United States v. Tucker
Appeal Court of Appeals for the Ninth Circuit, Case No. 09-10319

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Plaintiff-Appellee, D.C. No.
v. ? 2:08-cr-00025-

Appeal from the United States District Court for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Argued and Submitted

November 3, 2010?San Francisco, California
Filed April 15, 2011

Before: Ronald M. Gould and Consuelo M. Callahan,

Circuit Judges, and Morrison C. England, Jr.,
District Judge.*
Opinion by Judge Callahan

*The Honorable Morrison C. England, Jr., District Judge for the U.S. District Court for Eastern California, Sacramento, sitting by designation. [End Page 5079] 5082 UNITED STATES v. TUCKER

Daniel G. Bogden, United States Attorney, Robert L. Ellman, Appellate Chief, Adam M. Flake (argued) and Amber M. Craig, Assistant United States Attorneys, Las Vegas, Nevada, for plaintiff-appellee United States of America. Mario D. Valencia (argued), Henderson, Nevada, for defendant-appellant Lorenzo Tucker.
CALLAHAN, Circuit Judge:

Lorenzo Tucker was convicted by a jury in the district court for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He was sentenced to 96 months in prison followed by three years of supervised release, and was given a mandatory penalty assessment of $100.00. On appeal, Tucker challenges his conviction and sentence on several grounds. He asserts that (1) there was insufficient evidence to demonstrate that he ?possessed? the firearm, (2) the prosecu- tor committed misconduct during closing arguments, (3) the district court erred by refusing to give his proposed ?mere presence? jury instruction, (4) the district court incorrectly calculated the sentencing guidelines, and (5) the sentence he received was substantively unreasonable. We reject all of these arguments and affirm.

Tucker was indicted on January 30, 2008, on one count of being a Felon in Possession of a Firearm, in violation of 18 U.S.C. § 922(g)(1) and 924(a)(2). He was tried by a jury in early December of 2008 and was found guilty. On July 28, 2009, the district court sentenced him to 96 months in prison followed by three years of supervised release and a mandatory penalty assessment of $100.00.

A. Factual Background

At trial there was evidence presented that on September 2, 2007, Tucker signed a lease to rent an apartment in Las Vegas, Nevada. The lease also listed Dawn Alexander and a child as residents. On September 7, 2007, Alexander called the Nevada Division of Parole and Probation and spoke with Public Safety Officer Gerald Gutierrez. During this conversa- tion, she told Officer Gutierrez that Tucker was her boyfriend 5084 UNITED STATES v. TUCKER and that they had been living together for ?a few days? in the apartment. She said that she had recently broken up with Tucker, was moving out of the apartment, was ?en route to? Florida, and was calling because there was a shotgun in a closet in the apartment that belonged to Tucker. Alexander was crying during this phone call, and Officer Gutierrez testi- fied that she seemed ?mad,? ?scared,? and ?upset.? At the time, Tucker was a felon on probation after pleading guilty to ?Attempt Child Abuse and Neglect? under Nevada law.

Based on the information that Alexander provided, Officer Gutierrez and three other officers?Hector Aguilar, Darla Vanallen and Ryko Aragaki ? drove to the apartment com- plex and obtained a key to Tucker's apartment. The officers knocked and announced their presence; when there was no response, they entered the apartment and looked around.

The apartment had a hallway in it. On one side of the hall- way, there was a small bedroom. The small bedroom appeared to belong to a child and contained children's toys. On the other side of the hallway, there was a master bedroom. There were boxes scattered around, and Officer Guiterrez could not tell ?what stuff belonged to [Tucker] and what belonged to someone else.?

Officer Aguilar went into the master bedroom and called out ?there's a shotgun in the closet.? All of the officers then entered the master bedroom, where they found the master closet doors open, revealing a rack with men's clothes, above which was a shelf. A shotgun was on top of that shelf, next to some shoe boxes. The closet contained men's clothing and shoes, and the officers did not see any female belongings in the master bedroom. The officers also found in the bedroom two shotgun shells, two prescription medication bottles bear- ing Tucker's name, and mail addressed to him.

The officers called the Las Vegas Metropolitan Police Department's firearm unit to handle the shotgun. Officer
Gutierrez checked the gun for ammunition and placed it against the wall in the living room. He was the only one who handled the gun at this time, and he used gloves when doing so.

While the officers were waiting for someone from the Met- ropolitan firearm unit to arrive, Tucker arrived at the apart- ment, wearing a cast on one hand. The officers placed him under arrest and read him his Miranda rights; Tucker waived his right to remain silent. He told Officer Gutierrez that he had just moved in to the apartment and was living with a ?roommate.?

Officer Gutierrez also asked Tucker about the shotgun and Tucker denied that it was his. Officer Gutierrez testified that Tucker seemed to know which shotgun the officer was talking about, even before the gun had been shown to him, and that Tucker ?described it as a pop and lock or somethin? like that.? According to Officer Gutierrez's trial testimony, Tucker said that:

[a] couple days prior [he] was?he was hangin? out

with some friends. He had seen the shotgun in some-

body's trunk. A lot of people were around. And he

was handling the gun, the shotgun. And he said?I

asked him, you know, Hey, are your fingerprints

gonna be on that gun? And he said, Yeah. You

know, I was handling the?the shotgun. So my fin-

gerprints, yes, they would be on there. Tucker could not recall the names of any of the people who were present when he handled the shotgun. Officer Guiterrez testified that Tucker changed his story a ?couple times,? from the shotgun being in the trunk of one friend's car, to being used by his roommate for protection, to telling the roommate ?to get rid of it because he's not supposed to be around guns.?

While the officers and Tucker were in the apartment, Las Vegas Metropolitan Police Officer Jessica Flink arrived and 5086 UNITED STATES v. TUCKER impounded the shotgun and shells. She did not use gloves to handle the shotgun, having been told that it had already been handled by people who were not wearing gloves. She read Tucker his Miranda rights. She testified that Tucker told her he lived in the master bedroom and he did not know how the shotgun had gotten in the master closet. Tucker, however, admitted to her that he had seen the shotgun before, and after looking at it again he claimed he had seen it in the back of a friend's car. Officer Flink stated that Tucker said he had han- dled the shotgun with some friends and had ?showed ?em how to use it; put it back in the trunk and that was the last he saw of it.? She further stated that Tucker said he did not know the names of the people who were with him, and could not remember what the car looked like.

According to Officer Guiterrez, just as the officers were about to leave the apartment with Tucker, Tucker asked to have some of his pain medication, and said that the medica- tion was next to ?his television? in the master bedroom. Offi- cer Vanallen retrieved the medication from the bedroom and gave it to Tucker. Officer Guiterrez said Tucker asked to take the medication with some Gatorade that was in the refrigera- tor, and the officers gave him some, and then brought him to prison. On the way out, Tucker gave the officers an apartment key and asked them to lock the door.

B. Tucker's Federal Criminal Trial

Tucker did not testify at his federal criminal trial. However, the jury heard excerpts from a state court proceeding related to the incident in this case, in which Tucker did testify about his living arrangements and the events of September 7. Dur- ing the state proceeding, Tucker testified that the shotgun was not found in his room, that he did not know the gun was in the large room, and that he lived in the small room and Alex- ander lived in the large room. He said that Alexander was ?mad? at him because he ?didn?t want to be with her,? and that is when she called Officer Guiterrez. On cross-
examination in the state proceeding, Tucker testified that the officers never asked him which room in the apartment was his. He and the prosecutor then had the following exchange:

Q. Now, why did you have your own personal

effects in the master bedroom?

A. Well, those weren?t my effects. She had a boy-


Q. A boyfriend with the same name as you?

A. Same name as me?

Q. Well, you heard the testimony?

A. I don?t know what his name is. Tucker said that his prescription pills were in the master bed- room, where Alexander lived, and that she was a registered nurse. He said he did not have any clothes in the master bed- room, and had never been inside the master closet. He also said that he did not think he had any paperwork in that room, but that ?the movers could put anything anywhere.?

At Tucker's federal criminal trial, there was evidence pre- sented that a forensic scientist was asked to examine the shot- gun and the two shells found in the apartment for fingerprints. The scientist testified that he had not examined the shotgun because it had not been properly packaged, and therefore he would not be able to determine whether the gun had any fin- gerprints on it belonging to Tucker or anyone else. The scien- tist testified that he had examined the shells for fingerprints but did not recover any.

The evidence related to fingerprints was referenced during counsels? opening and closing statements. During his opening statement, defense counsel said ?there are no fingerprints in 5088 UNITED STATES v. TUCKER [sic] that gun? and ?the bottom line is that there's no prints in [sic] that firearm?that connect the firearm to Mr. Tucker or anybody else.? During the government's closing statement, the prosecutor stated:

[The defense said it] was going to show you that he

did not possess the shotgun was that his fingerprints

were not on the gun. Well, we now know that that

was a misleading statement. We don?t know if his

fingerprints were ever on that gun. Unfortunately,

this gun went through many hands. It was contami-

nated. And neither the detective or the forensic sci-

entist who examined it felt that it was proper to

examine an item of evidence for latent fingerprints

when it's possibly been contaminated by other

human hands. So we can?t say one way or the other

whether or not his fingerprints are on it. We don?t

know. That was a misleading statement from the

defense. Tucker's counsel responded:

What is it that we said that was misleading? His fin-

gerprints, Mr. Tucker's fingerprints, were definitely

not found on that gun. The gun?they didn?t even do

an analysis on the gun. . . . But I guess we?re being

misleading about saying that his prints are not on the

firearm. If you think we were?I was, I apologize.

. . . But I don?t think so. I don?t think I was. In addition, the prosecutor's closing argument contained com- ments about Dawn Alexander's ?new boyfriend? or ?new man.? The prosecutor stated:

[W]hy is he denying that he lived in the master bed-

room? Why is he claiming that Dawn Alexander had

a new boyfriend that she had moved in there? Well,

because he has to explain why there's male posses-

sions in the master bedroom; right? He has to come

up with some story because otherwise it's obvious

the evidence points to the fact that he was residing

in that bedroom. And why did he claim that he

doesn?t even know the new boyfriend's name? I

mean, clearly this is not a true story. He doesn?t even

know the name of this alleged person who is living

with him. The prosecutor made several more references to Dawn Alex- ander's ?new man? or ?new boyfriend? throughout her clos- ing argument.1

The prosecutor, in her closing argument, also commented on what the jury would have to find or believe, in order to convict Tucker. The prosecutor said she wanted ?to point out a couple of things that you as jurors are going to have to find to be true if you decide that the defendant is not guilty. Because for you to say that he's not guilty, these are the things that you have to believe . . . .? The prosecutor went on to list various aspects of the defense theory of the case that the jury would ?have to believe,? and stated ?[y]ou will have to believe that and that is not logical. It's not reasonable.?

Defense counsel objected, arguing that the standard of proof was being shifted to the defense. The district court overruled the objection, stating that the jury had already been correctly instructed on the burdens of proof. The prosecutor continued: 1

One of these was:

Is it believable to you as jurors that five days after moving in this

apartment with Lorenzo Tucker that Dawn Alexander moved in

a new boyfriend? Because that's what the defendant testified. The

defendant testified that Dawn had a new boyfriend and that the

new boyfriend was living there. They were all three living there

together in this two-bedroom apartment. 5090 UNITED STATES v. TUCKER

To find the defendant not guilty, remember, you

have to have some kind of reasonable doubt. And the

key word there is ?reasonable? . . . . If you are gonna

find him not guilty, you also have to believe that

[lists various points of the defense argument] . . . .

You will have to believe that. Because if you do not,

that means that that [sic] the personal property in

that master bedroom was the defendant?s. It means

it was his bedroom. It means that it was his shotgun.

It means that he is guilty. You would also have to

believe that the defendant did not lie. And do you

believe that? . . . . Again, if you?re going to have a

doubt it must be reasonable; it must be based on rea-

son. Throughout her closing argument, the prosecutor reiterated that it was the government's burden to prove all elements of the charge beyond a reasonable doubt.

At several points during the trial, the district judge instructed the jury on reasonable doubt and burdens of proof. At the beginning of the trial, the district judge stated:

The statements that the lawyers make now, as well

as the arguments they present at the end of the trial,

are not to be considered by you as evidence in this

case or as a substitute for the instructions of law

which will come only from me. Nevertheless, the

statements and arguments of counsel are intended to

help you understand the issues and the evidence as

it comes in. In addition, at the close of all the evidence, the district judge reminded the jury that a defendant is presumed innocent, and that the government has the burden of proving a defendant guilty beyond a reasonable doubt. The district judge also addressed the jury about the meaning of ?proof beyond a rea- sonable doubt.? He instructed the jury that the verdict must be
based on the evidence and the law, as articulated by the court, and reminded the jury that the arguments and statements of the attorneys are not evidence.

The district court also instructed the jury on possession of the firearm, stating:

A person has possession of something if the person

knows of its presence and has physical control of it,

or knows of its presence and has the power and

intention to control it. More than one person can be

in possession of something if each knows of its pres-

ence and has the power and intention to control it.

Possession of a firearm can be actual or constructive.

Actual possession means physical custody or actual

physical dominion. Constructive possession exists

when a person does not have actual possession but

instead knowingly has the power and . . . intention

at a given time to exercise dominion and control

over an object, either directly or through another per-

son or persons. To prove constructive possession, the

government must show a sufficient connection

between the defendant and the firearm to support an

inference that the defendant exercised dominion and

control over the item. (emphasis added).

The court declined to give Tucker's proposed jury instruc- tion on possession, which generally tracked the given instruc- tion but omitted the line about it being possible for more than one person to be in ?possession of something? and added the following language at the end:

It is not the same as merely knowing the weapon is

nearby. Therefore, mere proximity to the firearm,

mere presence, or mere association with the person

who does control the firearm is insufficient to sup- 5092 UNITED STATES v. TUCKER

port a finding of possession. A person's brief touch-

ing or handling of a firearm, without other steps to

give him physical custody of or dominion and con-

trol over the firearm, is not sufficient to constitute

actual or constructive possession.

Tucker was convicted of being a felon in possession of a firearm. At sentencing, the district judge considered, among other factors, Tucker's prior guilty plea for ?Attempt Child Abuse and Neglect? in 2005. The copy of the Guilty Plea Agreement and the Judgment of Conviction before the district court did not set forth the facts to which Tucker pleaded guilty, but stated only that Tucker pleaded guilty to ?AT- TEMPT CHILD ABUSE AND NEGLECT (Category B Fel- ony ? NRS 193.330, 200.508), as more fully alleged in the charging document attached hereto as Exhibit ?1.? ? The copy of the Guilty Plea Agreement provided to the court did not have an attachment labeled ?Exhibit 1? but was accompanied by a charging document, the ?Information,? which stated in pertinent part:


dant above named having committed the crime of


ony ? NRS 193.330, 200.508), on or about the 30th

day of January, 2005, within the County of Clark,

State of Nevada, contrary to the form, force and

effect of statutes in such cases made and provided,

and against the peace and dignity of the State of

Nevada, did wilfully, unlawfully, feloniously and

knowingly attempt to neglect, cause, or permit a

child under the age of 18 years, to-wit: [Child]2,

being approximately 6 years old, to suffer unjustifi-

able physical pain, or mental suffering, or by permit-

ting the said [Child] to be placed in a situation where

he might have suffered unjustifiable physical pain or 2

The name of this individual has been redacted.

mental suffering, by repeatedly attempting to strike

the said [Child] about the body with a belt. The district court also considered the contents of the Presen- tence Report (?PSR?) that was prepared by the government. The PSR recommended a sentence of 96 months? imprison- ment, followed by three years? supervised release. The PSR reflected that Tucker committed the ?felon in possession? offense after sustaining two felony convictions for crimes of violence?one for battery with substantial bodily harm,3 and one for Attempt Child Abuse and Neglect. The PSR included the following comment on the 2005 conviction for Attempt Child Abuse and Neglect:

According to the Nevada Parole and Probation pre-

sentence report on January 30, 2005, [Woman]4 left

her children with Lorenzo Tucker, father of one of

the children and who was the victim. When

[Woman] arrived to pick up the children, she noticed

a red mark on her son's face and asked him about it.

The child advised that Lorenzo had told him to work

on a ?Hooked on Phonics? program on the computer,

but that when he wasn?t doing it exactly the way

Lorenzo had told him to, he got a belt and beat him

with it. Photos of the child showed bruises and belt

marks to his face, throat, shoulders, arms, back,

abdomen, groin, and buttocks. When [Woman]

asked Lorenzo about the marks, he advised her that

the child got a ?beat down? because the child wasn?t

doing what he wanted him to do . . . . This is a 3

The incident underlying the felony battery conviction took place in 1999. According to the PSR, Tucker ?struck [a] female victim in the face with a drinking glass, causing substantial bodily harm.? As a result, the victim was left with a ?7cm laceration on her left cheek, a four centimeter laceration on her nose and a one centimeter laceration on her upper lip. Approximately 100 stitches were required to close the wounds.?


The name of this individual has been redacted to protect the individu- al's privacy. 5094 UNITED STATES v. TUCKER

?crime of violence? as defined in U.S.S.G.

§ 4B1.2. (emphasis in original). The PSR also reflected several other criminal convictions and arrests for Tucker, including some for battery, destruction of property, and weapons possession, whose underlying incidents took place from 1992 to 1999.

In Tucker's sentencing memorandum, he objected to the PSR's determination that his prior conviction for Attempt Child Abuse and Neglect was a crime of violence, and argued that the PSR's recommended 96-month sentence was unrea- sonable.

The district court determined that the applicable Sentencing Guidelines range was 77 to 96 months, based on a base offense level of 24, seven criminal history points, and a crimi- nal history category of IV. The court determined that Tucker?s base offense was 24 because he had committed the felon in possession offense after receiving two felony convictions of a crime of violence, including the Attempt Child Abuse and Neglect conviction. The court determined that although Attempt Child Abuse and Neglect was not categorically a crime of violence under Nevada law, Tucker's conviction constituted a crime of violence under the modified categorical approach. In response to the defense objections, the court noted that even though much of the Information was boiler- plate, its specific language??by repeatedly attempting to strike the said [Child] about the body with a belt??negated any inference that the act was a matter of negligence or was committed by someone else. Later in the sentencing proceed- ing, the district court reiterated that the evidence showed that Tucker ?actually did beat the boy with a belt, and noted that ?the reports indicate that this child was?had red marks on his head, his neck, his body from the belt.? Defense counsel objected to the reference to the PSR, stating that if it ?played any factor into the Court's mind what's stated in the PSR about the red marks about the neck and face because it's inap-
propriate under Ninth Circuit case law to consider what's in the PSR.? The district judge appears to have agreed that he had to go ?strictly on the Information,? but indicated he could make an adjustment when considering the factors set forth in 18 U.S.C. Section 3553(a).

Defense counsel also noted that the Guilty Plea Agreement stated that Tucker was pleading guilty to Attempt Child Abuse and Neglect ?as more fully alleged in the charging document attached hereto as Exhibit 1? (emphasis added), and argued that it was the prosecutor's burden to come for- ward with appropriate documentation of the conviction. The district court, nonetheless, took notice of the Information, commenting that it was ?a copy of a certified copy which bears no indication of forgery or fabrication,? mentioned Tucker by name, and listed the same charge to which Tucker had pleaded guilty (that is, ?Attempt Child Abuse and Neglect?). The district court also noted that defense counsel did not suggest that the charging document was fabricated or amended, or that some other charging document applied. Accordingly, the district court determined the Information was reliable as the applicable charging document, and that it accurately described the offense to which Tucker had pled guilty.

The district court recognized that in calculating the sentenc- ing guidelines, it was limited to admissible information including the plea agreement and the Information. However, it noted that ?at the end of the day, as you are well aware, the Court can take into consideration other matters, including whether the defendant's criminal history is underrepresented and I can take into consideration all of the defendant's his- tory, not just his conviction history.? The district court reviewed Tucker's criminal history, as reflected in the PSR, and stated that a 96 months? sentence met the purposes of sen- tencing. 5096 UNITED STATES v. TUCKER

On appeal, Tucker raises five objections to his conviction and sentence: (1) there was insufficient evidence to demon- strate that he ?possessed? the firearm, (2) the prosecutor com- mitted misconduct during closing arguments, (3) the district court erred by refusing to give his proposed ?mere presence? jury instruction, (4) the district court incorrectly calculated the sentencing guidelines, and (5) the sentence he received was substantively unreasonable.

A. Knowing Possession of the Shotgun

Where, as here, the defendant preserves his claim of insuf- ficient evidence by making a motion under Federal Rule of Criminal Procedure 29 at the close of the evidence, we review de novo the sufficiency of the evidence supporting the convic- tion. United States v. Ruiz, 462 F.3d 1082, 1087-88 (9th Cir. 2006). We ?determine whether ?after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.? ? United States v. Nevils, 598 F.3d 1158, 1163-64 (9th Cir. 2010) (en banc) (quoting Jack- son v. Virginia, 443 U.S. 307, 319 (1979) (italics omitted)).

[1] Tucker was convicted under the federal felon in posses- sion statute, which ?makes it unlawful for a person ?who has been convicted in any court of . . . a crime punishable by imprisonment for a term exceeding one year? to ?possess in or affecting commerce, any firearm or ammunition? which ?has been shipped or transported in interstate or foreign com- merce.? ? Id. (quoting 18 U.S.C. § 922(g)). To obtain a con- viction, the government was required to prove: ?(1) that the defendant was a convicted felon; (2) that the defendant was in knowing possession of a firearm [or ammunition]; and (3) that the firearm [or ammunition] was in or affecting interstate commerce.? Id. at 1164 (alterations in original) (quoting United States v. Beasley, 346 F.3d 930, 933-34 (9th Cir.
2003)). Here, the only contested element of the federal felon in possession statute was the element of ?knowing posses- sion.? We previously have stated that ?[t]o establish that a defendant acted ?knowingly,? the prosecution need not prove that the defendant knew that his possession of a firearm was unlawful; the prosecution need only prove that the defendant consciously possessed what he knew to be a firearm.? Nevils, 598 F.3d at 1163 (citing Beasley, 346 F.3d at 934).

Tucker argues that the government did not prove that he knowingly possessed the shotgun because, at most, the evi- dence showed that he was in close proximity to the shotgun on or about September 7. Tucker's theory is that Alexander was angry at him because they had broken up, and so she moved out of the apartment without anyone's knowledge, planted the shotgun, and then called Tucker's probation offi- cer to ?report? the alleged probation violation.

[2] The evidence indicates that Tucker was the sole adult occupant of the apartment on September 7, and the only per- son occupying the master bedroom and using the closet where the firearm was found. Tucker signed the apartment lease showing him as one of only two adult occupants of the apart- ment. Further, Tucker told Officer Flink that he lived in the master bedroom, the officers observed that there were only male belongings in the master bedroom, and there were pre- scription pill bottles bearing Tucker's name and mail addressed to Tucker in the master bedroom. Also, Alexander told the police that she was ?moving out? of the apartment and was ?en route to? Florida. This evidence is more than suf- ficient to support the jury's finding of possession. Moreover, Tucker's relationship to the shotgun is strengthened by Tuck- er's comments that the shotgun had previously been in the apartment and that his roommate used it for protection, as well as Officer Guiterrez's testimony that Tucker seemed to know what shotgun was at issue before the officers showed it to him. In sum, the jury could reasonably disbelieve Tucker?s 5098 UNITED STATES v. TUCKER explanations and conclude that Tucker knowingly possessed the gun.

Tucker seeks to analogize this case to several of our pre- Nevils decisions, in which we concluded that there was a lack of sufficient evidence regarding knowing possession. To the extent that these decisions survive our en banc opinion in Nevils, they are distinguishable because the evidence involved was so weak. For instance, in Ruiz, 462 F.3d at 1088, the fire- arms at issue were found in the ?loft area, in the main part of the residence.? Id. The defendants did not own or lease the premises where the contraband was found, and there was nothing else to suggest that the defendants controlled items in the area of the contraband. Id. at 1088-89. On these facts, we determined that the government could not prove knowing pos- session, and reversed the conviction. Id. at 1089; see also United States v. Cazares, 121 F.3d 1241, 1245 (9th Cir. 1997) (holding that the government failed to prove that the defen- dant possessed the guns where the defendant occupied the res- idence with several other people, and the government had not shown that the defendant knew the guns existed or that the guns were found in the bedroom occupied by the defendant); United States v. Reese, 775 F.2d 1066, 1074 (9th Cir. 1985) (holding that the evidence was insufficient to support a con- viction for unlawful possession of firearms, where the defen- dant shared the house with his wife and the firearms were found behind a painting in the living room and under a pillow in the largest bedroom, but there was no evidence that the pil- low under which the gun was found was the same pillow used by the defendant, or even that he used the bedroom in which the gun was found). By contrast, the evidence of knowing possession in this case is much stronger, and supports the jury's findings.

Tucker seeks to distinguish United States v. Young, 420 F.3d 915, 917 (9th Cir. 2005), on which the government relies. There, we upheld a jury finding that the defendant knowingly possessed a gun that was found inside his resi-
dence. In Young, the only other occupant of the residence, the defendant's girlfriend, had testified that she had moved out of the apartment and that she no longer had access to the apart- ment. Id. Tucker contrasts Young with this case, and argues that because there was no testimony that Alexander had com- pletely moved out and no longer had access to the apartment, Young is inapposite.

Tucker's interpretation of Young is overly simplified. Our decision did not depend solely on the testimony of the defen- dant's girlfriend that she had already moved out of the resi- dence by the time the gun was found. See id. We also considered letters addressed to the defendant and other per- sonal belongings to suggest that he alone occupied the resi- dence. Id. Similarly, here, Alexander's testimony is just one among many pieces of evidence that support the jury's deter- mination that Tucker possessed the shotgun. Tucker was free to argue these distinctions to the jury, but ultimately the jury may discount his assertions in favor of evidence of his control over the apartment.

B. Prosecutor's Closing Statement

When a defendant fails to object to alleged prosecutorial misconduct, the court reviews for plain error. United States v. Geston, 299 F.3d 1130, 1134 (9th Cir. 2002). Where an objec- tion is raised in the trial court and overruled, the court reviews for abuse of discretion. United States v. Tam, 240 F.3d 797, 802 (9th Cir. 2001). ?The defendant must show that it is more probable than not that the misconduct materially affected the verdict.? Id. (internal quotation omitted).

Prosecutors can argue reasonable inferences based on the record, United States v. Cabrera, 201 F.3d 1243, 1250 (9th Cir. 2000), and ?have considerable leeway to strike ?hard blows? based on the evidence and all reasonable inferences from the evidence,? United States v. Henderson, 241 F.3d 638, 652 (9th Cir. 2000) (citation omitted). ?A prosecutor 5100 UNITED STATES v. TUCKER may express doubt about the veracity of a witness's testimony [and] may even go so far as to label a defendant's testimony a fabrication.? Cabrera, 201 F.3d at 1250 (internal quotation marks omitted). ?[C]omments intended to highlight the weak- nesses of a defendant's case do not shift the burden of proof to the defendant where the prosecutor does not argue that a failure to explain them adequately requires a guilty verdict and reiterates that the burden of proof is on the government.? United States v. Vaandering, 50 F.3d 696, 701-02 (9th Cir. 1995) (citations and quotations omitted). ?The trial judge has broad discretion in controlling closing argument, and impro- prieties in counsel's arguments to the jury do not constitute reversible error unless they are so gross as probably to preju- dice the defendant, and the prejudice has not been neutralized by the trial judge.? United States v. Navarro, 608 F.3d 529, 535-36 (9th Cir. 2010) (internal quotations omitted).

1. Prosecutor's Comments About Alexander's ?New

Boyfriend? and ?New Man?

[3] Tucker argues, for the first time on appeal, that the prosecutor's comments about Alexander's ?new man? or ?new boyfriend? were not based on evidence that had been presented at trial. Tucker also takes issue with the prosecu- tor's repeated comments that Tucker lied. We determine, however, that the prosecutor's statements were reasonable inferences drawn from the evidence presented. When Tucker was cross-examined at the related state court hearing, he testi- fied that he slept in the small bedroom?the one that the offi- cers testified was filled with children's toys?and that Alexander, with whom he was living, was ?mad? at him because he ?didn?t want to be with her.? He further asserted that Alexander ?had a boyfriend.? This testimony ? con- trasted with the evidence that Tucker and Alexander had recently moved into the apartment, and that Tucker was still living in the apartment?allowed the prosecutor to infer that Tucker lied in the state court hearing when he suggested that the personal effects and clothing in the master bedroom
belonged to Alexander's ?new? boyfriend. It was not plain error for the district court to allow these comments.

2. Prosecutor's Statements Regarding Fingerprints

[4] Also for the first time on appeal, Tucker argues that the prosecutor committed misconduct when she referred to the fingerprint portions of defense counsel's opening statement as ?misleading.? The prosecutor's comment highlighted the dis- tinction between saying ?Tucker's fingerprints are not on that gun? and ?we do not know whether Tucker's fingerprints are on that gun.? This distinction was supported by the forensic expert's testimony that he did not know whose fingerprints, if any, were on the shotgun. Thus, although ?misleading? might be a slightly harsh adjective, it was not inaccurate. In contrast to the case cited by Tucker, the adjective was limited to one particular statement by defense counsel, rather than directed at defense counsel himself. See United States v. Rodrigues, 159 F.3d 439, 449 (9th Cir. 1998), opinion amended on denial of rehearing at 170 F.3d 881 (9th Cir. 1999).5 More importantly, any prejudice was dissipated by the back- and-forth exchange between the prosecutor's closing state- ment and defense counsel's closing statement. We determine that the prosecutor's ?misleading? comment, examined in context, was innocuous and the district court did not commit plain error by allowing it.

3. Prosecutor's Statements Regarding the Burden of

Tucker argues that the prosecutor intentionally shifted the burden of proof by listing various facts that the jury would 5

In Rodrigues, the prosecutor told the jury that defense counsel ?tried to deceive you from the start,? had ?tried to pretend that this case is about? something it was not about, had ?tried to introduce a number of nonissues, false issues? and had ?harped? on something that was ?flatout untrue.? Rodrigues, 159 F.3d at 449. 5102 UNITED STATES v. TUCKER have to ?find? if it were to determine that Tucker was ?not guilty.? Tucker contends that the district court made matters worse by commenting, ?I have instructed the jury on the bur- dens of proof already. However, this is argument. And I believe that it is within bounds. So you may proceed.?

[5] The record shows that the prosecutor's comments about what the jury ?must find? were made in the context of explaining why the jury should reject Tucker's version of events, and only after the prosecutor already had said that the government was required to prove beyond a reasonable doubt that Tucker was guilty of possession of a firearm. In addition, the prosecutor reiterated on several occasions that the govern- ment had the burden of proof. We further agree with the dis- trict court that the prosecutor's comments were only argument, and note that the district court correctly instructed the jury on the proper standard. While the prosecutor's phras- ing was inartful, his meaning is evident from context: to believe the defendant's account, the jury would have to believe implausible aspects of his testimony. This sort of argumentation is permissible. See Vaandering, 50 F.3d at 701-02. Accordingly, the prosecutor's comments did not con- stitute misconduct, and the district court did not err by allow- ing them. Furthermore, even if the comments were improper, the court's statements and instructions to the jury neutralized any potential prejudice. See Tam, 240 F.3d at 802 (holding that even if the prosecutor's burden-shifting statements during closing argument were improper, they were rendered harmless as a result of the district court's comments and instructions to the jury).

C. Tucker's Proposed ?Mere Presence? Jury


A party's claim that the district court's instructions did not adequately cover the theory of the defense is reviewed de novo. United States v. Howell, 231 F.3d 615, 629 (9th Cir. 2000). ?A defendant is entitled to have the judge instruct the
jury on his theory of defense, provided that it is supported by law and has some foundation in the evidence.? United States v. Mason, 902 F.2d 1434, 1438 (9th Cir. 1990). A court may reject a defendant's theory of the case instruction if the other instructions given in their entirety cover the defense theory. United States v. Kenny, 645 F.2d 1323, 1337 (9th Cir. 1981). ?So long as the instructions fairly and adequately cover the issues presented, the judge's formulation of those instructions or choice of language is a matter of discretion.? United States v. Echeverry, 759 F.2d 1451, 1455 (9th Cir. 1985). ?A district court may properly refuse to give a ?mere presence? instruc- tion when the government's case rests on ?more than just a defendant's presence, and the jury is properly instructed on all elements of the crime . . . .? ? United States v. Reed, 575 F.3d 900, 925 (9th Cir. 2009) (alteration in original) (quoting United States v. Negrete-Gonzales, 966 F.2d 1277, 1282 (9th Cir. 1992)).

[6] Tucker argues that his only link to the firearm was his presence in the apartment and his statements that he had briefly handled the firearm on an earlier date, and therefore the district court should have issued a ?mere presence? or ?mere handling? jury instruction. The record shows that the government's case was not limited to evidence regarding presence or handling. The government presented evidence that (1) Tucker was the only adult occupant of the apartment on September 7; (2) the gun was in the same bedroom that Tucker was using, near his personal effects; (3) Tucker knew what gun the officers were talking about before they showed it to him on September 7; and (4) Tucker had handled the gun in the past and thought his fingerprints would be on it. This evidence goes beyond ?mere presence,? and makes a mere presence instruction unnecessary. See United States v. McK- night, 953 F.2d 898, 903 (5th Cir. 1992) (holding that a mere presence instruction was unnecessary where defendant owned and lived in the house where contraband was found because ?[t]he dominion and control associated with owning and liv- ing in a small, open house . . . is utterly inconsistent with the 5104 UNITED STATES v. TUCKER legal conclusion that [the defendant] was ?merely present.? ? (italics in original)).

We recognize that the facts in this case fall somewhere between cases where we have required a presence-based instruction, such as Negrete-Gonzales, and those where we have not required the instruction, such as Howell. Compare Howell, 231 F.3d at 629 (holding that a mere presence instruction was not necessary where there was witness testi- mony that the defendant had placed the cocaine in the wit- ness's bag, instructed the witness to carry it, and promised the witness money for her role in its delivery, and the defendant had confessed to picking up the cocaine), with Negrete- Gonzales, 966 F.2d at 1277, 1282 (holding that defendant was entitled to a mere presence instruction where the govern- ment's case was based on evidence that he accompanied a witness to a parking lot where some drug sale negotiations took place and performed some ?countersurveillance? activ- ity, and that he was physically in the house?but not in the relevant bedroom?when the drug sale took place). On bal- ance, we determine that the facts are closer to those in How- ell, and therefore a mere presence instruction was not necessary.

[7] We conclude that the district court did not err in refus- ing to give the mere presence instruction, particularly as the jury was properly instructed on the elements of the felon in possession statute. See Negrete-Gonzales, 966 F.2d at 1282 (stating that ?[i]f the government's case is based on more than just a defendant's presence, and the jury is properly instructed on all elements of the crime, then a ?mere presence? instruc- tion is unnecessary.?).6 Pursuant to these instructions, the jury could not find Tucker guilty based on his mere presence or handling of the shotgun. Rather, the jury had to find that Tucker ?knowingly ha[d] the power and . . . intention at a 6

Tucker does not dispute that the jury was properly instructed on the elements of the crime.
given time to exercise dominion and control? over the shot- gun and that the government had shown ?a sufficient connec- tion? between Tucker and the shotgun ?to support an inference that [Tucker] exercised dominion and control? over it. We conclude that the jury instructions adequately covered Tucker's theory of defense, and therefore the district court did not commit reversible error.

D. Calculation of Sentencing Guidelines, Using Tuck-

er's Prior Conviction for Attempt Child Abuse and

Neglect as a Conviction for a ?Crime of Violence?

We ?review the district court's interpretation of the Sen- tencing Guildelines de novo, the district court's application of the Guidelines to the facts for abuse of discretion, and the dis- trict court's factual findings for clear error.? United States v. Garro, 517 F.3d 1163, 1167 (9th Cir. 2008) (italics omitted). We review de novo a district court's determination that a prior conviction qualifies as a crime of violence. United States v. Rodriguez-Guzman, 506 F.3d 738, 740 (9th Cir. 2007). We use an abuse-of-discretion standard when reviewing a district court's determination about whether a particular item is suffi- ciently reliable to be considered at sentencing. United States v. Pinto, 48 F.3d 384, 389 (9th Cir. 1995).

Here, the district court properly used the modified categori- cal approach to determine whether Tucker's prior conviction for Attempt Child Abuse and Neglect qualified as a ?crime of violence.? See United States v. Contreras-Salas, 387 F.3d 1095, 1096-97 (9th Cir. 2004). The Supreme Court reaffirmed the use of this approach in Johnson v. United States, 130 S. Ct. 1265, 1273 (2010):

When the law under which the defendant has been

convicted contains statutory phrases that cover sev-

eral different generic crimes, some of which require

violent force and some of which do not, the ?modi-

fied categorical approach? that we have approved, 5106 UNITED STATES v. TUCKER

Nijhawan v. Holder, 129 S. Ct. 2294, 2302 (2009),

permits a court to determine which statutory phrase

was the basis for the conviction by consulting the

trial record?including charging documents, [and]

plea agreements . . . . Id. When using the modified categorical approach, we look to the factual description in the charging document to determine whether the crime to which a defendant pled guilty constitutes a crime of violence. See e.g., Penuliar v. MuKasey, 528 F.3d 603, 610 (9th Cir. 2008); Contreras-Salas, 387 F.3d at 1097-98.

Tucker argues that the district court improperly relied on the PSR's description of the incident giving rise to his Attempt Child Abuse and Neglect conviction, pointing to the district judge's comments during sentencing about facts con- tained in the PSR but not in the Information. For example, the district judge stated that Tucker had beaten the child with a belt, and referenced the red marks on the child. However, the court twice clarified that it was relying only on the Informa- tion when calculating the applicable guidelines. The issue thus is whether the Information for Attempt Child Abuse and Neglect compels a finding of a crime of violence under the modified categorical approach.

[8] On first read, the language in the Information ?by per- mitting [Child] to be placed in a situation where he might have suffered unjustifiable physical pain or mental suffering? might be problematic, as it could describe a non-violent crime. However, this possibility is foreclosed by the closing, qualifying phrase in the Information??by repeatedly attempt- ing to strike the [Child] about the body with a belt??which clarifies that Tucker personally attempted to strike the child, rather than placed the child in a position where he might be struck by someone else.

Tucker's attempt to equate the Information in this case with the one in Contreras-Salas is not persuasive. In Contreras-
Salas, the Information covered two defendants, described sev- eral ways in which the offense could have been committed, and used the conjunction ?and/or.? Contreras-Salas, 387 F.3d at 1098 n.2. Here, by contrast, the description of factual vio- lence at the end of the Information makes it clear that Tucker pleaded guilty to his own volitional, violent conduct. The Information cannot be fairly read as allowing an alternative scenario whereby Tucker could have pled guilty to an offense that did not involve Tucker himself striking the child.

[9] Tucker also takes issue with the district court?s assumption that the Information provided was the same ?charging document? referenced in the plea agreement. How- ever, Tucker does not offer any factual allegations suggesting that the Information submitted in the certified record was not the same Information to which Tucker pleaded. As the district judge noted, the charge of Attempt Child Abuse and Neglect was the same in the Information as in the Guilty Plea Agree- ment, both documents were certified copies from the Clerk of Court, and there was no evidence to suggest they were fabri- cated. Tucker did not point to a different Information that applied to his guilty plea, or otherwise suggest a reason why the Information being referenced might be inapplicable or unreliable. Under these circumstances, the district court did not abuse its discretion in relying on the Information and con- cluding that Tucker pleaded guilty to the violent crime described therein. See United States v. Strickland, 601 F.3d 963, 968-69 (9th Cir. 2010) (holding that the district court properly considered a docket sheet when applying the modi- fied categorical approach because there were sufficient indicia of reliability and the defendant had not offered any reasonable ground for questioning the document).

E. Reasonableness of Sentence

We ?consider the substantive reasonableness of the sen- tence imposed under an abuse-of-discretion standard,? taking into account ?the totality of the circumstances, including the 5108 UNITED STATES v. TUCKER extent of any variance from the Guidelines range.? Gall v. United States, 552 U.S. 38, 51 (2007). ?In determining the relevant facts, sentencing judges are not restricted to informa- tion that would be admissible at trial. Any information can be considered, so long as it has ?sufficient indicia of reliability to support its probable accuracy.? ? United States v. Notran- gelo, 909 F.2d 363, 364-65 (9th Cir. 1990) (quoting U.S.S.G. § 6A1.3, comment).

[10] Tucker argues that his sentence of 96 months? incar- ceration is substantively unreasonable and greater than neces- sary, and that he is being punished for his past rather than for his conduct in this case. We disagree. The district court prop- erly considered Tucker's violent criminal history, including his conviction of Attempt Child Abuse and Neglect. The evi- dence of Tucker's good deeds and deep sense of responsibil- ity to his family, although admirable, did not, for the district court, negate his pattern of violent criminal behavior.7 On bal- ance, it is clear that the district court, having correctly calcu- lated the applicable Guidelines, reasonably based its sentence on Tucker's lengthy history of convictions for crimes involv- ing violent behavior. 7

Our conclusion is not undermined by Tucker's argument that the trial judge ?mistakenly relied on what he claimed was ?evidence? at trial that Mr. Tucker's hand was in a cast when he was arrested in this case because he ?broke [it] on [Alexander?s] face.? ? Tucker is correct that there was no evidence at trial to suggest that he broke his hand on Alexander's face. However, the district court did not rely on any such evidence in issuing Tucker's sentence. The court specifically stated that the ?actual record of convictions? was sufficient to overrule Tucker's objection to the PSR's statement that he was a danger to the community.

Moreover, the medical records Tucker presented showed that he broke his hand by striking someone else, not Alexander. This evidence is in keeping with the other indicia of Tucker's violent nature and behavior. Therefore, even if the trial judge had relied on the violent manner in which Tucker broke his hand, the judge's mistake as to the identity of the victim likely would have been harmless error because it would not have changed the significance of the incident in a way that impacted Tucker's sentence.

In conclusion, we affirm Tucker's conviction because the government established that Tucker ?knowingly possessed? the shotgun, the prosecutor's comments during closing argu- ment did not shift the burden of proof, and Tucker was not entitled to a ?mere presence? jury instruction. We affirm his sentence because the district court correctly calculated the sentencing guidelines, correctly determined that Tucker?s prior conviction for Attempt Child Abuse and Neglect was a ?crime of violence,? and imposed a reasonable sentence.



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