                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 15a0037n.06

                                           No. 14–5472                                FILED
                                                                                Jan 13, 2015
UNITED STATES OF AMERICA,                             )                     DEBORAH S. HUNT, Clerk
                                                      )
       Plaintiff-Appellee,                            )
                                                             ON APPEAL FROM THE UNITED
                                                      )
                                                             STATES DISTRICT COURT FOR
               v.                                     )
                                                             THE WESTERN DISTRICT OF
                                                      )
                                                             TENNESSEE
JASON CASTLE,                                         )
                                                      )
       Defendant-Appellant.                           )
                                                      )

BEFORE: NORRIS, ROGERS, and WHITE, Circuit Judges.

       HELENE N. WHITE, Circuit Judge. Jason Castle was convicted of being a felon in

possession of a firearm, 18 U.S.C. § 922(g), and was sentenced to 271 months in prison as an

armed career criminal, 18 U.S.C. § 924(e)(1). He appeals both his conviction and sentence,

asserting that the Government failed to prove he “possessed” the firearm; that the district court

erred in not giving a cautionary instruction to the jury regarding a lay witness’s testimony; that a

supplemental jury instruction was collateral to the original jury instructions and thus

inappropriate; that the district court improperly considered facts underlying a criminal charge

pending against him when weighing the 18 U.S.C. § 3553(a) sentencing factors; and that the

district court assigned unreasonable weight to a particular § 3553(a) factor resulting in a

substantively unreasonable sentence. We disagree, and AFFIRM.

                                                 I.

       On April 17, 2012, three Memphis police officers stopped a white Chevrolet Impala

because its windows appeared to violate Tennessee’s window-tint law. Tenn. Code Ann. § 55-9-

107 (West 2012). Detective Alexander Corder approached the driver, Latasha Webb, while
No. 14–5472
United States v. Castle
Detective Michael Goedecke approached the passenger, Castle. The third detective, Detective

Michael Branning, was the last to arrive on the scene and stood at the rear of the Impala, ready to

assist the other detectives as needed. Detective Goedecke asked Castle to exit the vehicle. Once

Castle got out of the car, he stood in a “squatted” position that Detective Branning described as

“something [he] had never seen before.” Castle was “sagging” and Detective Goedecke asked

him to pull up his pants prior to doing a pat-down of Castle’s waist; Castle complied, but

immediately thereafter returned to the unnatural “squatting” position. After not finding any

weapons during the pat-down, Detective Goedecke instructed Castle to walk towards the back of

the Impala and stand near Detective Branning. However, as soon as Castle took a step towards

the rear of the Impala, Detectives Goedecke and Branning heard a metal-sounding “thump” on

the ground and saw a gun lying in between Castle’s feet. Castle looked down at the gun, up at

the officers, and took off running. He was apprehended within 100 yards of the Impala and

placed in custody.

        The three detectives who conducted the traffic stop testified at trial, as did Webb and

Detective Brandon Champagne, an officer who tried to recover fingerprints from the gun. Each

witness testified that the gun did not belong to him or her and that he or she had not placed the

gun between Castle’s feet. Detective Champagne testified that he did not find fingerprints on the

firearm recovered at the scene, but that based on his experience, finding fingerprints on firearms

is exceptionally rare. The jury convicted Castle as charged.

        Castle was sentenced to 271 months’ imprisonment—within the Guidelines range of

235 to 293 months, but 91 months more the statutory-minimum sentence. The district court

based the sentence in part on “relevant conduct” consisting of a robbery that occurred two days

before the traffic stop.




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United States v. Castle
                                                II.

                                                A.

       Castle first argues that the Government failed to introduce sufficient evidence to convict

him of being a felon in possession of a firearm. A criminal conviction is supported by sufficient

evidence if, after viewing the evidence in the light most favorable to the Government, any

rational trier of fact could have found the elements of the crime beyond a reasonable doubt.

United States v. Carmichael, 232 F.3d 510, 519 (6th Cir. 2000). Here, the Government had to

prove beyond a reasonable doubt that: (1) Castle was a convicted felon, (2) Castle possessed a

firearm, and (3) the firearm Castle possessed had traveled in or affected interstate commerce. 18

U.S.C. § 922(g)(1). Castle stipulated to the first and third elements, so we consider only whether

the Government introduced sufficient evidence for the jury to find that Castle “possessed” the

firearm the detectives found between his feet. Actual or constructive possession is sufficient to

give rise to criminal liability under § 922(g). United States v. Campbell, 549 F.3d 364, 374 (6th

Cir. 2008). Actual possession, which is at issue here, requires that Castle have “immediate

possession or control” of the firearm. United States v. Craven, 478 F.2d 1329, 1333 (6th Cir.

1973), abrogated on other grounds by Scarborough v. United States, 431 U.S. 563 (1977).

       There was sufficient evidence to support a finding that Castle actually possessed the

firearm recovered from the scene. Castle exited the vehicle in an awkward, squatting position;

Detective Branning testified that when Castle moved towards the rear of the car a firearm fell out

of his pant leg; and Detective Goedecke testified that, after Castle took one step towards the back

of the car, he “heard a metal sound hit the ground, looked down and saw it was a pistol that had

fallen out of [Castle’s] pants leg.” Both detectives testified that the firearm introduced at trial

was “the firearm that was recovered from the scene that fell out of Mr. Castle’s pants leg.”




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No. 14–5472
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Finally, each of the three detectives on the scene, as well as Webb, testified that he or she had not

planted the firearm that was found between Castle’s feet. Although Castle offered an alternative

theory at trial, the jury was not obliged to accept the theory.

          Given the record as a whole, specifically the detectives’ testimony, a rational trier of fact

could have found beyond a reasonable doubt that Castle “possessed” the firearm recovered at the

traffic stop. Thus, the Government introduced sufficient evidence to convict Castle under §

922(g).

                                                   B.

          Castle next argues that the district court erred in permitting “Detective Champagne to

testify as [] both a fact and expert witness without giving a cautionary instruction.” We review a

district court’s evidentiary rulings, including rulings on witness testimony under Federal Rules of

Evidence 701 and 702, for an abuse of discretion. United States v. White, 492 F.3d 380, 398 (6th

Cir. 2007). A district court abuses its discretion when it commits a legal error or makes clearly

erroneous findings of fact. United States v. Ford, 761 F.3d 641, 651 (6th Cir. 2014). We will

reverse an evidentiary ruling only when a defendant’s substantial rights were affected by the

evidence’s admission. White, 492 F.3d at 406 (citing Fed. R. Evid. 103(a)). Thus, “[e]ven when

the district court has abused its discretion in admitting evidence, we do not reverse a conviction

if the error is harmless, meaning that it appears beyond a reasonable doubt that the error

complained of did not contribute to the verdict obtained.” United States v. Freeman, 730 F.3d

590, 595 (6th Cir. 2013) (quoting United States v. Lopez-Medina, 461 F.3d 724, 741 (6th Cir.

2006)).

          Detective Champagne testified that he could not recover any “prints of value”—prints

that allow the police to affirmatively identify someone—from the firearm found at the traffic




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No. 14–5472
United States v. Castle
stop. However, he went on to explain that in his career as a detective, it is exceptionally rare to

recover fingerprints off of firearms, estimating that in the approximately 1,500 fingerprint-on-

firearm cases in which he has been involved, he has found at most four prints of value. Over

Castle’s objection, the district court determined that Detective Champagne was testifying as a lay

witness, not as an expert.

       To be sure, Detective Champagne’s testimony stemmed from his personal knowledge,

but it was not of the sort typically thought of as lay testimony. See Fed. R. Evid. 701 (stating

that testimony based on “specialized knowledge” is not proper for a lay witness). In any event,

we need not decide whether the jury should have been given a cautionary instruction, because

any error was harmless. The Government needed to prove only that Castle possessed a firearm

within the meaning of § 922(g). Two detectives testified that a firearm fell from Castle’s pants,

and a third testified that he recovered a weapon from the Impala’s passenger side. Each of the

witnesses confirmed that the gun did not belong to them and that they had not placed it between

Castle’s feet. Detective Champagne’s testimony likely had little effect.

                                                C.

       Castle next argues that the district court erred in giving a supplemental jury instruction in

response to a question from the jury regarding the meaning of “possession” because the

supplemental instruction was cumulative to the original jury instructions. However, Castle does

not argue that the supplemental instruction contained an inaccurate statement of law. We review

the district court’s response to a question from the jury for an abuse of discretion. United States

v. Khalil, 279 F.3d 358, 367 (6th Cir. 2002). Under the “high standard” applicable to this sort of

challenge, we will reverse a conviction only if the jury instructions, taken as a whole, were




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United States v. Castle
“‘confusing, misleading, and prejudicial.’” United States v. Young, 553 F.3d 1035, 1050 (6th

Cir. 2009) (quoting United States v. Clark, 988 F.2d 1459, 1468 (6th Cir. 1993)).

       Initially, the district court gave a jury instruction that closely parallels the Sixth Circuit’s

proposed pattern-jury instruction for “possession.” See Sixth Circuit Pattern Jury Instructions,

§ 2.10A. Nevertheless, during deliberations, the jury asked for an “expanded definition and

examples of possession and control.” The district court then gave the following supplemental

instruction:

               Regarding possession, the [original] instructions on pages 19 and
               20 of the instructions define that element of the crime charged.
               You should use those instructions.

               To further assist you, I will now provide some additional
               clarification to add to and supplement the definition of possession
               that you already have.

               If you believe beyond a reasonable doubt that the defendant
               physically held the Smith & Wesson .38 caliber handgun that is
               Exhibit 4, then he possessed it within the meaning of the law. No
               specific amount of time of possession is required. If a person
               physically controls an item and knows that he does, even for a few
               seconds, he possesses it within the meaning of the law.

               A person has possession of something if the person knows of its
               presence and has physical control of it. Therefore, a person who
               knowingly has direct physical control over a thing, at a given time,
               is then in actual possession of it. Possession under [§] 922(g)
               requires that a person know that the item is a firearm and know
               that he has control of it in order for the person to possess it within
               the meaning of the court’s instructions.

               Remember, you may not single out, or disregard, any of the
               Court’s instructions on the law. You must follow all of the Court’s
               instructions on the law, taking each in the light of all the others.

       The district court’s supplemental instruction was not misleading, confusing, or

prejudicial, and Castle does not challenge the substance of the instruction. At most, the district

court clarified how possession would apply to this case, by, for example, replacing general terms



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United States v. Castle
with terms specific to the case. The proper interpretation of “possession” was integral to the sole

issue in dispute, and nothing the district court provided distracted the jury from its ultimate

responsibility or presented it with collateral information. See United States v. Washington, 702

F.3d 886, 895 (6th Cir. 2012) (stating that a district court should refrain from answering jury

questions regarding collateral or irrelevant issues); United States v. Fisher, 648 F.3d 442, 447

(6th Cir. 2011) (same). Further, each aspect of the supplemental instruction was an accurate

statement of the law, and as a whole responsive to the jury’s request for an “expanded” definition

of possession, which is undoubtedly “an important legal issue.” See United States v. Nunez, 889

F.2d 1564, 1567 (6th Cir. 1989) (reversing a district court’s decision to not provide a

supplemental instruction because the jury’s question regarded “an important legal issue”).

Finally, in two separate paragraphs, the district court explained to the jury that it should use the

original instructions and that it could “not single out, or disregard” any of the original

instructions. See Young, 553 F.3d at 1050 (stating that we look at the jury instructions as a

whole when determining whether they were inappropriate). We find no reversible error.

                                                III.

                                                A.

       Castle argues that the district court erred in sentencing when it considered facts related to

an unproven armed-robbery charge described in paragraph seven of the presentence report

(“Report”). Castle timely objected to paragraph seven of the Report, but the district court

ultimately found that the Government presented sufficient evidence to justify consideration of

the robbery.

       We review a district court’s factual findings at sentencing for clear error, meaning that

we will not overturn them unless we are left “with the definite and firm conviction that a mistake




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United States v. Castle
has been committed.” United States v. Gort-DiDonato, 109 F.3d 318, 320 (6th Cir. 1997)

(quoting United States v. Perez, 871 F.2d 45, 48 (6th Cir. 1989)). When, as here, the defendant

objects to an aspect of the presentence report, the district court “may not merely summarily adopt

the factual findings in the presentence report or simply declare that the facts are supported by a

preponderance of the evidence.” United States v. Solorio, 337 F.3d 580, 598 (6th Cir. 2003)

(internal citations omitted). Rather, “the district court must actually find facts, and it must do so

by a preponderance of the evidence.” White, 492 F.3d at 416 (emphasis supplied).

       Here, Castle objected to paragraph seven of the Report, which described an incident

alleged to have occurred two days before the traffic stop:

               On August 15, 2012, the victim, Charod Moody, had been
               purchasing gas at [a “Mapco” gas station]. As Moody returned to
               his vehicle, Castle approached him and asked to use his cell phone.
               Moody declined, but advised that he would make a call for him, if
               needed. Castle then pulled out a black .22 caliber firearm from
               under his shirt and stated, “get in your pockets.” The victim threw
               his cell phone on the hood of his vehicle, at which point Castle
               reached in the victim’s pocket and stole approximately $1,200.00
               in cash. After Castle took the money and cell phone, he pointed
               the firearm at Shantega Triggs, who was sitting in the front seat of
               Moody’s vehicle and stated, “What you got?” Moody advised that
               she did not have anything, at which point Castle told the victims to
               leave the area.

       Because these state-law charges were still pending, the Government had to prove Castle’s

involvement by a preponderance of the evidence before the district court could consider them in

weighing the § 3553(a) factors. See Solorio, 337 F.3d at 598. To this end, the Government

presented the testimony of Officer Juaquatta Harris, the officer in charge of monitoring and

disseminating inmate phone calls at the prison in which Castle was being housed, as well as a

recording of a call allegedly placed by Castle. Officer Harris testified that she located the

recorded call by searching prison records for calls placed by Castle, and that she believed Castle




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No. 14–5472
United States v. Castle
made the recorded call because the caller said his name was Jason, “the Castles” were

referenced, the recipient was on Castle’s “database list” of numbers at the prison, and Castle’s

unique prison-record-identification number placed the call.

       After listening to the recorded conversation, the district court found that the Government

had proven Castle’s involvement in the robbery by a preponderance of the evidence.

Specifically, the district court found that Castle admitted to robbing Triggs and Moody in a

Mapco parking lot and that Castle confirmed event-specific details, such as the color of Moody’s

car and the type of clothes Castle was wearing that day. Most important, according to the district

court, was Castle’s insistence that Triggs’s version of the event—which named Castle as the

perpetrator—was accurate.     Indeed, Castle stated at least three times during the recorded

conversation that Triggs “ain’t lying” about his committing the Mapco robbery.

       Although there are certain factual discrepancies between paragraph seven of the Report

and the dialogue of the call (i.e., the amount of money stolen), enough factual elements were

consistent for the district court to consider the robbery when weighing the § 3553(a) factors. See

Gort-DiDonato, 109 F.3d at 320. Accordingly, the district court did not commit clear error.

                                               B.

       Castle finally argues that his sentence is substantively unreasonable because the “district

court gave an unreasonable amount of weight to the deterrence and public safety sentencing

factors” of § 3553(a).    We review criminal sentences for both substantive and procedural

reasonableness. United States v. Bolds, 511 F.3d 568, 581 (6th Cir. 2007) (citing Gall v. United

States, 552 U.S. 38, 51 (2007)). In determining substantive reasonableness, we review the

district court’s imposition of a sentence for an abuse of discretion, United States v. Battaglia,

624 F.3d 348, 350 (6th Cir. 2010), and recognize a rebuttable presumption of substantive




                                              -9-
No. 14–5472
United States v. Castle
reasonableness for within-Guidelines sentences, see, e.g., United States v. Williams, 436 F.3d

706, 708 (6th Cir. 2006). We must give appropriate deference to the district court’s conclusion

that the sentence imposed is consistent with the § 3553(a) factors; that we “might reasonably

have concluded that a different sentence was appropriate is insufficient to justify reversal of the

district court.” Gall, 552 U.S. at 51.

       Here, the Guidelines suggested a sentence of 235 to 293 months, and the district court

imposed a presumptively reasonable within-guidelines sentence of 271 months. See Williams,

436 F.3d at 708. Castle argues that the district court’s reliance on particular studies that “showed

longer sentences reduce firearm violence” requires reversal because other “[s]tudies actually

show that this rationale was simply in error.” We disagree.

       The district court carefully considered each of the § 3553(a) factors. The court relied on

the armed-career-criminal minimum sentence to find that Castle deserved “at least a 15-year

sentence,” but went on to state that the seriousness of Castle’s crime and his proclivity towards

firearms necessitated additional time in prison. The district court referred to the allegedly

erroneous studies in the context of § 3553(a)’s deterrence factor, finding that “long sentences

reduce the number of felons who possess firearms”; in so doing, the district court acknowledged

that others may disagree with the studies. The district court then found that Castle’s extensive

criminal history—which includes 31 convictions, five involving firearms—suggests that “the

sentence should be longer in order to protect the public.” Finally, the district court noted the

need for Castle’s sentence to be consistent with the sentences of similar offenders as well as

society’s interest in providing Castle with vocational skills during his incarceration. It was only

then that Castle was sentenced.




                                               - 10 -
No. 14–5472
United States v. Castle
       The district court did not base its decision on clearly erroneous facts (although some may

be subject to debate), and did not overly emphasize the allegedly erroneous studies; rather, it

made substantial and individualized factual findings regarding each § 3553(a) factor without

fixating on one particular factor. Thus, we disagree with Castle’s suggestion that the deterrence

factor “was given too much weight based upon the court’s faulty beliefs about the efficacy of

longer sentences for offenders like Mr. Castle,” and find that Castle’s sentence is substantively

reasonable.

                                              IV.

       For the foregoing reasons, we AFFIRM both Castle’s conviction and sentence.




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