                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    May 17, 2016
                      UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                   TENTH CIRCUIT                    Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                       No. 15-6023
                                                (D.C. No. 5:14-CR-00243-HE-1)
 BRADLEY PAUL ARTHURS,                                   (W.D. Okla.)

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, GORSUCH, and MORITZ, Circuit Judges.


      Early one summer’s morning a caller asked sheriff’s deputies to check out a

suspicious truck parked near a quiet country road in Oklahoma County. The

deputies obliged and when they arrived on the scene they found Bradley Arthurs

alone and passed out behind the wheel, with his truck’s engine running and the

headlights on. As they helped a clearly intoxicated Mr. Arthurs out of his truck,

the deputies noticed a gun wedged between the driver seat and the console. And

that discovery eventually led to Mr. Arthurs’ indictment, for it turns out he was a

felon barred by federal law from possessing a firearm. 18 U.S.C. § 922(g)(1). At


      *
         This order and judgment is not binding precedent, except under the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.
the end of it all, a jury found Mr. Arthurs guilty of the charge against him, and it

is this result and the sentence that followed that Mr. Arthurs now asks us to undo.

      We begin with Mr. Arthurs’ challenges to the jury instructions. At trial,

Mr. Arthurs criticized the government for failing to conduct DNA or fingerprint

tests on the gun and for trying to prove that he knowingly possessed the gun

simply by virtue of his proximity to it, his ownership of the truck, and the absence

of anyone else around. At the close of trial, though, the district court advised the

jury that, while the government of course had to prove its case beyond a

reasonable doubt, it wasn’t obliged to prove its case by any particular method of

otherwise admissible proof. Mr. Arthurs contends this much was error but we

don’t see how, for circumstantial evidence is usually as admissible as (and

sometimes as or more telling than) direct evidence. Indeed, this court has already

approved similar instructions in similar circumstances, and we see no reasoned

basis on which we might reach a different result here. See, e.g., United States v.

Cota-Meza, 367 F.3d 1218, 1223 (10th Cir. 2004); United States v. Trent, 767

F.3d 1046, 1051 (10th Cir. 2014); United States v. Johnson, 479 F. App’x 811,

817-18 (10th Cir. 2012).

      Mr. Arthurs next objects to the district court’s decision to instruct the jury

that voluntary intoxication isn’t a legally recognized defense to a § 922(g) charge.

Mr. Arthurs doesn’t dispute that the district court accurately stated the law in its

instruction but says the district court erred in giving the instruction anyway


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because his lawyer never expressly raised intoxication as a defense. Given the

undisputed evidence of his intoxication presented at trial, though, we can easily

see how a jury might be left wondering whether it could supply a lawful defense,

and we cannot see how we might fault the district court for anticipating the

question and answering it correctly. Certainly Mr. Arthurs has identified no

precedent indicating that a district court necessarily abuses its discretion by

giving a jury instruction relevant to the evidence presented at trial, even if not

called for by a defense expressly mounted by counsel. See United States v.

Williams, 403 F.3d 1188, 1197 (10th Cir. 2005) (recognizing that voluntary

intoxication is not a defense to being a felon in possession of a firearm).

      Mr. Arthurs’ last salvo on the jury instructions may be more interesting, but

it can prove no more successful in this court at this time. At trial, Mr. Arthurs

argued that to prevail under § 922(g) the government must show not only (1) that

the defendant knew at the time of his conviction he possessed a gun, but also (2)

that he knew he was a felon. Accordingly, Mr. Arthurs asked for a jury

instruction incorporating both of these points. But the district court held that the

law doesn’t require the government to prove the second of these mens rea

elements, only the first, and issued jury instructions in that light. It’s well known

by now that some of us on this court read the plain language of § 922(g) just as

Mr. Arthurs does. But it’s also well known that ours remains at this date a

minority view, and the district court’s instructions comport with this court’s

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binding precedents that all of us are obliged to respect. See United States v.

Capps, 77 F.3d 350, 352 (10th Cir. 1996); United States v. Games-Perez, 667

F.3d 1136, 1140-42 (10th Cir. 2012); id. at 1142-46 (Gorsuch, J., concurring in

the judgment); United States v. Law, 572 F. App’x 644, 648 (10th Cir. 2014)

(Gorsuch, J., concurring).

      Beyond the jury instructions, Mr. Arthurs alleges that the district court

erred by admitting a recording of a jail house phone call he made shortly after his

arrest to an unidentified woman. In arguing for the admission of the recording

the government claimed that in it Mr. Arthurs made an “adoptive admission” of

guilt by remaining silent and choosing not to disagree with the woman’s statement

that she had warned him before the incident that he “couldn’t have that pistol.”

Mr. Arthurs responds that the government reads far too much into the call and no

jury could fairly infer an admission of guilt from a decision not to argue with an

important if scolding friend when sitting in jail and needing outside help with

bail, lawyers, and the like. But who is right about this much we don’t have to

decide. We don’t because, even if the district court erred in admitting the

recording, the remaining evidence presented at trial of Mr. Arthurs’ guilt was

overwhelming, more than enough to sustain the verdict, and any evidentiary error

here could only have been harmless. See Fed. R. Crim. P. 52(a). Under our

precedents, again, the government only had to show that Mr. Arthurs was a felon

who knowingly possessed a firearm. And the facts here show not only that Mr.

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Arthurs was indeed a felon. When it comes to his knowing possession, they also

show that Mr. Arthurs was found alone in the driver seat of his truck, his truck

was parked near a quiet country lane, and a loaded pistol was tucked beside him

within easy reach. Neither was there any indication anyone else had been in the

truck recently or that the pistol belonged to anyone else. Those facts alone are

more than enough to establish an inference of knowing possession. Cf.

Cota-Meza, 367 F.3d at 1222 (“Tenth Circuit precedent . . . allows the jury to

infer that the driver of a vehicle has knowledge of contraband in the vehicle.”).

But still there’s more. For the jury also heard another jail house phone call

recording, one whose admission isn’t contested in this appeal. And in that call

Mr. Arthurs spoke with an unidentified woman and pleaded with her to say she

was in the truck and the gun was hers. Evidence, we don’t doubt, a reasonable

jury could conclude amounted to proof of a guilty mind. See United States v.

Porter, 745 F.3d 1035, 1054 (10th Cir. 2014) (“[I]t is beyond peradventure that

. . . acts of concealment point in the direction of guilt.”); United States v. Sasso,

695 F.3d 25, 29 (1st Cir. 2012).

      Moving from questions about his conviction to ones about his sentence but

still focused on this second phone call, Mr. Arthurs contends that the government

failed to prove that he took a “substantial step” toward obstructing justice,

rendering the district court’s two-level enhancement under U.S.S.G. § 3C1.1

erroneous. But after our own review of the record, we agree with the district

                                           5
court that the second and unchallenged recorded phone call amounts to just that

“substantial step.” When the woman asked “[w]hat do you need me to do?” Mr.

Arthurs responded, “[s]ay you was in the truck.” Why? Mr. Arthurs was frank:

because she wouldn’t “get as much [time]” as he would. He promised that “if we

go into this . . . all my money goes towards your defense” and that he would “put

[her] where [she] need[s] to be, home wise, when [she] touch[es] down.” These

statements appear to us, as they did to the district court, unequivocal evidence of

an intent to obstruct justice and a substantial step toward that end. United States

v. Fleming, 667 F.3d 1098, 1107 (10th Cir. 2011); see also id. at 1108

(“[A]ttempting to . . . influence a witness through a third-party intermediary may

constitute a substantial step sufficient to justify application of an obstruction of

justice enhancement.”); United States v. Fetherolf, 21 F.3d 998, 1000 (10th Cir.

1994) (affirming the district court’s finding that the defendant attempted to

obstruct justice when he asked a person to lie to the grand jury).

      Mr. Arthurs’ final argument proves the only successful one. Here he

suggests that the district court erred when it applied a four-level enhancement for

possessing a firearm in connection with another felony offense under U.S.S.G.

§ 2K2.1(b)(6)(B). The other felony offense the district court relied upon

putatively arose under Oklahoma law and involved the unlawful possession of

Trazodone pills which officers found in Mr. Arthurs’ truck. On appeal, though,

Mr. Arthurs observes that the unlawful possession of Trazodone isn’t a felony in

                                           6
Oklahoma. Neither does the government dispute the point, instead fully accepting

that the district court’s application of the enhancement was error.

      Even so the government seeks to avoid a remand for resentencing. Because

Mr. Arthurs failed to raise this objection in the district court, the government

notes, he must satisfy the plain error doctrine and show (1) error that is (2) plain

and that (3) affects his substantial rights and (4) also affects the integrity or

reputation of judicial proceedings. See United States v. Olano, 507 U.S. 725, 732

(1993). And the government appears to suggest that Mr. Arthurs’ case founders

on the third step because the district court could have found him eligible for the

same enhancement in light of a trace residue of methamphetamine deputies also

found in the truck but which the district court chose not to rely upon at

sentencing. Along similar lines, the government seems to suggest no harm was

done here to Mr. Arthurs’ substantial rights because, even without the

enhancement, the district court could have issued the same sentence.

      The trouble is that the proper application of the guidelines remains the

starting place and anchoring point for all of a district court’s sentencing analysis,

so any error in their application “most often will[] be sufficient” to show the

defendant’s substantial rights were affected and the error wasn’t harmless.

Molina-Martinez v. United States, 136 S. Ct. 1338, 1345 (2016); see also United

States v. Sabillon-Umana, 772 F.3d 1328, 1333 (10th Cir. 2014). The Supreme

Court has explained, too, that “[t]his is so” even where (just as the government

                                            7
contends here) the district court could have issued and might still issue the same

sentence absent the error. Molina-Martinez, 136 S. Ct. at 1345. To be sure,

exceptions to this rule exist, including when we can be certain from the record

that the district court wasn’t swayed by the guidelines and would have issued the

same sentence whatever they might have advised. Sabillon-Umana, 772 F.3d at

1334. But there is nothing so reassuring as that in this record. Accordingly,

Molina-Martinez and Sabillon-Umana compel the conclusion that the only

contested element of the plain error test is met and resentencing in light of

correctly applied advisory guidelines is warranted.

      Mr. Arthurs’ conviction is affirmed and the case is remanded for

resentencing.

                                       ENTERED FOR THE COURT


                                       Neil M. Gorsuch
                                       Circuit Judge




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