                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                December 7, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                  Clerk of Court
                            FOR THE TENTH CIRCUIT




    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                  No. 08-6260
                                               (D.C. No. 5:07-CR-00238-D-3)
    BEAU TRAVIS RIVERS,                                (W.D. Okla.)

                Defendant-Appellant.



                            ORDER AND JUDGMENT *


Before HENRY, Chief Judge, BRORBY, Senior Circuit Judge, and HARTZ,
Circuit Judge.


         After pleading guilty to conspiracy to distribute methamphetamine, Beau

Travis Rivers was found guilty by the district court of being a felon in possession

of firearms. He was sentenced to forty-one months in prison, consecutive to a

state prison term, and now appeals. Mr. Rivers contends his firearms conviction



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
was based on insufficient evidence, his consecutive state and federal sentences

violate the parsimony principle, and he was unduly burdened by the successive

state and federal prosecutions. Exercising jurisdiction under 28 U.S.C. § 1291

and 18 U.S.C. § 3742, we affirm.

                                         I

      On January 10, 2007, law enforcement officials executed a search warrant

for 3701 South Bryant Avenue in Oklahoma City, Oklahoma. The search

uncovered various contraband, including two rifles found in a locked wall locker.

An ensuing state prosecution culminated in Mr. Rivers pleading guilty to the

Oklahoma crimes of concealing stolen property and possessing controlled

substances. After he was sentenced on his state convictions, Mr. Rivers was

named in a federal indictment for conspiring to distribute methamphetamine,

21 U.S.C. § 846, and possessing firearms after a prior felony conviction,

18 U.S.C. § 922(g)(1). Mr. Rivers pleaded guilty to the conspiracy charge and

was convicted on the firearms count after a bench trial. At sentencing, the district

court reviewed a revised pre-sentence investigation report, considered the parties’

objections, and imposed a within-guidelines sentence of forty-one months in

prison, consecutive to his previously imposed state prison term. On appeal,

Mr. Rivers challenges the sufficiency of the evidence establishing that he

knowingly possessed the firearms, the imposition of consecutive state and federal

sentences, and the successive state and federal prosecutions.

                                        -2-
                                         II

      We begin with the evidence underlying Mr. Rivers’ firearms conviction.

“We review the sufficiency of the evidence de novo, taking the evidence and all

reasonable inferences drawn therefrom in light most favorable to the

[government].” United States v. Poe, 556 F.3d 1113, 1124 (10th Cir.),

cert. denied, 130 S. Ct. 395, 2009 WL 1604770 (U.S. Oct. 13, 2009)

(No. 08-10799). A conviction under 18 U.S.C. § 922(g)(1), required the

government to prove that (1) Mr. Rivers had a prior felony conviction, (2) he

knowingly possessed the firearms listed in the indictment, and (3) the firearms

traveled in or affected interstate commerce. Id. at 1125. The parties stipulated to

the first and third elements, leaving only the element of possession at issue.

      To show that Mr. Rivers knowingly possessed the two rifles found in the

locker, the government relied on a theory of constructive possession. In Poe, we

explained that where a defendant did not have actual possession of the firearms or

exclusive possession of the premises where the firearms were found, the

government must produce some evidence to support an inference that the

defendant knew of and had access to the firearms:

      Possession of a firearm can be either actual or constructive. An
      individual has constructive possession if he has ownership,
      dominion, or control over the firearm and the premises where the
      firearm is found. In most cases, dominion, control, and knowledge
      may be inferred where a defendant has exclusive possession of the
      premises; however, joint occupancy alone cannot sustain such an
      inference. In cases of joint occupancy, where the government seeks

                                         -3-
      to prove constructive possession by circumstantial evidence, it must
      present evidence to show some connection or nexus between the
      defendant and the firearm or other contraband. This requires the
      government to point to evidence plausibly supporting the inference
      that the defendant had knowledge of and access to the firearm.

556 F.3d at 1125 (citations and quotations omitted).

      Our review of the record finds adequate evidence to support the conviction.

Mr. Rivers’ joint control over the premises was demonstrated by several motor

vehicle titles recovered during the search that listed his address as 3701 South

Bryant Avenue. There was also testimony that Mr. Rivers was regularly seen at

that location, that he identified himself as the person in charge of the business

purportedly operating there, and that he even gave police consent to search the

building once for another suspect. Additionally, Mr. Rivers’ girlfriend, Brooke

Jobe, testified that she and Mr. Rivers essentially lived outside an adjacent

building and regularly used the bathroom and showers of 3701 South Bryant. She

said Mr. Rivers’ father controlled the building but she and Mr. Rivers spent most

of their time there and, with the exception of one office, Mr. Rivers enjoyed

unrestricted access to the premises. This testimony was corroborated by a

confidential informant (CI) who testified at trial that Mr. Rivers had a key and

could do “anything he wanted to in that place.” R. Vol. 4 at 262.

      Further, there was evidence demonstrating that Mr. Rivers had knowledge

of the firearms. Delbert Knopp, an investigator with the Oklahoma City District

Attorney’s Office, testified that Mr. Rivers confessed to owning one rifle, which

                                          -4-
had been given to him as a gift by his parents. This was confirmed by a witness

who sold the rifle to Mr. Rivers’ mother. Although Mr. Rivers disclaimed the

other rifle as his father’s, Darrell Edwards, an agent with the Bureau of Alcohol,

Tobacco, and Firearms, testified that Mr. Rivers told him he “had a couple of

guns but . . . didn’t want to sell them.” Id. at 55.

      Other evidence established Mr. Rivers’ access to the rifles. Ms. Jobe

testified that she never saw any guns in the lockers, but she knew the lockers were

located near the showers and that Mr. Rivers kept his belongings in those lockers.

See United States v. Hien Van Tieu, 279 F.3d 917, 922 (10th Cir. 2002) (finding

sufficient evidence of access where firearm was located with defendant’s

belongings). The CI corroborated this testimony, stating that the lockers were

near the bathroom and showers and that Mr. Rivers kept his belongings in them.

Unlike Ms. Jobe, however, the CI had seen Mr. Rivers move firearms to and from

the lockers just over a year before the offense, see United States v. Hishaw,

235 F.3d 565, 572-73 (10th Cir. 2000) (recognizing that prior possession “may

support an inference of constructive possession” but finding more than two years

before offense too remote); he also knew that Mr. Rivers was an avid hunter, that

he regularly carried firearms, and that the lockers were not always locked.

Although the locker from which the rifles were recovered was locked at the time

of the search and Mr. Rivers did not possess a key at the time of his arrest,

Sergeant Billy Moon testified that the locker was constructed of thin metal and

                                           -5-
was easily opened with a screwdriver, which was among many tools strewn

throughout the building. See United States v. Norman, 388 F.3d 1337, 1341-42

(10th Cir. 2004) (finding sufficient evidence of access where firearm was locked

in an easily opened compartment and no key was found, although evidence later

connected defendant to key); see also id. at 1342 (“a defendant may

constructively possess a weapon under § 922(g)(1) even though that weapon is

not readily accessible at the time of arrest”). Moreover, Sergeant Moon testified

that the two rifles were contained in hunting-style cases, and Sergeant Craig

Engels found hunting gear inside the lockers. This evidence, viewed in the light

most favorable to the government, creates a reasonable inference that Mr. Rivers

had both knowledge of and access to the firearms listed in the indictment; it

therefore adequately supports his conviction under 18 U.S.C. § 922(g)(1).

      Next, Mr. Rivers asserts the district court violated the “parsimony

principle” by ordering that his sentence run consecutive to his state prison term.

The “parsimony principle” requires that a sentence be “‘sufficient, but not greater

than necessary, to comply with the purposes’ of criminal punishment.” United

States v. Martinez-Barragan, 545 F.3d 894, 904 (10th Cir. 2008) (quoting

18 U.S.C. § 3553(a)). Contrary to Mr. Rivers’ assertion, the record clearly

demonstrates that the district court adhered to the parsimony principle. The court

fulfilled its obligations under § 3553(a), sentenced Mr. Rivers at the low end of

the applicable guideline range, and ordered that the sentence be served

                                         -6-
consecutive to any previously imposed undischarged prison term. The state and

federal sentences resulted from distinct state and federal prosecutions for distinct

state and federal crimes. Absent any specific argument from Mr. Rivers to

suggest otherwise, we find the district court was properly guided by the

parsimony principle. 1

      Finally, we reject Mr. Rivers’ contention that his successive state and

federal prosecutions were unduly burdensome. See United States v. Barrett,

496 F.3d 1079, 1118 (10th Cir. 2007) (recognizing the dual sovereignty doctrine

allows successive prosecutions by separate sovereigns for crimes arising out of

the same underlying conduct). To the extent Mr. Rivers contends the two

prosecutions constitute harassment, he fails to show any evidence of bad faith.

See generally Phelps v. Hamilton, 59 F.3d 1058, 1065 (10th Cir. 1995).

      The judgment of the district court is AFFIRMED.


                                                     Entered for the Court


                                                     Wade Brorby
                                                     Senior Circuit Judge




1
      Mr. Rivers suggests in his “Statement of the Issues” that his consecutive
sentences violate the Eighth Amendment; he never develops this point, however,
and we therefore do not consider it. See Bronson v. Swensen, 500 F.3d 1099,
1104 (10th Cir. 2007).

                                         -7-
