                          NOT RECOMMENDED FOR PUBLICATION
                                  File Name: 05a0856n.06
                                  Filed: October 18, 2005

                                               No. 04-6262


                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

        Plaintiff-Appellee,

v.                                                         ON APPEAL FROM THE UNITED
                                                           STATES DISTRICT COURT FOR THE
ANDREW MCCUTCHEN,                                          WESTERN DISTRICT OF TENNESSEE

        Defendant-Appellant.

                                                    /




BEFORE:          CLAY and GIBBONS, Circuit Judges and STEEH, District Judge.*

        CLAY, Circuit Judge. Defendant appeals his conviction and sentence for being a convicted

felon in possession of a firearm in violation of 18 U.S.C. § 922 (g). For the reasons set forth below,

we AFFIRM Defendant’s conviction; however, in light of the Supreme Court’s recent opinion in

United States v. Booker, 125 S.Ct. 738 (2005), we VACATE Defendant’s sentence and REMAND

the case for resentencing in a manner consistent with this opinion.



                                           I. BACKGROUND



        *
         The Honorable Judge George Caram Steeh, United States District Court Judge for the Eastern District of
Michigan, sitting by designation.
                                           No. 04-6262

                                       Procedural History

       On July 21, 2003, a grand jury sitting in the Western District of Tennessee returned an

indictment against Defendant. The indictment charged Defendant with being a felon in possession

of a firearm shipped and transported in interstate commerce, in violation of 18 U.S.C. § 922(g). The

case proceeded to trial. The district court denied Defendant’s motion for a judgment of acquittal

under Federal Rule of Criminal Procedure 29 at the close of the Prosecution’s case, but Defendant

did not renew the motion at the close of all evidence. The jury convicted Defendant on March 23,

2004. Defendant was sentenced to 115 months imprisonment, followed by 2 years supervised

release. The district court entered final judgment on October 14, 2004. Defendant timely filed a

Notice of Appeal with this Court on the same day.

                                        Substantive Facts

       On December 6, 2001, five police officers executed a search warrant at 2513 Spangler Drive

in Humboldt, Tennessee. When the officers knocked on the door, Defendant answered and

permitted them to enter. Defendant told Officer Danny Lewis that his sister and brother-in-law,

Jerry and Angela Allen, were also present in the house. After confirming that the Allens were

indeed present, the officers searched the house. Officer Lewis asked Defendant where the “weed”

was. Defendant took Lewis to a kitchen cabinet where he pulled out a bag of marijuana.

       In a cabinet above the refrigerator, about six to seven feet away from the cabinet in which

the marijuana was found, the officers found two loaded firearms – a nine millimeter Hi-Point and

a .44-caliber Ruger Blackhawk Revolver. In the Allens’ bedroom, the officers found a box of .44

caliber ammunition.



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       The 2513 Spangler Drive residence was leased to the Allens. However, after being read his

Miranda warnings and agreeing to give a statement to Lewis, Defendant listed the residence as his

home address. Defendant told Lewis that he stayed at the residence “on and off” and admitted to

having slept there the night before the search. Defendant also said he went to the residence “every

day,” in part to assist his brother-in-law, whose left arm is paralyzed. Angela Allen testified that

Defendant “was living with [her] at the time” but did not have an assigned bedroom at the 2513

Spangler Drive residence. Jerry Allen testified that Defendant slept on the couch in the living room.

       After the ammunition was discovered in the Allens’ bedroom, and for the apparent purpose

of ensuring the officers’ safety, Lewis asked Jerry something to the effect of “where are the guns?”

Jerry denied knowing about any guns. Jerry was later charged by the state of Tennessee with

marijuana possession. In subsequent state court proceedings held pursuant to that charge, Jerry told

the judge that he owned the two firearms uncovered in the search of his residence. Jerry also signed

a notarized statement to this effect. At Defendant’s trial, Jerry again testified that he owned the

firearms, that the ammunition found in his bedroom belonged to him, and that he put the firearms

in the kitchen cabinet in which they were found because nobody in the house used that cabinet.

Jerry further testified that the cabinet was so high off the ground that someone would need to stand

on a chair and reach up to open it.

       Jerry claimed that he obtained the guns when he and Defendant ran into a “peddler” on the

street who was pawning a sweater that caught Jerry’s eye. Jerry asked the peddler to follow him

home so that he could get some money. In the meantime, according to Jerry, Defendant left. Jerry

says that he bought the sweater, and when the peddler asked him about an abrasion on his face, he



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explained that he had been “sucker-punched” a couple of days earlier. The peddler then went out

to his truck and produced a bag that contained the two guns. Jerry testified that he bought the guns

and immediately stored them in the upper kitchen cabinet.

       At trial the jury was read, in its entirety, a transcript of the recorded statement Defendant

gave to the police at the station immediately following his arrest. In the statement, Defendant gave

responses that linked him to the purchase of the two guns. When asked whether or not he knew

anything about the Ruger Blackhawk .44 magnum, Defendant replied “yes.” When asked, “What

did he know,” Defendant replied, “See, I got that – I bought that like – well, like I said, he – I got

that for him.” When pressed further and asked whether or not he bought the gun for Jerry,

Defendant answered, “I got – I didn’t buy it at no store. I can’t buy no gun . . . . But you can go –

but you can go to pawn – I mean the First Monday sale and just catch them out of town. I go to

town, you know what I’m saying.” Defendant went on to state later that the gun was not his, but that

he “put money into” buying it.

       The officer then proceeded to question Defendant about the Hi-Point 9 mm. When asked to

whom the gun belonged, Defendant replied, “Now that there, I got that off a dude selling in the

street.” When asked the follow up question, “You bought this guy off a dude in the street,”

Defendant then tried to make a distinction between “bought” and “got,” insisting that “ I got it. Got

it and bought it is a different thing.” At one point Defendant even responded, “Uh huh” when the

officer asked him, “So this is your gun?” Defendant suggested that the gun was for the protection

of his paralyzed brother-in-law, Jerry.




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                                            No. 04-6262

        Prior to trial, the Defendant filed a motion in limine seeking to prohibit the government from

introducing any evidence of drug activity or other state law violations in the case-in-chief. Defense

counsel argued that the marijuana found at the residence was not relevant, and should be excluded

pursuant to Rule 404(b) of the Federal Rules of Evidence. The district court denied Defendant’s

motion, finding that Defendant’s knowledge of where the marijuana was located was evidence that

the Defendant had familiarity with the house, with the kitchen, and with the contents of the cabinets.

The judge instructed the jury during Officer Lewis’s testimony however, that the Defendant was

not on trial for any controlled substance offense, and that they were not to consider the presence of

drugs as relevant to the issue of the firearms. Defense counsel did not renew his objection to the

testimony regarding the marijuana at trial, and Defendant’s statement was read to the jury in its

entirety.

        Defendant unsuccessfully moved for a judgment of acquittal pursuant to Federal Rule of

Criminal Procedure 29, at the close of the government’s case-in-chief, but did not renew the motion

at the close of all evidence. The jury convicted Defendant, and Defendant was sentenced to 115

months’ imprisonment, in part due to a 4-level enhancement imposed by the district court. The

judge also sentenced Defendant to two years supervised release.



                                         II. DISCUSSION

        Defendant raises several issues on appeal. First, Defendant challenges his conviction,

alleging the government failed to prove beyond a reasonable doubt that he possessed a firearm on

or about December 6, 2001. Defendant secondly contends that he was prejudiced by the admission



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into evidence of testimony related to his having voluntarily gone to the kitchen cabinet and located

and removed a bag of marijuana. Finally, Defendant argues that the district court improperly

sentenced him under what the court perceived as mandatory provision of the U.S. Sentencing

Commission Guidelines. We address each of these arguments in turn.

A.     Sufficiency of the Evidence

       1.      Standard of Review

       This Court’s review is only for “manifest injustice” because Defendant failed to renew his

motion for a judgment of acquittal at the close of the evidence under Federal Rule of Criminal

Procedure 29. United States v. Frederick, 406 F.3d 754, 765 (6th Cir. 2005); United States v.

Wagner, 382 F.3d 598, 611, n.2 (6th Cir. 2004); United States v. Kolley, 330 F.3d 753, 756 (6th Cir.

2003); United States v. Price, 134 F.3d 340, 350 (6th Cir. 1998); United States v. Morrow, 977 F.2d

222, 230 (6th Cir. 1992) (en banc). Accordingly, this Court may reverse the conviction “only if the

record is devoid of evidence pointing to guilt.” Price, 134 F.3d at 350; United States v. McBride,

362 F.3d 360, 369 (6th Cir. 2004); United States v. Carnes, 309 F.3d 950, 956 (6th Cir. 2002).

       2.      Analysis

       This Circuit’s seminal decision regarding proof of possession remains United States v.

Craven, 478 F.2d 1329 (6th Cir. 1973), where we stated:

       Possession may be either actual or constructive and it need not be exclusive but may
       be joint. 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. Both actual possession and constructive possession may
       be proved by direct or circumstantial evidence. It is not necessary that such evidence
       remove every reasonable hypothesis except that of guilt.

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                                           No. 04-6262


Id. at 1333 (citations omitted). In Craven, we held that constructive possession of the multiple

firearms discovered throughout the house was established where the defendant had constructive

possession of the house and one of the rooms in which a firearm was discovered and made

statements that he collected guns. Id. at 1333-34.

       In addition, as this Court very recently reiterated, “[t]he government may prove constructive

possession by presenting evidence that the person has dominion over the premises where the firearm

was located.” United States v. Arnold, 410 F.3d 895, 904 (6th Cir. 2005) (citing United States v.

Kincaide, 145 F.3d 771, 782 (6th Cir. 1998)) (noting that there was evidence that the defendant and

another person used the apartment in which the gun was found to process heroin and stash cocaine);

see also United States v. Clemis, 11 F.3d 597, 601 (6th Cir. 1993) (per curiam); United States v.

Snyder, 913 F.2d 300, 304 (6th Cir. 1990).

       Applying these standards to the present case, the record contains ample evidence to support

a finding that Defendant had constructive possession of the house and the firearms found inside the

cabinet. See, e.g., Price, 134 F.3d at 350. First, the evidence establishes that Defendant had

dominion and control over the residence at 2513 Spangler Drive. Defendant listed 2513 Spangler

Drive as his home address, referred to the residence as “my house,” to the kitchen table as the place

where “I sit,” and to the cabinet in which the firearms were found as “my cabinet.” Defendant also

spoke of staying at the residence “off and on” and admitted he went to the residence “every day.”

Furthermore, Angela Allen, Defendant’s sister, testified that he “was living with [her] at the time

[of the search].” It is undisputed that he had stayed at the residence the night before the search

occurred.

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                                               No. 04-6262

        Even more damaging, not only did Defendant have dominion and control over the residence,

but Defendant’s own statements connected him to the firearms. He admitted having obtained the

Ruger “at a pawn shop” and the Hi-Point “off a dude selling in the street.” Defendant’s insistence

that the firearms were for Jerry’s protection does not mean that Defendant did not have access to

them or dominion and control over the area in which they were stored. Possession, as this Court said

in Craven, “need not be exclusive and may be joint.” 478 F.2d at 1333. Therefore we find

Defendant’s argument that the record is devoid of evidence to be without merit.

B.      Admission of Testimony Regarding Defendant’s Retrieval of Marijuana From a
        Kitchen Cabinet

        1.      Standard of Review

        Defendant filed a motion in limine to exclude any evidence or testimony relating to “drug

activity.” The district court denied the motion, and defense counsel failed to renew the objection

during Lewis’s testimony about Defendant’s retrieval of the bag of marijuana. Accordingly, this

Court “must apply a ‘plain error’ standard of review.” United States v. Kelly, 204 F.3d 652, 655 (6th

Cir. 2000) (holding that motions in limine do not preserve evidentiary objections for appeal; a

contemporaneous objection is required).

        As this Court recently articulated: “Under [the plain error] test, before an appellate court can

correct an error not raised at trial, there must be (1) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s]

substantial rights.’ ” Johnson v. United States, 520 U.S. 461, 466-67 (1997) (quoting United States

v. Olano, 507 U.S. 725, 732 (1993)); see also, United States v. Cotton, 535 U.S. 625, 626 (2002).

If we find that “all three conditions are met, [we] may then exercise [our] discretion to notice a

forfeited error, but only if [ ] the error seriously affect[s] the fairness, integrity, or public reputation

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of judicial proceedings.” Johnson, 520 U.S. at 467 (quoting United States v. Young, 470 U.S. 1, 15

(1985)); Cotton, 535 U.S. at 631-32; United States v. Milan, 398 F.3d 445, 451 (6th Cir. 2005).

       “‘Plain error’ is defined as an egregious error, one that directly leads to a miscarriage of

justice. The ‘plain error’ doctrine is to be used sparingly, only in exceptional circumstances and

solely to avoid a miscarriage of justice. A reviewing court should apply the ‘plain error’ doctrine

to reverse only if errors were so rank that they should have been apparent to the trial judge without

objection, or that strike at fundamental fairness, honesty, or public reputation of the trial.” United

States v. Carney, 387 F.3d 436, 453 (6th Cir. 2004) (internal quotation marks and citations omitted).

       2.      Analysis

       The district court denied Defendant’s motion in limine on the ground that Defendant’s having

retrieval of the bag of marijuana from one of the kitchen cabinets “was [ ] some evidence that the

defendant has familiarity with that house, with that kitchen, and with the contents of the cabinets.”

In the district court’s view, this evidence was relevant to a material issue in the case – constructive

possession of the firearm – because the gun was found in another cabinet some six or seven feet

away. As stated, when Lewis testified about Defendant’s retrieval of the marijuana and read the

portions of Defendant’s statement, the defense did not object. Moreover, the district judge

instructed the jury as follows:

       If there’s testimony about drugs being found in the kitchen, or controlled substances,
       let me remind you that the defendant is not on trial for any sort of controlled
       substances offense. You won’t consider the presence or absence of controlled
       substances or drugs of any kind as being relevant on the issue of whether or not the
       defendant possessed a firearm . . . . So remember, the defendant’s not on trial for any
       controlled substances offense, and any testimony about that is not relevant on the
       issue of the firearm.



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                                            No. 04-6262

       Defendant contends that the admission of Lewis’s testimony regarding the marijuana and the

portion of Defendant’s statement regarding the same was erroneous under Federal Rule of Evidence

404(b), which permits the admission of “other acts” evidence if the other act occurred, evidence of

it is probative to a material issue other than character, and if the evidence’s probative value is not

substantially outweighed by its potential prejudicial effect. See United States v. Jenkins, 345 F.3d

928, 939 (6th Cir. 2003); United States v. Haywood, 280 F.3d 715, 720 (6th Cir. 2002). Other than

to recite these requirements, Defendant does not present a discernable argument specifically as to

how this evidence is in fact Rule 404(b) evidence. Defendant argues only that the evidence of his

retrieval of the marijuana was prejudicial and should have been excluded.

       The question, then, is whether the admission of Lewis’s and Defendant’s references to the

retrieval of the marijuana rose to the level of plain error in light of Rule 404(b)’s requirements.

There is no dispute that the other act – the marijuana retrieval – occurred, and there appears to be

no dispute that evidence of it was probative of a material issue in the case. Evidence that Defendant

knew that one of the kitchen cabinets contained marijuana is, at the very least, probative of

knowledge, and absence of mistake or accident with respect to constructive possession of the guns

found in a cabinet nearby. See Fed. R. Evid. 404(b). Indeed, evidence that Defendant had access

to, and dominion and control over, one kitchen cabinet is probative on the issue of his access to, and

dominion and control over, other cabinets; specifically, the one where the firearms were stored.

Thus, we do not believe that the district court plainly erred in determining Defendant’s retrieval of

the marijuana was probative of a material issue other than character.




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                                           No. 04-6262

       The final Rule 404(b) requirement is simply that Rule 403 must be satisfied, i.e., the

probative value of Defendant’s retrieval of the marijuana must not be “substantially outweighed by

its potential prejudicial effect.” Haywood, 280 F.3d at 720; see also United States v. Brown, 147

F.3d 477, 483 (6th Cir. 1998); Fed. R. Evid. 403. In conducting this inquiry, this Court remembers

that Rule 403 is a rule of inclusion. Accordingly, we must view the evidence in the light most

favorable to its proponent, the government, and maximize its probative value. United States v.

Logan, 250 F.3d 350, 368 (6th Cir. 2001). Against this backdrop, the implicit conclusion that the

probative value of this evidence was not substantially outweighed by its potential prejudicial effect

cannot be said to have been an error “so rank that [it] should have been apparent to the trial judge

without objection.” Carney, 387 F.3d at 452.

       The central issue in the case was whether Defendant had constructive possession of a

firearm. Two firearms were found in a cabinet six or seven feet away from the cabinet that

Defendant willingly identified as containing marijuana. Therefore, the marijuana retrieval has

significant probative value. In addition, the district court provided the jury with a clear limiting

instruction (quoted above) to the effect that the marijuana evidence was not relevant to Defendant’s

guilt or innocence of the crime charged. Such instructions minimize any potential prejudicial effect

a piece of other act evidence might cause. See United States v. Gaitan-Acevedo, 148 F.3d 577, 592

(6th Cir. 1998); United States v. Myers, 123 F.3d 350, 364 (6th Cir. 1997); United States v. Feinman,

930 F.2d 495, 499 (6th Cir. 1990). Given the strong probative value of Defendant’s retrieval of the

marijuana and the district court’s limiting instruction, we find that admission of the evidence was




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                                            No. 04-6262

not error, and was specifically not an error so rank as to offend the “fairness, integrity, or public

reputation of judicial proceedings.” Milan, 398 F.3d at 451.

C.     Sentencing Guidelines

       1.      Standard of Review

       Anticipating the Supreme Court’s holding in Booker, Defendant objected to the 4-level

enhancement at sentencing. Accordingly, this Court’s standard of review is de novo. United States

v. McDaniel, 398 F.3d 540, 546-47 (6th Cir. 2005); United States v. Hazelwood, 398 F.3d 792 (6th

Cir. 2005).

       2.      Analysis

       Both parties agree that the case must be remanded for re-sentencing in connection with the

imposition of a 4-level enhancement for possessing “any firearm or ammunition in connection with

another felony offense,” U.S.S.G. § 2K2.1(b)(5), because the district court engaged in the sort of

judicial fact-finding that we now know violates the Sixth Amendment. See Booker, 125 S. Ct. at

756; Milan, 398 F.3d at 450-51; United States v. Oliver, 397 F.3d 369, 377-78 (6th Cir. 2005).

Indeed, the district court itself agreed that if the Supreme Court applied the rationale of Blakely v.

Washington, 542 U.S. 296 (2004) to the Sentencing Guidelines, re-sentencing of Defendant would

be required.

       In any event, our Barnett rule requires re-sentencing because the district court plainly erred

in sentencing Defendant under the impression that the Guidelines were mandatory. United States

v. Barnett, 398 F.3d 516, 527-29 (6th Cir. 2005); see also United States v. Hudson, 405 F.3d 425,

444 (6th Cir. 2005). As indicated, the government concedes that a remand for re-sentencing is



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                                         No. 04-6262

necessary, so there is no basis to rebut Barnett’s presumption that the sentencing error affected

Defendant’s substantial rights. See Barnett, 398 F.3d at 527-29.

                                     III. CONCLUSION

       For the reasons set forth above, we AFFIRM Defendant’s conviction under 18 U.S.C. § 922

(g), but VACATE Defendant’s sentence and REMAND this case for resentencing in a manner

consistent with this opinion.




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