare a defense. Jenkins also fails to demonstrate any
prejudice: he cites no legal authority he might have retrieved had he been given
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more time to prepare, nor does he argue he could have offered evidence to
undercut the government’s case if he had been given more time to prepare.
AFFIRMED.
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