United States v. Michael McClain , 432 F. App'x 680 ( 2011 )

FILED
NOT FOR PUBLICATION MAY 09 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-30265
Plaintiff - Appellee, D.C. No. 2:09-cr-00419-JCC-1
v.
MEMORANDUM *
MICHAEL EUGENE MCCLAIN,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Submitted May 4, 2011 **
Seattle, Washington
Before: SCHROEDER, McKEOWN, and CALLAHAN, Circuit Judges.
Michael McClain appeals his jury conviction and sentence for being a felon
in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
The case against McClain relied primarily upon the testimony of an informant,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
who was McClain’s girlfriend at the time. The informant initially alerted law
enforcement that McClain and two friends were planning to rob a house that was
known to have marijuana and cash. Based on subsequent indications from the
informant that McClain had a gun and was moving forward with the plan, law
enforcement arrested McClain for possession of the gun. On appeal, McClain
contends that the district court abused its discretion by allowing evidence of the
robbery plan at trial and by enhancing his sentence on the ground that he planned
to use the gun to commit the robbery. We have jurisdiction under 18 U.S.C.
§ 3742 and 28 U.S.C. § 1291, and we affirm.1
“[T]he district court’s admission of evidence is reviewed for an abuse of
discretion.” United States v. Hernandez, 109 F.3d 1450, 1452 (9th Cir. 1997) (per
curiam). The district court’s application of the sentencing guidelines to the facts is
reviewed for an abuse of discretion, and its findings of fact in support of the
sentence are reviewed for clear error. United States v. Garner, 490 F.3d 739, 742
(9th Cir. 2007).
1. McClain contends that the district court abused its discretion by allowing
evidence of the robbery plan at trial, over his objection, because there was
1
The parties are familiar with the facts, and we repeat them here only
as necessary to explain our decision.
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insufficient evidence linking the robbery plan to his possession of the gun. He
contends that the evidence of the robbery plan was impermissible character
evidence under Federal Rule of Evidence 404(b). To the contrary, the evidence
introduced at trial sufficiently raised the inference that McClain intended to use the
gun as part of the robbery plan. Within a few weeks of his arrest, McClain had
discussed the robbery plan with a friend, including the possibility of breaking into
the targeted house through a bottom window. The day prior to his arrest, McClain
picked up the gun from another friend who was part of the robbery plan. On the
night of the arrest, the informant warned law enforcement that McClain had the
gun with him, was agitated, and was moving forward with the plan.
While the informant’s testimony was the main evidence of the robbery plan,
her testimony was supported by independent evidence. McClain was found with
the address of the targeted house in his wallet, and the owner of the house testified
that McClain’s friend knew the house contained drugs and cash. Although
McClain has suggested reasons why the evidence might have been discredited or
interpreted differently, such arguments do not undercut the sufficiency of the
evidence. Cf. United States v. Magallon-Jimenez, 219 F.3d 1109, 1114 (9th Cir.
2000) (“It is the province of the trier of fact ‘to determine the credibility of
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witnesses, resolve evidentiary conflicts, and draw reasonable inferences from
proven facts.’”).
As the district court concluded, the evidence of the planned robbery was
admissible because it explained the context in which McClain’s possession offense
occurred. United States v. Collins, 90 F.3d 1420, 1428-29 (9th Cir. 1996). The
evidence was also admissible under Rule 404(b) because it tended to prove the
material fact that McClain knowingly possessed the gun, the possession was
contemporaneous with the robbery plan, and, if credited, the evidence sufficiently
supported the alleged robbery plan. See United States v. Ramirez-Jiminez, 967
F.2d 1321, 1326 (9th Cir. 1992). Accordingly, the district court did not abuse its
discretion in admitting evidence of the robbery on either of these bases.
2. McClain contends that the district court improperly enhanced his
sentence under U.S.S.G. § 2K2.1(b)(6) based on the alleged robbery plan because
the evidence of the plan was thin, as was the evidence connecting the gun to the
plan. As noted, the evidence was sufficient. Thus, the district court did not
commit clear error in finding that McClain intended to use the gun as part of the
robbery plan and did not abuse its discretion in enhancing his sentence
accordingly.
AFFIRMED.
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