United States v. Nevils

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v. No. 06-50485

EARL ANTHONY NEVILS, a/k/a EARL

NEVILS, JR., EARL BOWMAN, EARL  D.C. No.

CR-03-01269-CBM

JOHNSON, ALFRED JOHNSON,

OPINION

“BABYCRIPTOE,” “LILAMIGO” and

“BABY FROG,”

Defendant-Appellant.



Appeal from the United States District Court

for the Central District of California

Consuelo B. Marshall, District Judge, Presiding

Argued and Submitted

September 22, 2009—San Francisco, California

Filed March 19, 2010

Before: Alex Kozinski, Chief Judge, Pamela Ann Rymer,

Sidney R. Thomas, Barry G. Silverman, Raymond C. Fisher,

Ronald M. Gould, Richard C. Tallman,

Johnnie B. Rawlinson, Richard R. Clifton,

Milan D. Smith, Jr. and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta

4575

4578 UNITED STATES v. NEVILS

COUNSEL

Elizabeth A. Newman, Deputy Federal Public Defender, for

the appellant.

Sandy N. Leal, Assistant United States Attorney, and Daniel

B. Levin, Assistant United States Attorney, for the appellee.

UNITED STATES v. NEVILS 4579

OPINION

IKUTA, Circuit Judge:

Earl Anthony Nevils appeals from his conviction for being

a felon in possession of firearms and ammunition in violation

of 18 U.S.C. § 922(g)(1).1 Nevils argues that the evidence

presented at trial is constitutionally insufficient to support his

conviction because it is susceptible to an innocent explana-

tion. Contrary to Nevils’s argument that we should construe

the evidence in the light most favorable to innocence, we are

obliged to construe the evidence “in the light most favorable

to the prosecution,” and only then determine whether “any

rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.” Jackson v. Virginia,

443 U.S. 307, 319 (1979). Here, viewing the evidence as

required by Jackson, we hold there was sufficient evidence to

permit a rational juror to conclude beyond a reasonable doubt

that Nevils knowingly possessed firearms and ammunition.

We therefore affirm.

I

Late in the evening of April 14, 2003, three officers of the

Los Angeles Police Department’s Special Enforcement Unit

were on patrol in a high-crime area of south Los Angeles.

Driving past an apartment building known for criminal activ-

ity associated with the “Rollin’ 30s” gang, the officers

encountered three men and two women standing on the side-

walk. Officer Jason De La Cova asked the group about its

1

18 U.S.C. § 922(g) provides, in relevant part:

It shall be unlawful for any person—(1) who has been convicted

in any court of, a crime punishable by imprisonment for a term

exceeding one year . . . to ship or transport in interstate or foreign

commerce, or possess in or affecting commerce, any firearm or

ammunition; or to receive any firearm or ammunition which has

been shipped or transported in interstate or foreign commerce.

4580 UNITED STATES v. NEVILS

activities that evening. One of the men answered that they

were doing “[n]othing.” Upon being asked whether any of the

group lived in the apartment building, the same man

responded “It’s okay. We’re out of here right now.” He

abruptly turned and ran “at a high rate of speed” down the

center path of the apartment complex. Officer De La Cova

and his partner Officer Jason Clauss followed the man up the

apartment walkway and observed him turn left in the walk-

way to grasp the door-handle of Apartment 6. Upon seeing

the officers in his wake, the man quickly let go of the door,

crossed the walkway to Apartment 2, and entered. He then

closed and locked the door.

After trying and failing to convince the man to open the

door to Apartment 2, the officers turned their attention to

Apartment 6. First, they asked two women standing in the

walkway who lived there; the women indicated that no one

did. Approaching the door to Apartment 6, Officer De La

Cova noted that the black security gate was ajar by several

inches, and that the main wooden door was open and leaning

off its hinges against the living-room wall. Looking through

the security door, Officer De La Cova was able to see into the

well-lit apartment. There, lying upon the couch, was Nevils,

apparently asleep, with his right leg dangling off of the couch.

A “machine gun” sitting on Nevils’s lap was clearly in view

from De La Cova’s position at the front door. A handgun

leaning against Nevils’s right leg was also visible.

Officer De La Cova gave a hand-sign to his partner and the

two jointly entered the apartment, weapons drawn. No one

else was there. As the officers approached Nevils, he woke

up, and as Officer Clauss testified, “his eyes . . . fully opened

and for a brief second he appeared like he was going to, you

know, grab towards his lap and then he stopped and put his

hands up.” On command of the officers, Nevils got on the

ground, leaving the firearms lying on the couch. Officer De

La Cova retrieved the firearms, discovering that both were

loaded. A coffee table, laden with marijuana packaged for

UNITED STATES v. NEVILS 4581

sale, ecstasy, over $500 in cash, and a cell-phone, was situ-

ated one foot away from the couch where Nevils had been

sleeping.

Other officers arrived on the scene shortly thereafter,

including Sergeant Jean Coleman, who asked Nevils whether

he was injured or sick. Nevils indicated he was not, and

instead cursed absent cohorts, saying that he couldn’t believe

that “[they] left me sleeping and didn’t wake me.” The loaded

firearms found in Nevils’s possession later were identified as

a Tec-9 semi-automatic weapon, loaded and chambered with

14 live rounds of ammunition, and a .40-caliber handgun, also

loaded and chambered with 13 live rounds of ammunition.

Initially booked on charges of possession of marijuana for

sale, Nevils was charged on a single count of being a felon in

possession of firearms and ammunition in violation of 18

U.S.C. § 922(g)(1). At trial, the defense stipulated to Nevils’s

prior felony conviction, and did not attempt to rebut testimony

that the weapons and ammunition had traveled in interstate

commerce. Rather, the defense pursued a theory that Nevils

could not have known of the loaded firearms because he was

drunk and asleep.

To support this theory, Nevils offered the testimony of Jon-

netta Campbell. Campbell testified that in the early afternoon

of April 14, she and Nevils attended a baby shower for a

friend. After the baby shower ended, she, Nevils, and several

other people lingered to drink alcohol (in Nevils’s case, “a

lot” of Remy Martin). Sometime after dark, though Campbell

could not remember exactly when, Nevils got “[r]eal drunk,”

to the point that “[h]e couldn’t stand.” Campbell and two

female friends carried Nevils into Apartment 6 and laid him

on his side on the couch. Campbell testified that she saw no

firearms or drugs in the apartment when she left Nevils there,

and that she and her friends closed the front door to Apart-

ment 6 when they departed. On cross examination, Campbell

clarified that at no time did she see Nevils “passed out,” that

4582 UNITED STATES v. NEVILS

she continued drinking after leaving Nevils in Apartment 6,

and that she did not have any further interaction with him that

evening.

During the jury charge, the jury was permitted to hold and

examine the firearms that had been found on or near Nevils’s

body in Apartment 6, as well as the ammunition with which

they were loaded. The jurors examined that evidence again

during their deliberations. After three days of deliberations,

the jury returned a unanimous verdict, finding Nevils guilty

of the single count of possession with which he was charged.

The district court sentenced Nevils to 77 months’ imprison-

ment, at the lowest limit of the applicable range specified by

the Sentencing Guidelines. During the sentencing hearing, the

district court discussed the need to avoid unwarranted sen-

tence disparities among defendants. The court noted that there

was possibly a “difference in the sentence the defendant

might have received in state court for the same offense and

the sentence in federal court,” but stated that “[w]e’re not per-

mitted to consider the state court [sentence] when we impose

our [sentence].” Defense counsel did not raise any objection

to this ruling.

Nevils filed a timely notice of appeal, raising two issues.

First, Nevils argues that the government failed to produce evi-

dence sufficient to prove every element of his crime beyond

a reasonable doubt. Second, Nevils contends that the district

court erred in refusing to consider analogous state sentences

in its calculations, and therefore the sentence imposed by the

district court was unreasonable. We address these contentions

in turn.

II

[1] The federal felon-in-possession statute makes it unlaw-

ful for a person “who has been convicted in any court of, a

crime punishable by imprisonment for a term exceeding one

UNITED STATES v. NEVILS 4583

year” to “possess in or affecting commerce, any firearm or

ammunition” which “has been shipped or transported in inter-

state or foreign commerce.” 18 U.S.C. § 922(g). Conviction

under this provision requires that the government prove three

elements: “(1) that the defendant was a convicted felon; (2)

that the defendant was in knowing possession of a firearm [or

ammunition]; and (3) that the firearm [or ammunition] was in

or affecting interstate commerce.” United States v. Beasley,

346 F.3d 930, 933-34 (9th Cir. 2003). “To establish that a

defendant acted ‘knowingly,’ the prosecution need not prove

that the defendant knew that his possession of a firearm was

unlawful; the prosecution need only prove that the defendant

consciously possessed what he knew to be a firearm.” Id. at

934. For purposes of this appeal, Nevils contests only this ele-

ment of knowledge. According to Nevils, the government

failed to prove beyond a reasonable doubt that he knowingly

possessed the firearms and ammunition at issue because there

was insufficient evidence to establish that he was aware of the

loaded firearms found on or near his body in the apartment.

A

[2] Our review of the constitutional sufficiency of evi-

dence to support a criminal conviction is governed by Jackson

v. Virginia, 443 U.S. at 319, which requires a court of appeals

to determine whether “after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond

a reasonable doubt.” Id.; see also McDaniel v. Brown, 130 S.

Ct. 665, 673 (2010) (reaffirming this standard). Jackson thus

establishes a two-step inquiry for considering a challenge to

a conviction based on sufficiency of the evidence. First, a

reviewing court must consider the evidence presented at trial

in the light most favorable to the prosecution. Jackson, 443

U.S. at 319. This means that a court of appeals may not usurp

the role of the finder of fact by considering how it would have

resolved the conflicts, made the inferences, or considered the

evidence at trial. See id. at 318-19. Rather, when “faced with

4584 UNITED STATES v. NEVILS

a record of historical facts that supports conflicting infer-

ences” a reviewing court “must presume—even if it does not

affirmatively appear in the record—that the trier of fact

resolved any such conflicts in favor of the prosecution, and

must defer to that resolution.” Id. at 326; see also McDaniel,

130 S. Ct. at 673-74.

[3] Second, after viewing the evidence in the light most

favorable to the prosecution, the reviewing court must deter-

mine whether this evidence, so viewed, is adequate to allow

“any rational trier of fact [to find] the essential elements of

the crime beyond a reasonable doubt.” Jackson, 443 U.S. at

319. This second step protects against rare occasions in which

“a properly instructed jury may . . . convict even when it can

be said that no rational trier of fact could find guilt beyond a

reasonable doubt[.]” Id. at 317. More than a “mere modicum”

of evidence is required to support a verdict. Id. at 320 (reject-

ing the rule that a conviction be affirmed if “some evidence”

in the record supports the jury’s finding of guilt). At this sec-

ond step, however, a reviewing court may not “ask itself

whether it believes that the evidence at the trial established

guilt beyond a reasonable doubt,” id. at 318-19 (quoting

Woodby v. INS, 385 U.S. 276, 282 (1966)) (internal quotation

marks omitted), only whether “any” rational trier of fact could

have made that finding, id. at 319.

Because the government does not need to rebut all reason-

able interpretations of the evidence that would establish the

defendant’s innocence, or “rule out every hypothesis except

that of guilt beyond a reasonable doubt” at the first step of

Jackson, id. at 326, a reviewing court may not ask whether a

finder of fact could have construed the evidence produced at

trial to support acquittal.2 Only after we have construed all the

2

Indeed, at step one of Jackson, the Supreme Court has given little

weight to a defendant’s innocent explanation of the evidence. In Wright

v. West, 505 U.S. 277 (1992), for example, all the justices agreed “there

was more than enough evidence” to support the defendant’s conviction for

UNITED STATES v. NEVILS 4585

evidence at trial in favor of the prosecution do we take the

second step, and determine whether the evidence at trial,

including any evidence of innocence, could allow any rational

trier of fact to find the essential elements of the crime beyond

a reasonable doubt. Id. at 319. At this second step, we must

reverse the verdict if the evidence of innocence, or lack of

evidence of guilt, is such that all rational fact finders would

have to conclude that the evidence of guilt fails to establish

every element of the crime beyond a reasonable doubt. See id.

Over the years, we have struggled with the correct

approach to construing evidence produced at trial, in accor-

dance with the first step of Jackson. Almost three decades

before Jackson, we reached a conclusion directly contrary to

its holding, namely that “evidence is insufficient to sustain [a]

verdict . . . if we can conclude as a matter of law that reason-

able minds, as triers of the fact, must be in agreement that rea-

sonable hypotheses other than guilt could be drawn from the

evidence.” Stoppelli v. United States, 183 F.2d 391, 393 (9th

Cir. 1950). Under this rule, if a reasonable finder of fact could

construe the evidence at trial in a manner that supported the

defendant’s innocence, the verdict could not stand. Id. Fol-

lowing Stoppelli, we frequently invoked this test, holding that

convictions must be reversed unless “reasonable minds could

find the evidence excludes every hypothesis but that of guilt.”

United States v. Nelson, 419 F.2d 1237, 1243 (9th Cir. 1969)

(internal quotation marks omitted) (citing cases).

grand larceny under Jackson, although the only evidence produced by the

state was that stolen items had been discovered in the defendant’s home,

and the defendant testified that he had bought the goods from various flea

markets in which he regularly bought and sold merchandise. Id. at 295

(Thomas, J., joined by Rehnquist, C.J. and Scalia, J.); see also id. at 297

(White, J., concurring in the judgment); id. (O’Connor, J., joined by

Blackmun and Stevens, JJ., concurring in the judgment); id. at 310 (Ken-

nedy, J., concurring in the judgment); id. (Souter, J., concurring in the

judgment). The jury was entitled to infer under state law that the person

who possessed stolen goods was the thief, and “to disbelieve [the defen-

dant’s] uncorroborated and confused testimony” to the contrary. Id. at 296.

4586 UNITED STATES v. NEVILS

In United States v. Nelson, however, we abandoned this

approach, on the ground that it had been rejected by the

Supreme Court in Holland v. United States as “confusing and

incorrect.” 419 F.2d at 1243-44 (quoting Holland, 348 U.S.

121, 140 (1954)). Nelson noted that the approach adopted in

Stoppelli had led “to serious departures from the proper appel-

late role in evaluating the sufficiency of evidence,” because

reviewing courts were invited to “divide the evidence into

separate lines of proof, and analyze and test each line of proof

independently of others.” Id. at 1245. As a result, “[t]he suffi-

ciency of the evidence is often tested against theoretical and

speculative possibilities not fairly raised by the record, and

inferences are sometimes considered which, though entirely

possible or even probable, are drawn from evidence which the

jury may have disbelieved.” Id.

Instead, Nelson held that a court reviewing the sufficiency

of evidence must determine whether “there is ‘relevant evi-

dence from which the jury could properly find or infer,

beyond a reasonable doubt, that the accused is guilty.’ ” Id. at

1242 (quoting Am. Tobacco Co. v. United States, 328 U.S.

781, 787 n.4 (1946)). The reviewing court must “inquire

whether the evidence, considered most favorably to the gov-

ernment, was such as to permit a rational conclusion by the

jury that the accused was guilty beyond a reasonable doubt.”

Id. As we subsequently explained, “[i]n determining the suffi-

ciency of circumstantial evidence, the question is not whether

the evidence excludes every hypothesis except that of guilt

but rather whether the trier of fact could reasonably arrive at

its conclusion.” United States v. Eaglin, 571 F.2d 1069, 1076

(1977) (internal quotation marks omitted). Although Nelson

predated Jackson by a decade, the test we adopted in Nelson

was consistent with that ultimately mandated by Jackson.

[4] Notwithstanding the Supreme Court’s decision and our

own precedent, we subsequently strayed from our obligation

under step one of the Jackson standard to construe the evi-

dence at trial in the light most favorable to the prosecution,

UNITED STATES v. NEVILS 4587

returning instead to an approach similar to that of Stoppelli.

This process began in United States v. Bishop, 959 F.2d 820

(9th Cir. 1992), which indicated that a reviewing court must

consider whether the evidence at trial was susceptible to an

innocent interpretation, and then determine whether a reason-

able juror “could choose the hypothesis that supports a find-

ing of guilt rather than hypotheses that are consistent with

innocence.” Id. at 830. Applying this approach, Bishop deter-

mined that the defendant’s behavior was “perfectly consistent

with that of an innocent person,” and therefore the govern-

ment failed to prove its case. Id. at 831 (quoting United States

v. Penagos, 823 F.2d 346, 349 (9th Cir.1987)). By construing

the evidence in favor of an innocent explanation, and deter-

mining if such an explanation was equally or more reasonable

than the government’s incriminating explanation, Bishop mis-

applied the first step of Jackson, which limits the reviewing

court to construing the evidence in the light most favorable to

the prosecution. See Jackson, 443 U.S. at 319, 326. Only at

the second step of Jackson does the reviewing court deter-

mine whether any rational juror could hold that the evidence,

construed in favor of the prosecution, establishes guilt beyond

a reasonable doubt. Id. at 319.

Some subsequent cases have followed Bishop, and simi-

larly considered whether evidence at trial could be construed

in a manner that supports innocence, contrary to the first step

of Jackson. In United States v. Vasquez-Chan, 978 F.2d 546,

548-49 (9th Cir. 1992), for instance, we considered the suffi-

ciency of the evidence to support the convictions of two

defendants found guilty of conspiracy to sell cocaine. The evi-

dence introduced at trial established that one defendant knew

that the cocaine was stored in her bedroom and that her fin-

gerprints were found on six of the cocaine storage containers,

including one print inside of a container. Id. at 549. We deter-

mined that the evidence could be construed in a manner sup-

porting innocence, explaining that “it is reasonable to assume

that [the defendant] touched [the containers] at some time,

including on one occasion the inside lid of a cannister, as she

4588 UNITED STATES v. NEVILS

passed in and out of the room or made space in the small bed-

room so that she and her infant child could have a comfort-

able place in which to sleep.” Id. at 551. Again, this approach

misapplied the first step of Jackson, which limits us to con-

struing the evidence in a manner favoring the prosecution.

Based on this error, we then concluded at the second step of

Jackson that the government had failed to “establish [the

defendant’s] guilt beyond a reasonable doubt” because the

“evidence presented at [defendant’s] trial did not establish any

reason to believe that an innocent explanation of that evidence

was any less likely than the incriminating explanation

advanced by the government.” Id. at 551. We have made the

same misstep in construing the evidence produced at trial in

cases following Vasquez-Chan. See, e.g., United States v.

Wiseman, 25 F.3d 862, 866-67 (9th Cir. 1994) (holding that

the evidence was insufficient to convict the defendant, in part

because “the only evidence submitted by the government is

wholly susceptible to innocent explanations”); United States

v. Corral-Gastelum, 240 F.3d 1181, 1184-85 (9th Cir. 2001)

(reversing drug-trafficking conviction based in part on the

reviewing court’s exculpatory construction of evidence). As

Nelson warned, considering whether the evidence produced at

trial may be innocently explained has led reviewing courts to

“divide the evidence into separate lines of proof, and analyze

and test each line of proof independently of others,” to test the

sufficiency of the evidence “against theoretical and specula-

tive possibilities not fairly raised by the record,” and to rely

on hypotheses “drawn from evidence which the jury may

have disbelieved.” Nelson, 419 F.2d at 1245; see, e.g.,

Vasquez-Chan, 978 F.2d at 551-52.

The Supreme Court’s recent decision in McDaniel v.

Brown, reversing a decision by this court, highlights our error.

130 S. Ct. at 673-74. In McDaniel, the defendant had been

convicted of sexual assault of a child. Id. at 666. On appeal,

we concluded that the evidence was insufficient to establish

defendant’s guilt beyond a reasonable doubt. See Brown v.

Farwell, 525 F.3d 787, 797-98 (9th Cir. 2008). In so holding,

UNITED STATES v. NEVILS 4589

we discounted the government’s argument that the defendant

had washed his clothes when he returned home in order to

destroy physical evidence of the rape, stating that while the

government’s theory was “plausibly consistent with him

being the assailant,” the defendant had provided an alternative

reason for washing his clothes. Id. at 797. The Supreme Court

rejected this analysis, holding that had we reviewed the evi-

dence as required by Jackson, we would have concluded that

“the evidence supports an inference that [defendant] washed

the clothes immediately to clean blood from them,” rather

than adopting an exculpatory explanation. McDaniel, 130 S.

Ct. at 674. The Court concluded that “the Court of Appeals’

analysis failed to preserve ‘the factfinder’s role as weigher of

the evidence’ by reviewing ‘all of the evidence . . . in the light

most favorable to the prosecution.’ ” Id. (alteration in origi-

nal) (emphasis omitted) (quoting Jackson, 443 U.S. at 319).

[5] Accordingly, to the extent Bishop and its progeny con-

strued evidence in a manner favoring innocence rather than in

a manner favoring the prosecution, and required reversal

when such a construction was not “any less likely than the

incriminating explanation advanced by the government,”

Vasquez-Chan, 978 F.2d at 551, they strayed from the test

established in Jackson, and made “plausible” exculpatory

constructions disapproved of in McDaniel v. Brown. We now

overrule them.

In reaching this conclusion, however, we acknowledge our

obligation under Jackson to identify those rare occasions in

which “a properly instructed jury may . . . convict even when

it can be said that no rational trier of fact could find guilt

beyond a reasonable doubt[.]” Jackson, 443 U.S. at 317.

Although Jackson requires the reviewing court initially to

construe all evidence in the favor of the government, the evi-

dence so construed may still be so supportive of innocence

that no rational juror could conclude that the government

proved its case beyond a reasonable doubt. Moreover, the evi-

dence construed in favor of the government may be insuffi-

4590 UNITED STATES v. NEVILS

cient to establish every element of the crime. We have held,

for example, that evidence is insufficient to support a verdict

where mere speculation, rather than reasonable inference,

supports the government’s case, see Juan H. v. Allen, 408

F.3d 1262, 1277-79 (9th Cir. 2005), or where there is a “total

failure of proof of [a] requisite” element, Briceno v. Scribner,

555 F.3d 1069, 1079 (9th Cir. 2009). Further, we have long

held that evidence of mere proximity to contraband, or associ-

ation with a person having possession of such contraband, is

insufficient standing alone to support a finding of possession

of that contraband. See United States v. Chambers, 918 F.2d

1455, 1459 (9th Cir. 1990); see also Arellanes v. United

States, 302 F.2d 603, 606 (9th Cir. 1962).

We consider Nevils’s challenge to the sufficiency of the

evidence in his case pursuant to these principles.

B

Nevils claims the evidence produced at trial was insuffi-

cient to prove his guilt beyond a reasonable doubt for two rea-

sons. First, Nevils asserts that the government failed to prove

every element of its case because Nevils presented an inno-

cent explanation for his actions at trial: namely, that he was

merely present in Apartment 6, rather than knowingly in pos-

session of any of the contraband found on and around him.

Second, Nevils argues that the evidence was insufficient to

sustain a finding that he had knowledge of the loaded firearms

in his possession, because uncontroverted evidence indicated

he was incapacitated by alcohol when he entered the apart-

ment and asleep at the time officers found him.

1

We first turn to Nevils’s argument that the evidence pro-

duced at trial was not sufficient to eliminate the possibility

that he was merely present in the apartment. Under our case

law, as noted above, if evidence produced at trial established

UNITED STATES v. NEVILS 4591

only Nevils’s presence in the vicinity of contraband, it would

be insufficient standing alone to support a finding of knowing

possession of firearms and ammunition beyond a reasonable

doubt. See Chambers, 918 F.2d at 1459; see also United

States v. Sanchez-Mata, 925 F.2d 1166, 1169 (9th Cir. 1991)

(holding that knowledge that drugs are present in a car is not

enough to prove involvement in a drug conspiracy); United

States v. Behanna, 814 F.2d 1318, 1320 (9th Cir. 1987)

(“When the government charges an individual with posses-

sion of a weapon in a vehicle, we have squarely held that the

government must do more than show that the defendant was

present as a passenger in the vehicle and within reach of the

weapon.”).

[6] On the other hand, evidence that shows more than mere

presence is sufficient to support a finding of knowing posses-

sion of contraband. For example, in United States v. Gutier-

rez, 995 F.2d 169 (9th Cir. 1993), we affirmed a defendant’s

conviction for firearm possession under 18 U.S.C. § 922(g)(1)

where a firearm was found in the seat below each passenger

(including defendant) and officers testified that they saw the

defendant make “suspicious or furtive movements inside the

car.” 995 F.2d at 172 (internal quotation marks omitted).

After noting that “[i]t would tax credulity to assert that

[defendant] was sitting on top of a pistol without knowing of

its presence, or that he just happened to be a passenger in an

automobile equipped with a pistol for each passenger, and that

he knew nothing of that odd coincidence,” and considering

the officers’ testimony that they witnessed defendant’s “fur-

tive movements,” we held that the “jury had ample evidence

to support its finding” that the defendant had possession of the

weapons. Id. at 171-72; see also United States v. Carrasco,

257 F.3d 1045, 1048-50 (9th Cir. 2001) (holding that the jury

did not plainly err in finding that defendant knowingly pos-

sessed shotgun shells left in plain view in the car he owned,

along with other items such as drugs, money, and baggies that

were known to be used “for the packaging and sale of

4592 UNITED STATES v. NEVILS

drugs”); United States v. Terry, 911 F.2d 272, 279-80 (9th

Cir. 1990).

Here, Nevils argues that the evidence introduced at trial

shows only his presence in the apartment, and is consistent

with the innocent explanation that third parties entered Apart-

ment 6 while Nevils slept, and then left their loaded firearms

and drugs behind when they became aware of police in the

vicinity. Nevils notes that the government did not introduce

any evidence of fingerprints tying him to the loaded firearms,

drugs, or any other item in Apartment 6. Nevils also points to

the officers’ testimony that the apartment was unsecured and

located in a high-crime neighborhood, where drugs and fire-

arms were presumably abundant. Nevils contends that

because the government did not rebut his innocent explana-

tion, and because this theory is as likely to be true as the the-

ory that Nevils was aware of the loaded firearms found on his

body, the government failed to make its case.

[7] We begin by viewing the evidence produced at trial in

the light most favorable to the prosecution, as required by the

first step of Jackson. Viewing the evidence in this light, it is

sufficient to support a reasonable conclusion that Nevils knew

he possessed firearms and ammunition. Nevils’s actual pos-

session of two loaded weapons, each lying on or against

Nevils’s body, would permit a reasonable juror to infer that

Nevils knew of those weapons. See United States v. Her-

nandez, 476 F.3d 791, 797 (9th Cir. 2007) (indicating that evi-

dence that defendant was found with a package of

methamphetamine on his person was “overwhelming evi-

dence” that the defendant “was guilty of at least possession of

methamphetamine”). Further, Nevils initially reached toward

his lap when the officers first awakened him, raising the infer-

ence that he knew a loaded weapon was within reach. Nevils

later cursed his cohorts who had left him in this compromis-

ing situation without warning him that the police were in the

vicinity. Finally, and contrary to Nevils’s representations,

there was evidence tying Nevils to the particular apartment

UNITED STATES v. NEVILS 4593

where he was found: Nevils had been arrested on narcotics

and firearms charges in the same apartment just three weeks

earlier. This evidence, construed in favor of the government,

raises the reasonable inference that Nevils was stationed in

Apartment 6 and armed with two loaded firearms in order to

protect the drugs and cash in the apartment when he fell

asleep on his watch. At this step of Jackson, we do not con-

strue the evidence in the light most favorable to innocence,

and therefore do not consider Nevils’s argument that there is

an equally plausible innocent explanation for the loaded fire-

arms lying on and near his body. See McDaniel, 130 S. Ct. at

673-74.

[8] Moving to the second step of Jackson, we must con-

sider whether the evidence, as construed above, is sufficient

to allow any rational juror to conclude that the government

has carried its burden of proof. As discussed above, the evi-

dence shows more than Nevils’s mere presence in the apart-

ment, and reasonably supports the conclusion that Nevils was

aware of the loaded firearms on or near his body. Nevils has

not pointed to evidence so supportive of innocence that no

rational trier of fact could find guilt beyond a reasonable

doubt. Jackson, 443 U.S. at 317. We conclude that a rational

juror could find beyond a reasonable doubt that Nevils had

knowledge of the weapons in his possession. See id. at 319;

see also Gutierrez, 995 F.2d at 171-72.

2

We next turn to Nevils’s argument that a reasonable juror

could not find that he knowingly possessed the loaded fire-

arms in the apartment because evidence introduced at trial

established that there were no firearms in the apartment when

he arrived there, and Nevils was sleeping from the time he

entered the apartment until the time officers arrived. Specifi-

cally, Nevils contends that the government did not rebut the

testimony of Jonnetta Campbell, who indicated that Nevils

4594 UNITED STATES v. NEVILS

was incapacitated on the afternoon of the 14th when she left

him in Apartment 6, which at the time was empty.

[9] Even assuming that Campbell’s testimony established

that Nevils was sleeping when she left him in the apartment

(although on cross-examination, she stated that Nevils never

“passed out”), at the first step of Jackson we must recognize

the jury’s entitlement to disbelieve her. See Jackson, 443 U.S.

at 326. The issue of Campbell’s credibility was argued to the

jury by both defense and government counsel. Defense coun-

sel emphasized that Campbell was “not sophisticated,” and

simply came to court because “she had a story to tell.” In

response, the government argued at length that Campbell was

not credible: she had been unable to answer specific questions

on cross-examination regarding the time of the baby shower

and the people in attendance, and had admitted that she drank

heavily both before and after her interaction with Nevils. We

cannot second-guess the jury’s credibility assessments; rather,

“under Jackson, the assessment of the credibility of witnesses

is generally beyond the scope of review.” Schlup v. Delo, 513

U.S. 298, 330 (1995); see also United States v. Cluchette, 465

F.2d 749, 754 (9th Cir. 1972) (“It is not our function to

reweigh the evidence and pass on the credibility of the wit-

nesses.”). Assuming (as we must, at this first step of Jackson)

that the jury disbelieved Campbell’s testimony, it could rea-

sonably have rejected Nevils’s theory that he was sleeping

from the time he entered the apartment to the time the officers

arrived, and also disbelieved that there were no firearms or

drugs in the apartment when Nevils arrived. Even though

Nevils was asleep when discovered by the officers, the jury

could have reasonably inferred that Nevils fell asleep while

on duty. Cf. United States v. Thongsy, 577 F.3d 1036, 1042

(9th Cir. 2009) (affirming that defendant had “knowledge and

control” of a firearm for purposes of 18 U.S.C. § 924(c)

where the defendant was found asleep in a tent with a “semi-

automatic pistol lying on his sleeping bag at waist level,

within reach,” as a finder of fact could reasonably infer he

was protecting a nearby marijuana farm). Accordingly, at the

UNITED STATES v. NEVILS 4595

second step of Jackson, we conclude that a rational juror

could find beyond a reasonable doubt that Nevils knowingly

possessed the firearms and ammunition found on or near his

body, notwithstanding evidence that he was asleep.

3

[10] In sum, applying Jackson’s two-part test to the evi-

dence produced at trial, we conclude that, viewing the evi-

dence in the light most favorable to the prosecution, a rational

trier of fact could have found beyond a reasonable doubt that

Nevils knowingly possessed firearms and ammunition. We

reject Nevils’s invitation to construe the evidence in the light

most favorable to his claim of innocence, because such an

approach is foreclosed by Jackson. Accordingly, we affirm

the denial of Nevils’s motion for acquittal, and affirm his con-

viction under 18 U.S.C. § 922(g)(1).

III

Finally, we turn to Nevils’s contention that his sentence

was not reasonable because the district court stated it could

not consider the sentence Nevils would have received if he

had been convicted of the same conduct in state court. Nevils

argues that the district court’s decision was erroneous,

because no case after United States v. Booker, 543 U.S. 220

(2005), explicitly prohibits a court from considering that fac-

tor. Nevils’s counsel, however, failed to object to this alleged

error at sentencing. Therefore, we review only for plain error.

United States v. Watson, 582 F.3d 974, 981 (9th Cir. 2009).

Plain error is: “(1) error, (2) that is plain, and (3) that affects

substantial rights.” Id. If all three conditions are met, an

appellate court may then exercise its discretion to address a

forfeited error, but only if “the error seriously affects the fair-

ness, integrity, or public reputation of judicial proceedings.”

Id. (internal quotation mark omitted).

[11] The district court did not plainly err in its sentencing

determination. After Booker, we held that a district court did

4596 UNITED STATES v. NEVILS

not abuse its discretion in declining to consider the disparity

between the recommended Guidelines sentence and the maxi-

mum sentence a defendant would receive if convicted of the

same conduct in state court. United States v. Ringgold, 571

F.3d 948, 950-51 (9th Cir. 2009). We have not yet addressed

the question whether, after Booker, a district court is prohib-

ited from considering such disparity. Before Booker, however,

we held that allowing district courts to consider state sen-

tences “would undermine the goal of uniformity that Congress

sought to ensure in enacting the Guidelines, because every

federal sentence would become dependent upon the practice

of the state within which the federal court sits.” United States

v. Williams, 282 F.3d 679, 682 (9th Cir. 2002). In light of

these precedents, the district court’s refusal to consider the

state sentence for Nevils’s offense was not plain error.

Accordingly, we hold that Nevils’s sentence was not substan-

tively unreasonable.

AFFIRMED.