United States v. Joseph Allen, Jr.

Citations: 56 F.3d 73; 1995 U.S. App. LEXIS 13614; 1995 WL 329613Docket: 94-50027

Court: Court of Appeals for the Ninth Circuit; June 1, 1995; Federal Appellate Court

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Ninth Circuit Rule 36-3 states that non-published dispositions cannot be cited as precedent except under specific doctrines. In the case of United States v. Joseph Allen, Jr., Allen appeals his conviction for using a firearm during a violent crime under 18 U.S.C. § 924(c)(1), arguing that the jury was misled by the trial court’s instruction equating 'constructive possession' with 'using or carrying' a firearm and that there was insufficient evidence for either actual or constructive possession. He also contends that his sentence was improperly enhanced by double counting related conduct.

The appellate court has jurisdiction under 28 U.S.C. § 1291 and ultimately affirms the trial court's decision. The court reviews jury instructions de novo, assessing whether they mislead or inadequately inform the jury. Under § 924(c)(1), to convict, the prosecution must establish that the firearm was related to a crime of violence and that the defendant used or carried the firearm. The court references previous cases, clarifying that possession includes the firearm being within the defendant's control, which can be inferred from its proximity during the crime or arrest.

The court emphasizes that the concept of 'availability' of the firearm is based on the specific circumstances of the case, rejecting a strict distance criterion. The trial court, in responding to the jury's questions, provided a definition of 'uses or carries a firearm,' clarifying that constructive possession involves having the power and intention to control the firearm, directly or indirectly.

The jury's general verdict regarding Allen did not differentiate between actual and constructive possession, with both theories supporting a finding of guilt. Multiple witnesses observed Allen with a black handgun, while others claimed they did not see any firearm, and no handgun was recovered at the scene. The presence of contradictory evidence does not necessitate a reversal of the verdict, as established in Jackson v. Virginia. Additionally, the girl brandished a silver handgun during the robbery, which police later found in the getaway car Allen drove. Testimony indicated that Allen and the girl worked in concert during both the robbery and escape, suggesting the silver handgun aided in the crime. Any potential error in jury instruction regarding constructive possession did not materially affect the verdict, rendering it harmless.

In terms of sentencing, the court reviews interpretations of the Sentencing Guidelines de novo and factual findings for clear error. The court found sufficient evidence to support a 2-level increase for reckless endangerment because Allen engaged in a high-speed chase, violating traffic laws and endangering pedestrians. For the amount of loss, a 2-level increase was also justified, as the total loss from the robbery and flight exceeded $50,000, comprising approximately $7,500 in cash and $45,000 in property damage. This includes damages to Allen's stolen getaway car and other vehicles involved in the incident.

Allen contends that the court improperly enhanced his sentence for both loss and reckless endangerment during flight, arguing that both enhancements stemmed from the same conduct, contrary to Application Note One of Sec. 3C1.2, which prohibits such double-counting. However, the court determined that no double-counting occurred, as the conduct leading to significant property damage (flight from a bank robbery and damage to vehicles) was distinct from the conduct that recklessly endangered life (such as driving on sidewalks). Consequently, the court's decision was affirmed. Additionally, it was noted that bank robbery qualifies as a crime of violence under section 924(c)(1). This ruling is not intended for publication or citation in the circuit, per Ninth Circuit Rule 36-3.