United States v. Tucker, 2011 U.S. App. LEXIS 7741

Tucker was convicted by a jury in the district court of being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1).
He was sentenced to 96 months in prison plus three years of supervised release and a $100 penalty assessment.
Evidence at trial showed a shotgun found in Tucker's Las Vegas apartment, in the master bedroom closet, with Tucker claiming mixed ownership and prior handling.
Tucker provided various explanations about ownership and placement of the firearm, including claims about a roommate and Dawn Alexander’s supposed new boyfriend.
For sentencing, the court used a modified categorical approach to classify Tucker’s prior Nevada conviction for Attempt Child Abuse and Neglect as a crime of violence.
On appeal Tucker raised five arguments: insufficiency of evidence of possession, prosecutorial misconduct, failure to give a mere presence instruction, improper guideline calculation, and substantive unreasonableness of the sentence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence for knowing possession	Tucker knowingly possessed the gun.	Evidence only showed proximity; no knowledge of possession.	Evidence supports knowing possession
Prosecutor's closing arguments	Prosecutor properly argued inferences within bounds.	Certain comments shifted burden or were misleading.	No reversible error; arguments within deference and context
Mere presence instruction	District court should give mere presence instruction when relevant.	JMere presence instruction necessary to cover defense theory.	No error; instruction not required given record and elements
Use of prior conviction as crime of violence	Prior conviction qualifies as crime of violence under modified categorical approach.	Information may be misread; reliability questioned.	Information supports crime of violence finding under the modified approach
Substantive reasonableness of sentence	Sentence reasonable given criminal history and guideline range.	Sentence excessive, punished for past conduct.	Sentence reasonable; within proper range and district court discretion

United States v. Nevils, 598 F.3d 1158 (9th Cir. 2010) (standard for reviewing sufficiency of knowledge-based possession)
United States v. Beasley, 346 F.3d 930 (9th Cir. 2003) (knowingly possesses standard; mens rea can be proven by conscious possession)
United States v. Young, 420 F.3d 915 (9th Cir. 2005) (upheld possession where defendant controlled residence and knew gun)
Negrete-Gonzales v. United States, 966 F.2d 1277 (9th Cir. 1992) (mere presence instruction appropriate when government case rests only on presence)
Rodrigues v. United States, 159 F.3d 439 (9th Cir. 1998) (prosecutor's comments about defense in closing can be permissible if contextual and not reversible error)
Johnson v. United States, 130 S. Ct. 1265 (2010) (modified categorical approach permitted for multi-meaning statutory phrases)
Tam v. United States, 240 F.3d 797 (9th Cir. 2001) (harmless error standard for closing argument burden-shifting comments)
Vaandering v. United States, 50 F.3d 696 (9th Cir. 1995) (closing argument permissible; burden remains with government)
United States v. Ruiz, 462 F.3d 1082 (9th Cir. 2006) (standard for reviewing sufficiency of evidence after Rule 29)
United States v. Cabrera, 201 F.3d 1243 (9th Cir. 2000) (proximity inferences and closing argument flexibility)