                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                    ______

                                       No. 13-1142
                                         ______

                           UNITED STATES OF AMERICA

                                            v.

                                 CARLOS WILTSHIRE
                                  a/k/a Shawn Carter
                                      a/k/a Shake,

                                     Carlos Wiltshire,
                                                           Appellant
                                      ____________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                         (D.C. Crim. No. 5-11-cr-00310-001)
                        District Judge: Hon. Gene E. K. Pratter

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  February 13, 2014

            Before: CHAGARES, SHWARTZ, and GARTH, Circuit Judges.

                                   (Filed: June 3, 2014)
                                      ____________

                                        OPINION
                                      ____________

CHAGARES, Circuit Judge.

       A jury found Carlos Wiltshire guilty of possession with intent to distribute cocaine

base in violation of 21 U.S.C. § 841(a)(1), possession of a firearm by a convicted felon in
violation of 18 U.S.C. § 922(g)(1), and possession of body armor by a convicted felon in

violation of 18 U.S.C. § 931(a)(1). On December 19, 2012 and January 10, 2013, the

District Court held a two-session sentencing hearing at which it determined Wiltshire to

be subject to a sentence enhancement under the Armed Career Criminal Act, 18 U.S.C. §

924(e) (the “ACCA”), and sentenced him to an aggregate 276 months of imprisonment

and six years of supervised release.

       Wiltshire challenges both his convictions and his sentence, arguing that: (1) the

District Court erred in refusing to instruct the jury that mere knowledge of an item’s

presence does not constitute possession; (2) the District Court erred in relying on New

York “certifications of disposition” in finding that Wiltshire qualified for a sentencing

enhancement under the ACCA; (3) 18 U.S.C. §§ 922(g) and 931(a) are unconstitutional

because they are not a valid exercise of Congress’s authority under the Commerce

Clause; and (4) Wiltshire’s Fifth and Sixth Amendment rights were violated when his

sentence increased based on prior convictions that were not charged in the indictment nor

admitted or proved to a jury beyond a reasonable doubt. For the reasons that follow, we

will affirm the District Court’s judgment of conviction and sentence.

                                             I.

       We write solely for the parties and therefore recite only the facts that are necessary

to our disposition.

       On December 29, 2010, police executed search warrants on Wiltshire and on a

house at 663 Gordon Street in Reading, Pennsylvania. Wiltshire was stopped in his car

and searched, and police found twenty packets of cocaine base, $529 in cash, a house key

                                             2
for the house at 663 Gordon Street, and a cell phone on his person. Police subsequently

searched the house and found a gun, more drugs, and a bullet-proof vest. Wiltshire told

the police that there were drugs in his bedroom, and the parties dispute whether Wiltshire

also told the police of the existence of the gun.

       Wiltshire was charged with possession with intent to distribute, possession of a

firearm in furtherance of drug trafficking, and felon in possession of a firearm and body

armor. After a bifurcated trial, a jury acquitted Wiltshire of possession of a firearm in

furtherance of drug trafficking, but convicted on the remaining counts.

       During the second phase of the trial, concerning the felon-in-possession counts,

the District Court instructed the jury as to the definition of “possession” as follows, in

conformity with the Third Circuit model instruction:

       To establish the second element of this offense, the government must prove
       that Mr. Wiltshire possessed the firearm in question. To possess means to
       have something within a person’s control. The government does not have
       to prove that Mr. Wiltshire physically held the firearm, that is that he had
       actual possession of it. As long as the firearm was within his control, he
       possessed it.

       If you find that Mr. Wiltshire either had actual possession of the firearm or
       had the power and intention to exercise control over it, even though it was
       not in his actual, physical possession, that he had the ability to take actual
       possession of the firearm when he wanted to do so, you may find that the
       government has proved possession. Possession may be momentary or
       fleeting.

       The law also recognizes that possession may be sole or joint. If one person
       alone possesses a firearm, that’s sole possession. However, more than one
       person may have the power and intention to exercise control over a firearm.
       This is called joint possession. If you find that Mr. Wiltshire had such
       power and intention, then he possessed the firearm even if he possessed it
       jointly with another.


                                              3
       Mere proximity to the firearm or the mere presence on the property where it
       is located, or the mere association with a person who does control a firearm
       or the property is not sufficient to support a finding of possession.

       Proof of ownership of a firearm is not required. The government must
       prove beyond a reasonable doubt that Mr. Wiltshire knowingly possessed
       the firearm described in the indictment. This means that he possessed the
       firearm purposely and voluntarily and not by accident or mistake. It also
       means that he knew that it was a firearm.

       During the conference preceding the jury charge, Wiltshire objected and requested

that the instructions be modified by adding the following words to the beginning of the

second paragraph: “If you find that Mr. Wiltshire either had actual possession of the

firearm or knew of its existence and had the power and intention to exercise control over

it . . . .” Appendix (“App.”) 322. The District Court declined to modify the instruction,

stating that knowledge of the firearm’s existence is implicit in the notion of intent to

control and in the requirement of knowing possession, both of which were covered in the

instruction as written. See id. at 323-25.

       Wiltshire also requested that the District Court add the following words to the

beginning of the fourth paragraph: “Mere proximity to the firearm or the mere presence

on the property where it is located or mere knowledge of the firearm’s existence [], if you

did find that he knew that the firearm was there, you still have to find that he intended to

control it. So mere knowledge of the firearm’s existence or mere association . . . .” Id. at

325. The District Court was initially inclined to adopt the modification, but ultimately

declined to do so, noting that the insufficiency of mere knowledge to prove constructive

possession was implicit in the model instruction as written. See id. at 330.



                                              4
       After beginning deliberations, the jury submitted a question to the judge, asking,

“Can you please reiterate the exact definition of possession? Specifically, does the

knowledge of an item’s presence near you constitute possession?” Id. at 546. Wiltshire

requested that the District Court respond by re-reading the possession instruction and

giving a supplemental instruction that mere knowledge of an item’s presence near oneself

does not constitute possession. The judge declined to give a supplemental instruction,

instead re-reading the possession instruction from the initial charge. Id. at 546-49. The

jury returned guilty verdicts five minutes later.

       Subsequently, at sentencing, the Government relied upon three prior convictions

purportedly sustained by Wiltshire to seek a sentence enhancement under the ACCA: a

1989 New York conviction for attempted second-degree robbery, a 1989 New York

conviction for second-degree robbery, and a 2002 Pennsylvania drug-trafficking

conviction. To prove the New York convictions, the Government relied in part on

Certificates of Disposition (“CODs”), which are documents stating that “it appears from

an examination of the records on file” that a person was convicted of a particular offense.

The Government also proffered the fingerprint records from the New York cases and

evidence that those fingerprints match those taken from Wiltshire in the instant case. The

Government also relied upon transcripts of recorded telephone calls Wiltshire made while

in pretrial detention, in which he discussed the Government’s need to prove prior

convictions for any ACCA sentence enhancement.

       Wiltshire disputed this evidence, specifically arguing that the CODs are not the

type of conclusive evidence of a prior conviction that is required by law. Wiltshire

                                              5
pointed out that the New York fingerprint card for a May 12, 1989 arrest references a

different statute that the statute that was indicated on the COD for that offense. Wiltshire

disputed the existence of any robbery conviction at all, and argued that the Government

was required to produce an actual judgment of conviction or similarly conclusive record

to meet its burden of proof.

       Despite these arguments, the District Court found that the Government’s evidence

was sufficient and applied a sentence enhancement under the ACCA. The enhancement

had the effect of raising Wiltshire’s statutory maximum from 10 years to life, mandating

a 15-year mandatory minimum sentence, and raising his advisory sentencing Guideline

range from 92-115 months to 262-327 months. The District Court sentenced Wiltshire to

276 months of imprisonment. Wiltshire timely appealed.

                                            II.1

         “We exercise plenary review in determining whether the jury instructions stated

the proper legal standard. We review the refusal to give a particular instruction or the

wording of instructions for abuse of discretion.” United States v. Leahy, 445 F.3d 634,

642 (3d Cir. 2006) (quotation marks omitted).

       With regard to the ACCA, we review legal challenges to its interpretation de novo,

United States v. Gibbs, 656 F.3d 180, 184 (3d Cir. 2011), and review factual decisions

regarding criminal history calculations for clear error, United States v. Audinot, 901 F.2d

1201, 1202 (3d Cir. 1990).


1
 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
                                             6
       Review of constitutional claims is plenary. See United States v. Singletary, 268

F.3d 196, 198-99 (3d Cir. 2001).

                                             III.

                                             A.

       Wiltshire first argues that the District Court erred in rejecting his proposed

modifications to the jury instructions on constructive possession, both initially and in

response to the jury’s question. He asserts that, based on the District Court’s instructions,

a jury could find a defendant guilty based on mere knowledge of an item’s presence,

without proof of the other required element of constructive possession: dominion and

control. See United States v. Iafelice, 978 F.2d 92, 96 (3d Cir. 1992) (“Constructive

possession necessarily requires both ‘dominion and control’ over an object and

knowledge of that object’s existence.”).

       Because Wiltshire does not argue that the District Court stated an incorrect legal

standard, but rather takes issue with the allegedly confusing and misleading wording of

the District Court’s instructions on possession, we review the instructions for abuse of

discretion. 2 See Leahy, 445 F.3d at 642. In doing so, we “consider whether, viewed in


2
 Wiltshire also argues, relying upon United States v. Sussman, that we should review the
District Court’s failure to issue the requested instructions de novo because a court’s
“refusal to give a jury instruction with respect to the defendant’s theory of the case, when
preserved, is reviewed de novo.” Wiltshire Br. 22 (citing Sussman, 709 F.3d 155, 175
(3d Cir. 2013)). Wiltshire argues that this is appropriate because “[a] theory of the
defense was that, even if Mr. Wiltshire knew of the gun and bullet-proof vest, he did not
possess them.” Id. at 20. However, Sussman is materially distinct from the instant case.
In Sussman, the defendant proposed a separate jury instruction summarizing his theory of
the defense, and the District Court declined to offer that instruction, instead charging the
jury with a modified, shortened instruction summarizing the theory of the defense that
                                              7
light of the evidence, the charge as a whole fairly and adequately submits the issues in the

case to the jury.” United States v. Urban, 404 F.3d 754, 779 (3d Cir. 2005) (quotations

omitted). In conducting our review, we consider “the totality of the instructions and not a

particular sentence or paragraph in isolation.” United States v. Jimenez, 513 F.3d 62, 74-

75 (3d Cir. 2008) (quotation marks omitted). “Refusal to give a proposed instruction is

reversible error only if the omitted instruction is correct, is not substantially covered by

other instructions, and is so important that its omission prejudiced the defendant.” Urban,

404 F.3d at 779 (quotation marks omitted). “No litigant has a right to a jury instruction

of its choice, or precisely in the manner and words of its own preference.” Douglas v.

Owens, 50 F.3d 1226, 1233 (3d Cir. 1995). In fact, “‘[i]t is well settled that there is no

error to refuse to instruct as counsel wishes if the charge to the jury is correct.’” United

States v. Sussman, 709 F.3d 155, 178 (3d Cir. 2013) (quoting United States v. Blair, 456

F.2d 514, 520 (3d Cir. 1972)).

       In the instant case, the District Court initially read the jury the Third Circuit Model

Criminal Jury Instruction on “possession.” See App. 537-38; Third Circuit Model

Criminal Jury Instruction 6.18.922G-4. In general, use of this Court’s model jury

instructions is favored. See United States v. Petersen, 622 F.3d 196, 208 (3d Cir. 2010).

Sussman essentially alleged did not reflect the “substance” of his proposed jury
instruction and was prejudicial. See id. at 178-79. Here, by contrast, Wiltshire did not
proffer a separate “theory of the defense” instruction that was then rejected and replaced
by the District Court; rather, Wiltshire proposed specific language modifying the wording
of the District Court’s instruction on possession, one of the elements of the charged
offenses. Notably, even when applying the de novo standard in Sussman, this Court
noted that “a court does not err merely because it does not give an instruction in exactly
the words a defendant submits,” and held that, “under any standard of review,” the
District Court did not err in giving its theory of the defense instruction. Id. at 178, 181.
                                              8
       Wiltshire argues that the model instruction given by the District Court can

reasonably be read to imply that a jury should decline to find constructive possession

only when the evidence shows accidental, unknowing presence near an item, such that

knowing presence near an item is sufficient. We disagree, and think it clear that the

model jury instruction used by the District Court conveyed all of the required elements

necessary to prove constructive possession: knowledge, and dominion and control. See

Iafelice, 978 F.2d at 96. The District Court instructed the jury that “[i]f you find that Mr.

Wiltshire either had actual possession of the firearm or had the power and intention to

exercise control over it, even though it was not in his actual, physical possession, that he

had the ability to take actual possession of the firearm when he wanted to do so, you may

find that the government has proved possession.” App. 537-38 (emphasis added). The

District Court also instructed that “[t]he government must prove beyond a reasonable

doubt that Mr. Wiltshire knowingly possessed the firearm described in the indictment.

This means that he possessed the firearm purposely and voluntarily and not by accident

or mistake. It also means that he knew that it was a firearm.” App. 538 (emphasis

added). These two instructions clearly convey the idea that, in order to prove

constructive possession, the Government must prove that Wiltshire knew of the existence

and his possession of the firearm and that he had the power and intention to exercise

control over it. There is no implication in these instructions that proof of knowledge

without dominion and control, or vice versa, is sufficient. This is a correct, unambiguous

statement of the law, and, accordingly, there was no error in the instruction. See



                                              9
Sussman, 709 F.2d at 178. We therefore hold that the District Court did not abuse its

discretion in utilizing this Court’s model jury instruction.

       We also hold that the District Court did not abuse its discretion in re-reading the

model instruction in response to the jury’s question. The District Court exercises “wide

discretion” in fashioning its responses to questions from the jury. Arizona v. Johnson,

351 F.3d 988, 994 (9th Cir. 2003). Although it is true that “[w]hen a jury makes explicit

its difficulties a trial judge should clear them away with concrete accuracy,” Bollenbach

v. United States, 326 U.S. 607, 612-13 (1946), this does not require that the District

Court proffer the exact response requested by the defendant, especially when the initial

jury instructions were legally correct and unambiguously conveyed the requirements for

proof of possession. Cf. United States v. Southwell, 432 F.3d 1050, 1053 (9th Cir. 2005)

(holding that the District Court abused its discretion in responding to a jury’s question by

re-reading instructions that could “reasonably” have been interpreted “in one of two

ways”). In the instant case, though Wiltshire requested that the District Court respond to

the jury’s question about knowledge by giving a supplementing instruction that mere

knowledge is not enough to constitute possession, this idea was reasonably and

adequately conveyed by the initial instructions given by the District Court, such that the

Court was well within its discretion in re-reading those legally correct instructions.

                                              B.

       Wiltshire also argues that the District Court erred in relying on CODs to prove his

prior convictions for purposes of a sentence enhancement under the ACCA. The ACCA

subjects a defendant convicted of being a felon in possession of a firearm to a 15-year

                                             10
mandatory minimum sentence if he has at least three prior convictions for a “violent

felony” or a “serious drug offense.” 18 U.S.C. § 924(e).3

       In order to determine whether prior convictions qualify as predicates under the

ACCA, we “‘look only to the fact of conviction and the statutory definition of the prior

offense’” and do not delve into the facts underlying prior convictions. United States v.

Tucker, 703 F.3d 205, 209 (3d Cir. 2012) (quoting Taylor v. United States, 495 U.S. 575,

602 (1990)). However, when it is not immediately clear whether a defendant has been

convicted of a predicate under the ACCA, the District Court may look to “the terms of

the charging document, the terms of a plea agreement or transcript of colloquy between

judge and defendant in which the factual basis for the plea was confirmed by the

defendant, or some comparative judicial record of this information” to ascertain whether

the elements of the offense the defendant pled guilty to or was convicted of were

sufficient to qualify the offense as a predicate crime for ACCA purposes. Shepard v.

United States, 544 U.S. 13, 26 (2005). Facts considered at sentencing generally must be

proved by a preponderance of the evidence. United States v. Watts, 519 U.S. 148, 156

(1997).

       In the instant case, the Government asserted that Wiltshire had three prior

convictions that qualify as predicates under the ACCA: a 1989 New York conviction for


3
 A “violent felony” is defined to include, inter alia, any crime punishable by more than
one year in prison that “has as an element the use, attempted use, or threatened use of
physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). A “serious
drug offense” is defined as a drug trafficking crime punishable by a maximum term of
imprisonment of ten years or more. 18 U.S.C. § 924(e)(2)(A).

                                            11
attempted second-degree robbery (N.Y. Penal Law §§ 110, 160.10), a 1989 New York

conviction for second-degree robbery (N.Y. Penal Law § 160.10), and a 2002

Pennsylvania drug-trafficking conviction (35 P.S. § 780-113(a)(30)). To prove these

convictions, the Government proffered CODs, fingerprint records, and transcripts of calls

made from pretrial detention by Wiltshire referencing prior convictions.

       Wiltshire does not dispute that these statutes qualify as ACCA predicates, but

argues that the Government has presented insufficient evidence to prove he was

convicted of these offenses. Specifically, Wiltshire takes issue with the Government’s

reliance on CODs.

       Wiltshire correctly notes that in United States v. Hernandez, 218 F.3d 272, 279

(3d Cir. 2000), we held that when “the accuracy of a [COD] . . . is seriously called into

question, the federal sentencing judge may . . . look to the plea colloquy in the state court

to resolve the accuracy of the [COD].” See generally United States v. Green, 480 F.3d

627, 632-33 (2d Cir. 2007) (holding that a New York COD is “the type of judicial record

that the Shepard Court indicated a federal district court may consider in an effort to

determine the nature of the New York offense to which a federal defendant has

previously pleaded guilty”). Relying upon our holding in Hernandez, Wiltshire argues

that CODs “are so unreliable, in general and in this particular case, that they cannot be

trusted to accurately reflect the statutes under which [he] was convicted.” Wiltshire

Reply Br. 12.

       We reject Wiltshire’s argument that CODs are unreliable as a matter of law and

cannot be relied upon generally in cases such as the present case. Prohibiting the use of

                                             12
CODs as a matter of law would conflict with the holdings of this Court and others

explicitly permitting the use of CODs in proving prior convictions. See Hernandez, 218

F.3d at 279; Green, 480 F.3d at 632-33; United States v. Neri-Hernandes, 504 F.3d 587,

590-92 (5th Cir. 2007). We decline to hold that CODs are unreliable as a matter of law.

       In addition, despite Wiltshire’s argument to the contrary, we doubt that the

accuracy of the COD from the May 12, 1989 arrest for second degree robbery was even

seriously called into question. Wiltshire notes that the COD reports a conviction under

N.Y. Penal Law § 160.10(1), second degree robbery committed together with another

offender. The fingerprint card for the arrest states that only one offender was involved,

rendering § 160.10(1) inapplicable. However, both the fingerprint card and the COD

state that Wiltshire was convicted of § 160.10(1), so the number of offenders listed on the

fingerprint card may reasonably have been error. In any event, this discrepancy is

immaterial, as every violation of § 160.10, whether committed with a confederate or not,

is considered a “violent felony” for purposes of the ACCA.

       We note that the District Court did not ignore any evidence presented by

Wiltshire; rather, Wiltshire failed to present any evidence in response to the evidence

presented by the Government. Accordingly, we hold that the District Court did not

clearly err in finding that the Government proved the fact of Wiltshire’s prior convictions

by a preponderance of the evidence.

                                            C.

       Third, Wiltshire argues that 18 U.S.C. §§ 922(g)(1) and 931(a) are facially

unconstitutional, as the intrastate possession of a firearm or body armor does not

                                            13
constitute a valid exercise of Congress’s authority under the Commerce Clause.

Wiltshire also argues that these statutes are unconstitutional as applied to this case,

because the evidence established only that the gun and body armor seized at 663 Gordon

Street traveled in interstate commerce at some point, and this is insufficient to satisfy the

interstate commerce element of 18 U.S.C. §§ 922(g)(1) and 931(a).

       Wiltshire acknowledges that this Court rejected these arguments in Singletary, 268

F.3d 196. In Singletary, we upheld the constitutionality of 18 U.S.C. §§ 922(g)(1) and

stated that evidence that a “gun had traveled in interstate commerce, at some time in the

past, was sufficient to satisfy the interstate commerce element” of 18 U.S.C. § 922(g)(1).

Id. at 204-05. Here, the Government presented evidence that both the gun and the body

armor were produced outside Pennsylvania and therefore crossed a state line before being

found in Wiltshire’s possession. We are, accordingly, bound by this Court’s precedent to

find that the evidence was sufficient to satisfy the interstate commerce element, and

Wiltshire raises this argument only to preserve it for purposes of appeal.

                                             D.

       Finally, Wiltshire argues that the District Court’s use of the ACCA to apply a

sentencing enhancement violated his Fifth and Sixth Amendment rights, as the

application of the ACCA was based on facts – specifically the existence of previous

convictions – that were neither charged in the indictment nor admitted or found by a jury

beyond a reasonable doubt. Wiltshire argues that the rule of Apprendi v. New Jersey,

430 U.S. 466 (2000), requiring that an indictment charge and a jury determine facts



                                             14
subjecting a defendant to a greater maximum sentence or a mandatory minimum

sentence, should apply to the fact of a prior conviction.

       Wiltshire acknowledges that current law exempts the fact of prior conviction from

the Apprendi rule. In Almendarez-Torres v. United States, 523 U.S. 224, 239-47 (1998),

the Supreme Court held that the Government need not prove beyond a reasonable doubt,

as an element of the offense, that a defendant had prior convictions nor allege them in the

indictment before using them to enhance the defendant’s sentence. This Court has held

that Almendarez-Torres remains binding law, and we are bound by its holding. See

United States v. Ordaz, 398 F.3d 236, 240-41 (3d Cir. 2005). Wiltshire makes this

argument solely to preserve it for appeal.

                                             IV.

       For the foregoing reasons, we will affirm the District Court’s judgment of

conviction and sentence.




                                             15
