United States v. James A. McCarty , 213 F. App'x 859 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JANUARY 9, 2007
No. 06-12994 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00192-CR-T-24TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES A. MCCARTY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 9, 2007)
Before BIRCH, CARNES, and BARKETT, Circuit Judges.
PER CURIAM:
James A. McCarty appeals his sentence and conviction for being a felon in
possession of a firearm and ammunition, 18 U.S.C. §§ 922(g)(1), 924(e). The
district court sentenced McCarty as an armed career criminal to the statutory
mandatory minimum of 180 months’ imprisonment. The prior convictions upon
which the armed career criminal enhancement was based included a 1990
conviction for carrying a concealed firearm, in violation of Fla. Stat. § 790.01,
which the district court determined to be a violent felony.
McCarty first argues that there was insufficient evidence presented at trial to
show that he had constructively possessed the firearm and its ammunition. He
emphasizes the contradictory testimony given by police witnesses as to the location
where the handgun was found, and that the gun was found in the bedroom being
used by his aunt. McCarty contends that, while he was in the apartment with the
firearm and was aware of it, there was no evidence presented that he had any intent
to take control of the firearm and no direct evidence that linked him to the firearm.
We review de novo the sufficiency of evidence, viewing the evidence in the
light most favorable to the government, to determine whether a reasonable jury
could conclude that the defendant was guilty beyond a reasonable doubt. United
States v. Futrell, 209 F.3d 1286, 1288 (11th Cir. 2000).
In order to prove a violation of 18 U.S.C. § 922(g), the government must
show that (1) the defendant was a convicted felon; (2) the defendant knowingly
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possessed a firearm or ammunition; and (3) the firearm or ammunition was in or
affecting interstate commerce. United States v. Deleveaux, 205 F.3d 1292, 1296-
97 (11th Cir. 2000). Possession may be either actual or constructive. United
States v. Pedro, 999 F.2d 497, 500 (11th Cir. 1993). As McCarty argues on appeal
only that the evidence did not show possession, and the government acknowledges
that it did not show actual possession, we focus on whether there was sufficient
evidence for the jury to find that McCarty constructively possessed the firearm and
ammunition.
Constructive possession exists when a defendant “has knowledge of the
thing possessed coupled with the ability to maintain control over it or reduce it to
his physical possession even though he does not have actual personal dominion,”
or has “ownership, dominion, or control over the contraband itself or dominion or
control over the premises or the vehicle in which the contraband was concealed.”
United States v. Derose, 74 F.3d 1177, 1185 (11th Cir. 1996). Mere presence near
contraband, or awareness of its location, is insufficient to establish possession.
United States v. Gardiner, 955 F.2d 1492, 1495 (11th Cir. 1992).
The firearm and ammunition in question were concealed in McCarty’s
apartment, premises over which McCarty exercised dominion and control.
Although McCarty’s aunt was using the bedroom in which the gun and
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ammunition were concealed, she had only been doing so for two weeks, and
testified at trial that she did not use the closet where the gun was found and was not
aware of the gun’s presence in the room. Further, the detective in charge of the
execution of the search warrant for the apartment testified that McCarty told the
detective that McCarty was holding the gun for a friend. This was sufficient for
the jury to reasonably infer that McCarty constructively possessed the gun and
ammunition.
McCarty also argues that the district court’s modified Allen 1 charge was
unduly coercive. He acknowledges that, in general, the Allen charge contained in
this Court’s pattern instructions, and used by the district court, is generally non-
coercive, but asserts that the particular circumstances of the instant case rendered
the language coercive.
“This Court's inquiry on appeal of a district court's decision to give an Allen
charge is limited to evaluating the coercive impact of the charge. The question we
address is whether under the circumstances and language of the Allen charge the
jury was unduly coerced into reaching a verdict.” United States v. Elkins, 885 F.2d
775, 783 (11th Cir. 1989) (internal citation omitted). We reverse only if, under the
totality of the circumstances, the Allen charge was inherently coercive. United
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Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).
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States v. Chigbo, 38 F.3d 543, 545 (11th Cir. 1994).
We find that the district court’s modified Allen charge was not unduly
coercive. The district court followed this Court’s pattern jury instructions in
delivering the modified Allen charge. Most of the circumstances that McCarty
points to were weaknesses in the government’s case, and not germane to the issue
of whether the Allen charge was unduly coercive; the only relevant circumstance
was the relative speed with which the jury returned its verdict. We have previously
found an identical Allen charge to be not unduly coercive when the jury returned a
verdict more rapidly after the delivery of the charge than was the case here.
Chigbo, 38 F.3d at 544-46.
In addition, McCarty argues that carrying a concealed firearm is not a
violent felony. He concedes that this Court’s precedent forecloses this argument,
but asserts that Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271(2004), should lead us to reexamine the issue. We review de novo the
determination that a prior conviction qualifies as a “violent felony” under § 924(e).
United States v. Wilkerson, 286 F.3d 1324, 1325 (11th Cir. 2002).
Section 924(e)(1) of Title 18 provides for enhanced penalties when a
defendant convicted of violating 18 U.S.C. § 922(g) has three prior convictions for
violent felonies or serious drug offenses, which were committed on separate
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occasions from each other. Section 924(e)(2)(B) of Title 18 defines the term
“violent felony” to mean any felony that: “(i) has as an element the use, attempted
use, or threatened use of physical force against the person of another; or (ii) . . .
otherwise involves conduct that presents a serious potential risk of physical injury
to another.”
Carrying a concealed firearm, in violation of Fla.Stat. § 790.01, is a violent
felony because it poses a serious potential risk of physical injury to another.
United States v. Hall, 77 F.3d 398, 401-02 (11th Cir. 1996). The Supreme Court’s
decision in Leocal does not affect our holding in Hall because carrying a concealed
firearm is active conduct and because the statutory language examined in Leocal,
18 U.S.C. § 16, is narrower than the language of 18 U.S.C. § 924(e)(2).
McCarty further argues that his conviction under 18 U.S.C. § 922(g)(1) is a
violation of the Commerce Clause. We review for plain error a constitutional
challenge raised for the first time on appeal. United States v. Peters, 403 F.3d
1263, 1270 (11th Cir. 2005). Plain error requires error, that is plain, and that
affects substantial rights. Id. at 1271. If these factors are present, then we may
exercise our discretion to correct the error if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.As McCarty concedes, we have repeatedly held that 18 U.S.C. § 922(g) is a
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constitutional exercise of Congress’s Commerce Clause power. See, e.g., United
States v. Wright, 392 F.3d 1269, 1280 (11th Cir.), cert. denied, 544 U.S. 968(2005).
Finally, McCarty argues that his sentence violates his right to a jury trial
because the district court determined that he had three prior convictions, that those
convictions occurred on separate occasions, and that they were violent felonies.
He asserts that Almendarez-Torres2 does not control because he did not stipulate to
the convictions. We review de novo constitutional challenges to a sentence.
United States v. Cantellano, 430 F.3d 1142, 1144 (11th Cir.), cert. denied, 126 S.
Ct. 1604 (2006).
We have repeatedly held that Almendarez-Torres is still good law, and there
is no jury trial violation in a judicial determination of the nature of a prior
conviction, such as whether or not it was a violent felony, so long as the district
court does not “look beyond the statutory elements, charging documents, any plea
agreement and colloquy or jury instructions, or comparable judicial record.”
United States v. Greer, 440 F.3d 1267, 1273-76 (11th Cir. 2006).
McCarty raises no allegation that the district court went beyond the
permitted materials, that the government did not establish the fact of the requisite
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Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.E.2d 350(1998).
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prior convictions, that the convictions were not violent felonies, or that the
underlying offenses occurred on separate occasions. McCarty’s only argument is
that the district court was per se forbidden from making a determination as to the
nature of his prior convictions, an argument which we have rejected. See id.Upon careful consideration of the briefs of the parties, and thorough review
of the record, we find no reversible error. Accordingly, McCarty’s conviction and
sentence are
AFFIRMED.
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