NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                _______________

                                     No. 08-3093
                                   _______________

                           UNITED STATES OF AMERICA

                                            v.

                                  JAMES KELLY, Jr.,

                                             Appellant
                                   _______________

                    On Appeal from the United States District Court
                       For the Eastern District of Pennsylvania
                     (D.C. Criminal Action No. 2-07-cr-00123-1)
                      District Judge: Honorable John R. Padova
                                  _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 November 16, 2010
                                 _______________

                 Before: AMBRO, FISHER, and WEIS, Circuit Judges

                           (Opinion filed: December 7, 2010)
                                  _______________

                                      OPINION
                                   _______________

AMBRO, Circuit Judge

      A jury found James Kelly, Jr. guilty of being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1), and being an armed career criminal in violation of 18

U.S.C. § 924(e)(1). Kelly filed a pro se motion for judgment of acquittal or for a new
trial, arguing that he was not subject to § 924(e)(1), and challenging the sufficiency of the

evidence against him at trial. The District Court denied the motion, and sentenced him to

a 180-month term of imprisonment, the mandatory minimum under § 924(e)(1). 1

       Kelly filed a timely notice of appeal. We affirm the District Court in rejecting

both of his arguments.

                                      I. Background

       Late on February 4, 2007, Super Bowl Sunday, Lower Southampton Police

Corporal Louis W. Montalbano observed Kelly speed through a steady red light.

Montalbano pulled Kelly over and observed several open and closed beer bottles on the

passenger front seat floor, smelled alcohol emanating from Kelly, and noticed that his

eyes were glassy. Montalbano suspected Kelly of driving under the influence. After

Officer Eric Landamia arrived, Montalbano administered several field sobriety tests to

Kelly, which he either refused to take or failed. When Kelly admitted to drinking,

Landamia administered a portable breathalyzer test to Kelly. The results revealed a blood

alcohol content above the legal limit, and Landamia arrested Kelly for driving under the

influence.

       Landamia then took steps to impound the car, he called a tow truck and attempted

to perform an inventory search. On realizing the car was locked, Landamia asked Kelly

for the key. Kelly told him that the key must have been locked in the car. However,

while at the police station, during a search, the police located the key in Kelly’s sock.


1
 The 180-month term exceeded the otherwise applicable statutory maximum for a felon-
in-possession conviction.
                                              2
       After the tow truck arrived at the scene and unlocked the car, Landamia began his

search of it. He observed a black leather jacket on the front driver’s seat. When he

picked up the jacket, he noticed that a revolver had fallen from the jacket and landed

between the kick plate and the driver’s seat. The police unloaded the revolver and placed

it in safekeeping. Later at the police station, Kelly identified the jacket as his and the

police returned it to him.

       Police then referred the case to the Federal Bureau of Investigation (“FBI”), who

later arrested Kelly at his home. He told the agents that he was ill and they took him to

the hospital. While there, Kelly told an agent that he had obtained the car from a police

station after his “buddy,” who had borrowed it, had been arrested for armed robbery. At

trial, however, Kelly stated that he had obtained the car from a motel in Northeast

Philadelphia. He stated that he had loaned the car to his brother, Daniel, who had moved

into his home in 2006 and continued to live there, and that Daniel had committed the

armed robbery. Additionally, witnesses stated that Daniel often wore Kelly’s clothes,

such as his leather jacket, and that Kelly was not wearing a leather jacket at the Super

Bowl party he had been attending prior to his arrest. Therefore, Kelly argued that Daniel

had borrowed his jacket the night of the incident and must have worn it when committing

the robbery. The jury rejected Kelly’s arguments and convicted him.

                                       II. Jurisdiction

       The District Court exercised subject matter jurisdiction pursuant to 18 U.S.C.

§ 3231. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 18

U.S.C. § 3742.

                                              3
                                  III. Standard of Review

         “In ruling on a motion for judgment of acquittal made pursuant to Fed. R. Crim. P.

29, a District Court must ‘review the record in the light most favorable to the prosecution

to determine whether any rational trier of fact could have found proof of guilty beyond a

reasonable doubt based on the available evidence.’ ” United States v. Brodie, 

, 133 (3d Cir. 2005) (citing United States v. Smith, 

, 476 (3d Cir. 2002)).

Our review is plenary. 

exercise plenary review over issues of statutory and

constitutional interpretation. See United States v. Walker, 

, 75 (3d Cir. 2007).

                                       IV. Discussion

         Kelly argues that the Government established only that he was in close proximity

to the firearm in question but did not establish the requisite knowledge of possession. 2

He claims that there was neither evidence of his actual knowledge of the gun’s presence

nor that he knowingly had the power and intention to exercise dominion and control over

the gun. See United States v. Iafelice, 

, 96 (3d Cir. 1992) (“Constructive

possession … requires both dominion and control over an object and knowledge of [its]

existence.” (internal citations omitted)). The jury did not accept these claims, and neither

do we.

         When challenging the sufficiency of evidence, a defendant’s burden is heavy. See

United States v. Haywood, 

, 204 n.3 (3d Cir. 2004) (when reviewing the

sufficiency of the evidence, the court must “consider the evidence in the light most

2
  Kelly’s only challenge to the charge is the element of possession. He concedes the
other elements of the charge – that he was a convicted felon and that the firearm moved
in interstate commerce before he possessed it. See 18 U.S.C. § 922(g)(1).
                                              4
favorable to the Government and affirm the judgment if there is substantial evidence

from which a rational trier of fact could find guilt beyond a reasonable doubt.”) (internal

citations omitted). See also United States v. Smith, 

, 476-477 (3d Cir. 2002).

“Thus, a finding of insufficiency should be confined to cases where the prosecution's

failure is clear.” 

(quoting United States v. Leon, 

, 891 (3d Cir.

1984)).

       Here, there was substantial evidence from which a jury could reasonably conclude

that Kelly had knowledge of the gun’s presence. It is uncontroverted that Kelly was the

only occupant of the car and that within it were mail, prescriptions, and other items in

Kelly’s name. Kelly admitted that the leather jacket found on the driver’s seat of the car

was his. When the police moved it, the revolver fell. 3 It is debatable where Kelly picked

up the car, where he was just prior to being arrested, 4 and whether the car was used by

Kelly’s brother in a robbery. Nonetheless, when a jury is faced with evidence that leads

to multiple, but reasonable, interpretations, it is free to decide which interpretation to

believe. See United States v. Murphy, 

, 148 (4th Cir. 1994). Moreover,

“[w]hen a defendant has exclusive possession of the premises on which a firearm is

found, knowledge, dominion, and control can be properly inferred because of the



3
  It is debatable whether the gun was wrapped in Kelly’s jacket. Officer Landamia
testified that he heard a clanking sound when he picked up the jacket and looked down to
see the gun between the kick plate and driver’s seat. However, he testified that he could
not tell from where the gun fell, just that it fell when he picked up the jacket.
4
 Kelly first claimed to police that he was drinking at a bar, then at trial he claimed he was
at his sister’s home.
                                               5
exclusive possession alone.” United States v. Jameson, 

, 1209 (10th Cir.

2007) (citing United States v. Avery, 

, 1177 (10th Cir. 2002)).

       Put simply, the jury here had before it substantial evidence from which it could

reasonably believe that Kelly had knowledge of the gun’s presence. It did, and we

discern no error.

       Next, Kelly argues that he was not subject to sentencing under the Armed Career

Criminal Act, 18 U.S.C. § 924(e)(1) (“ACCA”), because the jury did not make a finding,

beyond a reasonable doubt, that the Government proved the requisite elements. In the

Presentence Investigation Report, the Probation Office determined that Kelly’s felon-in-

possession conviction under 18 U.S.C. § 922(g), together with his two prior robbery

convictions and a prior drug conviction, made him eligible for sentencing under the

ACCA. The District Court agreed, and sentenced Kelly to a 180-month term of

imprisonment, the mandatory minimum.

        “[P]rior convictions that increase the statutory maximum for an offense are not

elements of the offense and thus may be determined by the District Court by a

preponderance of the evidence.” United States v. Coleman, 

, 159 (3d Cir.

2006). Simply put, “recidivism . . . is a traditional, if not the most traditional, basis for a

sentencing court’s increasing an offender’s sentence.” Almendarez-Torres v. United

States, 

, 243 (1998). 5 In this context, the judge must only find by a

preponderance of the evidence that ACCA applies.


5
  Kelly concedes, Op. Br. At 20, that we have applied Almendarez-Torres to § 922(g)
felon-in-possession convictions, allowing prior convictions for sentencing enhancement
                                               6
       Finally, Kelly contends that he was misled to believing that the question of

whether he was an armed career criminal would be presented to the jury. He bases this

belief on the fact that the ACCA charge was cited in the indictment. This he believes

denied his due process rights under the Constitution’s Fifth Amendment, which protects

against denials of fundamental fairness that are “shocking to the universal sense of

justice.” United States v. Russell, 

, 432 (1973).

       This argument misses the point. No doubt “[a]n indictment must set forth each

element of the crime that it charges,” 

, and the

purpose of an indictment is to inform fully the accused “of the nature of the charges so as

to enable him to prepare any defense he might have.” United States v. Stansfield, 

, 812 (3d Cir. 1999) (quoting Zuziak v. United States, 

, 141 (9th

Cir. 1941)). But whether a defendant thinks, or believes, that an ACCA charge in the

indictment needs to be proven to the jury does not create any new fundamental due

process right. 6

       In this context, we affirm.




under ACCA to be decided by a judge at sentencing. See United States v. Mack, 

(3d Cir. 2000).
6
  Moreover, under Almendarez-Torres, a judicial finding of a prior conviction that
increases the statutory maximum under 18 U.S.C. § 924(e) does not violate the Sixth
Amendment. Kelly states that he has raised this issue for the sole purpose of preserving
it for further appeal in light of what he calls “still-developing Supreme Court
jurisprudence on the application of the Fifth and Sixth Amendments to federal
sentencing.” Op. Br. at 20.
                                             7