                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 07a0672n.06
                          Filed: September 12, 2007

                                            No. 05-6170

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT



UNITED STATES OF AMERICA,                )
                                         )
      Plaintiff-Appellee,                )
                                         )
             v.                          )                      ON APPEAL FROM THE UNITED
                                         )                      STATES DISTRICT COURT FOR
SHELLY PERKINS,                          )                      THE WESTERN DISTRICT OF
                                         )                      TENNESSEE
      Defendant-Appellant.               )
                                         )
________________________________________ )


Before: BATCHELDER and GRIFFIN, Circuit Judges; and ACKERMAN, District Judge.*

       GRIFFIN, Circuit Judge.

       Defendant Shelly Perkins was charged with two counts of being a felon in possession of a

firearm in violation of Title 18 U.S.C. § 922(g). Perkins pleaded not guilty and filed a motion to

suppress the physical evidence and her statements during her arrest. Following a hearing, the district

court denied Perkins’ motion. At the conclusion of a jury trial, Perkins was convicted on both counts

of the indictment. Thereafter, the district court sentenced her to 180 months’ incarceration, to be

followed by three years’ supervised release, and a $200 special assessment. Perkins timely appealed.

       For the reasons set forth below, we affirm Perkins’ conviction and sentence.



       *
       The Honorable Harold A. Ackerman, Senior United States District Judge for the District of
New Jersey, sitting by designation.
Case No. 05-6170
United States v. Perkins


                                                   I.

        On June 2, 2003, members of the Shelby County Narcotics Unit executed a search warrant

at approximately 2:20 in the afternoon at 2998 Spottswood, a small residence in Memphis,

Tennessee. Deputy Michael Bartlett testified that he obtained and executed the warrant. At the later

suppression hearing, Bartlett testified that the dwelling was a small, three bedroom house, and that

the officers approached it in a van. Bartlett stated that he, the first officer to the door, knocked upon

the door and announced “Shelby County Sheriff’s Narcotics Unit, search warrant.” He did this

approximately six times in order to wait thirty seconds. Although the deputies heard a commotion

in the house, no one opened the door, and the deputies forced an entry by “pick[ing]” the iron door

and ramming the wooden inside door.

        Bartlett testified that upon entering the house, there were several people present, including

Perkins. After handcuffing Perkins, Bartlett asked her if there were any illegal narcotics in the

house. Perkins responded by stating that there was marijuana under her pillow and cocaine in her

nightstand beside the bed. In seizing the marijuana and cocaine, the officers also found a revolver

on the nightstand beside the bed. When Bartlett asked Perkins for her identification, Perkins stated

that it was in her purse. Thereafter, Bartlett located the identification and discovered a second

handgun in the purse. After being advised of her Miranda rights, Perkins admitted that the guns

belonged to her.




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United States v. Perkins


       Terrance Johnson also testified at Perkins’ suppression hearing. Johnson testified that he was

present at 2998 Spottswood when the search warrant was executed, but he did not recall the officers

knocking at the door and announcing their entry.

       At the conclusion of the suppression hearing, the district court issued an oral ruling from the

bench. The district court found that the officers had a valid search warrant and arrived at the

residence at 2:00 p.m. on June 2, 2003. The district court also evaluated the credibility of Bartlett’s

and Johnson’s testimony, concluding that:

       in evaluating Mr. Johnson’s testimony, and I’m not really crediting his testimony as
       to what happened on the knock and announce–but in evaluating his testimony, I am
       not particularly moved by whether he has a criminal history or not. . . . What troubled
       me is as I had the opportunity to sit here and listen to Mr. Johnson and observe him,
       I would say that Mr. Johnson’s perceptions are not probably as clear as they need to
       be, and his memory is probably not as good as it ought to be for me to rely on it in
       opposition to the precise, clear testimony of Officer Bartlett. . . . Mr. Johnson was not
       in a position to remember very clearly his own criminal history, exactly what he did,
       and when he did it, and what his punishment was. And my observation is that his
       perception and his memory are both unreliable, even when he makes his best effort
       in good faith to testify. . . . [Thus,] his testimony for the Court is unreliable, based on
       listening to him try to answer questions, understand questions, and respond to
       questions, and trying to remember his own past, significant events in his own past,
       much less events from several years ago.

The district court stated that “insofar as there is a conflict in the testimony,” it “would resolve the

conflict in favor of the detective, Detective Bartlett.”

       At the trial, Special Agent Mike Roland from the Bureau of Alcohol, Tobacco, and Firearms

testified regarding the firearms seized from Perkins’ house. Specifically, he testified that he had

examined the firearms, one of which was a Walther semi-automatic pistol manufactured in Germany,

and the other was a Colt revolver manufactured in Connecticut. At the conclusion of the

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Case No. 05-6170
United States v. Perkins


government’s case-in-chief, Perkins moved for judgment as a matter of law, arguing that the

government failed to put forth sufficient evidence that the firearms had crossed state lines. The

district court denied the motion.

       Following the trial, a jury found Perkins guilty of both counts of possessing a firearm after

being convicted of a felony. The district court sentenced Perkins as an Armed Career Criminal to

180 months’ incarceration, followed by three years supervised release.

                                                 II.

       First, Perkins argues that the district court erred in denying her motion to suppress because

the district court “clearly erred in finding that the officers knocked and announced before entering

the home” by failing to credit the testimony of Terrance Johnson. The government contends that the

district court did not err in denying Perkins’ motion to suppress, that the evidence established that

Bartlett waited approximately thirty seconds prior to entry, and that this procedure satisfied the

common law “knock and announce” rule’s reasonableness inquiry.

       On appeal from a denial of a motion to suppress, we review the district court’s findings of

fact for clear error and its conclusions of law de novo. See United States v. Johnson, 351 F.3d 254,

258 (6th Cir. 2003). “Absent exigent circumstances, the Fourth Amendment requires the police to

knock and announce their presence before forcibly entering a location to execute a search warrant.”

United States v. Pelayo-Landero, 285 F.3d 491, 498 (6th Cir. 2002). Here, the district court did not

err in finding that the knock-and-announce rule was satisfied when the officers waited thirty seconds

prior to forcing entry into the home. The warrant was executed in the middle of the afternoon, the


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Case No. 05-6170
United States v. Perkins


officers heard a “commotion” in the house signaling the presence and activity of people, and the

subject matter of the warrant (narcotics) had the potential to be easily destroyed. Perkins’ only

argument – that the district court erred in not crediting the testimony of Terrance Johnson over

Officer Bartlett – is unsupported and without merit. Credibility determinations “are generally not

subject to reversal upon appellate review.” United States v. Taylor, 956 F.2d 572, 576 (6th Cir.

1992) (en banc); see also United States v. Gessa, 57 F.3d 493, 496 (6th Cir. 1995) (“The appellate

courts generally do not review the district court’s determinations regarding witness credibility.”).

        Moreover, even if the officers had failed to comply with the knock-and-announce rule during

the execution of the valid warrant, it is likely that Perkins would not be entitled to suppression of the

evidence. The Supreme Court recently decided Hudson v. Michigan, — U.S. — , 126 S. Ct. 2159,

2168 (2006), holding that where police executing a valid search warrant failed to knock and

announce their presence, a “[r]esort to the massive remedy of suppressing evidence of guilt is

unjustified.” See also United States v. Johnson, 488 F.3d 690, 696 (6th Cir. 2007).

        Accordingly, we affirm the denial of defendant’s motion to suppress.

                                                  III.

        Next, Perkins asserts that the evidence presented by the prosecution was insufficient to

support the jury’s verdict that Perkins possessed firearms in and affecting interstate commerce after

being convicted of a felony. We disagree.

        “When reviewing the sufficiency of the evidence to support a criminal conviction, the

‘relevant question is whether, after viewing the evidence in the light most favorable to the


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United States v. Perkins


prosecution, any rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt.’” United States v. Wood, 364 F.3d 704, 716 (6th Cir. 2004) (quoting Jackson

v. Virginia, 443 U.S. 307, 319 (1979)). “In sum, a defendant claiming insufficiency of the evidence

bears a very heavy burden.” United States v. Jackson, 473 F.3d 660, 669 (6th Cir. 2007).

        Perkins contends that the government failed to present sufficient evidence with respect to the

second and third elements of the crime. We disagree. The elements for conviction pursuant to 18

U.S.C. § 922(g)(1) are: (1) that the defendant has a prior conviction for a crime punishable by

imprisonment for a term exceeding one year; (2) that the defendant thereafter knowingly possessed

the firearm and ammunition; and (3) that the firearm traveled in or affected interstate commerce.

        The second element, knowing possession, may be sustained by evidence of either actual or

constructive possession. United States v. Moreno, 933 F.2d 362, 373 (6th Cir. 1991); United States

v. Wight, 968 F.2d 1393 (1st Cir. 1992). “Presence alone ” within the proximity of a gun does not

“show the requisite knowledge, power, or intention to exercise control over” the gun to prove

constructive possession, United States v. Birmley, 529 F.2d 103, 107-08 (6th Cir. 1976), but “other

incriminating evidence, coupled with presence . . . will serve to tip the scale in favor of sufficiency.”

Id. at 108; see also United States v. Arnold, 486 F.3d 177, 183 (6th Cir. 2007) (en banc).

        Here, the government presented evidence at trial that: (1) the guns were located in Perkins’

bedroom – one in her purse, along with her identification and letters addressed to her, and one in her

nightstand, the same nightstand upon which the officers had found a bag containing cocaine; and (2)

Perkins admitted that the guns belonged to her. Although, in her brief, Perkins proffers an alternate


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United States v. Perkins


theory of innocence – that the guns were left by her brother, and upon finding them, she put them

away from the children – this does not demonstrate that the evidence presented to the jury was

insufficient. Perkins testified as to her version of the facts at trial. Apparently, the jury did not

believe her. “A jury may choose from among reasonable constructions of the evidence . . . and need

not exclude every reasonable hypothesis except that of guilt.” United States v. Forrest, 17 F.3d 916,

919 (6th Cir. 1994). Perkins cannot meet her burden of demonstrating that no reasonable trier of fact

could have found that the elements of the crime had been established beyond a reasonable doubt by

simply offering an alternative explanation that was rejected by the jury. The burden is much higher,

and Perkins has not met it.

       Perkins’ challenge to the sufficiency of interstate commerce evidence, the third element, is

equally without merit. In Scarborough v. United States, 431 U.S. 563 (1977), the Supreme Court

held that only a minimal nexus was needed to establish that a firearm affected interstate commerce.

Indeed, the Court has held that the mere fact that the firearm was manufactured in a different state

established a sufficient nexus with interstate commerce. Barrett v. United States, 423 U.S. 212

(1976). Here, contrary to Perkins’ arguments, Agent Roland testified at trial where each of the

firearms were manufactured. Further, he testified that the firearms were not manufactured in

Tennessee. Based on this evidence, viewed in the light most favorable to the prosecution, a rational

trier of fact could find that the firearms traveled in interstate commerce. Accordingly, we hold that

the government presented sufficient evidence to meet its burden under 18 U.S.C. § 922 to show that

the firearm affected interstate commerce.


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Case No. 05-6170
United States v. Perkins


                                                 IV.

       Next, Perkins argues that her three previous drug convictions should not have been treated

as separate episodes pursuant to the Armed Career Criminal Act (“ACCA”).

       Whether previous conduct constitutes numerous predicate offenses or a single occasion

pursuant to the ACCA is a legal issue subject to de novo review. United States v. Graves, 60 F.3d

1183, 1185 (6th Cir. 1995). The ACCA imposes a mandatory minimum sentence of fifteen years

for career criminals. The statute provides:

       In the case of a person who violates section 922(g) of this title and has three previous
       convictions . . . for a violent felony or a serious drug offense, or both, committed on
       occasions different from one another, such person shall be fined under this title and
       imprisoned not less than fifteen years. . . .

18 U.S.C. § 924(e)(1) (emphasis added).

       “This circuit has further explained that a career offender is one convicted of three criminal

‘episodes.’ ‘An episode is an incident that is part of a series, but forms a separate unit within the

whole. Although related to the entire course of events, an episode is a punctuated occurrence with

a limited duration.’” United States v. Graves, 60 F.3d 1183, 1185 (6th Cir. 1995) (quoting United

States v. Hughes, 924 F.2d 1354, 1361 (6th Cir. 1991)).

       Perkins argues that because her predicate offenses were the result of a single arrest, a single

court proceeding, and resulted in concurrent sentences, the district court erred by ruling that her

predicate offenses were “committed on occasions different from one another.” In response, the

government persuasively relies upon United States v. Roach, 958 F.2d 679 (6th Cir. 1992), in which

we addressed a similar situation and examined whether a defendant’s three prior drug convictions

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Case No. 05-6170
United States v. Perkins


were part of a single criminal episode under the ACCA. Roach contended that his three prior drug

convictions were part of a single criminal episode because they stemmed from the same indictment,

were pled to on the same date, and two of them resulted from sales to the same undercover agent.

Id. at 683. In addressing Roach’s claims, we followed United States v. Hughes, 924 F.2d 1354, 1361

(6th Cir. 1991), wherein the defendant made a similar argument that the drug raids resulting in his

conviction for conspiracy constituted a single criminal episode because, although they occurred on

different days, they occurred at the same residence and involved the same type of controlled

substances. Roach, 958 F.2d at 684 (citing Hughes, 924 F.2d at 1361). In Hughes, we ultimately

rejected this argument, holding that the drug raids occurred at distinct times during a nine-month

period, and thus constituted three separate predicate offenses warranting enhancement under

§ 924(e)(1). Id. Likewise in Roach, we held that because Roach “committed drug offenses on three

different days (March 11th, 12th, and 26th), these offenses do not constitute a single criminal

episode, and the district court properly enhanced appellant’s sentence pursuant to 18 U.S.C.

§ 924(e)(1).” Roach, 958 F.2d at 684.

       In the present case, Perkins committed drug offenses on August 25, August 31, and October 2

of 1990, a span of 39 days, significantly more days than in Roach. In light of Roach, Perkins’

arguments are without merit.

                                                V.

       Finally, Perkins contends that her Sixth Amendment rights were violated by the application

of the ACCA because her prior convictions were not proved to a jury beyond a reasonable doubt.


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Case No. 05-6170
United States v. Perkins


This argument is foreclosed by United States v. Barnett, 398 F.3d 516, 524-25 (6th Cir. 2005)

(holding that a district court’s characterization of a prior conviction as a “violent felony” as defined

by the ACCA did not violate a defendant’s Sixth Amendment rights under United States v. Booker,

543 U.S. 220 (2005)). See also James v. United States, – U.S. – , 127 S. Ct. 1586, 1600 (2007) (“To

the extent that [defendant] contends that the simple fact of his prior conviction was required to be

found by a jury, his position is baseless. . . . [W]e have held that prior convictions need not be treated

as an element of the offense for Sixth Amendment purposes.”); United States v. Bradley, 400 F.3d

459 (6th Cir. 2005).

                                                   VI.

        For the foregoing reasons, we affirm Perkins’ conviction and sentence.




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