                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                August 25, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                  Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                  No. 10-6231
                                               (D.C. No. 5:10-CR-00095-C-1)
    DOROTEO RENDON-MARTINEZ,                           (W.D. Okla.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before MURPHY, ANDERSON, and HARTZ, Circuit Judges.


         Doroteo Rendon-Martinez was convicted of possession of a firearm and

ammunition by a felon and of illegal reentry by an alien after being deported. He

now appeals his convictions and 180-month concurrent sentences. Exercising

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm.




*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
                                   Background

      Mr. Rendon-Martinez is a native and citizen of Mexico who was removed

from the United States in December 2009. By February 9, 2010, however, he had

returned to this country and was living in a house in Oklahoma City. On that day,

he thought three men were trying to break into the house. Knowing that a .38

Special revolver and ammunition were on the premises, he grabbed the gun and

fired warning shots into the yard. Someone called the police, and when officers

arrived they saw Mr. Rendon-Martinez holding the revolver.

      Mr. Rendon-Martinez was charged with one count of possession of a

firearm and ammunition by a felon, in violation of 18 U.S.C. § 922(g)(1) (count

one); one count of possession of a firearm and ammunition by an illegal alien, in

violation of 18 U.S.C. § 922(g)(5)(A) (count two); and one count of illegal

reentry of a deported alien, in violation of 8 U.S.C. § 1326(a) (count three). He

stipulated to facts that established each element of these crimes and went through

a bench trial before the district court. The court found him guilty on counts one

and three and granted the government’s motion to dismiss count two.

      The presentence investigation report suggested that Mr. Rendon-Martinez

had convictions for three prior serious drug offenses, and therefore he was subject

to the enhanced penalties of the Armed Career Criminal Act, 18 U.S.C. § 924(e)




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(ACCA). 1 In response, he argued that his prior convictions did not qualify as

serious drug offenses. The government filed a sentencing memorandum,

discussing the convictions and attaching certain Oklahoma court documents

concerning them. The district court concluded that the three convictions fell

“within the meaning of serious drug offenses as defined by statute and do

establish an Armed Career Criminal enhancement in this case.” Aplt. App., Vol. I

at 32. Accordingly, the court sentenced Mr. Rendon-Martinez to the

ACCA-mandated minimum of 180 months on each conviction, to be served

concurrently.

                                      Analysis

I.    Ineffective Assistance

      Mr. Rendon-Martinez’s first argument is that his trial counsel was

ineffective. He asserts that counsel “did essentially nothing and acted in a

manner that was actually harmful to [him]” by allowing him to sign stipulations

that “materially admitted to every element of the charges against him.” Aplt.

Opening Br. at 10. He concedes that this court rarely hears claims of ineffective

assistance of counsel on direct appeal, but he states that this claim is evident from

the existing record.

1
       The ACCA 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 . . . imprisoned not less than fifteen years . . . .” 18 U.S.C.
§ 924(e)(1).

                                         -3-
      As Mr. Rendon-Martinez recognizes, this court generally prefers to defer

ineffective-assistance claims to collateral proceedings. See United States v.

Erickson, 561 F.3d 1150, 1170 (10th Cir. 2009). Although “this court has

considered ineffective assistance of counsel claims on direct appeal in limited

circumstances,” it has done so “only where the issue was raised before and ruled

upon by the district court and a sufficient factual record exists.” United States v.

Flood, 635 F.3d 1255, 1260 (10th Cir. 2011). Neither of these conditions is met

in this case. Thus, “[w]e see no reason here to depart from the general rule that

ineffective-assistance claims should not be addressed on direct appeal.” Erickson,

561 F.3d at 1170.

II.   Justification

      Mr. Rendon-Martinez next argues that he was justified in handling the

revolver because he was afraid that the three men would break into his house. He

did not raise this argument in district court. Treating the omission as a forfeiture,

he requests plain-error review. In contrast, the government asserts that it was his

burden to raise his affirmative defense and that his failure to argue the issue at

trial results in a waiver.

      We need not resolve this dispute, because Mr. Rendon-Martinez cannot

prevail even under plain-error review. “When reviewing an issue for plain error,

we will reverse the judgment below only if there is (1) error, (2) that is plain,

which (3) affects substantial rights.” United States v. Zubia-Torres, 550 F.3d

                                         -4-
1202, 1208 (10th Cir. 2008). “If these three criteria are met, then we may

exercise discretion to correct the error if it seriously affects the fairness, integrity,

or public reputation of the judicial proceedings.” Id.

      Mr. Rendon-Martinez has failed to establish the second (if not the first)

requirement of plain-error review. The basis of his justification defense is that

the alleged break-in attempt forced him to handle the revolver on February 9,

2010. But it appears from this record that he was guilty of violating § 922(g)(1)

even before he picked up the revolver.

      “Possession can either be actual or constructive.” United States v. Michel,

446 F.3d 1122, 1128 (10th Cir. 2006). “Constructive possession of an object

exists when a person knowingly holds the power and ability to exercise dominion

and control over it.” Id. (alteration and internal quotation marks omitted). In

cases of joint occupancy (which this appears to be), the government “must present

evidence to show some connection or nexus between the defendant and the

firearm.” Id. (internal quotation marks omitted). Mr. Rendon-Martinez

stipulated: “A .38 special revolver with several rounds of .38 special ammunition

. . . were in his house. Mr. Rendon-Martinez had knowledge of and access to the

.38 special revolver and ammunition inside his house.” Aplt. App., Vol. I at 22.

Together with his further stipulation that he used the revolver on February 9, this

evidence is more than sufficient to establish a connection between him and the

revolver and ammunition, and to establish that he knowingly held the power and

                                           -5-
ability to exercise dominion and control over those items before the break-in

attempt. If there was error in failing to acquit Mr. Rendon-Martinez on the

ground of justification, the error is certainly not plain.

III.   Illegal Search

       Mr. Rendon-Martinez asserts that after the police officers secured him at

the front door of the house, they searched the house without first obtaining a

warrant. During the search they saw ammunition. Contending that this

warrantless search was unreasonable, Mr. Rendon-Martinez argues that his

conviction for possession of a firearm and ammunition was based on illegally

obtained evidence.

       Because Mr. Rendon-Martinez failed to file a suppression motion in the

district court, he has waived this issue unless he can show “good cause” for not

raising the issue before the district court. See Fed. R. Crim P. 12(e); United

States v. Burke, 633 F.3d 984, 988 (10th Cir.), cert. denied, 131 S. Ct. 2130

(2011). He has not shown good cause (other than his claim of ineffective

assistance of counsel, which we are not considering on direct appeal). And even

if we disregarded this waiver, he has not shown how suppressing the ammunition

evidence would invalidate his conviction. If the district court had suppressed all

the evidence from the search, the undisputed (and admissible) evidence that he




                                           -6-
possessed the revolver would, by itself, be sufficient to convict him of violating

§ 922(g)(1). 2

IV.    Armed Career Criminal Sentencing

       Finally, Mr. Rendon-Martinez challenges his 180-month concurrent

sentences. He argues that the court improperly imposed the ACCA-mandated

minimum sentence because the indictment made no allegations concerning his

prior crimes and the prosecution did not prove at trial that the crimes were

“committed on occasions different from one another.” 18 U.S.C. § 924(e)(1).

Citing Shepard v. United States, 544 U.S. 13 (2005), he further asserts that

“inquiry beyond the charging documents and statute must be narrowly restricted.”

Aplt. Opening Br. at 23.

       In district court Mr. Rendon-Martinez objected to applying the ACCA, but

not on the grounds he now raises before this court. Therefore, this issue is

reviewed only for plain error. See United States v. Serrano, 406 F.3d 1208, 1220

(10th Cir. 2005) (applying plain-error review to an ACCA sentence when the

defendant did not raise his argument below).




2
       Although he was charged with illegal possession of a firearm and
ammunition, § 922(g)(1) criminalizes the possession by a felon of “any firearm or
ammunition” (emphasis added). “It is hornbook law that a crime denounced in
the statute disjunctively may be alleged in an indictment in the conjunctive, and
thereafter proven in the disjunctive.” United States v. Gunter, 546 F.2d 861,
868-69 (10th Cir. 1976).

                                         -7-
      There was no error, much less plain error. The existence of prior

convictions used to enhance a sentence need not be charged in the indictment or

proved at trial. See United States v. Moore, 401 F.3d 1220, 1223-24 (10th Cir.

2005). In particular, “whether prior convictions happened on different occasions

from one another is not a fact required to be determined by a jury but is instead a

matter for the sentencing court.” Michel, 446 F.3d at 1133.

      Further, the district court had adequate information to determine that the

prior crimes occurred on three different occasions. The government’s sentencing

memorandum attached the Oklahoma informations listing the dates of the charged

offenses. The district court was entitled to refer to these documents to determine

when the prior offenses occurred. Mr. Rendon-Martinez’s reliance on Shepard is

inapposite, as Shepard explicitly allows a court to examine charging documents,

among other permitted materials. See Shepard, 544 U.S. at 16, 26; see also

United States v. Harris, 447 F.3d 1300, 1304 (10th Cir. 2006) (“The time,

place, and substance of the prior convictions can ordinarily be ascertained

from court records associated with those convictions, and the Supreme Court has

held that the Constitution allows sentencing courts to rely on such records to

make findings about prior convictions.”).




                                         -8-
                           Conclusion

The judgment of the district court is AFFIRMED.

                                          Entered for the Court


                                          Harris L Hartz
                                          Circuit Judge




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