                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       May 18, 2007
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                            __________________________                 Clerk of Court

 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
                                                         No. 06-6276
 v.                                                 (D.Ct. No. 06-CR-9-R)
                                                        (W .D. Okla.)
 JAM ES LYNN HILL,

          Defendant-Appellant.
                        ____________________________

                                OR D ER AND JUDGM ENT *


Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, Senior
Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is

therefore ordered submitted without oral argument.



      A jury convicted Appellant James Lynn Hill of one count of being a felon



      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He now appeals

his conviction and sentence, arguing insufficient evidence supports his

conviction; the federal felon-in-possession statute, 18 U.S.C. § 922(g)(1), is

unconstitutional; and his 120-month sentence is unreasonable under 18 U.S.C.

§ 3553(a). W e exercise jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28

U.S.C. § 1291 and affirm M r. H ill’s conviction and sentence.



                               I. Factual Background

      On April 27, 2004, a police officer in downtown Oklahoma City,

Oklahoma, stopped a car for failing to have a tag light. The occupants included

the driver, as well as M r. Hill, who was the front seat passenger, and M r. Hill’s

girlfriend, who occupied the back seat. After receiving each occupant’s

identification, the officer got into his patrol car to run a background check. At

that time M r. Hill jumped out of the car and ran away carrying a backpack. The

officer followed on foot until M r. Hill rounded a corner and the officer lost track

of him. At that corner the patrol officer stopped and searched the area, including

a large trash can, where he found the backpack. The backpack contained a loaded

revolver, drug paraphernalia, 1 and M r. Hill’s tax return documents, together w ith

some of his girlfriend’s papers.



      1
         The drug paraphernalia included two glass pipes with white drug residue,
a set of electronic scales, and several empty zip-lock bags.

                                          -2-
      At trial, a federal agent testified that based on his training and research the

firearm, stamped w ith the words “Arms Co., Nashville, Tennessee,” was

manufactured in Nashville, Tennessee, sometime between 1968 and 1978 and

previously crossed state lines into Oklahoma. Prior to testifying, M r. Hill

stipulated he had previously been convicted in Oklahoma state court of a crime

punishable by imprisonment for a term exceeding one year. M r. Hill also testified

at trial, claiming his girlfriend put the backpack in the car and he only took it

when he ran because she asked him to take it. W hile he stated he had never seen

the gun inside the backpack, M r. Hill admitted he knew the backpack contained

drug paraphernalia and that is why he put it in the trash can. Following his

testimony, M r. Hill’s girlfriend testified she saw M r. Hill with a similar or the

same firearm one or two days before the incident and denied she told him to take

the backpack before he ran off.



      At the conclusion of the evidence and arguments, M r. Hill generally moved

for judgment of acquittal, which the district court overruled. Following

deliberations, a jury found M r. Hill guilty of being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g)(1).




                                           -3-
                             II. Procedural Background

      Prior to sentencing, a probation officer prepared a presentence report

calculating M r. Hill’s sentence under the applicable United States Sentencing

Guidelines (“Guidelines” or “U.S.S.G.”). The probation officer set his base

offense level at twenty-four pursuant to U.S.S.G. § 2K2.1(a)(2) because M r. Hill

comm itted the instant offense subsequent to sustaining two felony convictions for

controlled substance offenses. The probation officer then increased M r. Hill’s

base level four levels pursuant to § 2K2.1(b)(5) because he possessed the firearm

in connection with the felony offense of possession with intent to distribute

methamphetamine, resulting in a total offense level of twenty-eight. The

presentence report also set M r. Hill’s criminal history category at VI, which,

together with an offense level of twenty-eight, resulted in an advisory Guidelines

sentencing range of 140 to 175 months imprisonment. However, as the probation

officer pointed out, the maximum term of imprisonment under 18 U.S.C.

§ 924(a)(2), for violation of § 922(g)(1), was ten years, or 120 months, which is

less than the advisory Guidelines range.



      M r. Hill filed a sentencing memorandum in which he claimed he should

receive a sentence of only five years probation based on the factors in 18 U.S.C.

§ 3553(a). In support, he provided a discussion of his history and characteristics,




                                           -4-
including a general discussion of his family history. 2 He also acknowledged the

seriousness of his offense and that he must be punished, noted his intention to be

law-abiding in the future, admitted to prior serious substance abuse problems, and

indicated he would benefit from substance and mental health counseling and

educational and vocational training. At the sentencing hearing, M r. Hill also

acknowledged any future criminal conduct by him would have detrimental

consequences and asked for leniency based on his completion of a drug program,

positive attitude toward the future, desire to return to society, and new-found

respect for the law.



      After hearing and considering the parties’ arguments, the district court

stated it had reviewed the presentence report and considered the testimony, the

parties’ arguments, and M r. Hill’s statement and submission. It further stated it

had considered the sentencing factors in 18 U.S.C. § 3553 and that while it



      2
         In the memorandum M r. Hill generally recounts: 1) his father died when
he was ten years old; 2) he relocated to another school where he did not fit in due
to his rural accent and lack of “cool” clothes, experienced suspensions and
expulsions due to his conduct, and associated with misfits; 3) his mother
remarried, causing him to move and enter another school where he began using
drugs, his grades dropped, and he got into trouble, including arrest and
incarceration through a Department of Corrections program; 4) he began using
cocaine and methamphetamine at the age of nineteen; 5) his grandfather passed
away, causing him to go on a drug binge and get arrested; 6) he obtained various
jobs, but due to intervening drug-related arrests he lost those jobs and was
incarcerated; and 7) he has received mental health care and drug abuse counseling
and takes prescription medication to help with his mental health issues.

                                         -5-
understood the Guidelines are advisory, it believed they were appropriate in the

instant case. The district court further stated M r. Hill was obviously an

intelligent and articulate person, but that it could not be sympathetic to his

requests because he had at least nine prior arrests. It also indicated that such a

background and record reflected the need for his incarceration to keep him off the

streets. The district court further stated it hoped M r. Hill would someday become

a productive member of society, but pointed out that his instant offense w as a

dangerous one involving drugs and weapons. It then sentenced M r. Hill to 120

months in prison.



                                   III. Discussion

      On appeal, M r. Hill raises three issues. First, relying on his motion for

acquittal, he contends insufficient evidence supports the jury’s guilty verdict and

his subsequent conviction because the evidence did not prove he knowingly

possessed the firearm in the backpack or that the firearm was “in or affecting

comm erce.” Second, he suggests the federal felon-in-possession statute, 18

U.S.C. § 922(g)(1), is unconstitutional, although he admits he did not raise this

claim before the district court and acknowledges his argument is foreclosed by

this court’s decision in United States v. Dorris, 236 F.3d 582 (10th Cir. 2000).

However, he suggests three Supreme Court cases, Jones v. United States, 529

U.S. 848 (2000); United States v. M orrison, 529 U.S. 598 (2000); and United

                                          -6-
States v. Lopez, 514 U.S. 549 (1995), when considered together, “signal[]

discomfort with the expansion of federal criminal statutes into the province of

what has traditionally been state police power,” thereby rendering 18 U.S.C.

§ 922(g)(1) unconstitutional. Lastly, M r. Hill argues his 120-month sentence is

unreasonable and greater than necessary to comply with the directives in 18

U.S.C. § 3553(a). In making this argument, he generally contends his history and

characteristics make his 120-month sentence excessive and simply refers this

court to his sentencing memorandum filed in the district court.



                 A. Sufficiency of Evidence to Support Conviction

      Our standard of review on the issue of sufficiency of the evidence to

support a conviction is set forth in United States v. Sells, 477 F.3d 1226 (10th Cir.

2007):

      W e review de novo whether the government presented sufficient
      evidence to support a conviction. In so doing, we view the facts in
      evidence in the light most favorable to the government. W e will not
      weigh conflicting evidence or second-guess the fact-finding decisions
      of the jury. Rather, our role is limited to determining whether a
      reasonable jury could find guilt beyond a reasonable doubt, based on
      the direct and circumstantial evidence, together with the reasonable
      inferences to be drawn therefrom.

Id. at 1235 (quotation marks and citation omitted).



      To establish M r. Hill violated 18 U.S.C. § 922(g)(1), the government had to



                                         -7-
prove: 1) he had previously been convicted of a felony; 2) he thereafter

knowingly possessed a firearm; and 3) such possession was in or affected

interstate commerce by crossing state lines. See 18 U.S.C. § 922(g)(1); United

States v. Jameson, 478 F.3d 1204, 1208-09 (10th Cir. 2007). Of these three

elem ents, M r. Hill disputes whether the government proved he knowingly

possessed a firearm and that it affected interstate commerce.



      W e have repeatedly held that “possession can be actual or constructive.”

Id. at 1209. “Actual possession exists when a person has direct physical control

over a firearm at a given time,” while “[c]onstructive possession exists when a

person ‘knowingly holds the power and ability to exercise dominion and control

over a firearm.’” Id. (citations and alteration omitted). M oreover, a defendant’s

possession of a firearm need not be lengthy for conviction under § 922(g);

instead, know ing possession “for a mere second or two” is sufficient to impose

criminal liability. See U nited States v. Williams, 403 F.3d 1188, 1194 (10th Cir.),

cert. denied, 126 S. Ct. 178 (2005). To the extent M r. Hill is claiming this was a

joint occupancy situation, we have said knowledge, dominion, and control may

not be inferred simply by proximity to the firearm. Jameson, 478 F.3d at 1209.

Instead, the government must prove either actual possession or constructive

possession through evidence showing some connection or nexus between the

defendant and the firearm. Id.

                                         -8-
      In this case, when M r. Hill ran from the car, he physically took the

backpack containing the loaded revolver. Even if we view this as a joint

occupancy situation, M r. Hill took actual possession of the firearm when he fled

with the backpack, and an obvious nexus exists, as demonstrated by M r. Hill’s tax

return documents being in the same backpack with the loaded firearm. Under

these facts, it was not unreasonable for the jury to conclude he knowingly

possessed the gun.



      In addition, the jury obviously credited his girlfriend’s testimony she saw

him with a similar or the same firearm just a day or two before the instant

offense. W hile M r. Hill testified he took the backpack at his girlfriend’s request,

we will not weigh conflicting evidence or second-guess the factfinding decisions

of the jury, which clearly credited her contrary testimony and discredited his

testimony, despite the fact the backpack also contained some papers belonging to

her. Under the circumstances presented, we cannot say it was unreasonable for

the jury to conclude M r. Hill knowingly possessed the firearm.



      W e next turn to M r. Hill’s claim insufficient evidence proved the requisite

interstate commerce element. As w e have explained before, the interstate

commerce requirement is satisfied by proof the firearm possessed had previously

traveled in interstate commerce. See W illiams, 403 F.3d at 1195. In this case, the

                                          -9-
government’s expert witness testified the firearm, stamped with the words “Arms

Co., Nashville, Tennessee,” was manufactured in Nashville, Tennessee, sometime

between 1968 and 1978 and previously crossed state lines into Oklahoma. Proof

the firearm was manufactured in Tennessee and possessed by M r. Hill in

Oklahoma is sufficient to establish the required nexus with interstate commerce.

Id. Thus, such evidence was sufficient for the jury to reasonably conclude the

firearm crossed state lines. For these reasons, M r. Hill has not established

insufficient evidence supports his conviction under 18 U.S.C. § 922(g)(1).



                   B. Constitutionality of 18 U.S.C. § 922(g)(1)

      M r. Hill next argues the federal felon-in-possession statute is

unconstitutional – an issue he raises to preserve on appeal, even though he admits

he did not raise this claim before the district court and acknowledges his

argument is foreclosed by this court’s decision in United States v. Dorris.

Generally, we do not address arguments presented for the first time on appeal and

find no reason to deviate from that general rule in this appeal. See United States

v. M ora, 293 F.3d 1213, 1216 (10th Cir. 2002). Even if we considered M r. Hill’s

argument, it is the same argument patently rejected by our decision in Dorris, in

which we held the same Supreme Court cases relied on by M r. Hill did not render

18 U.S.C. § 922(g)(1) unconstitutional or require this court to overturn prior

precedent. See Dorris, 236 F.3d at 584-86 (discussing Jones v. United States,

                                         -10-
United States v. M orrison, and United States v. Lopez).



                           C. Reasonableness of Sentence

      Finally, M r. Hill contends his 120-month sentence is unreasonable and

greater than necessary to comply with the directives in 18 U.S.C. § 3553(a), 3

based on his history and characteristics. In his submission, M r. Hill summarizes

his life, describing his family circumstances and criminal and drug history,

including: 1) the death of his father when he was ten; 2) his relocation to two

different schools where he did not fit in, associated with a bad crowd, received

bad grades, began using drugs, and got into trouble w ith authorities; 3) his

problem s w ith drugs as an adult and his drug-related arrests which caused him to



      3
          18 U.S.C. § 3553(a) provides, in part, that the court shall consider:

      (1) the nature and circumstances of the offense and the history and
      characteristics of the defendant;
      (2) the need for the sentence imposed--
             (A) to reflect the seriousness of the offense, to promote respect
             for the law, and to provide just punishment for the offense;
             (B) to afford adequate deterrence to criminal conduct;
             (C) to protect the public from further crimes of the defendant;
             and
             (D) to provide the defendant with needed educational or
             vocational training, medical care, or other correctional
             treatment in the most effective manner;
      (3) the kinds of sentences available; ...
      (6) the need to avoid unwarranted sentence disparities among
      defendants with similar records who have been found guilty of
      similar conduct; and
      (7) the need to provide restitution to any victims of the offense.

                                          -11-
lose various jobs; and 4) his mental health and drug treatment, including his use

of prescription medication to help with mental health issues.



      W e begin by pointing out M r. Hill’s 120-month sentence is the maximum

statutory term of imprisonment under 18 U.S.C. § 924(a)(2), which is less than

the advisory Guidelines sentencing range of 140 to 175 months imprisonment.

Because “the statutorily authorized maximum sentence is less than the minimum

... applicable guideline range, the statutorily authorized maximum sentence ... [is]

the guideline sentence.” U.S.S.G. § 5G1.1(a).



      W e review for reasonableness the sentence’s length, as guided by the

factors in 18 U.S.C. § 3553(a). See United States v. Kristl, 437 F.3d 1050, 1053

(10th Cir. 2006) (per curiam). These factors “include the nature of the offense

and characteristics of the defendant, as well as the need for the sentence to reflect

the seriousness of the crime, to provide adequate deterrence, to protect the public,

and to provide the defendant with needed training or treatment ....” Id. W e have

determined a presumption of reasonableness attaches to a sentence which is

within the correctly calculated Guidelines range. See id. at 1053-54. W e require

reasonableness in two respects – “the length of the sentence, as well as the

method by which the sentence was calculated.” Id. at 1055 (emphasis omitted).

If the district court “properly considers the relevant Guidelines range and

                                         -12-
sentences the defendant within that range, the sentence is presumptively

reasonable.” Id. “This is a deferential standard that either the defendant or the

government may rebut by demonstrating that the sentence is unreasonable when

viewed against the other factors delineated in § 3553(a).” Id. at 1054. In

determining whether the district court properly considered the applicable

Guidelines range, we review its legal conclusions de novo and its factual findings

for clear error. See id.



         W e have held “[t]here is no question that, in addition to guiding our

reasonableness review on appeal, the sentencing factors set forth in 18 U.S.C.

§ 3553(a) must be considered by the district court itself when imposing a

sentence.” United States v. Sanchez-Juarez, 446 F.3d 1109, 1115 (10th Cir.

2006).

         [W ]here a defendant has raised a nonfrivolous argument that the
         § 3553(a) factors warrant a below-Guidelines sentence and has
         expressly requested such a sentence, we must be able to discern from
         the record that the sentencing judge did not rest on the guidelines
         alone, but considered whether the guidelines sentence actually
         conforms, in the circumstances, to the statutory factors.

Id. at 1117 (quotation marks, alterations, and citation omitted).



         Because the district court in this case sentenced M r. Hill at the Guidelines

range, his sentence is presumptively reasonable and he must rebut this



                                           -13-
presumption by demonstrating the sentence is unreasonable in light of the

sentencing factors in § 3553(a). In attempting to rebut this presumption, M r. Hill

generally argues his sentence is unreasonable based on his history and

characteristics. However, a review of the record establishes the district court

considered M r. Hill’s history and characteristics during sentencing but

determined, based on other § 3553(a) factors, a sentence of 120 months was

appropriate.



      M ore specifically, the district court indicated it had considered the parties’

arguments and M r. Hill’s statement and submission – all of which discussed his

history and characteristics. W hile the district court considered M r. Hill’s

arguments regarding his history and characteristics, it indicated a 120-month

sentence was appropriate based on the other § 3553(a) factors, including his prior

nine arrests, the seriousness of the instant offense, which involved drugs and a

weapon, and the need to incarcerate him to get him off the streets for the purpose

of protecting the public. Given M r. Hill’s extensive criminal history and the

serious nature of his instant offense, we cannot say he has shown his history and

characteristics, when viewed in light of the other § 3553(a) factors, are

sufficiently compelling for the purpose of making his sentence unreasonable.




                                         -14-
                          IV. Conclusion

For these reasons, we A FFIRM M r. H ill’s conviction and sentence.



                               Entered by the C ourt:

                               W ADE BRO RBY
                               United States Circuit Judge




                                -15-
