United States v. Stevens, Jeffrey

In the

United States Court of Appeals

For the Seventh Circuit

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No. 05-3953

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JEFFREY STEVENS,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Indiana, Terre Haute Division.

No. 05 CR 6—Larry J. McKinney, Chief Judge.

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ARGUED APRIL 6, 2006—DECIDED JULY 17, 2006

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Before RIPPLE, MANION, and KANNE, Circuit Judges.

KANNE, Circuit Judge. Jeffrey Stevens was a passenger

in a vehicle when the driver was lawfully stopped by Terre

Haute, Indiana, police for disregarding a traffic light. Upon

approaching the vehicle, two officers saw a pistol-grip

shotgun between Stevens’s legs, the grip resting in his lap.

A pistol was subsequently found directly underneath

Stevens’s seat. Stevens was ultimately convicted of two

counts of being a felon in possession of a firearm, see 18

U.S.C. § 922(g)(1), and sentenced to 240 months’ imprison-

ment. Stevens appeals, arguing there was insufficient

evidence to support his convictions. He also makes a

constitutional challenge to the enhanced penalties provision

of the Armed Career Criminal Act, 18 U.S.C. § 924(e). We

affirm.

2 No. 05-3953

I. HISTORY

At about 7 o’clock in the morning on January 14, 2005,

Ralph Downing got off work and, as was his habit, headed

to a tavern for an eye-opener. Having plenty of time to kill

until the local bank opened, he drank three pitchers of beer.

At about 9 o’clock, Downing met up with his cousin, Donnie

Heck. They then drank a fifth as well as a pint of whiskey,

and chased those with a half-gallon of the same. At some

point that morning, Stevens joined the party.

Stevens convinced his companions to drive him to his

brother Gary’s house. Stevens was looking for transporta-

tion, as his own truck was destroyed by fire the day before

in front of Gary’s house. The plan was to pick up Gary and

his two shotguns and pawn the shotguns. Once at Gary’s

house, Downing went inside. After speaking with Gary,

Downing took the shotguns. Gary testified Downing was

playfully waving around a pistol while inside the house.

Downing then returned to the pickup truck, placing one

shotgun in the bed and one in the front with his cohorts.

The shotgun in front was placed with the barrel between

Stevens’s feet and the pistol grip leaning towards Stevens.

Stevens, Downing, and Heck then drove off, having appar-

ently forgotten about Gary. When Stevens later asked

where Gary was, Downing replied, “We are going shooting.”

Unbeknownst to everyone, Gary’s house was under

surveillance by officers from the Terre Haute police depart-

ment. Detective Denzil Lewis was waiting in the shadows

to serve an arrest warrant on Stevens. Of course, he also

saw the shotguns being loaded into the truck. As the truck

drove away, Lewis followed, and saw the vehicle disregard

a traffic light. Lewis called for uniformed officers to initiate

a traffic stop.

Two marked units made the stop. Heck was driving,

Downing was sitting in the middle, and Stevens was sitting

in the passenger seat. As the officers approached the

No. 05-3953 3

vehicle, Stevens was seen to bend over for three to five

seconds. After drawing their weapons, the officers moved in

closer and saw the pistol-grip shotgun between Stevens’s

legs. The officers then arrested the three men without

incident.

A later search of the vehicle revealed a pistol underneath

Stevens’s seat as well as the other shotgun in the bed of the

truck. As an officer removed the pistol from under the seat,

Stevens stated, “You can’t charge me with that. I know the

law, and because this ain’t my vehicle, you can’t prove it is

mine.” Also, although Stevens identified himself as Steven

Winton and he produced identification in that name, the

police knew they had their man and arrested Stevens on the

outstanding warrant. Heck was arrested for drunken

driving, and Downing was arrested for public intoxication.

Not surprisingly, at Stevens’s trial, both professed drunken

amnesia for most of the happenings that day.

Stevens was tried and convicted of two counts of being

a felon in possession of a firearm, namely the shotgun found

between his legs and the pistol from under his seat. Al-

though the police also contended they recovered a bullet

from Stevens’s pocket at the police station, Stevens was

acquitted of being a felon in possession of ammunition.

However, the bullet was of the type used in the pistol.

II. ANALYSIS

A. Sufficiency of the Evidence

Stevens argues that the evidence at trial was insufficient

to sustain his convictions. We have often pointed out the

difficulty Stevens now faces in arguing that the jury lacked

sufficient evidence upon which to convict. See, e.g., United

States v. Hicks, 368 F.3d 801, 804 (7th Cir. 2004) (“The

standard of review facing the defendants on their claim that

the jury had insufficient evidence to convict is a daunting

4 No. 05-3953

one.”) (citations omitted); United States v. Gardner, 238

F.3d 878, 879 (7th Cir. 2001) (“In attacking the sufficiency

of the evidence, a defendant bears a heavy burden.”)

(citation omitted). Mounting a challenge to the sufficiency

of the evidence is so difficult because to be successful, the

defendant must show that “after viewing the evidence in

the light most favorable to the prosecution, [no] rational

trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” United States v. Curtis,

324 F.3d 501, 505 (7th Cir. 2003) (quoting Jackson v.

Virginia, 443 U.S. 307, 319 (1979)). Viewing the evidence in

the light most favorable to the prosecution means that on

review we will not—despite defendants’ frequent requests

to do so—“weigh the evidence or second-guess the jury’s

credibility determinations.” Gardner, 238 F.3d at 879. We

will certainly not overturn a conviction because we would

have voted to acquit; rather, “[w]e will overturn a conviction

based on insufficient evidence only if the record is devoid of

evidence from which a reasonable jury could find guilt

beyond a reasonable doubt.” Curtis, 324 F.3d at 505 (citing

United States v. Menting, 166 F.3d 923, 928 (7th Cir. 1999)).

As to both weapons, Stevens argues there was insufficient

evidence to establish that he possessed them. Possession

may be either actual or constructive, exclusive or joint.

United States v. Gilbert, 391 F.3d 882, 886 (7th Cir. 2004).

Actual possession exists when a person knowingly main-

tains physical control over an object. United States v. Lane,

267 F.3d 715, 717 (7th Cir. 2001). Constructive possession

exists when, although a person does not have actual

possession, he has the power and intent to exercise control

over an object either directly or through others. United

States v. Thomas, 321 F.3d 627, 636 (7th Cir. 2003).

As for the shotgun, two police officers saw the barrel was

on the floorboard between Stevens’s legs, and the pistol grip

was in his lap. Even assuming Stevens did not bring it into

the vehicle or put it between his legs, its location between

No. 05-3953 5

his legs supports the reasonable inference that he was

possessing it at the time the officers approached. Stevens’s

argument is that, pursuant to United States v. Chairez, 33

F.3d 823, 825 (7th Cir. 1994), proximity to the shotgun

alone cannot be sufficient to infer possession. But in

Chairez, the government introduced no evidence of posses-

sion other than the fact that a gun was found underneath

the defendant’s seat in a car; there was no evidence the

defendant even knew the gun was there. Here, the evidence

indicated Stevens knew the gun (which belonged to his

brother) was there, and it was actually found on his person,

making Chairez readily distinguishable. There was ample

evidence upon which the jury could find he possessed it,

either solely or in conjunction with the others in the vehicle.

As for the pistol found directly under Stevens’s seat, there

was again ample evidence upon which the jury could find he

possessed it. As the officers approached the vehicle, Stevens

bent and leaned over for several seconds, the inference

being he was placing the pistol underneath the seat. The

officer who later found the gun testified the pistol was

resting upright under the seat in a precarious position with

the barrel touching the bottom of the seat, the inference

being it had recently been placed there.1 Furthermore, the

other occupants did not come forward and claim possession,

or even knowledge of, the gun. However, Downing was seen

waving a similar-looking gun around just before he entered

the vehicle. The jury could reasonably infer he gave the gun

to Stevens, who later put it under his seat. Or, the jury

could have disregarded the testimony regarding Downing

waving a pistol around, and found Stevens was in posses-

sion of his own pistol the whole time, given that there was

testimony that a compatible bullet was found in Stevens’s

pocket. But we need not speculate which logical path the

1

The testimony indicated the gun could not remain in its position

while the vehicle was in motion.

6 No. 05-3953

jury chose to follow. In any event, there was evidence from

which the jury could infer Stevens knew the gun was under

the seat and he put it under his seat (or at least was

reaching for it), and thereby possessed it in the process. See

United States v. Starks, 309 F.3d 1017, 1021-22 (7th Cir.

2002) (“[T]he trier of fact is entitled to employ common

sense in making reasonable inferences from circumstantial

evidence.”) (citation omitted).

Stevens once again hangs his hat on Chairez (and other,

similar cases as well), arguing the mere fact a passenger

and a gun were in the same car is insufficient for the jury to

determine Stevens had knowledge and possession of the

gun. But Stevens ignores the other evidence (listed above)

that provides a reasonable linkage between Stevens and the

gun, and distinguishes Stevens’s case from Chairez. And

while Stevens argues the evidence could have supported a

different conclusion (e.g., the driver brought the gun into

the truck and was thereby the sole possessor), the jury was

entitled to “choose among various reasonable constructions

of the evidence.” See United States v. Robinson, 161 F.3d

463, 472 (7th Cir. 1998) (quoting United States v. Rose, 12

F.3d 1414, 1420 (7th Cir. 1994)).

B. Findings as to Criminal History

Stevens’s sentence of 240 months’ imprisonment exceeded

the otherwise applicable statutory maximum of 120 months.

See 18 U.S.C. § 924(a)(2). Stevens faced a higher sentence

because of the Armed Career Criminal Act, 18 U.S.C.

§ 924(e) (the “Act”). The Act provides that a defendant who

is found to be a felon in possession “and has three previous

convictions . . . for a violent felony . . . committed on

occasions different from one another . . . shall be . . .

imprisoned not less than fifteen years.” The district judge

made a factual finding that Stevens had three previous

No. 05-3953 7

qualifying felonies.2 Stevens argues his Sixth Amendment

rights were violated because the three convictions were not

presented to a grand jury for indictment or submitted to the

jury for fact-finding as an element of the offense in the

instant case.

Stevens properly concedes the law is clearly against

him. In Almendarez-Torres v. United States, 523 U.S. 224

(1998), the Supreme Court “held that the existence of a

prior conviction need not be alleged in the indictment or

proven to a jury as an element of the offense, but rather

may be determined by the judge at sentencing, even if the

prior conviction increases the statutory maximum sen-

tence that may be imposed on the defendant.” United States

v. Williams, 410 F.3d 397, 401 (7th Cir. 2005) (citing

Almendarez-Torres). As we have noted, Almendarez-Torres

remains intact, notwithstanding the subsequent decisions

in Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v.

Washington, 542 U.S. 296 (2004), and United States v.

Booker, 543 U.S. 220 (2005). See id. at 402; see also Shepard

v. United States, 544 U.S. 13, 24-26, 37-38 (2005) (acknowl-

edging the continuing validity of Almendarez-Torres)

(plurality and dissenting opinions). In light of the current

status of the law, Stevens’s claim must fail. Unless or until

the Supreme Court overrules Almendarez-Torres, “the

district court does not violate a defendant’s Sixth Amend-

ment right to a jury trial by making findings as to his

criminal record that expose him to greater criminal penal-

ties.” Williams, 410 F.3d at 402 (citations omitted).

Stevens makes clear that his real intent is to preserve his

right to seek review of this issue by the Supreme Court. We

note Stevens timely raised the issue both before us and the

district court, and his counsel admirably presented to us his

argument on the subject.

2

Stevens does not dispute he has three prior violent felony

convictions.

8 No. 05-3953

III. CONCLUSION

For the reasons set forth above, Stevens’s convictions and

sentence are AFFIRMED.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—7-17-06