                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0438n.06

                                            No. 07-4200

                           UNITED STATES COURT OF APPEALS
                                                                                          FILED
                                FOR THE SIXTH CIRCUIT
                                                                                       Jun 26, 2009
                                                                                 LEONARD GREEN, Clerk

UNITED STATES OF AMERICA,                          )
                                                   )
       Plaintiff-Appellee,                         )
                                                   )
v.                                                 )   ON APPEAL FROM THE UNITED
                                                   )   STATES DISTRICT COURT FOR THE
ROBERT D. HOLYCROSS,                               )   SOUTHERN DISTRICT OF OHIO
                                                   )
       Defendant-Appellant.                        )


       Before: SUTTON and GRIFFIN, Circuit Judges; LIOI, District Judge.*


       SUTTON, Circuit Judge. Robert Holycross appeals his conviction and sentence for being

a felon in possession of a firearm. We affirm.


                                                  I.


       In the early morning of August 26, 2005, police officers in an unmarked vehicle observed

Holycross driving “at a high rate of speed” down Sullivant Avenue in Columbus, Ohio. JA 183.

After Holycross “almost sideswip[ed]” the officers and veered left of center, one of the officers

called the police dispatcher and asked for a marked vehicle to stop Holycross. Id. Responding to the

dispatch a few minutes later, a pair of officers observed Holycross stop at an intersection. Pointing

their car’s headlights at the stopped car, the officers noticed Holycross look at the police car, “kind

       *
        Judge Sara Lioi, United States District Judge for the Northern District of Ohio, sitting by
designation.
No. 07-4200
United States v. Holycross

of g[e]t a little bit big eyed” and make a quick motion toward the floor behind the passenger seat.

JA 133. The officers initiated a traffic stop, and as Holycross slowed the car, one of the officers saw

him again lean toward the passenger side. Upon learning that Holycross did not have a driver’s

license, the officers arrested him. An inventory search of the vehicle revealed a handgun under the

passenger seat.


       A jury convicted Holycross of being a felon in possession of a firearm. See 18 U.S.C.

922(g)(1). At sentencing, the district court calculated an offense level of 33—the minimum required

by the Armed Career Criminal Act , see U.S.S.G. § 4B1.4(b)(3)(B)—and a guidelines range of 210

to 262 months. The court imposed a below-guidelines sentence of 200 months in prison, and it

denied Holycross’s motion for a new trial.


                                                  II.


       Holycross first challenges his conviction, claiming that the government failed to prove

possession of the weapon. See 18 U.S.C. 922(g). Sufficiency challenges receive deferential review.

We must “view[] the evidence in the light most favorable to the prosecution” and will reverse only

if no “rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).


       Direct or circumstantial evidence may support a conviction, as may actual or constructive

possession of the weapon. United States v. Arnold, 486 F.3d 177, 181, 183 (6th Cir. 2007).

Although a defendant’s proximity to a weapon does not by itself prove possession, United States v.

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United States v. Holycross

Bailey, 553 F.3d 940, 944 (6th Cir. 2009), proximity combined with “other incriminating

evidence”—including an attempt to conceal the weapon or forensic evidence—may support a finding

of possession. Arnold, 486 F.3d at 183; see, e.g., United States v. Newsom, 452 F.3d 593, 609 (6th

Cir. 2006) (noting that there was sufficient evidence of possession where, among other things, the

defendant “appeared . . . as if he was maybe putting something under the seat” of the car); United

States v. Carter, 355 F.3d 920, 925 (6th Cir. 2004) (noting that there was sufficient evidence of

possession where, among other things, the defendant “reach[ed] under the seat while looking back

over his shoulder at the detective when he approached the vehicle”).


       Ample evidence supported the conviction. The officers recovered a handgun from under the

passenger seat of the car that Holycross was driving. Three officers—the two who responded to the

police dispatch and one from the unmarked car that followed Holycross after contacting the

dispatcher—observed Holycross make a motion toward the passenger side of his vehicle as he

stopped at the intersection. One of the officers testified that he saw Holycross make another similar

motion. And a forensic scientist testified that the DNA found on the gun matched Holycross’s DNA

and that the same DNA type occurs in one in over a quintillion (a billion billion) people.


       United States v. Beverly, 750 F.2d 34 (6th Cir. 1984), does not support a different conclusion

and indeed offers a poor analogy to this case. There, the defendant did not have exclusive control

over the area where the gun was found and the police did not observe him attempting to conceal the

firearm. Id. at 37. Having failed to raise any other serious contentions in support of his position,

Holycross’s sufficiency argument fails.

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                                                III.


       Holycross hints that the district court improperly allowed the government to use hearsay

testimony to establish a nexus between the gun and interstate commerce. Br. at 30, 48. But because

he makes the argument in passing and without developing it, he has forfeited it. See Leary v.

Livingston County, 528 F.3d 438, 449 (6th Cir. 2008).


                                                IV.


       Holycross argues that the errors of his trial counsel amounted to ineffective assistance and

that the district court therefore erred in denying his motion for a new trial. Although we generally

do not address ineffective-assistance claims on direct appeal, we may do so “[i]f the parties have

adequately developed the record.” United States v. Foreman, 323 F.3d 498, 502 (6th Cir. 2003)

(internal quotation marks omitted). Because the district court conducted an evidentiary hearing on

the issue, and because both parties ask us to consider the claim on direct appeal, see Foreman, 323

F.3d at 502, we will do so. The district court may grant a motion for a new trial “if the interest of

justice so requires.” Fed. R. Crim. P. 33(a). To succeed on a claim of ineffective assistance, a

defendant must establish that his attorney’s performance was “deficient”—that his attorney “made

errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the

Sixth Amendment”—and that the errors were prejudicial. Strickland v. Washington, 466 U.S. 668,

687 (1984).




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United States v. Holycross

       Holycross principally argues that his attorney should have presented testimony from three

witnesses: Holycross; his girlfriend, Debbie Muncie; and Muncie’s cousin, Kristy Goad. According

to Holycross, he would have testified that he was not aware of the gun, and Muncie and Goad would

have testified that the gun belonged to Goad. But his attorney’s testimony at the post-trial hearing

makes it clear that he had a sound reason for declining to call Holycross, Muncie and Goad as

witnesses. According to the attorney, the government had turned over a recording that could have

compromised the testimony of each of the three individuals.            The recording, made during

Holycross’s incarceration, memorialized a damaging conversation between Holycross and Muncie.

As summarized by his attorney, the recording said:


       There were many spots on those tapes where Mr. Holycross and Ms. Muncy discussed
       trying to get Kristy to court to testify . . . that it was her gun. . . . [T]here could be an
       argument made that they were attempting to get her to come forward and tell the truth that
       it was her gun, and there were other constructions that I thought would make it clear that they
       were attempting to get her to falsely claim it was her gun.


JA 349. The district court found Holycross’s attorney credible and found Goad, who also testified

at the hearing, not credible. An attorney, quite understandably, may decline to call witnesses whose

testimony might be severely impeached at trial.


       Nor did the attorney provide ineffective assistance in declining to call Holycross as a witness.

As Holycross acknowledges, his “prior [criminal] record was extensive and there would be a

credibility issue when the jury heard about his prior[]” convictions. Br. at 33. Because we presume

that an attorney’s trial strategy decisions are “sound,” Strickland, 466 U.S. at 689, and because


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United States v. Holycross

Holycross’s concession confirms that presumption rather than rebutting it, this argument goes

nowhere.


       Holycross separately argues that his attorney should have presented an independent analysis

of the DNA evidence at trial. But he offers no answer to the district court’s findings that “the expert

would corroborate the finding of [Holycross’s] DNA on the firearm” and that his preferred expert

“could not identify any other person’s DNA on the weapon.” JA 61.


       Finally, Holycross argues that his attorney was ineffective because he failed to introduce

documents—pawn shop receipts—indicating that Goad owned the gun. But this evidence does

nothing to refute evidence of constructive possession offered by the government and thus cannot

satisfy the requirement of prejudice. See United States v. Williams, 106 F.3d 1362, 1367 (7th Cir.

1997). Holycross’s ineffectiveness claim fails.


                                                  V.


       Holycross also argues that his prior convictions for burglary and attempted burglary were not

“violent felon[ies]” under the Armed Career Criminal Act. 18 U.S.C. § 924(e)(1); see U.S.S.G.

§ 4B1.4(b)(3)(B). A person convicted of being a felon in possession who has three prior convictions

for “violent felon[ies]” is subject to a minimum sentence of 15 years, 18 U.S.C. § 924(e)(1), and an

offense level of at least 33 (subject to an adjustment for acceptance of responsibility), U.S.S.G.

§ 4B1.4(b)(3)(B). A violent felony is any crime punishable by more than one year of imprisonment

that “has as an element the use, attempted use, or threatened use of physical force against the person

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United States v. Holycross

of another” or “is burglary, arson, or extortion, involves use of explosives, or otherwise involves

conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. 924(e)(2)(B).


         To qualify as a “burglary” under ACCA, a defendant’s prior conviction must be for “generic

burglary”—“an unlawful or unprivileged entry into, or remaining in, a building or other structure,

with intent to commit a crime.” Taylor v. United States, 495 U.S. 575, 598 (1990). A state law

extends beyond generic burglary if it “includ[es] places, such as automobiles and vending machines,

other than buildings.” Id. Ohio’s burglary law extends beyond generic burglary because it covers

thefts involving many other structures—including “watercraft, aircraft, railroad car[s], truck[s],

trailer[s], [and] tent[s],” R.C. § 2909.01; see R.C. § 2911.12; United States v. Lane, 909 F.2d 895,

903 (6th Cir. 1990)—making the statutory offense not a “burglary” under ACCA.


         That makes no difference here, however, because the convictions amount to crimes of

violence under the residual “otherwise” clause. Attempted burglary and burglary under Ohio law,

we have held, “involve[] conduct that presents a serious potential risk of physical injury to another”

and thus are crimes of violence under ACCA. Lane, 909 F.2d at 903. Holycross half-heartedly asks

us to look beyond the state law definition of the crime to “the actual facts of the offenses for which

he was convicted to determine whether a crime of violence occurred,” Br. at 47, but that goes against

precedent, see, e.g., Taylor, 495 U.S. at 600; United States v. Ford, 560 F.3d 420, 421–22 (6th Cir.

2009).




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                                       VI.


       For these reasons, we affirm.




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