United States v. Lee Jackson ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2279
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
L EE A NTON JACKSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 08-CR-069-C—Barbara B. Crabb, Chief Judge.
A RGUED JANUARY 22, 2010—D ECIDED M ARCH 12, 2010
Before R IPPLE and R OVNER, Circuit Judges, and ST. E VE,
District Judge.1
S T. E VE, District Judge. On March 9, 2008, police found
a gun in a computer case belonging to Defendant Lee
Anton Jackson, who had prior felony convictions. A
1
The Honorable Amy J. St. Eve, District Judge for the United
States District Court, Northern District of Illinois, sitting by
designation.
2 No. 09-2279
grand jury subsequently returned an indictment
charging Defendant Jackson with one count of being
a felon in possession of a firearm in violation of 18
U.S.C. § 922(g)(1). After Defendant entered a conditional
guilty plea, the district court sentenced Defendant to
120 months in prison. On appeal, Defendant Jackson
challenges the search of the computer case and the district
court’s denial of his requests to (1) pursue an “innocent
possession” defense and (2) apply Guidelines Section
5K2.11. We affirm the district court in all respects.
FACTUAL BACKGROUND
In early 2008, Madison, Wisconsin Police Department
officers suspected that individuals were engaging in
fencing at a strip mall located at 1900 South Park Street
in Madison. Defendant Jackson, who has prior felony
convictions, was one of the suspects. Police officers,
including David Dexheimer, had previously interacted
with Defendant and his mother, DaFondeau Eaton, and
Eaton had complained about Madison police officers to
certain city officials. Like Defendant Jackson, Eaton is a
convicted felon.
As part of the Madison Police Department’s investiga-
tion of the Park Street strip mall, in the early evening of
March 9, 2008, Officer Dexheimer and Officer Steven
Chvala were conducting surveillance of the strip mall.
Officer Dexheimer was parked behind the strip mall,
while Officer Chvala was parked nearby. At around
7:00 p.m., officers observed a car that was registered to
Defendant Jackson pull into the strip mall parking lot, and
No. 09-2279 3
Officer Dexheimer radioed to Officer Chvala that Jackson
was a suspect in the investigation.
At around 8:15 p.m., a woman drove into the parking
lot, got out of her car, and approached Defendant’s car.
After he received the license plate and a description of
the driver from Officer Chvala, Officer Dexheimer
reported that the car belonged to Eaton, who matched
the description of the driver and who did not possess
a valid driver’s license. Police observed Defendant give
Eaton a black computer case, walk with Eaton to her car,
and embrace Eaton. Eaton then drove out of the parking
lot with the case.
Officer Dexheimer followed Eaton, intending to stop
her for operating a vehicle with a revoked license and
because he wanted to see what the case contained. Officer
Dexheimer pulled Eaton over, explained to Eaton that
he stopped her because she was driving without a
license, and asked Eaton what she had done at the
strip mall. Eaton told Officer Dexheimer that Defendant
Jackson had let her borrow his computer so that she could
download certain pictures of her grandchild. Officer
Dexheimer then asked if he could look at the case, and
Eaton agreed, even though—unbeknownst to the police—
Defendant had purportedly told her not to allow anyone
to open the computer. Eaton handed Officer Dexheimer
the case without limiting her consent to search the case
or computer.2
2
The following suppression hearing testimony is especially
relevant to our analysis:
(continued...)
4 No. 09-2279
2
(...continued)
Question: Officer, did you ask, since you didn’t know what
was in the attache case beforehand, did you ask
to search a computer or did you ask to search the
bag?
Answer: I know I didn’t ask to search a computer. I can’t
give a quotation on exactly what I said to her, but
I know I did not ask to search a computer.
Question: Did she hand you the attache case as a whole or
did she take out the computer and hand it to
you?
Answer: She handed the whole bag to me with its con-
tents.
Question: What was your understanding that she was
allowing you to do when she handed you the
whole bag and contents?
Answer: That she was allowing me to check the whole
bag.
Question: Okay. Did she ever indicate that you could not
search the whole bag?
Answer: She never said, she never objected.
***
Question: And, sir, once she handed you the black case and
you got it from her, did you ask her, did you ask
her if you could look inside and she said that you
could?
Answer: Yes.
Question: Okay. And when you said inside, what were you
referring to?
(continued...)
No. 09-2279 5
Officer Dexheimer then removed the computer from
the case and opened the computer with Eaton’s
assistance, attempting to find the serial number. When
Officer Dexheimer could not find the serial number, he
unzipped an exterior pocket on the computer case
and found a handgun. Eaton also saw the gun and pro-
claimed—credibly, according to the magistrate judge
who presided over the suppression hearing—that she had
no idea that the gun was there. Officer Dexheimer
then radioed news of the gun to Officer Chvala, who—
along with several other officers—arrested Defendant.
Defendant gave a statement to officers at the time of
his arrest. Defendant Jackson subsequently was indicted
on April 28, 2008, on one count of being a felon in posses-
sion of a firearm in violation of 18 U.S.C. § 922(g)(1).
PROCEDURAL HISTORY
Defendant filed a motion (“Motion”) to suppress Defen-
dant’s post-arrest statement and all evidence that the
police had obtained as a result of searching the
computer case. After holding a suppression hearing,
the magistrate judge issued an eleven-page Report and
2
(...continued)
Answer: I was referring to the case. She told me that
she—she told me that what she received from
him was a case with a computer in it. She handed
me the whole case. Asked her if I could look
inside the case.
(Suppression Hr’g Tr. at 75, 77.)
6 No. 09-2279
Recommendation, finding that the search of the
computer case was constitutional, and recommending
that the district court deny the Motion.
After the magistrate judge issued his Report and Recom-
mendation but before the district court ruled on it, the
government informed Defendant Jackson that it
would not use Defendant’s post-arrest statement at trial.
Defendant’s counsel then informed the district court
that he was not objecting to the magistrate judge’s recom-
mendation to deny suppression of Defendant’s post-
arrest statement due to the government’s intention to
not use it. The district court adopted the Report and
Recommendation and denied the Motion in its entirety.
Defendant also filed a motion to present evidence and
to instruct the jury on his proposed defense of “innocent
possession.” The district court denied that motion “because
the court of appeals does not recognize an innocent
possession defense to a § 922(g) charge” and, even if it
did, “defendant’s proffered facts do not fit with the
court of appeals’ dicta on the limits of such a defense.”
(Nov. 12, 2008, Op. & Order at 1.)
Defendant entered a conditional guilty plea, reserving
his right to appeal the denial of his motions to suppress
and to present a defense. At sentencing, Defendant
argued for application of Guidelines Section 5K2.11
because, he argued, Congress did not seek to prohibit his
conduct in enacting Section 922. The district court
declined to apply Section 5K2.11, granted the govern-
ment’s motion brought pursuant to Section 5K1.1, and
sentenced Defendant to 120 months’ imprisonment,
No. 09-2279 7
60 months below the lower-end of the applicable advisory
Guidelines range.
STANDARD OF REVIEW
We apply a dual standard of review to a district court’s
denial of a suppression motion: the Court reviews legal
conclusions de novo and findings of fact for clear error.
United States v. Huddleston, 593 F.3d 596, 600 (7th Cir.
2010); United States v. James, 571 F.3d 707, 713 (7th Cir.
2009); United States v. Groves, 530 F.3d 506, 509 (7th Cir.
2008); United States v. Tyler, 512 F.3d 405, 409 (7th Cir.
2008) (“Historical facts are reviewed for clear error, and
‘due weight’ deference is given ‘to [the] inferences
drawn from those facts by resident judges and local
law enforcement officers.’ ” (quoting Ornelas v. United
States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663 (1996), with
brackets in original)). “ ‘Because the resolution of a
motion to suppress is a fact-specific inquiry, we give
deference to credibility determinations of the district
court, who had the opportunity to listen to testimony
and observe the witnesses at the suppression hearing.’ ”
Groves, 530 F.3d at 510 (quoting United States v. Hendrix, 509
F.3d 362, 373 (7th Cir. 2007)); see also United States v. Bernitt,
392 F.3d 873, 878 (7th Cir. 2004). “A factual finding is
clearly erroneous only if, after considering all the
evidence, we cannot avoid or ignore a ‘definite and firm
conviction that a mistake has been made.’ ” United States
v. Burnside, 588 F.3d 511, 517 (7th Cir. 2009) (quoting
United States v. Marshall, 157 F.3d 477, 480-81 (7th Cir.
1998)).
8 No. 09-2279
We review de novo a district court’s refusal to allow a
defendant’s theory of defense and the corresponding
jury instruction. See United States v. Kilgore, 591 F.3d 890,
893 (7th Cir. 2010); United States v. Canady, 578 F.3d 665,
672 (7th Cir. 2009); United States v. Prude, 489 F.3d 873, 882
(7th Cir. 2007) (citing United States v. Eberhart, 467 F.3d
659, 666 (7th Cir. 2006)).
“A defendant is entitled to a jury instruction as to his
or her particular theory of defense provided: (1) the
instruction presents an accurate statement of the law;
(2) the instruction reflects a theory that is supported
by the evidence; (3) the instruction reflects a theory
which is not already part of the charge; and (4) the
failure to include the instruction would deny the
appellant a fair trial.”
Prude, 489 F.3d at 882 (quoting Eberhart, 467 F.3d at 666); see
also Canady, 578 F.3d at 672.
Finally, “[w]e review the reasonableness of a sentence
under an abuse-of-discretion standard.” United States v.
Poetz, 582 F.3d 835, 837 (7th Cir. 2009) (citing Gall v. United
States, 552 U.S. 38, 128 S.Ct. 586, 591, 597 (2007)). “A below-
guidelines sentence, like a within-guidelines one, is
presumed reasonable against a defendant’s challenge
that it is too high.” Poetz, 582 F.3d at 837 (citing United
States v. Liddell, 543 F.3d 877, 885 (7th Cir. 2008), United
States v. Wallace, 531 F.3d 504, 507 (7th Cir. 2008) (“We
have never deemed a below-range sentence to be unrea-
sonably high.”), and United States v. George, 403 F.3d 470,
473 (7th Cir. 2005) (“It is hard to conceive of below-range
sentences that would be unreasonably high.”)). “Although
No. 09-2279 9
‘[t]he concept of departures has been rendered obsolete
in post-Booker sentencing . . . the district court may
apply those departure guidelines by way of analogy in
analyzing the section 3553(a) factors.’ ” United States v.
Schroeder, 536 F.3d 746, 756 (7th Cir. 2008) (quoting
United States v. Miranda, 505 F.3d 785, 792 (7th Cir. 2007)).
ANALYSIS
Defendant makes three arguments on appeal: (1) the
district court should have suppressed evidence obtained
from Officer Dexheimer’s search because (a) Eaton did not
have actual or apparent authority to search the
computer bag, and (b) even if she did, Officer Dexheimer
exceeded the scope of that authority, which was limited
to searching for the computer; (2) the district court
should have allowed Defendant’s proposed “innocent
possession” theory of defense; and (3) the district court
should have applied Guidelines Section 5K2.11 because
Defendant’s possession was not within the heartland of
cases that Congress sought to encompass by enacting 18
U.S.C. § 922(g).3 We address each argument in turn.
3
While Defendant argues on appeal that the district court
should have suppressed his post-arrest statement (Opening
Br. at 27-28), Defendant did not raise that argument in the
district court “because the government [had] advised him
it [did] not intend to use those statements at trial.” (Oct. 28,
2008, Order at 1.) He has accordingly waived it. See United
States v. Conner, 583 F.3d 1011, 1026-27 (7th Cir. 2009);
(continued...)
10 No. 09-2279
I. Consent to Search
A. Actual or Apparent Authority
The Fourth Amendment protects the “right of the people
to be secure in their persons, houses, papers and effects,
against unreasonable searches and seizures.” U.S. C ONST.
amend. IV. “The touchstone of the Fourth Amendment is
reasonableness.” Florida v. Jimeno, 500 U.S. 248, 250, 111
S.Ct. 1801, 1803 (1991); see also James, 571 F.3d at 713.
Accordingly, the Fourth Amendment proscribes searches
and seizures only when they are unreasonable. Jimeno,
500 U.S. at 250, 111 S.Ct. at 1803; see also James, 571 F.3d
at 713. “In the typical case, a ‘seizure of personal
property [is] per se unreasonable within the meaning of
the Fourth Amendment unless it is accomplished pursu-
3
(...continued)
United States v. Kincaid, 571 F.3d 648, 654-55 (7th Cir. 2009).
Additionally, Defendant appears to suggest that stopping
Eaton’s car was improper because “the reason for stopping
Ms. Eaton proved simply a pretext.” (Opening Br. at 25.) Even
if true, however, this would not affect the legality of stopping
Eaton’s car because “an arresting officer’s state of mind (except
for the facts that he knows) is irrelevant to the existence of
probable cause.” Devenpeck v. Alford, 543 U.S. 146, 153, 125
S.Ct. 588, 593 (2004) (citing Whren v. United States, 517 U.S. 806,
819, 116 S.Ct. 1769, 1777 (1996)); see also United States v. Loera,
565 F.3d 406, 410-11 (7th Cir. 2009) (noting that Whren
“ ‘foreclose[d] any argument that the constitutional reason-
ableness of traffic stops depends on the actual motivations of
the individual officers involved’ ” (quoting Whren, 517 U.S.
at 813, 116 S.Ct. 1769, with brackets in original)).
No. 09-2279 11
ant to a judicial warrant issued upon probable cause and
particularly describing the items to be seized.’ ” James,
571 F.3d at 713 (quoting United States v. Place, 462 U.S.
696, 701, 103 S.Ct. 2637, 2641 (1983), with brackets in
original); see also Bernitt, 392 F.3d at 876.
A well-recognized exception to the warrant require-
ment applies, however, when someone consents to a
search. See James, 571 F.3d at 713. The government has the
burden of proving consent by a preponderance of the
evidence.4 See Bumper v. North Carolina, 391 U.S. 543, 548,
88 S.Ct. 1788, 1792 (1968); James, 571 F.3d at 714.
The consent of one who possesses common authority,
or who appears to have common authority, “over prem-
ises or effects is valid as against the absent, nonconsenting
person with whom that authority is shared,’ ” Georgia
v. Randolph, 547 U.S. 103, 110, 126 S.Ct. 1515, 1521
(2006) (quoting United States v. Matlock, 415 U.S. 164, 170,
94 S.Ct. 988, 993 (1974)), because “it is no doubt reasonable
for the police to conduct a search once they have been
permitted to do so,” Jimeno, 500 U.S. at 250-51, 111 S.Ct. at
1803. See also Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93
S.Ct. 2041, 2043-44 (1973); Coolidge v. New Hampshire, 403
U.S. 443, 488, 91 S.Ct. 2022, 2049 (1971); Frazier v. Cupp, 394
U.S. 731, 740, 89 S.Ct. 1420, 1425 (1969) (“Since Rawls
was a joint user of the bag, he clearly had authority to
4
While the government also bears the burden of proving
that consent was given voluntarily, James, 571 F.3d at 714;
Bernitt, 392 F.3d at 876-77, Defendant does not argue that
Eaton consented involuntarily.
12 No. 09-2279
consent to its search”); James, 571 F.3d at 714; Groves, 530
F.3d at 509.
Someone has apparent authority if “the facts available
to the officer at the moment . . . warrant a man of reason-
able caution in the belief that the consenting party had
authority over the premises.” Illinois v. Rodriguez, 497 U.S.
177, 188, 110 S.Ct. 2793, 2801 (1990) (internal quotation
omitted); see also United States v. Brown, 328 F.3d 352, 356
(7th Cir. 2003); United States v. Jensen, 169 F.3d 1044, 1049
(7th Cir. 1999) (“The officers’ reasonable belief that
the person consenting to the search had authority to do
so is all that is necessary for a consent search to be valid.”);
United States v. Rosario, 962 F.2d 733, 738 (7th Cir. 1992)
(noting that “the Fourth Amendment makes no insistence
that the decisions of government agents always be cor-
rect. Police officers would be held to an impossibly
high standard if expected to carry out their duties infal-
libly, and the courts have long recognized that mistakes
will occur.” (internal citation omitted)). An individual’s
consent remains valid, and items that law enforcement
find as a result of the consent are admissible, until
someone withdraws the consent. Forman v. Richmond
Police Dept., 104 F.3d 950, 960 (7th Cir. 1997).
As this Court has previously observed, the third-party
consent exception to the warrant requirement is premised
on the assumption of the risk concept. See James, 571 F.3d
at 713; Groves, 530 F.3d at 509. Accordingly, common-
authority rights under the Fourth Amendment can be
broader than the rights that property law provides.
Randolph, 547 U.S. at 110, 126 S.Ct. at 1521. As the
Supreme Court has reasoned:
No. 09-2279 13
The authority which justifies the third-party consent
does not rest upon the law of property, with its atten-
dant historical and legal refinements, but rests rather
on mutual use of the property by persons generally
having joint access or control for most purposes, so
that it is reasonable to recognize that any of the co-
inhabitants has the right to permit the inspection in
his own right and that the others have assumed the
risk that one of their number might permit the com-
mon area to be searched.
Matlock, 415 U.S. at 171 n.7, 94 S.Ct. at 993 (internal cita-
tions omitted); see also Frazier, 394 U.S. at 740, 89 S.Ct. at
1425 (“Petitioner argues that Rawls only had actual
permission to use one compartment of the bag and that
he had no authority to consent to a search of the other
compartments. We will not, however, engage in
such metaphysical subtleties in judging the efficacy of
Rawls’ consent. Petitioner, in allowing Rawls to use the bag
and in leaving it in his house, must be taken to have
assumed the risk that Rawls would allow someone else to
look inside.”); United States v. Basinski, 226 F.3d 829, 834
(7th Cir. 2000) (“[W]here a defendant allows a third party
to exercise actual or apparent authority over the defen-
dant’s property, he is considered to have assumed the
risk that the third party might permit access to
others, including government agents.”).
“For purposes of searches of closed containers, mere
possession of the container by a third party does not
necessarily give rise to a reasonable belief that the third
party has authority to consent to a search of its contents.”
14 No. 09-2279
Basinski, 226 F.3d at 834. “Rather, apparent authority
turns on the government’s knowledge of the third party’s
use of, control over, and access to the container to be
searched, because these characteristics are particularly
probative of whether the individual has authority over
the property.” Id. Accordingly, we conduct a fact-specific
inquiry to decide whether someone had actual or
apparent authority to consent to a search. See Groves, 530
F.3d at 509-10; Basinski, 226 F.3d at 834-35 (observing
that “it is less reasonable for a police officer to believe
that a third party has full access to a defendant’s purse or a
briefcase than, say, an open crate”).
Because Eaton had the apparent authority to consent to
a search of the computer case, the district court properly
denied Defendant’s suppression motion. First, there is
no evidence that Officer Dexheimer was aware of any-
thing that would have alerted him that Eaton did not
have authority to consent to the search. As such, the
cases on which Defendant relies to argue lack of authority
are easily distinguishable. See Basinski, 226 F.3d at 835(before opening the case, “the agents learned that [the
defendant] implicitly, if not explicitly, instructed [the
third party] to never open the briefcase and to destroy its
contents rather than allow anyone else to peer inside”);
United States v. Jaras, 86 F.3d 383, 389 (5th Cir. 1996) (“The
government presented no evidence of joint access or
control at the suppression hearing.”); United States v.
Infante-Ruiz, 13 F.3d 498, 505 (1st Cir. 1994) (someone
consented to a general search of a car but stated, without
indicating that he had authority over it, that a briefcase
in the locked trunk belonged to the defendant); United
No. 09-2279 15
States v. Block, 590 F.2d 535, 541 (4th Cir. 1978) (the
police “specifically confronted a secured container that
required force to open and a custodian-owner of the
general premises who both asserted the absent person’s
claim of privacy over it and disclaimed for herself any
shared right to access it”). Second, Eaton told Officer
Dexheimer during the traffic stop that Defendant had
authorized her to take the computer and computer case,
and Officer Chvala had previously observed Defendant
freely provide the computer case to Eaton. Officer
Dexheimer therefore had a reasonable basis for
believing that Eaton had the authority to consent to the
search.
B. Scope of Consent
A consensual search is reasonable under the Fourth
Amendment so long as it remains within the scope of
consent. Michael C. v. Gresbach, 526 F.3d 1008, 1015 (7th
Cir. 2008). “The scope of consent is ‘limited by the
breadth of actual consent, and whether the search re-
mained within the boundaries of the consent is a ques-
tion of fact to be determined from the totality of all the
circumstances.’ ” Id. (quoting United States v. Long, 425
F.3d 482, 486 (7th Cir. 2005)). The standard for measuring
the scope of consent under the Fourth Amendment is
one of objective reasonableness and asks what the
typical reasonable person would have understood by the
exchange between the law enforcement agent and the
person who gives consent. Jimeno, 500 U.S. at 251, 111 S.Ct.
at 1803-04; see also Gresbach, 526 F.3d at 1015 (same); United
16 No. 09-2279
States v. Melgar, 227 F.3d 1038, 1041 (7th Cir. 2000) (“Gen-
erally, consent to search a space includes consent to
search containers within that space where a reasonable
officer would construe the consent to extend to the con-
tainer.”).
“The scope of a search is generally defined by its ex-
pressed object.” Jimeno, 500 U.S. at 251, 111 S.Ct. at 1804; see
also United States v. Breit, 429 F.3d 725, 730 (7th Cir. 2005).
Furthermore, a person may “delimit as he chooses the
scope of the search to which he consents. But if his consent
would reasonably be understood to extend to a particular
container, the Fourth Amendment provides no grounds
for requiring a more explicit authorization.” Jimeno, 500
U.S. at 252, 111 S.Ct. at 1804 (in upholding search of
paper bag when a suspect gave consent to search the car
in which the bag was located, noting that the suspect “did
not place any explicit limitation on the scope of the
search”); see also Bernitt, 392 F.3d at 877. Law enforcement
agents may not obtain someone’s consent to search by
misrepresenting that they intend to look only for certain
specified items and subsequently use that consent to
justify a general exploratory search. Breit, 429 F.3d at 730(quoting United States v. Dichiarinte, 445 F.2d 126, 129
(7th Cir. 1971)).
The district court properly concluded that Officer
Dexheimer did not exceed the scope of Eaton’s con-
sent. Where someone with actual or apparent au-
thority consents to a general search, law enforcement
may search anywhere within the general area where the
sought-after item could be concealed. See Groves, 530 F.3d
No. 09-2279 17
at 511 (where officers obtained third-party consent to
search a room for a gun, they could look in a night stand
drawer); United States v. Wilburn, 473 F.3d 742, 745 (7th
Cir. 2007) (because police had third-party consent to
search a room for a gun, they could properly look inside
an unlocked duffel bag located in the room); Melgar, 227
F.3d at 1042 (where a third party consented to a search
of a room, officers could search inside a purse that was
located in the room for counterfeit money); United States
v. Saadeh, 61 F.3d 510, 518 (7th Cir. 1995) (a third
party’s consent to search a room allowed the officers to
search for money in a toolbox and desk drawer within
the room). Eaton consented to the officer’s request to
search the bag, and she placed no limit on the extent
of the search. Furthermore, to the extent Defendant
argues that the objective of the search limited the scope
of Eaton’s consent, Officer Dexheimer was searching not
only for a computer, but also for evidence of the com-
puter’s serial number. That serial number, together with
a power cord and other computer equipment, could have
been located anywhere in the computer case. As such,
Officer Dexheimer did not exceed the scope of Eaton’s
consent.
II. “Innocent Possession” Defense
Defendant next argues that the district court erred in
denying his request to raise an “innocent possession”
defense. Defendant asserts that, because he was moving
to Atlanta, Georgia, which has a high crime rate, his
friend “insisted on giving him a .357 handgun.” (Opening
18 No. 09-2279
Br. at 30.) According to Defendant, although he declined
his friend’s offer, his friend “left the firearm behind
without permission.” (Id.) Defendant further contends
that, “because of the Madison Police Department’s antago-
nistic relationship with his family,” he “contacted his
mother in order to get rid of the gun.” (Id.) Because Eaton
was also a felon, however, Defendant claims that he
intended to have Eaton give the firearm to someone
who was not a felon to turn it over to law enforcement. (Id.)
Defendant’s innocent possession argument fails for
two reasons. First, we have not recognized such a defense
and decline to do so in this case. See United States v.
Kilgore, 591 F.3d 890, 894 n.1 (7th Cir. 2010); United States
v. Matthews, 520 F.3d 806, 810-11 (7th Cir. 2008) (holding
that possessing a firearm even “for a brief period of time
is sufficient to constitute possession within the meaning
of section 922”); United States v. Hendricks, 319 F.3d 993,
1007 (7th Cir. 2003). Second, Defendant’s actions would
not support an innocent possession defense because he
did not immediately seek to submit the firearm to law
enforcement. See Hendricks, 319 F.3d at 1007 (noting in
dicta the minimum requirements of such a defense).
“A defendant is entitled to a jury instruction as to his
or her particular theory of defense provided: (1) the
instruction presents an accurate statement of the
law; (2) the instruction reflects a theory that is sup-
ported by the evidence; (3) the instruction reflects a
theory which is not already part of the charge; and
(4) the failure to include the instruction would deny
the appellant a fair trial.”
No. 09-2279 19
Prude, 489 F.3d at 882 (quoting Eberhart, 467 F.3d at 666);
see also Hendricks, 319 F.3d at 1005-06; United States v.
Elder, 16 F.3d 733, 738 (7th Cir. 1994). Indeed, a district
court judge may, and often should, preclude a defendant
from introducing evidence of a proposed defense where
the defendant cannot establish all elements of that
defense. United States v. Haynes, 143 F.3d 1089, 1090 (7th
Cir. 1998) (citing Matthews v. United States, 485 U.S. 58, 63,
108 S.Ct. 883, 886-87 (1988), and United States v. Bailey,
444 U.S. 394, 415-17, 100 S.Ct. 624, 637-38 (1980)).
We have previously limited the “innocent possession”
defense in a Section 922(g)(1) case to situations in which
the defendant can establish a justification defense (i.e.,
necessity, duress or self defense). Hendricks, 319 F.3d at1007 (citing United States v. Perez, 86 F.3d 735 (7th Cir.
1996), United States v. Toney, 27 F.3d 1245 (7th Cir. 1994),
and Elder, 16 F.3d 733). In Hendricks we noted in dicta,
however, that if we were to adopt a distinct “innocent
possession” defense, two requirements would have to
be satisfied to trigger it:
“The record must reveal that (1) the firearm was
attained innocently and held with no illicit purpose
and (2) possession of the firearm was transitory—i.e.,
in light of the circumstances presented, there is a
good basis to find that the defendant took adequate
measures to rid himself of possession of the firearm
as promptly as reasonably possible. In particular, a
defendant’s actions must demonstrate both that he
had the intent to turn the weapon over to the police
and that he was pursuing such an intent with im-
mediacy and through a reasonable course of conduct.”
20 No. 09-2279
Hendricks, 319 F.3d at 1007 (quoting United States v. Mason,
233 F.3d 619, 624 (D.C. Cir. 2000)). Where a Section 922(g)
defendant does not immediately seek to turn a firearm
over to law enforcement, an innocent possession instruc-
tion is not warranted. See Hendricks, 319 F.3d at 1007-08.
Even if we were to recognize an innocent possession
defense, Defendant’s proffered facts come nowhere
close to the hypothetical scenarios to which courts
have found that an innocent possession defense might
apply. In United States v. Wilson, 922 F.2d 1336 (7th Cir.
1991), for example, we mentioned in dicta that an
innocent possession instruction might be warranted if a
felon momentarily handles a gun while taking it away
from children who were playing with it. Id. at 1338-39.
Similarly, the Second Circuit has noted that such an
instruction might be appropriate where “a felon who
notices ‘a police officer’s pistol slip to the floor while
the officer was seated at a lunch counter,’ picks up the
weapon, and immediately returns it to the officer.” United
States v. Williams, 389 F.3d 402, 405 (2d Cir. 2004) (quoting
United States v. Paul, 110 F.3d 869, 872 (2d Cir. 1997)); see
also United States v. Mason, 233 F.3d 619, 624-25 (D.C. Cir.
2001) (after observing that “[t]he innocent possession
defense to a § 922(g)(1) charge is necessarily narrow,”
finding that an innocent possession instruction should
be given with respect to a defendant who, upon finding
a weapon, drove directly to deliver it to a law enforce-
ment officer without attempting to hide it).
The facts of this case do not fall into either of these
categories. Initially, Defendant’s contention that he
No. 09-2279 21
planned to have Eaton find someone else to return the
firearm is undermined by the magistrate judge’s
finding that Eaton “was genuinely shocked [when she
saw the gun in the computer case], proclaiming that
she had had no idea that the gun had been in there.”
(Sept. 3, 2008, Report & Recommendation at 3.) Further-
more, Defendant’s proffered version of events would
not entitle him to an innocent possession defense
because he did not seek to immediately turn the gun
over to law enforcement. Instead, he purportedly asked
Eaton, herself a convicted felon, to find someone else to
turn the gun over to law enforcement. Accordingly,
the district court properly declined to give an innocent
possession jury instruction.
III. U.S.S.G. § 5K2.11
Finally, Defendant argues that his below-guidelines
sentence was unreasonable because his “possession of the
firearm in this case is not related to the harm or evil the
statute’s drafters sought to prevent,” and he was
therefore entitled to a reduced sentence under Guide-
lines Section 5K2.11. (Opening Br. at 34.) Although Defen-
dant’s Section 5K2.11-departure argument “ ‘has been
rendered obsolete in post-Booker sentencing . . . the district
court may apply [that] departure guideline[] by way of
analogy in analyzing the section 3553(a) factors.’ ”
Schroeder, 536 F.3d at 756 (quoting Miranda, 505 F.3d
at 792).
Defendant does not challenge the district court’s guide-
lines calculation or consideration of the 18 U.S.C. § 3553(a)
22 No. 09-2279
factors, only its refusal to depart from that guideline
calculation under Section 5K2.11. That provision, which
allows the sentencing judge to depart from the ap-
plicable advisory Guidelines range, provides:
Sometimes, a defendant may commit a crime in order
to avoid a perceived greater harm. In such instances,
a reduced sentence may be appropriate, provided
that the circumstances significantly diminish society’s
interest in punishing the conduct, for example, in the
case of a mercy killing. Where the interest in punish-
ment or deterrence is not reduced, a reduction in
sentence is not warranted. For example, providing
defense secrets to a hostile power should receive no
lesser punishment simply because the defendant
believed that the government’s policies were misdi-
rected.
In other instances, conduct may not cause or threaten
the harm or evil sought to be prevented by the law
proscribing the offense at issue. For example, where a
war veteran possessed a machine gun or grenade as a
trophy, or a school teacher possessed controlled
substances for display in a drug education program, a
reduced sentence might be warranted.
In assessing the “harm or evil” that Congress sought
to prevent in enacting Section 922, the Court should
initially look to the language of the statute, which
does not support Defendant’s position:
It shall be unlawful for any person . . . who has been
convicted in any court of, a crime punishable by
imprisonment for a term exceeding one year . . . to . . .
No. 09-2279 23
possess in or affecting commerce, any firearm or
ammunition; or to receive any firearm or ammuni-
tion which has been shipped or transported in inter-
state or foreign commerce.
18 U.S.C. § 922(g)(1).
Additionally, the legislative history of 18 U.S.C. § 922indicates that Congress sought to prohibit even a felon’s
brief possession of a firearm. See Matthews, 520 F.3d at 811.
“The principle purpose of the federal gun control legisla-
tion . . . was to [curb] crime by keeping ‘firearms out of
the hands of those not legally entitled to possess them
because of age, criminal background, or incompetency.’ ”
Huddleston v. United States, 415 U.S. 814, 824, 94 S.Ct.
1262, 1268 (1974) (citing legislative history). Congress
originally passed 18 U.S.C. § 922(g) “as the Federal Fire-
arms Act of 1938 ‘to prevent the crook and gangster,
racketeer and fugitive from justice from being able to
purchase or in any way come in contact with firearms
of any kind.’ ” United States v. Lane, 267 F.3d 715, 718 (7th
Cir. 2001) (quoting Barrett v. United States, 423 U.S. 212, 220,
96 S.Ct. 498, 503 (1975), and omitting quotation from
legislative history). This purpose has remained constant
throughout Section 922’s subsequent history. Lane, 267
F.3d at 718 (citing legislative history). After analyzing the
legislative history, we recently found that in enacting
Section 922, “Congress sought to divorce completely con-
victed felons from the use or possession of weapons
and from the weapons trade.” Matthews, 520 F.3d at 810(emphasis added). Accordingly, possessing a firearm
even “for a brief period of time is sufficient to constitute
24 No. 09-2279
possession within the meaning of section 922.” Id. at 811;
see also Lane, 267 F.3d at 718 (finding that “holding a
firearm establishes possession as a matter of law in the
context of a charge under 18 U.S.C. § 922(g)(1)” and that
“it is reasonable to infer that Congress intended to
prohibit felons from exercising any physical control over
a gun”).
Ultimately, “[g]uns do not belong in the hands of felons.”
United States v. Conley, 291 F.3d 464, 473 (7th Cir. 2002); see
also United States v. Williams, 425 F.3d 478, 482 (7th Cir.
2005) (in addressing the reasonableness of a sentence,
noting that the Section 922(g) defendant’s “unlawful
possession of a loaded firearm—however brief or minimal
it may have been—itself carried with it a concrete poten-
tial for further violence”). Section 922’s plain language
and legislative history demonstrate that Congress sought
to prohibit Defendant’s conduct here. Accordingly,
the district court appropriately rejected Defendant’s
Section 5K2.11 argument and imposed a sentence that
was reasonable.
CONCLUSION
For the foregoing reasons, we affirm the district court.
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