Filed: Feb. 20, 2008
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 2-20-2008 USA v. Lowery Precedential or Non-Precedential: Non-Precedential Docket No. 06-4276 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "USA v. Lowery" (2008). 2008 Decisions. Paper 1575. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1575 This decision is brought to you for free and open access by the Opinions of the United Stat
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 2-20-2008 USA v. Lowery Precedential or Non-Precedential: Non-Precedential Docket No. 06-4276 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "USA v. Lowery" (2008). 2008 Decisions. Paper 1575. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1575 This decision is brought to you for free and open access by the Opinions of the United State..
More
Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
2-20-2008
USA v. Lowery
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4276
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"USA v. Lowery" (2008). 2008 Decisions. Paper 1575.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1575
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 06-4276
____________
UNITED STATES OF AMERICA
v.
WILLIAM LOWERY,
Appellant.
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(No. 04-cr-00814)
District Judge: Hon. Petrese B. Tucker
Submitted Under Third Circuit LAR 34.1(a)
January 15, 2008
Before: BARRY, CHAGARES, and ROTH, Circuit Judges.
____________
Filed: February 20, 2008
OPINION OF THE COURT
CHAGARES, Circuit Judge.
Defendant William Lowery appeals his conviction and sentence for possession of a
firearm by a felon in violation of 18 U.S.C. § 922(g)(1), claiming that (1) there was
insufficient evidence to support the jury’s finding that he knowingly possessed a firearm;
(2) the District Court confused and misled the jury by giving a charge on joint possession;
and (3) the District Court erred in including a prior felony conviction in calculating his
base offense level and criminal history category. We disagree and will affirm the
judgment of the District Court.
I.
As we write only for the parties, we do not set out the facts in great detail.
Lowery agreed as a condition of his state parole that he would not possess any
firearms, he would obtain permission before changing residences, and he would allow
the Pennsylvania Board of Probation and Parole to search his person, property, and
residence without a warrant, and seize any object that violated a condition of his
parole.
When he was first released on parole, Lowery lived with his family, but shortly
thereafter, he moved in with his girlfriend, Fiona Hopkins. He did not tell his parole
officer, Harry Gaab, about the move but Gaab became suspicious after visiting the
house of Lowery’s family and finding none of Lowery’s possessions there. Gaab
confronted Lowery, and Lowery conceded that he had moved. Gaab then went to
Hopkins’ address, spoke with her, and she confirmed that Lowery was, in fact, living
there.
On May 28, 2004, Lowery reported to Gaab, and signed in, listing Hopkins’
address as his address. Following a request from his supervisor, Gaab took Lowery’s
wallet and keys and conducted a search of the residence, while Lowery was
2
temporarily detained at the parole office. The door to one of the bedrooms was bolted
to the floor with a padlock marked U-Haul, where Lowery had worked one year
earlier. Gaab opened the lock with one of Lowery’s keys, and he and another agent,
Rick Oliveros, proceeded to search the room, which appeared to be where Lowery and
Hopkins slept. Under the right side of the mattress, at the head of the bed, the parole
officers found an automatic pistol tucked inside a small concealment holster with a
fully loaded magazine containing six live rounds of ammunition. The gun was less
than a foot from the edge of the mattress. The bed was positioned against two walls,
so that only the right side, where the gun was found, and the foot of the bed were
unobstructed.
The bedroom also contained a night stand, a closet, and two dressers. The
night stand was directly to the right of the bed, within arms’ reach of the pistol. The
agents found photo identification of Lowery on top of the night stand and a manila
envelope with mail and documents addressed to Lowery inside the night stand. Under
the right side of the bed, below where the officers found the gun, there were six pairs
of men’s size 13 shoes. Within a few feet of the shoes, also on the right side of the
room, stood a dresser with men’s toiletries and clothing. A television and March 2004
police citation addressed to Lowery were on top of the dresser. A closet on the right
side of the room contained both men’s and women’s clothing. The clothing closest to
the foot of the bed was female apparel; there was men’s clothing in the other half of
the closet – closest to the right side of the bed and night stand. The dresser to the left
3
of the entrance to the bedroom contained female hygiene products.
At trial, the parties stipulated, inter alia, that Lowery had previously been
convicted of a crime punishable by a term of imprisonment exceeding one year, and
the gun recovered under the bed had been sold to his sister, Bernadette Lowery. A
jury convicted William Lowery on August 17, 2005. This appeal followed.
II.
Lowery claims that his conviction must be reversed because the evidence
adduced at trial was insufficient to prove that he knowingly possessed a firearm in
violation of 18 U.S.C. § 922(g)(1). We disagree.
It is well established that appellants face a heavy burden in challenging a jury
conviction based on sufficiency of evidence. “We apply a particularly deferential
standard of review when deciding whether a jury verdict rests on legally sufficient
evidence. It is not for us to weigh the evidence or to determine the credibility of the
witnesses. Rather, we must view the evidence in the light most favorable to the
government, and will sustain the verdict if any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” United States v.
Dent,
149 F.3d 180, 187 (3d Cir. 1998) (citations and quotation marks omitted);
United States v. Cartwright,
359 F.3d 281, 285-86 (3d Cir. 2004).
We have explained that constructive possession requires that a person
4
“knowingly has both the power and the intention at a given time to exercise dominion
or control over a thing.” United States v. Garth,
188 F.3d 99, 112 (3d Cir. 1999).
Mere proximity or mere presence on the property where contraband is located does
not establish dominion or control. United States v. Jenkins,
90 F.3d 814, 818 (3d Cir.
1996).
Lowery argues that he shared the bedroom with Fiona Hopkins, and the
evidence “at best established mere presence and proximity.” Appellant Br. at 29-30.
Yet, the fact that others also have access to a firearm does not preclude a finding of
constructive possession. Garth,188 F.3d at 113. Detective Daniel Wade testified at
trial that Fiona Hopkins was surprised when she learned that a firearm had been found
under her bed. Based on that testimony, the fact that Lowery’s sister procured the
gun, the U-Haul padlock on the bedroom door, and the evidence suggesting that
Lowery slept on the side of the bed where the gun was hidden, a reasonable jury could
have inferred that Lowery had constructive possession of the firearm. Lowery’s
argument is, therefore, without merit.
III.
Lowery also argues that the District Court confused and misled the jury by
giving a joint possession charge, which was not supported by the facts because
Lowery’s girlfriend was not charged with criminal possession or as a conspirator.
5
Again, we disagree.
We review the District Court’s choice of language in a jury instruction for
abuse of discretion. A jury instruction does not constitute reversible error if the
instruction “fairly and adequately” presents the issues in the case without confusing or
misleading the jury. United States v. Ellis,
156 F.3d 493, 498 n.7 (3d Cir. 1998);
United States v. Zehrbach,
47 F.3d 1252, 1264 (3d Cir. 1995). We have plenary
review over a challenge to jury instructions based on statutory construction and over
the interpretation and application of legal precepts. United States v. Schneider,
14
F.3d 876, 878 (3d Cir. 1994).
Before jury selection, the Government requested an instruction regarding joint
possession, to which Lowery objected. The District Court overruled the objection and
instructed the jury that:
To possess means to have something within a person’s control. This
does not necessarily mean that the defendant must hold it physically, that is,
have actual possession of it. Possession includes sole and joint possession.
Possession also includes both actual and constructive possession. A person
who has direct physical control of something on or around his person is
then in actual possession of it. A person who is not in actual possession but
who has both the power and the intention to exercise control over
something is in constructive possession of it. So whenever I use the term
“possession” in these instructions, I mean actual as well as constructive
possession.
App. 210-11. Contrary to Lowery’s contention, “the mere statement to the jury of the
words ‘joint possession’ without any explanation” was neither confusing nor misleading.
6
Appellant Br. at 32. Given that Lowery shared the bed and bedroom with his girlfriend,
the District Court did not err in including the concept of joint possession in its charge.
Moreover, viewed in its entirety, the charge correctly focused on actual and constructive
possession and described the relevant legal standard. United States v. Johnstone,
107
F.3d 200, 204 (3d Cir. 1997). We conclude that the District Court employed the correct
legal standard in its charge and did not abuse its discretion with the particular language it
used to describe the standard.
IV.
Finally, Lowery challenges the reasonableness of his sentence, claiming that the
District Court impermissibly double counted one of his two prior felony convictions.
Lowery argues that a conviction that caused him to be a felon who could not legally
possess a weapon must necessarily be considered an element of the offense of illegally
possessing a weapon, and therefore, under the Sentencing Guidelines, the District Court
should not have considered his prior felony conviction in calculating his criminal history.
Lowery’s arguments are, however, without merit.
We exercise plenary review over the District Court’s interpretation of the advisory
Sentencing Guidelines and review the District Court’s factual findings for clear error.
United States v. Grier,
475 F.3d 556, 570 (3d Cir. 2007) (en banc).
U.S.S.G. § 4A1.2 defines a prior sentence for purposes of computing criminal
7
history and provides that “[t]he term ‘prior sentence’ means any sentence previously
imposed upon adjudication of guilt . . . for conduct not part of the instant offense.”
U.S.S.G. § 4A1.2. The application note explains that “[c]onduct that is part of the instant
offense means conduct that is relevant conduct to the instant offense under the provisions
of § 1B1.3 (Relevant Conduct).” U.S.S.G. § 4A1.2, cmt. n.1; see also United States v.
Irvin,
369 F.3d 284, 289-92 (3d Cir. 2004). Yet, contrary to Lowery’s contentions, none
of his prior convictions constituted conduct that was part of the instant offense. Both
convictions were for prior incidents unrelated to possession of the weapon in question
here. We conclude that the District Court correctly calculated Lowery’s sentence.
V.
For the foregoing reasons, we will affirm the District Court’s judgment in all
respects.
8