UNITED STATES of America, Plaintiff-Appellee, v. Jerry Lee WILLIAMS, Defendant-Appellant.
No. 04-3175
United States Court of Appeals, Tenth Circuit
April 15, 2005
403 F.3d 1188
Timothy J. Henry, Assistant Federal Public Defender (David J. Phillips, Federal Public Defender, with him on the briefs), Wichita, KS, for Defendant-Appellant.
David C. Smith, Assistant United States Attorney (Eric F. Melgren, United States Attorney and David M. Lind, Assistant United States Attorney with him on the brief), Wichita, KS, for Plaintiff-Appellee.
Before BRISCOE, ANDERSON, and MURPHY, Circuit Judges.
Defendant/Appellant Jerry Lee Williams was found guilty following a jury trial of being a felon in possession of a firearm, in violation of
BACKGROUND
On July 19, 2003, at approximately 2:00 a.m., three Wichita police officers responded to a 911 call from a Denny‘s restaurant in Wichita, Kansas, indicating a male customer had a gun. When the officers arrived at the restaurant, they talked to security guard Donald Lacy, who had made the 911 call. Lacy indicated that two customers who had been sitting at the back of the restaurant had told him that a black male at a table in the back of the restaurant was waving a gun around underneath the table. Lacy testified that he recognized the two customers because they were regulars, although he did not know their names. The first patron to report the gun-waving incident indicated that the man with the gun was sitting in a group of six individuals in the corner of the restaurant. After she relayed this information to Lacy, her table companion came up to Lacy and told him the same thing. Both customers did not want to be identified or get involved, and they left the restaurant before the police arrived.
When the police officers arrived at the restaurant, Lacy told them which table the two patrons had identified. The officers proceeded immediately to the table where the six individuals, including defendant Williams, were sitting. Williams was intoxicated to some degree.1 The officers told the individuals at the table that a complaint had been made concerning a person waving a gun. The officers first patted down Terry Douglas, who was sitting in the chair nearest the officers, and found nothing suspicious on him. They next patted down Montae Alford, again finding nothing. As the officers patted down Douglas and Alford, Williams and Ivan Miller sat on a booth-style seat with their backs to the restaurant wall. There was a discrepancy in the testimony about exactly where Williams was seated. While everyone agreed that Miller was seated on the outside of the table near the walkway, the officers testified that Williams was seated a little distance away from him, in the corner of the booth, with a female companion in between them. Douglas and McClary, the waitress, testified that Williams was sitting right next to Miller.
The officers took Williams and Alford into custody. After Williams was treated and released from a hospital for his gunshot wound, he talked to officers at the police station. Detective Jose Salcida testified at trial that, although he could smell a “faint odor of alcohol” on Williams’ breath, Williams “was answering logically to my questions... so he didn‘t appear so intoxicated that he didn‘t understand why he was there.” R. Vol. III at 256. Williams told Salcida that Miller had been trying to push the gun on him and that he finally just took the gun from him, although he claimed he never put it in his pocket.3
Williams was charged in a one-count indictment with “knowingly possess[ing], in and affecting commerce, a firearm” after previously being convicted of a felony, in violation of
While this case was pending on appeal, the Supreme Court issued its opinion in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), which held that in a state prosecution the Sixth Amendment requires that the maximum
Williams appeals, arguing: (1) the district court erred in denying his motion to suppress the firearm because it was based upon an allegedly anonymous tip; (2) there was insufficient evidence to support his conviction for knowingly possessing a firearm which was “in or affecting commerce“; (3) the district court erred in refusing to give Williams’ requested “theory of defense” instruction on “fleeting possession” of the firearm; (4) the district court erred when, in response to a jury inquiry, it gave the jury a supplemental instruction on the issue of Williams’ knowing possession of the firearm; (5) mere movement of the firearm from one state to another fails to satisfy the
DISCUSSION
I. Motion to Suppress
Williams filed a motion to suppress the gun seized from him and his statements to police on the ground that the police searched him and seized the gun based solely upon an anonymous tip.4 “When reviewing the denial of a motion to suppress, we view the evidence in the light most favorable to the government, accept the district court‘s findings of fact unless clearly erroneous, and review de novo the ultimate determination of reasonableness under the Fourth Amendment.” United States v. Katoa, 379 F.3d 1203, 1205 (10th Cir. 2004), cert. denied, 543 U.S. 1175, 125 S. Ct. 1390, 161 L. Ed. 2d 159 (2005).
Williams argues that the “tip” provided by the two restaurant patrons to Lacy, who in turn told the police, informing him that they had seen a black male waving a gun underneath a restaurant table, was an anonymous tip similar to the one held unreliable in Florida v. J.L., 529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000). In J.L., the Supreme Court held that an anonymous telephone call indicating that “a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun,” id. at 268, was, standing alone, unreliable and therefore insufficient to justify a police officer‘s stop and frisk of the defendant. The Court noted that “the officers’ suspicion that J.L. was carrying a weapon arose not from any observations of their own but solely from a call made from an unknown location by an unknown caller.” id. at 270.
Even were we to assume that the tip was truly “anonymous” like the one in J.L.,5 this case is distinguishable from J.L.
II. Sufficiency of Evidence Supporting Knowing Possession of Firearm “In or Affecting Commerce”
Williams argues that there was insufficient evidence demonstrating that he knowingly possessed the firearm, nor was there sufficient evidence that the gun was possessed “in or affecting commerce” as required by
A. Sufficiency of Evidence of Possession of Gun
Williams argues that his very inebriated condition, combined with evidence suggesting that Miller passed the gun to him at the last minute, renders it impossible for him to have “knowingly” possessed the gun. We disagree. “Being a felon in possession of a firearm is a general intent crime. Voluntary intoxication is a defense to a crime requiring proof of specific intent, but not to a crime requiring only proof of general intent.” United States v. Klein, 13 F.3d 1182, 1183 (8th Cir. 1994) (quoting United States v. Oakie, 12 F.3d 1436, 1442 (8th Cir. 1993)); see also United States v. Brown, 367 F.3d 549, 556 (6th Cir. 2004); United States v. Bennett, 975 F.2d 305, 308 (6th Cir. 1992); United States v. Williams, 892 F.2d 296, 303 (3d Cir. 1989).6 Thus, despite his inebriated state, Williams was still capable of having the general intent necessary to support a
Furthermore, a conviction for being a felon in possession of a firearm under
B. “In or Affecting Commerce”
III. Fleeting Possession Instruction
Williams argues the district court erred in refusing to give his requested “theory of defense” instruction on “fleeting possession” of the firearm. “A criminal defendant is entitled to an instruction on his theory of defense provided that theory is supported by some evidence and the law.” United States v. Alcorn, 329 F.3d 759, 767 (10th Cir. 2003) (quoting United States v. Haney, 318 F.3d 1161, 1163 (10th Cir. 2003) (en banc)). Such an instruction is not required, however, “if it would simply give the jury a clearer understanding of the issues.” United States v. Wolny, 133 F.3d 758, 765 (10th Cir. 1998). Furthermore, a theory of defense instruction is “required only if, without the instruction, the district court‘s instructions were erroneous or inadequate.” Id. ““We review de novo whether a district court committed reversible error in failing to submit a requested theory of defense instruction.” United States v. Bindley, 157 F.3d 1235, 1241 (10th Cir. 1998).7
We have previously considered the “fleeting possession” defense in the context of a
[A] jury must acquit a defendant charged with possession of contraband when the evidence demonstrates not only that the defendant merely momentarily possessed contraband, but also that the defendant either lacked knowledge that he possessed contraband or had a legally justifiable reason to possess it temporarily....
Thus, even if a felon held a firearm for a mere second or two, unless that felon truly did not know that what he possessed was a firearm or there was some recognized legal justification for his holding the firearm,
§ 922(g) will still impose criminal liability. If, however, a felon who momentarily possessed a firearm genuinely lacked knowledge that he possessed a firearm or had a legally justifiable reason for possessing it, the fleeting possession theory would apply because the government would have failed in its burden of proving intent. Therefore, the court need only give a fleeting possession instruction when the evidence at trial supports a possible finding that the defendant only momentarily possessed the contraband, and in so doing, lacked either knowledge he possessed contraband or criminal intent to possess it.
Adkins, 196 F.3d at 1115 (emphasis added). We agree with the government and the district court that there is insufficient evidence to support “a possible finding that [Williams] only momentarily possessed the [firearm], and... lacked either knowledge he possessed [the firearm] or criminal intent to possess it.” Rather, while the evidence suggests Miller may have passed the gun to Williams at the last moment prior to both men being searched, as indicated above, there is ample evidence that Williams knew he had the gun, and, in fact, tried to hide that fact.8 See United States v. Grissom, 44 F.3d 1507, 1513 (10th Cir. 1995) (noting case where court held that theory of defense instruction properly refused when it “was essentially a recounting of the facts as seen through the rose-colored glasses of the defense....” (quoting United States v. Barham, 595 F.2d 231, 244 (5th Cir. 1979))). The court did not err in refusing to give Williams’ “theory of defense” instruction.
During jury deliberations, the jury asked the court the following question: “Restate last information on the influence of alcohol and its effect on our decision.” R. Vol. I, tab 40. The court responded as follows: “With respect to Mr. Williams‘[] alleged intoxication, if Mr. Williams was capable of any conscious act at the time that he was sitting there, then he can be found to have done something knowingly. If he was totally oblivious to the point of being unconscious, then he can‘t act knowingly. It‘s going to be up to you to read and go through these instructions and to determine whether Mr. Williams acted knowingly or not, given all the facts and circumstances surrounding this incident.” Id. Williams argues that the court‘s response to the jury‘s inquiry “relieved [the government] of proving the element of ‘knowing possession’ by the higher standard of beyond a reasonable doubt when the court equated a ‘knowing act’ to one being conscious, and being incapable of acting knowingly if they are unconscious.” Appellant‘s Br. at 23.
“The submission of supplemental jury instructions after the jury has retired is a matter committed to the trial court‘s discretion.” United States v. Arias-Santos, 39 F.3d 1070, 1075 (10th Cir. 1994). Of course, “[w]e review the jury instructions as a whole to determine whether they correctly state the governing law and provide an ample understanding of the issues and the applicable standards.” Id. at 1076.
We hold that the district court did not abuse its discretion in giving the supplemental instruction. As the government argues, and as we have already held, voluntary intoxication is not a defense to a general intent crime like being a felon-in-possession under
V. “In or Affecting Commerce” Requirement
Williams argues that “mere movement of the firearm from one state to another at some undetermined time in the past does not constitute a ‘substantial’ effect on interstate commerce to invoke the Commerce Clause powers of Congress under the second prong of
VI. Enhancement under ACCA
The district court sentenced Williams as an armed career criminal under
We recently addressed the question of whether Booker, Blakely, and the Supreme Court‘s most recent decision involving the use of prior convictions at sentencing, Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005), have overruled our prior cases holding that the “fact” of a prior conviction under
VII. Refusal to Depart Downward
At sentencing, both the court and Williams raised grounds for departing downward from the otherwise applicable guideline sentencing range. The court considered a downward departure based on “diminished capacity,” R. Vol. III at 360, and Williams argued for a downward departure on the ground that the offenses that made him an armed career criminal were very old, id. at 365, and that he was “less culpable” and played a “minor role” in the offense, id. at 364. The court ultimately abandoned the “diminished capacity” basis for a downward departure, and denied Williams’ motion for a downward departure, finding that it “[didn‘t] have a basis for a departure.” Id. at 403.
The court did, however, indicate its displeasure and frustration with the severity of the sentence it felt obligated to impose upon Williams:
This really is one of the most difficult and saddest cases that I have ever had in front of me, because I think that the sentence I‘m about to impose is so grossly out of proportion to the offense conduct here that it just smacks of something that certainly isn‘t justice.... [W]hile these can‘t be factors to take into account, I‘m looking at a guy whose [sic] 52 or 53 years old. Certain-
ly he‘s responsible for his past—I mean, it follows him around wherever he goes—but here‘s a guy who was drunk in a restaurant and had a gun literally thrust at him, and he put it in his pocket, and he ends up getting shot, and I wonder who the real victim in this case is. I mean, I have got to tell you that if there‘s anybody that‘s coming out of this thing being victimized—and, admittedly, through some conduct of his own, he shouldn‘t have been drunk; he shouldn‘t have put the gun in his pocket. But, on the other hand, if it hadn‘t been thrust at him that night during a fairly excited period of time, he wouldn‘t be sitting here today either. And that‘s worth 210 months in the penitentiary? Good lord, folks! What have we come to here? I‘m sorry, but, you know, I really don‘t have anyplace to go with this. Mr. Williams, you‘re here because of what you did. I‘m doing what I am doing here today not because I‘m happy about it. As a matter of fact, I‘m disgusted with the sentence that I have to give to you here today. But that‘s not [the prosecution‘s]—I mean, they didn‘t write the guidelines. They didn‘t write the laws. We have Congress to thank for this, I guess. You know, my understanding was that the whole purpose of these guidelines when they were instituted was bring some sense of uniformity to the sentencing process, to keep somebody in one location from getting a sentence very different for the same crime than people in another location. I think if the guidelines had given us something to use as a starting point that maybe I would feel a little better about this process, because I could go somewhere with it. Mr. Williams, if it was up to me I would lock you up for five years because you had no business being where you were, doing what you were doing that night. But I think five years for this would be more than plenty. As it is, 210 months. What‘s that amount to? It‘s 15, 16; about 17 years that you‘re going to get for sitting in a restaurant and putting a gun in your pocket that a guy shoved at you while you were drunk. I‘m not excusing you for what you did, but I think this punishment is gross; I think it‘s immoral.
With that, Mr. Williams, I don‘t have a basis for a departure.
Id. at 401-03. The court then imposed a sentence of 210 months, at the bottom of the Guideline range.
As our prior analysis indicates, this case presents no Sixth Amendment error under Booker, inasmuch as the only judicial fact-finding Williams challenges is the court‘s findings about Williams’ prior convictions, which, as we have explained, are not subject to the Blakely/Booker rule about judicial fact-finding. However, the district court did sentence Williams under the erroneous belief that the Guidelines were mandatory, thus committing “non-constitutional Booker error.” Because this issue was not raised below, we review it for plain error only. See
To satisfy the third prong of plain-error review—showing that the error affects substantial rights—“usually means that the error must have affected the outcome of the district court proceedings.” United States v. Cotton, 535 U.S. 625, 632, 122 S. Ct. 1781, 152 L. Ed. 2d 860 (2002); see also United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993). Williams bears the burden of proving the error affected his substantial rights. Gonzalez-Huerta, 403 F.3d at 733; see also United States v. Vonn, 535 U.S. 55, 62-63, 122 S. Ct. 1043, 152 L. Ed. 2d 90 (2002). Thus, to satisfy the third prong of plain-error review, Williams must show “a reasonable probability that, but for the error claimed, the result of the proceeding would have been different.” United States v. Dominguez Benitez, 542 U.S. 74, 124 S. Ct. 2333, 2339, 159 L. Ed. 2d 157 (2004). To obtain relief, however, Williams must also satisfy the fourth prong of plain-error review—that is, he must demonstrate that the error is “particularly egregious” and that our failure to notice it would result in a “miscarriage of justice.” United States v. Gilkey, 118 F.3d 702, 704 (10th Cir. 1997); see also Olano, 507 U.S. at 736.
We hold that, in the unique circumstances of this case, and regardless of factors which are developed for the application of plain error post-Booker, Williams has satisfied the third and fourth prongs of plain-error review, such that we must notice the error and remand this case for resentencing at or above the statutory minimum. See United States v. Trujillo-Terrazas, 405 F.3d 814, 817-19, No. 04-2075, 2005 WL 880896, at **2-4 (10th Cir. 2005) (finding that the third and fourth prongs for establishing plain error were satisfied). While the standard for meeting the fourth prong is “demanding,” Gonzalez-Huerta, 403 F.3d at 737, we have acknowledged that, “depend[ing] on the facts of the particular case,” it can be met. Id. We conclude that this is such a case.
CONCLUSION
For the foregoing reasons, Williams’ conviction is AFFIRMED, his sentence is VACATED and REMANDED for resentencing.
MURPHY, Circuit Judge, concurring in part and dissenting in part.
I concur with the majority‘s decision to affirm Williams’ conviction. I respectfully dissent, however, from the conclusion that this case should be remanded for resentencing pursuant to United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). Williams did not raise the issue of the constitutionality of the United States Sentencing Guidelines in the district court and cannot establish that the court committed plain error. I would therefore affirm Williams’ sentence.
To establish plain error, Williams must demonstrate (1) error, (2) that is plain, and (3) that affected his substantial rights. United States v. Cotton, 535 U.S. 625, 631, 122 S. Ct. 1781, 152 L. Ed. 2d 860 (2002). If the error meets all these conditions, this court may exercise discretion to correct the error if it would seriously affect the fairness, integrity, or public reputation of judicial proceedings to let the error stand. Id. at 631-32. I agree with the majority that the first two prongs of the plain-error test are satisfied in this case. See Huerta, 403 F.3d 727, 732 (10th Cir. 2005) (en banc). Furthermore, the district court‘s statements at sentencing indicate that it would almost certainly have given Williams a lower sentence under an advisory Guidelines system. This is sufficient to satisfy the third prong of the plain-error test because it satisfies Williams’ burden of showing “a reasonable probability that, but for the error claimed, the result of the proceeding would have been different.” United States v. Dominguez Benitez, 542 U.S. 74, 124 S. Ct. 2333, 2339, 159 L. Ed. 2d 157 (2004).
I disagree with the conclusion of the majority, however, that Williams can satisfy the “fairness, integrity, or public reputation of judicial proceedings” portion of the plain-error test (the so-called “fourth prong” of the test). This court will exercise its discretion to notice plain error only when the error is “particularly egregious” and failure to notice the error would produce “a miscarriage of justice.” United States v. Gilkey, 118 F.3d 702, 704 (10th Cir. 1997). The defendant has the burden of establishing that the fourth prong is satisfied. Gonzalez-Huerta, 403 F.3d at 737. In United States v. Trujillo-Terrazas, this court recognized that most defendants in non-constitutional Booker cases will fail to meet this demanding requirement. No. 04-2075, 405 F.3d 814, 820-21 (10th Cir. 2005). The district court‘s error in such a case “is not the substantive error first recognized in Blakely and which Booker sought to eliminate—namely, that the Sixth Amendment is violated when a judge, rather than a jury, finds facts that mandatorily increase a defendant‘s sentence.” Gonzalez-Huerta, 403 F.3d at 738. Rather, the error “is only error insofar as it runs afoul of the Court‘s remedy for the unconstitutional implications of the Guidelines.” Id.
It is for this reason that Williams cannot satisfy the fourth plain-error prong. The majority correctly notes that the district court‘s use of prior convictions to enhance Williams’ sentence did not implicate the Sixth Amendment and that Williams’ sentence was therefore not unconstitutional. In fact, the sentence imposed by the judge was perfectly proper at the time of sentencing and did not become error in any sense until after the Supreme Court issued its remedial holding in Booker. Williams can therefore claim he suffered error at sentencing only because the Supreme Court chose to remedy a constitutional problem in an entirely different class of cases by making the Guidelines advisory in all cases. See id. (noting “[t]he fortuity of the Court‘s choice to excise
Although the court in Trujillo-Terrazas recognized the difficulty of satisfying the fourth plain-error prong in cases of non-constitutional Booker error, the court did conclude that the test was satisfied in that case. Id. at 821. The defendant in Trujillo-Terrazas received a sixteen-level enhancement to his base offense level based on a prior conviction for arson. Id. at 817. The arson conviction resulted from the defendant‘s act of tossing a lighted match through a car window and thereby causing $35 in damage. Id. The court concluded that the fourth plain-error prong was satisfied because the “comparatively innocuous” nature of the prior conviction present-
In contrast to the defendant in Trujillo-Terrazas, the bulk of Williams’ sentence in this case was the result of a statutory mandatory minimum. See
The district court‘s expression of dissatisfaction with the length of Williams’ sentence should not change the result in this case. The district court‘s comments do demonstrate a reasonable probability of a lower sentence under an advisory Guidelines scheme and thereby satisfy the third prong of the plain-error test. They do not, however, demonstrate that Williams’ sentence constitutes a miscarriage of justice. See Gonzalez-Huerta, 403 F.3d at 736 (noting that this court is “bound to treat the third and fourth prongs as independent inquiries“). As this court recognized in Gonzalez-Huerta, “for the last eighteen years, every federal court has given the Guidelines tacit, and in most cases explicit, approval, applying them to tens of thousands of federal sentences.” Id. at 739. The Guidelines were perfectly constitutional as applied to many of these cases, and this court “cannot possibly say that all sentences imposed before Booker threatened the fairness, integrity, or public reputation of judicial proceedings, or undermined our confidence in the outcome of the
This court has held that the fourth prong of the plain-error test is satisfied “only in those rare cases in which core notions of justice are offended.” Gonzalez-Huerta, 403 F.3d at 739. I cannot agree that core notions of justice would be offended by denying Williams a remedy adopted by the Supreme Court in response to constitutional error in an entirely different class of cases, at least when he failed to raise this argument in front of the district court. For this reason, I respectfully dissent.