                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a0946n.06
                                                                                           FILED
                                            No. 11-1520
                                                                                      Aug 27, 2012
                          UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                 )
                                                          )
       Plaintiff-Appellee,                                )
                                                          )   ON APPEAL FROM THE UNITED
v.                                                        )   STATES DISTRICT COURT FOR
                                                          )   THE WESTERN DISTRICT OF
DARELLEE DOMINIQUE GORDON,                                )   MICHIGAN
                                                          )
       Defendant-Appellant.                               )




       Before: NORRIS, McKEAGUE, and KETHLEDGE, Circuit Judges.

       KETHLEDGE, Circuit Judge. Darellee Gordon challenges his conviction and sentence for

possession of an unregistered sawed-off shotgun. See 26 U.S.C. § 5861(d). Gordon contends that

the evidence was insufficient to support his conviction, that the district court should have excluded

evidence of his gang membership, and that his entire federal sentence ought to run concurrently with

his sentence on state charges. We affirm.

                                                 I.

       On April 8, 2010, Gordon’s girlfriend contacted the Battle Creek police to request that

officers keep the peace at her apartment while she collected her belongings to move out. She said

she was fed up with the “rude, disrespectful people” who were in her apartment “all the time” at

Gordon’s invitation. (Gordon himself had unlimited access to the apartment.) When officers

arrived, they noticed four or five young men at the rear of the property. The young men left
No. 11-1520
United States v. Gordon

immediately. One officer then spotted a Molotov cocktail and graffiti markings on the wall. Among

the markings were the letters “M.O.B.” “M.O.B.” was short for the name of a local street gang,

“Money Over Bitches.” The officers left around noon.

        That evening, another officer arrived at the apartment to investigate further. The owner gave

the officer access to the apartment. In the main room, the officer found a hacksaw—on which he

noticed “small tiny particles of what looked like sawdust.” Nearby, the officer found the wooden

“butt of what appeared to be a shotgun.”

        The detective found a shotgun on the stairway leading to the basement. The butt had been

partly sawed off. What remained was wrapped in duct tape. “The very end of the barrel” had also

been removed and was located six steps away. The cut through the barrel was jagged, suggesting

it had been removed with a handsaw rather than a power saw. With portions of the butt and barrel

of the gun removed, the gun was small enough to conceal inside a jacket.

        The police arrested Gordon (apparently based on his suspected involvement in a fatal drive-

by shooting several days earlier). He signed a form acknowledging that he understood his Miranda

rights. Gordon then admitted that he was a member of the M.O.B. gang. He also said that he lived

in the apartment where police found the shotgun.

        Thereafter, the police examined fingerprints that they found on the duct tape. Three of the

prints were of sufficiently “suitable quality” for use in identification. Several layers of tape separated

one print from the other two; all three matched fingerprints from Gordon’s left hand.

        Under federal law, a shotgun must be registered if its barrel is shorter than 18 inches or if it

is modified and the overall length is less than 26 inches. See 26 U.S.C. § 5845(a). The government

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United States v. Gordon

concluded that the sawed-off shotgun here met the registration requirement and indicted Gordon

under 26 U.S.C. § 5861(d) for possessing the gun without registering it. Before trial, Gordon filed

a motion to suppress information relating to his membership in M.O.B., arguing that it was

inadmissible character evidence under Rule 404(b). The district court denied the motion. It

explained that the evidence helped demonstrate Gordon’s “motive and opportunity, knowledge, and

intent to possess an unregistered weapon”—all permissible purposes under Rule 404(b). Any

prejudice that might result from admission, the court added, could be “cured with a limiting

instruction.”

       At trial, an officer testified to Gordon’s gang membership. Another officer described the

workings of Gordon’s gang, saying that M.O.B.’s “main operation is violence towards [] rival gang

members which involves firearms.” The officer added that M.O.B. members preferred guns that

could be “easily concealed on their person.” Gordon’s girlfriend also testified that she had heard

Gordon talk about guns. The jury convicted him.

       The probation department prepared a presentence report. The report revealed that Gordon

had recently been charged in state court with murder and several gun offenses related to the murder.

According to the report, the murder charge alone required an offense level of 33, which trumped the

lower offense level otherwise applicable based on Gordon’s federal and state gun offenses. See

U.S.S.G. § 2K2.1(c)(1); § 2A1.2(a). The report suggested, however, that the district court order the

sentence to run concurrently with the state-court sentence. After the probation department prepared

the report, Gordon was convicted on the murder and gun counts in state court.



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       The court imposed a sentence of 120 months, 51 of which were to be served consecutively

to Gordon’s state sentence. This appeal followed.

                                                  II.

                                                  A.

       Gordon contends that no rational trier of fact could have found him guilty beyond a

reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). He says that the only evidence

that connects him to the sawed-off shotgun is the testimony that he lived in the apartment where the

gun was found. Gordon says that many others had access to the apartment and that such

non-exclusive possession of the apartment is insufficient to show that he exercised dominion over

a gun found there. See generally United States v. Bailey, 553 F.3d 940, 944 n.3 (6th Cir. 2009).

Moreover, Gordon argues, the government failed to show that he possessed the gun after it had been

shortened to a length that required registration. See 26 U.S.C. § 5845(a); Staples v. United States,

511 U.S. 600, 619 (1994). Gordon asks that we reverse his conviction.

       But the government produced evidence at trial that Gordon was the person who shortened

the shotgun and thus had “‘knowing . . . dominion and control’” over it at the time the gun required

registration. United States v. Johnson, 119 F. App’x 114, 119 (6th Cir. 2002) (citation omitted).

Specifically, the police found Gordon’s left-hand fingerprints on the sticky side of the duct tape that

had been wrapped around the sawed-off stock of the shotgun. The tape’s glue had, during the

wrapping process, lifted prints that had originally been deposited on the smooth side of the tape.

According to one witness, such “reverse prints” are most likely to be discoverable when the culprit’s

hands are covered in a powdery substance—like sawdust. Moreover, the prints were located on

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United States v. Gordon

multiple layers of the tape, which suggests that Gordon was the one who wrapped the tape around

the stock. If so, Gordon was also very likely to have possessed the gun after the stock had been

sawed off, since the very purpose of the tape was to protect the shooter from the jagged edge left

from the cut. The end of the barrel, moreover, was found nearby and appeared to have been cut off

with the same hacksaw used to remove the stock. That indicates that Gordon removed the barrel as

well as the stock. Finally, Gordon’s undisputed membership in M.O.B. suggested that he had motive

and opportunity to possess a sawed-off shotgun, given that group’s preference for concealable

weapons. The evidence, viewed in the light most favorable to the government, was sufficient to

support Gordon’s conviction. See generally Jackson, 443 U.S. at 319.

                                                 B.

       Gordon next argues that the district court erred in admitting evidence of his gang

membership. Rule 404(b) allows admission of a defendant’s prior bad acts to show, for example,

the defendant’s motive or identity, but not to show the defendant’s general propensity to commit bad

acts. Gordon insists that evidence of his gang membership was relevant only to show propensity.

Thus, Gordon contends, the district court should have excluded that evidence.

       District courts have ample discretion, however, in deciding whether particular bad-acts

evidence is admissible for a proper purpose. See, e.g., United States v. Allen, 619 F.3d 518, 524 n.2

(6th Cir. 2010) (reviewing district court’s proper-purpose determination for an abuse of discretion);

United States v. Mack, 258 F.3d 548, 553 n.1 (6th Cir. 2001). Here, the district court had several

good reasons to admit evidence of Gordon’s gang membership. The first was motive: Gordon may

have wanted the sawed-off shotgun because he belonged to a violent gang that preferred small,

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United States v. Gordon

concealable weapons. See generally United States v. Harris, 587 F.3d 861 (7th Cir. 2009). The

second was opportunity: Gordon’s gang membership helped to explain how Gordon might have

gotten the shotgun and where he learned to shorten the gun to a concealable length. The district

court was therefore correct to conclude that Gordon’s gang membership was admissible for proper

purposes under Rule 404(b).

       Gordon nonetheless insists that the evidence of his gang membership was more prejudicial

than probative. The evidence was particularly prejudicial, Gordon says, because one witness

mentioned that members of M.O.B. “dealt in controlled substances.” But the government and the

district court both minimized the prejudicial effect of the gang evidence. As Gordon concedes, the

government declined to mention his gang membership in closing argument.                   And, before

deliberations began, the district court instructed the jury that it could only consider the

gang-membership evidence for purposes of Gordon’s motive, opportunity, intent, and knowledge

of the gun’s characteristics. This instruction was not perfect, since it permitted consideration of the

evidence for purposes that do not apply here. See generally United States v. Merriweather, 78 F.3d

1070, 1076-77 (6th Cir. 1996). But it was mostly correct and foreclosed consideration of Gordon’s

gang membership as evidence of Gordon’s propensity to commit bad acts. (Gordon has waived any

challenge to the instruction itself, since he mentions it for the first time in his reply brief. See

Clemente v. Vaslo, 679 F.3d 482 (6th Cir. 2012).) As for the single instance in which a witness

mentioned M.O.B.’s association with drugs, the district court quickly instructed the jury to disregard

the testimony. Thus the prejudicial impact of the gang evidence was limited. Given the relevance

of that evidence, the district court did not err by admitting it. See generally Allen, 619 F.3d at 525.

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                                                  IV.

        Finally, Gordon argues that U.S.S.G. § 5G1.3(b) required the district court to impose a

federal sentence that runs concurrently with his state sentence. That provision says that the court

“shall” make the federal sentence run concurrent to the sentence for any other “offense that is

relevant conduct to the” federal offense and that “was the basis for an increase in the offense level.”

Gordon contends that his state murder and gun offenses were relevant conduct here and that they

increased his offense level.

        We need not decide, however, whether § 5G1.3(b) applies in this case. Compare United

States v. Hall, 632 F.3d 331, 337 (6th Cir. 2011). For the district court agreed with Gordon that

§ 5G1.3(b) applies. See R. 76 at 24. It nonetheless decided to disregard § 5G1.3(b), as it is entitled

to do, in order to achieve the sentencing goals listed in 18 U.S.C. § 3553(a). See generally

Kimbrough v. United States, 552 U.S. 85, 101-02 (2007); United States v. Booker, 543 U.S. 220

(2005). The court explained that Gordon is “extremely dangerous” and that the federal government

has an interest in Gordon’s punishment that “cannot . . . be noticed or have an impact on this case

without the imposition of at least a partial consecutive sentence.” R. 76 at 24-25. That explanation

was an adequate one. See generally United States v. Herrera-Zuniga, 571 F.3d 568, 586-87 (6th Cir.

2009). Thus, the district court did not err in imposing a sentence that will run consecutively, in part,

with Gordon’s state sentence.

        The district court’s judgment is affirmed.




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