Appeal from the United States District Court for the District of Nevada D.C. No.2:08-cr-00025- KJD-LRL-1 Kent J. Dawson, District Judge, Presiding
The opinion of the court was delivered by: Opinion by Judge Callahan
November 3, 2010-San Francisco, California
Before: Ronald M. Gould and Consuelo M. Callahan, Circuit Judges, and Morrison C. England, Jr., District Judge.*fn1
Lorenzo Tucker was convicted by a jury in the district court for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He was sentenced to 96 months in prison followed by three years of supervised release, and was given a mandatory penalty assessment of $100.00. On appeal, Tucker challenges his conviction and sentence on several grounds. He asserts that (1) there was insufficient evidence to demonstrate that he "possessed" the firearm, (2) the prosecutor committed misconduct during closing arguments, (3) the district court erred by refusing to give his proposed "mere presence" jury instruction, (4) the district court incorrectly calculated the sentencing guidelines, and (5) the sentence he received was substantively unreasonable. We reject all of these arguments and affirm.
Tucker was indicted on January 30, 2008, on one count of being a Felon in Possession of a Firearm, in violation of 18 U.S.C. § 922(g)(1) and 924(a)(2). He was tried by a jury in early December of 2008 and was found guilty. On July 28, 2009, the district court sentenced him to 96 months in prison followed by three years of supervised release and a mandatory penalty assessment of $100.00.
At trial there was evidence presented that on September 2, 2007, Tucker signed a lease to rent an apartment in Las Vegas, Nevada. The lease also listed Dawn Alexander and a child as residents. On September 7, 2007, Alexander called the Nevada Division of Parole and Probation and spoke with Public Safety Officer Gerald Gutierrez. During this conversation, she told Officer Gutierrez that Tucker was her boyfriend and that they had been living together for "a few days" in the apartment. She said that she had recently broken up with Tucker, was moving out of the apartment, was "en route to" Florida, and was calling because there was a shotgun in a closet in the apartment that belonged to Tucker. Alexander was crying during this phone call, and Officer Gutierrez testified that she seemed "mad," "scared," and "upset." At the time, Tucker was a felon on probation after pleading guilty to "Attempt Child Abuse and Neglect" under Nevada law.
Based on the information that Alexander provided, Officer Gutierrez and three other officers-Hector Aguilar, Darla Vanallen and Ryko Aragaki - drove to the apartment complex and obtained a key to Tucker's apartment. The officers knocked and announced their presence; when there was no response, they entered the apartment and looked around.
The apartment had a hallway in it. On one side of the hallway, there was a small bedroom. The small bedroom appeared to belong to a child and contained children's toys. On the other side of the hallway, there was a master bedroom. There were boxes scattered around, and Officer Guiterrez could not tell "what stuff belonged to [Tucker] and what belonged to someone else."
Officer Aguilar went into the master bedroom and called out "there's a shotgun in the closet." All of the officers then entered the master bedroom, where they found the master closet doors open, revealing a rack with men's clothes, above which was a shelf. A shotgun was on top of that shelf, next to some shoe boxes. The closet contained men's clothing and shoes, and the officers did not see any female belongings in the master bedroom. The officers also found in the bedroom two shotgun shells, two prescription medication bottles bearing Tucker's name, and mail addressed to him.
The officers called the Las Vegas Metropolitan Police Department's firearm unit to handle the shotgun. Officer Gutierrez checked the gun for ammunition and placed it against the wall in the living room. He was the only one who handled the gun at this time, and he used gloves when doing so.
While the officers were waiting for someone from the Metropolitan firearm unit to arrive, Tucker arrived at the apartment, wearing a cast on one hand. The officers placed him under arrest and read him his Miranda rights; Tucker waived his right to remain silent. He told Officer Gutierrez that he had just moved in to the apartment and was living with a "roommate."
Officer Gutierrez also asked Tucker about the shotgun and Tucker denied that it was his. Officer Gutierrez testified that Tucker seemed to know which shotgun the officer was talking about, even before the gun had been shown to him, and that Tucker "described it as a pop and lock or somethin' like that." According to Officer Gutierrez's trial testimony, Tucker said that:
[a] couple days prior [he] was-he was hangin' out with some friends. He had seen the shotgun in some-body's trunk. A lot of people were around. And he was handling the gun, the shotgun. And he said-I asked him, you know, Hey, are your fingerprints gonna be on that gun? And he said, Yeah. You know, I was handling the-the shotgun. So my fingerprints, yes, they would be on there.
Tucker could not recall the names of any of the people who were present when he handled the shotgun. Officer Guiterrez testified that Tucker changed his story a "couple times," from the shotgun being in the trunk of one friend's car, to being used by his roommate for protection, to telling the roommate "to get rid of it because he's not supposed to be around guns."
While the officers and Tucker were in the apartment, Las Vegas Metropolitan Police Officer Jessica Flink arrived and impounded the shotgun and shells. She did not use gloves to handle the shotgun, having been told that it had already been handled by people who were not wearing gloves. She read Tucker his Miranda rights. She testified that Tucker told her he lived in the master bedroom and he did not know how the shotgun had gotten in the master closet. Tucker, however, admitted to her that he had seen the shotgun before, and after looking at it again he claimed he had seen it in the back of a friend's car. Officer Flink stated that Tucker said he had handled the shotgun with some friends and had "showed 'em how to use it; put it back in the trunk and that was the last he saw of it." She further stated that Tucker said he did not know the names of the people who were with him, and could not remember what the car looked like.
According to Officer Guiterrez, just as the officers were about to leave the apartment with Tucker, Tucker asked to have some of his pain medication, and said that the medication was next to "his television" in the master bedroom. Officer Vanallen retrieved the medication from the bedroom and gave it to Tucker. Officer Guiterrez said Tucker asked to take the medication with some Gatorade that was in the refrigerator, and the officers gave him some, and then brought him to prison. On the way out, Tucker gave the officers an apartment key and asked them to lock the door.
B. Tucker's Federal Criminal Trial
Tucker did not testify at his federal criminal trial. However, the jury heard excerpts from a state court proceeding related to the incident in this case, in which Tucker did testify about his living arrangements and the events of September 7. During the state proceeding, Tucker testified that the shotgun was not found in his room, that he did not know the gun was in the large room, and that he lived in the small room and Alexander lived in the large room. He said that Alexander was "mad" at him because he "didn't want to be with her," and that is when she called Officer Guiterrez. On cross-examination in the state proceeding, Tucker testified that the officers never asked him which room in the apartment was his. He and the prosecutor then had the following exchange:
Q. Now, why did you have your own personal effects in the master bedroom?
A. Well, those weren't my effects. She had a boyfriend.
Q. A boyfriend with the same name as you?
Q. Well, you heard the testimony-
A. I don't know what his ...