finding no error in the sentencing court’s reliance on a domestic abuse victim’s post-incident statement that the defendant held a gun to her head to conclude that the defendant used or possessed a gun in connection with a crime of violence, despite the victim’s recantation at a later sentencing hearing
How later courts described this case
- finding no error in the sentencing court’s reliance on a domestic abuse victim’s post-incident statement that the defendant held a gun to her head to conclude that the defendant used or possessed a gun in connection with a crime of violence, despite the victim’s recantation at a later sentencing hearing
- holding that a sentencing court did not commit error by relying on a domestic-abuse victim’s initial statements even though she recanted those statements later, because the initial statements were corroborated by other evidence
- holding that constructive possession exists where one “knowingly has the power and the intention at a given time to exercise dominion and control over an object, either directly or through others.”
- collecting additional cases and noting that “this court has held that discoveries of a firearm in a master bedroom closet of the defendant’s residence, and in a dresser by the defendant’s bed, sufficed to support a felon-in-possession conviction on a constructive-possession theory”
Written by the judges who cited it.
The opinion
SUTTON, Circuit Judge,
concurring.
I concur in parts I, II, III.A.2, III.A.3.C, III.B, III.C and IV of Judge Rosen’s thorough opinion. I respectfully do not join sections III.A.1, III.A.3.a and III.A.3.b of the opinion, which address the merits of Hadley’s Confrontation Clause claim. While I have considerable sympathy for many of the points raised in those sections, I would conclude that Hadley did not establish plain error in this instance — most notably because he did not show that the admission of his wife’s statements affected his “substantial rights,” as is required under the third prong of the plain-error analysis. United States v. Olano, 507 U.S. 725, 734 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993). “An error affects substantial rights when the error was prejudicial, that is, when it ‘affected the outcome of the district court proceedings.’ ” United States v. Page, 232 F.3d 536, 544 (6th Cir.2000) (quoting Olano, 507 U.S. at 734 , 113 S.Ct. 1770 ). As the majority correctly observes, a jury readily could have convicted Hadley without these statements under a constructive-possession theory. “Constructive possession exists when a person does not have actual possession but instead knowingly has the power and the intention at a given time to exercise dominion and control over an object, either directly or *516 through others. Proof that the person has dominion over the premises where the firearm is located is sufficient to establish constructive possession.” United States v. Kincaide, 145 F.3d 771, 782 (6th Cir.1998) (quotations and citations omitted); see also, e.g., United States v. Gunn, 369 F.3d 1229, 1235 (11th Cir.2004) (upholding possession-of-firearm conviction under a constructive-possession theory); United States v. Wahl, 290 F.3d 370, 375-76 (D.C.Cir.2002) (same); United States v. Lopez, 271 F.3d 472, 488 (3d Cir.2001) (same); United States v. Gill, 58 F.3d 334, 337 (7th Cir.1995) (same); United States v. Rogers, 41 F.3d 25, 29 (1st Cir.1994) (same); United States v. Jones, 945 F.2d 747, 749-50 (4th Cir.1991) (same); United States v. Perez, 897 F.2d 751, 754 (5th Cir.1990) (same); United States v. Patterson, 886 F.2d 217, 219 (8th Cir.1989) (same); United States v. Cardenas, 864 F.2d 1528, 1533 (10th Cir.1989) (same); United States v. Rivera, 844 F.2d 916, 925 (2d Cir.1988) (same); United States v. La-Gue, 472 F.2d 151, 152 (9th Cir.1973) (same). More specifically, this court has held that discoveries of a firearm in a master bedroom closet of the defendant’s residence, United States v. Bingham, 81 F.3d 617, 633-34 (6th Cir.1996), and in a dresser by the defendant’s bed, United States v. Layne, 192 F.3d 556, 572 (6th Cir.1999), sufficed to support a felon-in-possession conviction on a constructive-possession theory.
In this case, officers found a gun and a gun holster in Hadley’s master bedroom, and Hadley nowhere argues that he did not have dominion and control over the bedroom. The jury also heard a recorded prison telephone call between Hadley and his wife from which it readily could have concluded that Hadley was attempting to persuade his wife to take responsibility for his gun. See Hadley Br. at 6 (noting that Hadley told his wife “let the statement be that ... I didn’t have a gun” and “if you go along with what the DA is saying, they gonna give me a life sentence”). On the basis of this phone call and the location of the gun and holster, a jury could well conclude that Hadley possessed the gun. Since this conclusion alone would suffice to support Hadley’s conviction, we need not address the difficult Crawford issues that this case otherwise presents. See United States v. Smith, 419 F.3d 521, 530 (6th Cir.2005) (rejecting claim because it did not satisfy the third plain-error prong without determining whether an error occurred); United States v. Kerr, 50 Fed. Appx. 230, 232-235 (6th Cir.2002) (same); United States v. Rice, 90 Fed.Appx. 921, 926 (6th Cir.2004) (holding that where a claim does not satisfy the fourth plain-error prong, “we need not decide whether it satisfies any of the other components of the plain-error inquiry”); United States v. Holt, 46 Fed.Appx. 306, 308-309 (6th Cir. 2002) (rejecting a claim because it did not satisfy the fourth plain-error prong without determining whether an error occurred); see also United States v. Cotton, 535 U.S. 625, 632-33 , 122 S.Ct. 1781 , 152 L.Ed.2d 860 (2002) (declining to decide the third plain-error prong because the claim did not satisfy the fourth prong); United States v. Valentine, 70 Fed.Appx. 314, 331 (6th Cir.2003) (same); cf Saucier v. Katz, 533 U.S. 194 , 200-01, 121 S.Ct. 2151 , 150 L.Ed.2d 272 (2001) (requiring, in qualified immunity settings, that courts address the constitutionality of the government employee’s action before determining whether the claimant’s constitutional rights were clearly established); Lyons v. City of Xenia, 417 F.3d 565, 580-84 (6th Cir.2005) (Sutton, J. concurring).