United States v. Charles Pollock, Jr., 2014 U.S. App. LEXIS 12653

Background

Pollock, a convicted felon (aggravated stalking), began a relationship with Kim Bowyer; in July 2011 he abducted, restrained, threatened, and (she alleged) raped her; he also suggested a murder-suicide with a .45 pistol. Bowyer reported the incident to police.
In June–July 2011 Pollock retrieved multiple guns and placed gun cases/boxes in his car trunk; a friend, Todd Clayes, saw a semiautomatic pistol at Pollock’s home and later removed guns from Pollock’s trunk at Pollock’s request.
Police executed a search warrant and found magazines and ammunition; Pollock was arrested and later convicted by a jury of (1) unlawful possession of a firearm (18 U.S.C. § 922(g)), (2) unlawful possession of ammunition, and (3) attempted witness tampering for letters urging Clayes to disappear.
At sentencing the district court applied U.S.S.G. § 2K2.1(c) to cross‑reference the base offense level to the guideline for aggravated sexual abuse (§ 2A3.1), finding by a preponderance that the firearm was “in connection with” the sexual abuse, and imposed a below‑Guidelines aggregate term of 240 months (120 concurrent + 120 consecutive).
Pollock appealed, challenging: (1) the felon‑in‑possession jury instruction (no unanimous agreement required as to a particular firearm), (2) certain prosecutorial statements at trial and sentencing, and (3) the procedural and substantive reasonableness of his sentence (including the § 2K2.1(c) cross‑reference and the consecutive 120‑month term for tampering).

Issues

Issue	Plaintiff's Argument (Pollock)	Defendant's Argument (Government)	Held
Jury instruction on § 922(g) (whether jury must unanimously agree on a specific firearm)	Possession of a specific firearm is an element; instruction was erroneous for not requiring unanimity on which gun.	§ 922(g) prohibits possession of “any firearm”; the specific gun is a means, not an element, so no unanimity on a particular firearm is required.	Court affirmed: no plain error—specific firearm is not an element under § 922(g).
Prosecutorial misstatements at trial and sentencing	Prosecutor misstated witness testimony (added “.45 caliber”) and mischaracterized Bowyer’s testimony, denying a fair trial and sentencing.	The caliber detail was a minor, inadvertent error; Bowyer’s testimony reasonably supports the Government’s inferences about threats to deter reporting.	Court affirmed: errors were minor, not prejudicial; defendant had opportunity to rebut; conviction and sentence unaffected.
Procedural adequacy of sentencing under § 3553(a)	District court gave cursory treatment; did not adequately explain why 20‑year sentence was necessary.	Court considered § 3553(a) factors, defendant’s history, seriousness, and need for deterrence; below‑Guidelines sentence presumed reasonable.	Court affirmed: district court’s explanation and consideration were adequate for review.
Application of U.S.S.G. § 2K2.1(c) cross‑reference & consecutive 10‑year term for tampering	No preponderance showing that the firearm was connected to the sexual abuse; tampering was garden‑variety and did not warrant consecutive 10 years.	Bowyer’s testimony supports that threats involving the gun continued to restrain/intimidate her after the assault; Clayes was a key witness making tampering especially serious.	Court affirmed: sufficient record support and credibility findings for cross‑reference and consecutive sentence; not clearly erroneous or an abuse of discretion.

Key Cases Cited

Richardson v. United States, 526 U.S. 813 (1999) (unanimity requirement analysis for elements vs. brute facts)
United States v. Verrecchia, 196 F.3d 294 (1st Cir. 1999) (possession of a particular firearm is not an element of § 922(g))
United States v. DeJohn, 368 F.3d 533 (6th Cir. 2004) (statutory emphasis on person, not firearm; supports treating gun identity as means)
United States v. Locke, 643 F.3d 235 (7th Cir. 2011) (implicit factual findings at sentencing permissible when supported by record)