United States v. Keith Jenkins , 388 F. App'x 625 ( 2010 )


Menu:
  •                                                                               FILED
    NOT FOR PUBLICATION                                 JUL 19 2010
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                        No. 08-10372
    Plaintiff - Appellee,              D.C. No. 2:07-cr-00015-MCE
    v.
    MEMORANDUM*
    KEITH LAMONT JENKINS,
    Defendant - Appellant.
    Appeal from the United States District Court
    for the Eastern District of California
    Morrison C. England, District Judge, Presiding
    Argued and Submitted July 12, 2010
    San Francisco, California
    Before: FERNANDEZ, W. FLETCHER, and TALLMAN, Circuit Judges.
    Defendant-Appellant Keith Jenkins timely appeals his jury trial conviction
    for one count of Felon in Possession of a Firearm pursuant to 
    18 U.S.C. § 922
    (g)(1). Because the parties are familiar with the facts and procedural history of
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    this case, we will discuss them only as necessary to explain our decision. We have
    jurisdiction pursuant to 
    28 U.S.C. § 1291
    , and we affirm.
    Jenkins first argues that the evidence at trial was insufficient to support his
    conviction. Where, as here, the defendant moved for a judgment of acquittal
    pursuant to Federal Rule of Criminal Procedure 29, we review the sufficiency of
    the evidence de novo. United States v. Esquivel-Ortega, 
    484 F.3d 1221
    , 1224 (9th
    Cir. 2007). We must “construe the evidence in the light most favorable” to the
    government, and then determine whether “any rational trier of fact could have
    found the essential elements of the crime beyond a reasonable doubt.” United
    States v. Nevils, 
    598 F.3d 1158
    , 1161 (9th Cir. 2010) (en banc) (quoting Jackson v.
    Virginia, 
    443 U.S. 307
    , 318–19 (1979) (emphasis in original)).
    Here, the gun at issue was found on the ground directly beneath the driver’s
    side car door. Jenkins, the sole occupant of the car, was seated in the driver’s seat,
    within easy reach of the firearm if the partially closed door were opened further.
    Although the ground was wet, the gun and the cell phone charger beneath it were
    dry, suggesting that they had both recently come from the car’s interior. Upon
    awakening, Jenkins immediately reached into the area where the gun would have
    to have been in order for it to have fallen out when the car door opened. When he
    didn’t find it, Jenkins continued to reach into other areas of the car where
    2
    individuals often keep firearms, even while being repeatedly tased. Two shell
    casings were found in the car, both the same caliber as the gun found beneath the
    car door. Further, Jenkins had gunshot residue on his hands, in an amount that was
    inconsistent with mere contamination from the police. The evidence was sufficient
    to support Jenkins’s conviction. Jackson, 
    443 U.S. 318
    –19.
    Second, Jenkins contends that the district court erred in refusing to instruct
    the jury that voluntary intoxication was a defense to the crime under the particular
    facts of his case. Instructional error is reviewed de novo. United States v.
    Verduzco, 
    373 F.3d 1022
    , 1030 n.3 (9th Cir. 2004). Jenkins argued at trial that
    voluntary intoxication was relevant to knowledge; on appeal, he now argues
    instead that it was relevant to his intent to control the firearm, as required for the
    jury to find he was in constructive possession of it. Federal Rule of Criminal
    Procedure 30(d) requires a party objecting to the failure to give a jury instruction to
    “inform the court of the specific objection and the grounds for the objection.”
    Because Jenkins did not alert the district court to the grounds he now urges, we
    review for plain error. Fed. R. Crim. P. 30(d), 52(b); United States v. Williams,
    
    990 F.2d 507
    , 511 (9th Cir. 1993). Plain error is error that is plain and that affects
    substantial rights. United States v. Olano, 
    507 U.S. 725
    , 732 (1993).
    3
    We have never held that constructive possession requires specific intent, nor
    that voluntary intoxication may be a defense to a violation of 
    18 U.S.C. § 922
    (g)(1). Jenkins could only locate a single case anywhere in the country in
    which a circuit has done so. United States v. Newsom, 
    452 F.3d 593
     (6th Cir.
    2006). If the district court erred, the error was not plain. Olano, 
    507 U.S. at 732
    .
    AFFIRMED.
    4