                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0361n.06

                                           No. 07-4085                                  FILED
                                                                                     May 26, 2009
                             UNITED STATES COURT OF APPEALS                    LEONARD GREEN, Clerk
                                  FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                )
                                                         )
       Plaintiff-Appellee,                               )
                                                         )
v.                                                       )   On Appeal from the United States
                                                         )   District Court for the Southern
GIOVANNI WRIGHT,                                         )   District of Ohio
                                                         )
       Defendant-Appellant.                              )   OPINION
                                                         )
                                                         )
                                                         )



Before: BATCHELDER and CLAY, Circuit Judges; and COX, District Judge.*

       CLAY, Circuit Judge. After a jury convicted Defendant Giovanni Wright (“Wright”) of

being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), the district court

sentenced him to 33 months imprisonment. On appeal, Wright challenges both his conviction and

the reasonableness of his sentence. Specifically, Wright contends that the district court erred in

providing the jury instruction regarding constructive possession and by disclosing to the jury

information regarding his prior convictions. Wright also claims that his 33-month, within-

Guidelines sentence is unreasonable and excessive.




       *
       The Honorable Sean F. Cox, United States District Court for the Eastern District of
Michigan, sitting by designation.
No. 07-4085
United States v. Wright

       For the reasons set forth below, we hereby AFFIRM Wright’s conviction as well as the

sentence imposed by the district court.

                                                  I.

       In September of 2006, a federal grand jury returned a two-count indictment charging Wright

with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and being a felon

in possession of a firearm within a school zone, in violation of 18 U.S.C. § 922(q)(2)(A). The

charges against Wright stem from an undercover investigation being conducted by the Cincinnati

Police Department focused on Wright’s neighbor.

       On April 19, 2006, two retired Cincinnati Police Officers, Don Ruberg (“Ruberg”) and

Danny Cain (“Cain”), were conducting surveillance of 537 East 13th Street, an apartment building

in the “Over the Rhine” neighborhood of Cincinnati. Based on prior undercover drug purchases

made by the police at that address, the police had obtained a search warrant for the premises. The

purpose of the surveillance was to ensure the safety of the officers who were about to execute the

search warrant. The apartment that was the focus of the search warrant was the residence of William

Green (“Green”), Wright’s neighbor.

       Before the police executed the search warrant, Ruberg and Cain observed Wright and Green

sitting on milk crates within a “few feet” of the front doors of their residences. J.A. at 206. At some

point during their surveillance, the officers observed an unidentified male begin shouting and then

enter a car parked at the curb directly in front of Green’s residence and drive away. The officers

observed Wright and Green rush into the vacated parking spot and pick up items from the street,

concealing the items with their hands and bodies as they did so. From their vantage point, the

                                                 -2-
No. 07-4085
United States v. Wright

officers were not able to identify the items. With the items in hand, Wright and Green moved to cars

parked directly in front of and behind the vacated parking space. Wright and Green then each bent

over or crouched down near the wheel well areas of the parked vehicles. When Wright and Green

stood up and returned to their positions on the milk crates, the officers observed that they no longer

had the unidentified objects in their hands. Notwithstanding this nearly identical conduct, the

surveillance team did not observe any apparent communication between Wright and Green.

       Shortly thereafter, the retired officers observed a woman exiting the apartment building at

539 East 13th Street carrying a garbage can, which she placed near the car in front of Wright’s

building. After the woman returned inside, Wright got up from his milk crate and moved the

garbage can. Wright then returned to a position that was approximately “a step and a half” from the

vehicle. J.A. at 206. In this position, Wright had an unobstructed path to the rear wheel area of the

parked car where he previously had placed the unidentified object he picked up from the street.

       After the surveillance team relayed this information to the approaching SWAT team and

accompanying officers, Wright and Green were taken into custody without incident. After searching

the wheel wells of the parked vehicles, the police discovered a loaded firearm on the curb-side front

tire of the car in front of Green’s residence and a loaded firearm on the curb-side rear tire in front

of Wright’s residence. The two firearms were concealed under gloves. After being taken into

custody, Wright made no statements about the firearm. A forensic examination yielded no

fingerprints of value on the firearms.

       Wright was charged with being a felon in possession of a firearm and a felon in possession

of a firearm within a school zone. Prior to trial, Wright moved the trial court to strike surplusage

                                                -3-
No. 07-4085
United States v. Wright

from both counts of the indictment. Specifically, Wright sought to strike the portion of each count

detailing his prior felony conviction. The trial court granted in part and denied in part Wright’s

motion, striking all information related to Wright’s prior conviction from Count II, but declining to

strike that same information from Count I. The court ruled that enumeration of Wright’s prior

conviction in Count I was an essential element of the offense of being a “felon” in possession of a

firearm, and, therefore, the information was not surplusage.

       Pursuant to Old Chief v. United States, 519 U.S. 172 (1997), the government and Wright

resolved the issue by entering with the court agreed-upon stipulations and admissions

(“Stipulations”) in which Wright acknowledged that he had a qualifying prior felony conviction.

J.A. at 45. The Stipulations did not contain any information related to the nature or number of

Wright’s prior convictions.

       After the first trial resulted in a mistrial when the jury failed to reach a verdict, a second trial

commenced in March of 2007. As part of its preliminary instructions, the court read to the jury the

Stipulations agreed to by the parties. At the close of the government’s case-in-chief and again at the

close of the evidence, the defense moved for a judgment of acquittal based on insufficiency of the

evidence. The defense also objected to the court’s proposed jury instructions regarding constructive

possession, arguing that the government should not be allowed to proceed on both theories.

       Denying Wright’s motion and objections, the court proceeded to instruct the jury on both

actual and constructive possession. The court’s instructions to the jury also repeated the information

included in the Stipulations agreed to by the parties. The court’s statements to the jury did not

include any information related to the nature and number of Wright’s prior convictions. There also

                                                  -4-
No. 07-4085
United States v. Wright

is no evidence in the record that the jury ever received a copy of the original or amended indictment

sheets. After deliberation, the jury found Wright guilty of being a felon in possession of a firearm

but not guilty as to the school zone charge.

       The Presentence Investigation Report (“PSR”) prepared by the probation department

calculated an advisory Guidelines range of 27 to 33 months. Wright did not object to that

calculation. Nor did Wright file a sentencing memorandum prior to the sentencing hearing. At the

sentencing hearing, Wright’s counsel requested that the court impose a sentence at the low end of

the advisory Guidelines range. After discussing the 18 U.S.C. § 3553(a) factors it considered in

arriving at a sentence, the district court imposed a sentence of 33-months imprisonment, the highest

end of the advisory Guidelines range.

                                                 II.

       Wright’s first argument on appeal is that the district court erred in denying his motion for

judgment of acquittal based on the alleged insufficiency of the evidence. We find that argument to

be without merit.

                                        Standard of Review

       This Court reviews a district court’s refusal to grant a motion for judgment of acquittal de

novo. United States v. Kone, 307 F.3d 430, 433 (6th Cir. 2002) (citing United States v. Keeton, 101

F.3d 48, 52 (6th Cir. 1996)). The relevant inquiry is “‘whether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.’” United States v. Evans, 883 F.2d 496, 501 (6th

Cir. 1989) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). “This rule applies whether the

                                                -5-
No. 07-4085
United States v. Wright

evidence is direct or circumstantial.” Kone, 307 F.3d at 433 (citing United States v. Stone, 748 F.2d

361, 363 (6th Cir. 1984)). Where the prosecution relies on circumstantial evidence, “it is not

necessary that circumstantial evidence remove every reasonable hypothesis except that of guilt.”

United States v. Stone, 748 F.2d 361, 363 (6th Cir. 1984). Rather, “whether the evidence is direct

or wholly circumstantial,” we “will reverse a judgment for insufficiency of evidence only if this

judgment is not supported by substantial and competent evidence upon the record as a whole[.]” Id.

          A defendant challenging his conviction on the basis of insufficiency of evidence thus “bears

a heavy burden.” United States v. Sheffey, 57 F.3d 1419, 1431 (6th Cir. 1995); see also United

States v. Vannerson, 786 F.2d 221, 225 (6th Cir. 1986) (“A defendant claiming ‘insufficiency of the

evidence bears a very heavy burden.’” (quoting United States v. Soto, 716 F.2d 989, 991 (2d Cir.

1983)).

                                              Discussion

          After reviewing the record de novo, but in the light most favorable to the jury’s verdict, we

conclude that the evidence presented by the government was more than sufficient to support the

jury’s verdict. In order to sustain a conviction under 18 U.S.C. § 922(g), the government had to

prove beyond a reasonable doubt that: (1) Wright had a qualifying prior felony conviction; (2)

Wright knowingly “possessed” the firearm; and (3) the firearm traveled in interstate commerce. See

United States v. Caraway, 411 F.3d 679, 682 (6th Cir. 2005); United States v. Schreane, 331 F.3d

548, 560 (6th Cir. 2003). Wright stipulated at trial, and concedes here, that he had a qualifying prior

felony conviction and that the firearm he is accused of possessing traveled in interstate commerce.

Consequently, the only contested issue is whether Wright “possessed” the firearm.

                                                  -6-
No. 07-4085
United States v. Wright

       Possession may be either actual or constructive. United States v. Moreno, 933 F.3d 362, 373

(6th Cir. 1991). “Actual possession exists when a tangible object is in the immediate possession or

control of the party. Constructive possession exists when a person does not have actual possession

but instead knowingly has the power and the intention at a given time to exercise dominion and

control over an object, either directly or through others.” United States v. Craven, 478 F.2d 1329,

1333 (6th Cir. 1973).

       Wright contends that the government “presented no direct evidence that [he] possessed the

firearm.” Def. Br. at 11. The record does not support that contention. Officers Ruberg and Cain

both testified that they observed Wright rush into the street and pick up an unidentified object after

a car vacated a parking space at a curb near where he was seated. The officers testified that they then

observed Wright bend over near the rear wheel well of another car parked directly behind the vacated

parking space. According to the officers, when Wright stood up, he no longer held the unidentified

item in his hands. Wright then returned to his position sitting on the milk crate. Shortly thereafter,

the police arrived and placed Wright under arrest, and then located a loaded Colt .45 caliber

automatic pistol on the tire where Ruberg and Cain had observed Wright place the unidentified

object approximately twenty minutes earlier.

       Although the officers could not definitively state that the items they saw Wright and Green

pick up from the street were the firearms later found on the wheels of the parked cars, a rational juror

reasonably could draw that inference. Cain and Ruberg maintained surveillance on Wright and the

parked vehicle from the moment that Wright first picked up the unidentified object until he was

apprehended by the Cincinnati Police. Both Cain and Ruberg testified that, other than the woman

                                                 -7-
No. 07-4085
United States v. Wright

who placed a garbage can in the street near the vehicle, no other person approached the vehicle after

Wright. They also testified that the woman kept the garbage can between herself and the vehicle the

entire time, and did not approach the wheel well area of the vehicle. Moreover, the police did not

find any objects in the wheel well area other than the recovered guns. From this evidence, the jury

reasonably could have concluded that Wright had actual possession of the firearm. See United States

v. Arnold, 486 F.3d 177, 183 (6th Cir. 2007) (en banc) (concluding that there was sufficient evidence

connecting the defendant to a firearm discovered underneath vehicle seat in which defendant was

seated); United States v. Barnett, 398 F.3d 516, 519-22 (6th Cir. 2005) (concluding that testimony

that defendant was seen with “long dark object in his hand” and other circumstantial evidence was

sufficient to link defendant to gun later recovered at the scene).

       This evidence also is sufficient to demonstrate that Wright had constructive possession of

the firearm. Contrary to Wright’s assertion on appeal that the parked car was “about ten feet in front

of [him],” Def. Br. at 11, the evidence indicates that Wright was seated much closer to the weapon.

In fact, the prosecution offered testimony that the Wright was seated “a step and a half maybe” from

the parked vehicle. J.A. at 206. However, even though Wright was seated in close proximity to the

weapon, this Court has held that a defendant’s mere proximity to a gun is “insufficient proof of

constructive possession.” United States v. Newsom, 452 F.3d 593, 609 (6th Cir. 2006). Proximity

alone is insufficient to establish possession because “[p]resence alone near a gun . . . does not show

the requisite knowledge, power, or intention to exercise control over the gun to prove constructive

possession.” Arnold, 486 F.3d at 183 (internal citation and quotation marks omitted). “Other

incriminating evidence must supplement a defendant’s proximity to a firearm in order to tip the scale

                                                -8-
No. 07-4085
United States v. Wright

in favor of constructive possession.” United States v. Campbell, 549 F.3d 364, 374 (6th Cir. 2008).

       Although proximity alone is insufficient, “‘evidence of some other factor – including

connection with a gun, proof of motive, a gesture implying control, evasive conduct, or a statement

indicating involvement in an enterprise – coupled with proximity may suffice.’” Newsom, 452 F.3d

at 610 (emphasis added) (quoting United States v. Alexander, 331 F.3d 116, 127 (D.C. Cir. 2003)).

We also must bear in mind that, “[w]hen the defendant is found in close proximity to a firearm at

the time of the arrest, the inference of dominion and control is particularly strong, and thus the

incriminating evidence needed to corroborate the conviction is less.” United States v. Grubbs, 506

F.3d 434, 439-40 (6th Cir. 2007).

       Under Newsom and Grubbs, we conclude that the record demonstrates that the government

presented sufficient evidence “of some other factor” showing Wright’s connection to the weapon to

demonstrate constructive possession. The prosecution introduced evidence showing that Wright not

only maintained his close physical proximity to the firearm, but that he also moved a garbage away

from the vehicle so that he could maintain a clear path to the firearm. From that evidence, the jury

reasonably could have found that Wright manifested an intention to “exercise dominion and control”

over the weapon. See United States v. Kincaide, 145 F.3d 771, 782 (6th Cir. 1998) (“Proof that ‘the

person has dominion over the premises where the firearm is located’ is sufficient to establish

constructive possession.” (quoting United States v. Clemis, 11 F.3d 597, 601 (6th Cir. 1993))).

       The jury’s verdict also is supported by the fact that only a few minutes elapsed between

Wright’s picking up the unidentified item from the street and his stooping near the rear wheel of the

car. Because no one else approached the vehicle, the jury reasonably could infer that the gun

                                                -9-
No. 07-4085
United States v. Wright

discovered on top of the rear wheel had been placed there by Wright. This is another factor that the

jury reasonably could have construed as implying constructive possession, as it also indicates that

Wright intended to assert control over the weapon. See Arnold, 486 F.3d at 183 (relying on

testimony that placed the weapon in defendant’s hands mere “minutes” before defendant was

apprehended and the weapon was recovered by the police); United States v. Grubbs, 506 F.3d 434

442 (6th Cir. 2007) (recognizing that “temporal proximity” between witness observations of

defendant possessing a handgun and the subsequent discovery of the weapon may be sufficient to

establish constructive possession, although finding no such evidence in that case).

       Construed in the light most favorable to the jury’s verdict, all of this evidence taken together

is more than sufficient to demonstrate that Wright made a “gesture implying control” over the

weapon. See Craven, 478 F.2d at 1333-34. The evidence therefore is sufficient to support the jury’s

verdict on a constructive possession theory. As this Court consistently has recognized, constructive

possession “may be proved by direct or circumstantial evidence and it is not necessary that such

evidence remove every reasonable hypothesis except that of guilt.” United States v. Coffee, 434 F.3d

887,895-96 (6th Cir. 2006).

                                                 III.

       Wright also challenges the trial court’s decision to instruct the jury on both actual and

constructive theories of possession. Specifically, Wright contends that, because the government

offered proof of actual possession only, the trial court erred in instructing the jury on constructive

possession. We find this argument to be inconsistent with Wright’s arguments at trial, and utterly

without merit.

                                                - 10 -
No. 07-4085
United States v. Wright

                                        Standard of Review

       Where, such as here, the defendant objects to the trial court’s jury instructions at trial, “a

reviewing court may reverse the trial court only if there is an abuse of discretion.” United States v.

Busacca, 863 F.2d 433, 435 (6th Cir. 1988). The trial court is “‘vested with broad discretion in

formulating its charge and will not be reversed unless its charge fails accurately to reflect the

law.’”Id. (quoting United States v. Pruitt, 763 F.2d 1256, 1261 (11th Cir. 1985)). More specifically,

our prior decisions have explained that:

       An appellate court must review jury instructions as a whole in order to determine
       whether they adequately inform the jury of the relevant considerations and provide
       a sound basis in law to aid the jury in reaching its decision. A reviewing court may
       reverse a judgment only if the instructions, viewed as a whole, were confusing,
       misleading and prejudicial.

United States v. Clark, 988 F.2d 1459, 1468 (6th Cir. 1993) (citations omitted). “This circuit has

set a high standard for reversal of a conviction on the grounds of improper instructions.” Sheffey,

57 F.3d at 1429.

                                             Discussion

       Wright argues that it was error for the trial court to instruct the jury on constructive

possession because the prosecution’s theory was based solely on actual possession. That claim is

without merit. As the above discussion of the government’s evidence indicates, the government

offered evidence that could support either an actual or constructive theory of possession. As this

Court has recognized, “[p]ossession may be either actual or constructive and it need not be exclusive

but may be joint.” Craven, 478 F.2d at 1333 (emphasis added). In fact, Wright’s claim to this Court

that the instruction was improper because the government relied solely on an actual possession

                                                - 11 -
No. 07-4085
United States v. Wright

theory is directly contrary to Wright’s argument at trial that “the government has relied upon the

concept of constructive possession and actual possession in this case,” and that the “government

wants to have the best of both worlds.” J.A. at 267-68.

        In any event, any error would be harmless because the government offered sufficient evidence

to sustain a conviction under an actual possession theory. See Griffin v. United States, 502 U.S. 46,

60 (1991) (“[I]f the evidence is insufficient to support an alternative legal theory of liability, it would

generally be preferable for the court to give an instruction removing that theory from the jury’s

consideration. The refusal to do so, however, does not provide an independent basis for reversing

an otherwise valid conviction.”); United States v. Mari, 47 F.3d 782, 786 (6th Cir. 1995) (“the giving

of [an] instruction on [an] unsupported ground is harmless as a matter of law”).

                                                   IV.

        Finally, Wright challenges the reasonableness of the 33-month sentence imposed by the

district court. As with Wright’s other claims, this argument also is without merit.

                                          Standard of Review

        The Court reviews a district court’s sentencing determination for reasonableness. Gall v.

United States, 552 U.S. 38, 128 S. Ct. 586, 597 (2007); Rita v. United States, 551 U.S. 338, 127 S.

Ct. 2456, 2459 (2007); United States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005). The Court applies

an abuse-of-discretion standard to determine whether a defendant’s sentence is reasonable. See

United States v. Carter, 510 F.3d 593, 600 (6th Cir. 2007) (citing Gall, 128 S. Ct. at 594-95

(“Regardless of whether the sentence imposed is inside or outside the Guidelines range, the appellate

court must review the sentence under an abuse-of-discretion standard.”)).

                                                  - 12 -
No. 07-4085
United States v. Wright

       The reasonableness of a district court’s sentence “has both substantive and procedural

components.” United States v. Jones, 489 F.3d 243, 250 (6th Cir. 2007). Thus, the Court’s

“reasonableness review requires [inquiry] into both ‘the length of the sentence’ and ‘the factors

evaluated and the procedures employed by the district court in reaching its sentencing

determination.’” United States v. Liou, 491 F.3d 334, 338 (6th Cir. 2007) (quoting Webb, 403 F.3d

at 383).

                                             Discussion

       Wright contends that his sentence is “unreasonable and excessive” because the district court

“does not appear to have considered a number of other positive factors in formulating the sentence.”

Def. Br. at 18. Wright fails to offer any support for this claim.

       In announcing Wright’s sentence, the district court properly recognized that Booker requires

judges to not only consider the advisory Guidelines range but also to consider other factors listed in

18 U.S.C. § 3553(a) in determining the appropriate sentence. The district court then proceeded to

consider various factors, including the nature and circumstances of the offense, Wright’s criminal

history, and Wright’s character and family background. Based primarily on Wright’s past offenses

involving firearms, and the seriousness of the offense, the district court imposed a sentence at the

high end of the advisory Guidelines range. Although not overly detailed, the district court offered

a reasoned explanation of its decision to impose the maximum recommended sentence.

       Wright does not identify any particular factors that the district court failed to consider. In

fact, Wright did not file a sentencing memorandum before the sentencing hearing, nor did he raise

any particular factors in support of a lower sentence at the hearing. Wright’s argument on appeal

                                                - 13 -
No. 07-4085
United States v. Wright

thus amounts to nothing more than a bald assertion that the district court should have reached a

different conclusion. But this Court does not substitute its own judgment for that of the district

court. See United States v. Hairston, 502 F.3d 378, 385-86 (6th Cir. 2007) (“The bottom line is that

when deciding questions of ‘substantive unreasonableness’ in the post-Booker, advisory-Guidelines

world, we must continue to be wary of substituting our judgment for that of the district court.”).

Wright’s unsupported assertion that his sentence is excessive and that a shorter sentence would be

sufficient to fulfill Congress’ sentencing goals is insufficient to show that the trial court’s sentence

is unreasonable. See United States v. Dexta, 470 F.3d 612, 616 (6th Cir. 2006) (“the mere

allegation that the sentence imposed is greater than necessary to achieve the goals of punishment in

§ 3553(a) is insufficient to rebut the presumption of reasonableness”).

                                                  V.

       We therefore AFFIRM the judgment of the district court.




                                                 - 14 -
