                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                          FEB 5 2001
                    UNITED STATES COURT OF APPEALS

                                 TENTH CIRCUIT                        PATRICK FISHER
                                                                              Clerk


 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 00-4105
          v.                                              (D. Utah)
 JOE BOB TURNER,                                  (D.C. No. 99-CR-261-C)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before McWILLIAMS, ANDERSON, and BALDOCK, Circuit Judges.




      Joe Bob Turner was convicted following a jury trial on one count of

possession of one or more firearms by a convicted felon in violation of 18 U.S.C.

§ 922(g)(1). He raises two arguments on appeal. First, he contends that the

evidence introduced at trial was insufficient to establish the possession element

of § 922(g)(1). Second, he claims that the district court erred in determining that

his state sentence for prior convictions was a “prior sentence” under U.S.S.G.


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
§ 4A1.2(a)(1) and in increasing his criminal history category score by three

points as a result. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and

affirm.



                                 I. BACKGROUND

       Beginning in August of 1998, three different FBI agents began contacting

and meeting with Defendant at the residence located at 1661 West Crystal

Avenue in Salt Lake City, Utah (“1661 Crystal Avenue” or “Crystal Avenue

home” herein). Special Agent Donald Schultz met with Defendant at the Crystal

Avenue home at least ten times between August 1998 and April 1999. R. Vol. II

at 6. Special Agent William Thiede saw Defendant at the home five times prior

to his April 19, 1999, arrest. R. Vol. III at 10. Special Agent Tom Vu met with

Defendant at the Crystal Avenue home twenty times between August 1998 and

April 1999.   Id. at 109. Three of those meetings occurred in the upstairs

bedroom of the home.     Id. Special Agent Vu last met with Defendant on the day

that he was arrested.   Id. at 110. Vu testified that Defendant was living in the

upstairs bedroom and that he never indicated that he had been kicked out or that

he was no longer living there.   Id. Defendant was also observed outside the

Crystal Avenue home on April 19, 1999, loading a truck and trailer. R. Vol. II at

3-5.


                                          -2-
       In the afternoon of April 19, 1999, members of the Salt Lake Violent

Crimes Task Force arrested Defendant on several state warrants. Following his

arrest, Defendant was taken to the FBI office where, after being informed of and

waiving his Miranda rights, he was interviewed for approximately ninety minutes.

Id. at 8-10. Defendant indicated to FBI Special Agents Schultz and Johnson that

1661 Crystal Avenue was his residence and gave them verbal and written

permission to search that residence.    Id. at 23. Defendant also told the FBI

agents that two .22 caliber weapons would be found in the garage of the Crystal

Avenue home and that additional weapons would be found elsewhere on the

premises. Id. at 24-25.

       Pursuant to the consent given by Defendant, law enforcement officers

searched 1661 Crystal Avenue during the evening of April 19, 1999. Upon

arriving at the home, the officers encountered several people. One of them

indicated that the home belonged to Defendant. R. Vol. III at 11. Another, Pam

King’s son, told FBI agents that the upstairs bedroom was his mother and Joe’s

bedroom. Id. at 46. None of the people found at the home when it was searched

was named Joe or Joseph.     Id. at 52-53.

       When officers entered the upstairs bedroom, they found both male and

female clothing strewn about.     Id. at 41. Officers also observed a black leather

jacket with a pin on it which read “Joe.”     Id. at 65. While officers were


                                             -3-
searching the upstairs bedroom, the telephone in that room rang nearly non-stop.

All of the callers asked for Joe.   Id. at 42, 51. The search of the upstairs

bedroom yielded three handguns. Two, a .22 caliber Derringer and a .40 caliber

Ruger, were found in an unlocked filing cabinet. The third, a .22 caliber

revolver, was found elsewhere in the 7’ x 15’ bedroom.       The officers also

searched the unattached garage at the Crystal Avenue home. They entered the

garage through an unlocked door and found a loaded .22 caliber rifle standing on

end in the corner in plain view.

       Based on the evidence seized during the April 19, 1999, search of the

Crystal Avenue home, the United States charged Defendant with one count of

possession of a firearm by a convicted felon in violation of 18 U.S.C.

§ 922(g)(1). Prior to his conviction on the federal charge, Defendant was

sentenced on the state charges for which he was arrested on April 19, 1999.      1



Following Defendant’s conviction on the federal charge, the district court

instructed the parties to brief and argue the issue of whether or not Defendant’s

state sentence should be treated as a “prior sentence” under U.S.S.G.

§ 4A1.2(a)(1).




       Defendant was sentenced on July 12, 1999, to zero to five years in state
       1

prison on three felony counts: two counts of distribution of methamphetamine
and one count of possession of stolen property.

                                           -4-
      The district court ultimately determined that the conduct underlying

Defendant’s state convictions was different and thus severable from his conduct

in the federal offense. Accordingly, the district court treated Defendant’s state

sentence as a “prior sentence” and added three points to Defendant’s criminal

history category score. The calculation resulted in a criminal history category of

IV, an offense level of 21, and a guideline sentence range of 57-71 months. The

district court sentenced Defendant to 57 months in prison and 36 months of

supervised release to be served consecutively with the state sentence he was then

serving. This appeal followed.



                                   II. DISCUSSION

A. Sufficiency of the Evidence

      In order to prove a § 922(g)(1) violation, the government must establish

the following elements beyond a reasonable doubt: (1) that the defendant was

previously convicted of a felony; (2) that the defendant thereafter knowingly

possessed a firearm; and (3) that the possession was in or affecting interstate

commerce.    2
                 See United States v. Taylor , 113 F.3d 1136, 1144 (10th Cir. 1997).


      2
          18 U.S.C. § 922 provides in pertinent part:
               § 922.        Unlawful acts
               (g) It shall be unlawful for any person–
                       (1) who has been convicted in any court of, a crime punishable
                                                                         (continued...)

                                           -5-
Defendant focuses on the second element of the charged crime, arguing that “the

evidence is insufficient for a reasonable jury to find that [Defendant] unlawfully

possessed the firearms.” Appellant’s Br. at 12. Defendant’s sufficiency-of-the-

evidence challenge is:

       faced with a high hurdle: in reviewing the sufficiency of the
       evidence to support a jury verdict, this court must review the record
       de novo and ask only whether taking the evidence–both direct and
       circumstantial, together with the reasonable inferences to be drawn
       therefrom–in the light most favorable to the government, a
       reasonable jury could find the defendant guilty beyond a reasonable
       doubt.

United States v. Hanzlicek , 187 F.3d 1228, 1239 (10th Cir. 1999) (quotation

omitted).

       For purposes of § 922(g)(1), “possession” includes both actual and

constructive possession.    United States v. Mills , 29 F.3d 545, 549 (10th Cir.

1994). In order to establish constructive possession, the government must show

that Defendant “knowingly [held] ownership, dominion, or control over the

[guns] and the premises where [they were] found.”      Taylor , 113 F.3d at 1144-45

(citing Mills , 29 F.3d at 549).   Joint occupancy of the premises where the guns


       2
        (...continued)
              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.

                                           -6-
were found is not enough, standing alone, to support an inference of knowledge,

dominion and control over the guns.    See Mills , 29 F.3d at 549 (citing   United

States v. Sullivan , 919 F.2d 1403, 1431 (10th Cir. 1990)). Thus, where the

government relies on circumstantial evidence of knowledge, dominion and

control in joint occupancy cases, it must present evidence showing “some

connection or nexus between the defendant and the firearm or other contraband.”

Id. In other words, there must be evidence “supporting at least a plausible

inference that the defendant had knowledge of and access to the weapon or

contraband.” Id. at 550 (quotation omitted).

      As indicated above, there is abundant evidence in the record from which a

reasonable jury could conclude that Defendant was a joint occupant of the Crystal

Avenue home and its upstairs bedroom at the time of his arrest. However, the

government must also establish a nexus between Defendant and the firearms

found in the Crystal Avenue home by presenting evidence either demonstrating or

supporting an inference that Defendant knew about and had access to them.        Id.

After examining the record, we conclude that the government has done so.

      Defendant’s indication to Schultz and Johnson that guns would be found at

the Crystal Avenue home, the small size of the upstairs bedroom where the three

handguns were found, the fact that a gun was found in the garage and other guns

were found elsewhere as Defendant had predicted, and the fact that none of the


                                         -7-
guns were locked up support a conclusion that Defendant had knowledge of and

access to the guns found at the Crystal Avenue home. This evidence, together

with the evidence showing Defendant’s joint occupancy of the Crystal Avenue

home and its upstairs bedroom, when viewed in the light most favorable to the

government, provides an adequate basis from which a reasonable jury could find

that Defendant constructively possessed the guns beyond a reasonable doubt.

Therefore, we conclude that the evidence presented against Defendant was

sufficient to support his conviction under § 922(g)(1).



B. Prior Sentences

       Defendant next argues that the district court erred in treating his state

sentence as a prior sentence because “the state convictions were integrated with

and related to the present federal offense.” Appellant’s Br. at 24. We review the

district court’s application of the sentencing guidelines to the facts under a due

deference standard and review de novo the overall application of the guidelines

for errors of law.   United States v. Butler , 966 F.2d 559, 563 (10th Cir. 1992).

       For purposes of calculating the criminal history score, a “prior sentence” is

“any sentence previously imposed upon adjudication of guilt . . .   for conduct not

part of the instant offense   .” U.S.S.G. § 4A1.2(a)(1) (emphasis added). The state

court sentence can be considered a “prior sentence” even though it was imposed


                                           -8-
between the date of the instant federal offense and the date of the federal

sentencing so long as the state sentence was for conduct not part of the instant

federal offense.   United States v. Banashefski , 928 F.2d 349, 351 (10th Cir.

1991); U.S.S.G. § 4A1.2, comment. (n.1). Defendant, therefore, can only

succeed on this point if his state conviction was for conduct that constitutes a

part of the instant federal felon-in-possession offense.   Banashefski , 928 F.2d at

351.

       Defendant makes much of the fact that the investigation which resulted in

his April 19, 1999, arrest was a joint investigation between federal and state

officials and that he was arrested on state warrants. He also points out that there

had been no state conviction and sentence prior to his arrest on the federal

charge. Defendant further states that this case “involves the commencement of

federal prosecution and state prosecution at the same time, with the same arrest;

there was no prior conviction and therefore no ‘prior sentence.’” Appellant’s Br.

at 27. Defendant’s arguments miss the mark.

       The proper inquiry does not examine whether a state conviction is obtained

prior to an arrest on a federal charge, whether federal officers participated in the

investigation and arrest, or whether the federal charges arose out of a search that

was possible due to the defendant’s arrest on state charges. Rather, the proper

inquiry asks whether the conduct for which the state sentence was imposed is part


                                             -9-
of the conduct upon which the instant federal charge rests. If not, and the state

sentence is handed down before the federal sentence, the state sentence is a

“prior sentence” under the federal sentencing guidelines.

      The conduct for which Defendant was sentenced in state court was

distributing methamphetamine and possessing stolen property. The conduct

underlying the instant federal offense is the possession by a felon of a firearm in

interstate commerce. Distributing methamphetamine and possessing stolen

property is conduct completely different from and unrelated to possessing a

firearm as a convicted felon. Therefore, the conduct for which Defendant’s state

sentence was imposed is not part of the instant federal offense. Accordingly, we

conclude that the trial court did not err in treating Defendant’s state sentence as a

“prior sentence” in determining his criminal history category.



                                III. CONCLUSION

      For the reasons stated above, we conclude that the evidence before the jury

was sufficient to support Defendant’s conviction under 18 U.S.C. § 922(g)(1).

Furthermore, we find no error in the way Defendant’s sentence was calculated.

We therefore AFFIRM his conviction and sentence.

                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson

                                         -10-
       Circuit Judge




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