                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-25-2007

USA v. Roebuck
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4726




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Recommended Citation
"USA v. Roebuck" (2007). 2007 Decisions. Paper 385.
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                                                                 NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                   Case No: 05-4726

                          UNITED STATES OF AMERICA


                                            v.

                                DONALD ROEBUCK,

                                            Appellant


                   On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                           District Court No.: 1:03-CR-00172
                 District Judge: The Honorable Christopher C. Conner


                  Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                September 19, 2007

              Before: SLOVITER, SMITH, and GARTH, Circuit Judges

                              (Filed: September 25, 2007)




                                       OPINION


SMITH, Circuit Judge.

      This appeal challenges the sufficiency of the evidence to establish that Appellant

Donald Roebuck possessed a firearm and ammunition beyond a reasonable doubt. We
will affirm the judgment of conviction and sentence imposed by the District Court.1

       On July 9, 2003, the Government filed a two-count Indictment in the United States

District Court, Middle District of Pennsylvania, charging Roebuck with one count of

violating 18 U.S.C. § 922(g)(1), felon in possession of firearms, and 18 U.S.C. § 924(c),

use of firearms in relation to drug trafficking. The Government then filed a Superseding

Indictment that added a third count, violation of 18 U.S.C. § 922(g)(1), felon in

possession of ammunition. The jury convicted Roebuck of two counts of violating 18

U.S.C. § 922(g)(1), one count for possession of a firearm by a convicted felon, and one

count for possession of ammunition by a convicted felon. The Judgment of Conviction

was entered on August 17, 2004. After a post-Booker remand, Roebuck was sentenced

to, inter alia, forty-six months in prison on each count, to run concurrently. The Judgment



   1
     The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231. We
exercise jurisdiction under 28 U.S.C. § 1291. The Government argues that Roebuck has
waived his right to appeal the sufficiency of the evidence because this issue was not
raised in his first appeal. We exercise plenary review of the Government’s argument that
Roebuck waived his right to appeal his conviction. Gibbs v. Cross, 160 F.3d 962, 964 (3d
Cir. 1998). On October 22, 2004, Roebuck appealed from the judgment of sentence on
grounds that his sentence was based on the then-mandatory nature of the Federal
Sentencing Guidelines, the constitutionality of which were called into question by Blakely
v. Washington, 542 U.S. 296 (2004). After this initial appeal, the Supreme Court applied
Blakely to the Federal Sentencing Guidelines in United States v. Booker, 543 U.S. 220
(2005). On July 14, 2005, this Court remanded the case for re-sentencing in light of
Booker. United States v. Roebuck, 141 Fed. Appx. 81 (3d Cir. July 14, 2005). Prior to
this appeal, neither Roebuck nor this Court has addressed the merits of his sufficiency of
the evidence argument. Because this Court had no procedure in place for post-Blakely
review at the time Roebuck filed his initial appeal, we conclude that Roebuck did not
waive the present challenge to his conviction. Roebuck raises only a sufficiency of the
evidence claim in the present appeal.

                                             2
of Conviction was entered on September 15, 2005. The sole issue on this appeal is

whether there was sufficient evidence for a jury to conclude that Roebuck was guilty of

these two counts beyond a reasonable doubt.

       “In reviewing a jury verdict for sufficiency of the evidence, we determine whether

there is substantial evidence that, when viewed in the light most favorable to the

government, would allow a rational trier of fact to convict. In other words, we must

consider the evidence in the light most favorable to the government and affirm the

judgment if there is substantial evidence from which any rational trier of fact could find

guilt beyond a reasonable doubt.” United States v. Lore, 430 F.3d 190, 204 (3d Cir.

2005) (quotations and citations omitted). A defendant carries a “heavy burden” to prove

insufficiency. Id. The Government may defeat a sufficiency of the evidence challenge on

circumstantial evidence alone. United States v. Bobb, 471 F.3d 491, 494 (3d Cir. 2006).

       A brief discussion of the evidence presented at trial will illustrate why Roebuck’s

claim must fail. On March 13, 2003, uniformed members of the Harrisburg police

department and members of the Harrisburg vice unit executed a search warrant at

Roebuck’s residence. Relevant to this appeal, the search uncovered a Hi Point .40 caliber

semi-automatic pistol (“Hi Point”) and a Smith & Wesson .40 caliber semi-automatic

pistol (“Smith & Wesson”), as well as .40 caliber and 9 mm ammunition. The search also

uncovered over $9000 in cash, crack cocaine, and marijuana. The Hi Point was found in

a box on steps leading up to the attic. The Smith & Wesson was found in Roebuck’s coat


                                             3
behind a locked door to the attic. The .40 caliber ammunition was found in Roebuck’s

bedroom, and the 9 mm ammunition was found on a balcony outside of a bedroom.

Roebuck’s conviction on the two § 922(g)(1) counts related to the Smith & Wesson and

the box of .40 caliber ammunition, so the rest of our discussion will focus primarily on

this firearm and this ammunition.

         At trial, Investigator Lavell Jenkins of the vice squad testified that he advised

Roebuck of his constitutional rights, and Roebuck then showed the officer his stash of

marijuana. Investigator Jenkins also testified that Roebuck at first denied that there were

any guns in the house. Investigator Jenkins stated that, as another officer was coming

back downstairs with a green jacket, Roebuck “yelled [Jenkins’] name to get [his]

attention, and he indicated that he wanted to advise [Jenkins] that there was a gun

basically inside the jacket.” Investigator Jenkins testified that Roebuck told him that he

had possession of the Smith & Wesson for about two years. The officer who found the

Smith & Wesson, Lieutenant John Goshert, testified that he located the loaded gun behind

the locked door after asking Roebuck for a key. Investigator Jenkins also testified that a

detective recovered the box of .40 caliber ammunition from a bedroom on the second

floor.

         Roebuck testified that he did not know at the time of the search that there were any

firearms or ammunition in the house. Roebuck conceded, though, that he made

incriminating statements to Investigator Jenkins regarding both firearms. At trial and


                                                4
again on this appeal, Roebuck admits that he told Investigator Jenkins that he “found one

of the firearms and the other belonged to a guy at work.” However, Roebuck testified

that this statement to Investigator Jenkins was not true. Roebuck testified that “I was

doing my best to cooperate with the officer and I accepted responsibility for something

that was not mine and that I didn’t bring there.” On cross-examination, Roebuck also

testified that both the money and the crack cocaine found in the green jacket belonged to

him, but not the Smith & Wesson.

       The next witness for Roebuck, Heath Wells, testified that he, rather than Roebuck,

owned both the Smith & Wesson and the Hi-Point firearms. Wells stated that he had

lived with Roebuck for five or six weeks, and that he had brought his guns with him. The

Hi-Point was registered to Wells, lending credence to this portion of his testimony. With

respect to the Smith & Wesson, Wells contended that he found it by his car outside the

bar he worked at with Roebuck. When asked about how he saw the Smith & Wesson,

Wells stated that “I was standing there talking to someone and just looking around. I

mean, I looked around a lot, because you can find a lot of stuff out there. So I’ve gotten

in the habit of just looking around, watching the ground.” On cross-examination, Wells

claimed that the Smith & Wesson was his gun, even though he previously described the

gun as a Glock with black handgrips and a scuff mark. The Smith & Wesson had no

black handgrips and no scuff marks. Wells also testified that the .40 caliber ammunition

belonged to him, although he did not know how the ammunition ended up in a second


                                             5
floor bedroom. Similarly, Wells testified that he did not have a key to the attic, and that

the attic was not locked when he lived there. Wells never testified that he put the Smith

& Wesson in Roebuck’s green jacket.

       Roebuck now argues that he never had actual or constructive possession of the

Smith & Wesson or the .40 caliber ammunition. “A person who, although not in actual

possession, knowingly has both the power and the intention at a given time to exercise

dominion or control over a thing, either directly or through another person or persons, is

then in constructive possession.” United States v. Garth, 188 F.3d 99, 112 (3d Cir. 1999).

The facts of this case were sufficient to show that Roebuck had at least constructive

possession of the Smith & Wesson and the .40 caliber ammunition. First, Roebuck

concedes that he lived alone at the time of the March 13, 2003 search. Second, the jury

could have reasonably inferred from the testimony of the officers, Roebuck, and Wells

that Roebuck knowingly exercised control over the firearm and the bullets. The first

reasonable inference the jury could have made was that Wells simply lied for his friend,

and that Wells never possessed the Smith & Wesson or the ammunition. Wells

inconsistently described the gun, could not explain how the ammunition ended up in the

bedroom, and provided a questionable story about how he found the gun by his car.

Along the same lines, the jury could have reasonably disbelieved Roebuck’s assertion that

he knew about the drugs and money in the green jacket, but not the firearm. The second

reasonable inference the jury could have made was that, even if Wells initially had control


                                              6
of the Smith & Wesson and the ammunition, Roebuck gained control once Wells moved

out of Roebuck’s house. Wells did not state that he put the Smith & Wesson in the green

jacket, and testified that he kept the firearm and the ammunition together. A reasonable

jury could have concluded that Roebuck moved both the firearm and ammunition to other

places in his home after Wells left. Against the backdrop of both these reasonable

inferences is Roebuck’s concession that he admitted to Investigator Jenkins that he knew

about the Smith & Wesson and the ammunition. At trial and on appeal, Roebuck argues

that he made this concession because he wanted to cooperate and because he had to use

the bathroom. The jury was not required to accept this story as true.

       In light of the several inconsistencies in Roebuck’s testimony, the incredible

testimony of Heath Wells, the evidence against Roebuck supplied by the testimony of

Investigator Jenkins and Lieutenant Goshert, and the discovery of the Smith & Wesson as

well as the ammunition, we conclude that there was ample, substantial evidence from

which any rational trier of fact could find guilt beyond a reasonable doubt. We will

therefore affirm the judgment of conviction and sentence.




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