United States v. Rivers , 355 F. App'x 163 ( 2009 )


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  •                                                                       FILED
    United States Court of Appeals
    Tenth Circuit
    December 7, 2009
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    Clerk of Court
    FOR THE TENTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                  No. 08-6260
    (D.C. No. 5:07-CR-00238-D-3)
    BEAU TRAVIS RIVERS,                                (W.D. Okla.)
    Defendant-Appellant.
    ORDER AND JUDGMENT *
    Before HENRY, Chief Judge, BRORBY, Senior Circuit Judge, and HARTZ,
    Circuit Judge.
    After pleading guilty to conspiracy to distribute methamphetamine, Beau
    Travis Rivers was found guilty by the district court of being a felon in possession
    of firearms. He was sentenced to forty-one months in prison, consecutive to a
    state prison term, and now appeals. Mr. Rivers contends his firearms conviction
    *
    After examining the briefs and appellate record, this panel has determined
    unanimously to grant the parties’ request for a decision on the briefs without oral
    argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
    ordered submitted without oral argument. This order and judgment is not binding
    precedent, except under the doctrines of law of the case, res judicata, and
    collateral estoppel. It may be cited, however, for its persuasive value consistent
    with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    was based on insufficient evidence, his consecutive state and federal sentences
    violate the parsimony principle, and he was unduly burdened by the successive
    state and federal prosecutions. Exercising jurisdiction under 
    28 U.S.C. § 1291
    and 
    18 U.S.C. § 3742
    , we affirm.
    I
    On January 10, 2007, law enforcement officials executed a search warrant
    for 3701 South Bryant Avenue in Oklahoma City, Oklahoma. The search
    uncovered various contraband, including two rifles found in a locked wall locker.
    An ensuing state prosecution culminated in Mr. Rivers pleading guilty to the
    Oklahoma crimes of concealing stolen property and possessing controlled
    substances. After he was sentenced on his state convictions, Mr. Rivers was
    named in a federal indictment for conspiring to distribute methamphetamine,
    
    21 U.S.C. § 846
    , and possessing firearms after a prior felony conviction,
    
    18 U.S.C. § 922
    (g)(1). Mr. Rivers pleaded guilty to the conspiracy charge and
    was convicted on the firearms count after a bench trial. At sentencing, the district
    court reviewed a revised pre-sentence investigation report, considered the parties’
    objections, and imposed a within-guidelines sentence of forty-one months in
    prison, consecutive to his previously imposed state prison term. On appeal,
    Mr. Rivers challenges the sufficiency of the evidence establishing that he
    knowingly possessed the firearms, the imposition of consecutive state and federal
    sentences, and the successive state and federal prosecutions.
    -2-
    II
    We begin with the evidence underlying Mr. Rivers’ firearms conviction.
    “We review the sufficiency of the evidence de novo, taking the evidence and all
    reasonable inferences drawn therefrom in light most favorable to the
    [government].” United States v. Poe, 
    556 F.3d 1113
    , 1124 (10th Cir.),
    cert. denied, 
    130 S. Ct. 395
    , 
    2009 WL 1604770
     (U.S. Oct. 13, 2009)
    (No. 08-10799). A conviction under 
    18 U.S.C. § 922
    (g)(1), required the
    government to prove that (1) Mr. Rivers had a prior felony conviction, (2) he
    knowingly possessed the firearms listed in the indictment, and (3) the firearms
    traveled in or affected interstate commerce. 
    Id. at 1125
    . The parties stipulated to
    the first and third elements, leaving only the element of possession at issue.
    To show that Mr. Rivers knowingly possessed the two rifles found in the
    locker, the government relied on a theory of constructive possession. In Poe, we
    explained that where a defendant did not have actual possession of the firearms or
    exclusive possession of the premises where the firearms were found, the
    government must produce some evidence to support an inference that the
    defendant knew of and had access to the firearms:
    Possession of a firearm can be either actual or constructive. An
    individual has constructive possession if he has ownership,
    dominion, or control over the firearm and the premises where the
    firearm is found. In most cases, dominion, control, and knowledge
    may be inferred where a defendant has exclusive possession of the
    premises; however, joint occupancy alone cannot sustain such an
    inference. In cases of joint occupancy, where the government seeks
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    to prove constructive possession by circumstantial evidence, it must
    present evidence to show some connection or nexus between the
    defendant and the firearm or other contraband. This requires the
    government to point to evidence plausibly supporting the inference
    that the defendant had knowledge of and access to the firearm.
    
    556 F.3d at 1125
     (citations and quotations omitted).
    Our review of the record finds adequate evidence to support the conviction.
    Mr. Rivers’ joint control over the premises was demonstrated by several motor
    vehicle titles recovered during the search that listed his address as 3701 South
    Bryant Avenue. There was also testimony that Mr. Rivers was regularly seen at
    that location, that he identified himself as the person in charge of the business
    purportedly operating there, and that he even gave police consent to search the
    building once for another suspect. Additionally, Mr. Rivers’ girlfriend, Brooke
    Jobe, testified that she and Mr. Rivers essentially lived outside an adjacent
    building and regularly used the bathroom and showers of 3701 South Bryant. She
    said Mr. Rivers’ father controlled the building but she and Mr. Rivers spent most
    of their time there and, with the exception of one office, Mr. Rivers enjoyed
    unrestricted access to the premises. This testimony was corroborated by a
    confidential informant (CI) who testified at trial that Mr. Rivers had a key and
    could do “anything he wanted to in that place.” R. Vol. 4 at 262.
    Further, there was evidence demonstrating that Mr. Rivers had knowledge
    of the firearms. Delbert Knopp, an investigator with the Oklahoma City District
    Attorney’s Office, testified that Mr. Rivers confessed to owning one rifle, which
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    had been given to him as a gift by his parents. This was confirmed by a witness
    who sold the rifle to Mr. Rivers’ mother. Although Mr. Rivers disclaimed the
    other rifle as his father’s, Darrell Edwards, an agent with the Bureau of Alcohol,
    Tobacco, and Firearms, testified that Mr. Rivers told him he “had a couple of
    guns but . . . didn’t want to sell them.” Id. at 55.
    Other evidence established Mr. Rivers’ access to the rifles. Ms. Jobe
    testified that she never saw any guns in the lockers, but she knew the lockers were
    located near the showers and that Mr. Rivers kept his belongings in those lockers.
    See United States v. Hien Van Tieu, 
    279 F.3d 917
    , 922 (10th Cir. 2002) (finding
    sufficient evidence of access where firearm was located with defendant’s
    belongings). The CI corroborated this testimony, stating that the lockers were
    near the bathroom and showers and that Mr. Rivers kept his belongings in them.
    Unlike Ms. Jobe, however, the CI had seen Mr. Rivers move firearms to and from
    the lockers just over a year before the offense, see United States v. Hishaw,
    
    235 F.3d 565
    , 572-73 (10th Cir. 2000) (recognizing that prior possession “may
    support an inference of constructive possession” but finding more than two years
    before offense too remote); he also knew that Mr. Rivers was an avid hunter, that
    he regularly carried firearms, and that the lockers were not always locked.
    Although the locker from which the rifles were recovered was locked at the time
    of the search and Mr. Rivers did not possess a key at the time of his arrest,
    Sergeant Billy Moon testified that the locker was constructed of thin metal and
    -5-
    was easily opened with a screwdriver, which was among many tools strewn
    throughout the building. See United States v. Norman, 
    388 F.3d 1337
    , 1341-42
    (10th Cir. 2004) (finding sufficient evidence of access where firearm was locked
    in an easily opened compartment and no key was found, although evidence later
    connected defendant to key); see also 
    id. at 1342
     (“a defendant may
    constructively possess a weapon under § 922(g)(1) even though that weapon is
    not readily accessible at the time of arrest”). Moreover, Sergeant Moon testified
    that the two rifles were contained in hunting-style cases, and Sergeant Craig
    Engels found hunting gear inside the lockers. This evidence, viewed in the light
    most favorable to the government, creates a reasonable inference that Mr. Rivers
    had both knowledge of and access to the firearms listed in the indictment; it
    therefore adequately supports his conviction under 
    18 U.S.C. § 922
    (g)(1).
    Next, Mr. Rivers asserts the district court violated the “parsimony
    principle” by ordering that his sentence run consecutive to his state prison term.
    The “parsimony principle” requires that a sentence be “‘sufficient, but not greater
    than necessary, to comply with the purposes’ of criminal punishment.” United
    States v. Martinez-Barragan, 
    545 F.3d 894
    , 904 (10th Cir. 2008) (quoting
    
    18 U.S.C. § 3553
    (a)). Contrary to Mr. Rivers’ assertion, the record clearly
    demonstrates that the district court adhered to the parsimony principle. The court
    fulfilled its obligations under § 3553(a), sentenced Mr. Rivers at the low end of
    the applicable guideline range, and ordered that the sentence be served
    -6-
    consecutive to any previously imposed undischarged prison term. The state and
    federal sentences resulted from distinct state and federal prosecutions for distinct
    state and federal crimes. Absent any specific argument from Mr. Rivers to
    suggest otherwise, we find the district court was properly guided by the
    parsimony principle. 1
    Finally, we reject Mr. Rivers’ contention that his successive state and
    federal prosecutions were unduly burdensome. See United States v. Barrett,
    
    496 F.3d 1079
    , 1118 (10th Cir. 2007) (recognizing the dual sovereignty doctrine
    allows successive prosecutions by separate sovereigns for crimes arising out of
    the same underlying conduct). To the extent Mr. Rivers contends the two
    prosecutions constitute harassment, he fails to show any evidence of bad faith.
    See generally Phelps v. Hamilton, 
    59 F.3d 1058
    , 1065 (10th Cir. 1995).
    The judgment of the district court is AFFIRMED.
    Entered for the Court
    Wade Brorby
    Senior Circuit Judge
    1
    Mr. Rivers suggests in his “Statement of the Issues” that his consecutive
    sentences violate the Eighth Amendment; he never develops this point, however,
    and we therefore do not consider it. See Bronson v. Swensen, 
    500 F.3d 1099
    ,
    1104 (10th Cir. 2007).
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