                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 05-3953
UNITED STATES OF AMERICA,
                                               Plaintiff-Appellee,
                                 v.

JEFFREY STEVENS,
                                           Defendant-Appellant.
                          ____________
            Appeal from the United States District Court
     for the Southern District of Indiana, Terre Haute Division.
          No. 05 CR 6—Larry J. McKinney, Chief Judge.
                          ____________
      ARGUED APRIL 6, 2006—DECIDED JULY 17, 2006
                     ____________


  Before RIPPLE, MANION, and KANNE, Circuit Judges.
  KANNE, Circuit Judge. Jeffrey Stevens was a passenger
in a vehicle when the driver was lawfully stopped by Terre
Haute, Indiana, police for disregarding a traffic light. Upon
approaching the vehicle, two officers saw a pistol-grip
shotgun between Stevens’s legs, the grip resting in his lap.
A pistol was subsequently found directly underneath
Stevens’s seat. Stevens was ultimately convicted of two
counts of being a felon in possession of a firearm, see 18
U.S.C. § 922(g)(1), and sentenced to 240 months’ imprison-
ment. Stevens appeals, arguing there was insufficient
evidence to support his convictions. He also makes a
constitutional challenge to the enhanced penalties provision
of the Armed Career Criminal Act, 18 U.S.C. § 924(e). We
affirm.
2                                                 No. 05-3953

                        I. HISTORY
  At about 7 o’clock in the morning on January 14, 2005,
Ralph Downing got off work and, as was his habit, headed
to a tavern for an eye-opener. Having plenty of time to kill
until the local bank opened, he drank three pitchers of beer.
At about 9 o’clock, Downing met up with his cousin, Donnie
Heck. They then drank a fifth as well as a pint of whiskey,
and chased those with a half-gallon of the same. At some
point that morning, Stevens joined the party.
  Stevens convinced his companions to drive him to his
brother Gary’s house. Stevens was looking for transporta-
tion, as his own truck was destroyed by fire the day before
in front of Gary’s house. The plan was to pick up Gary and
his two shotguns and pawn the shotguns. Once at Gary’s
house, Downing went inside. After speaking with Gary,
Downing took the shotguns. Gary testified Downing was
playfully waving around a pistol while inside the house.
Downing then returned to the pickup truck, placing one
shotgun in the bed and one in the front with his cohorts.
The shotgun in front was placed with the barrel between
Stevens’s feet and the pistol grip leaning towards Stevens.
Stevens, Downing, and Heck then drove off, having appar-
ently forgotten about Gary. When Stevens later asked
where Gary was, Downing replied, “We are going shooting.”
  Unbeknownst to everyone, Gary’s house was under
surveillance by officers from the Terre Haute police depart-
ment. Detective Denzil Lewis was waiting in the shadows
to serve an arrest warrant on Stevens. Of course, he also
saw the shotguns being loaded into the truck. As the truck
drove away, Lewis followed, and saw the vehicle disregard
a traffic light. Lewis called for uniformed officers to initiate
a traffic stop.
  Two marked units made the stop. Heck was driving,
Downing was sitting in the middle, and Stevens was sitting
in the passenger seat. As the officers approached the
No. 05-3953                                                3

vehicle, Stevens was seen to bend over for three to five
seconds. After drawing their weapons, the officers moved in
closer and saw the pistol-grip shotgun between Stevens’s
legs. The officers then arrested the three men without
incident.
  A later search of the vehicle revealed a pistol underneath
Stevens’s seat as well as the other shotgun in the bed of the
truck. As an officer removed the pistol from under the seat,
Stevens stated, “You can’t charge me with that. I know the
law, and because this ain’t my vehicle, you can’t prove it is
mine.” Also, although Stevens identified himself as Steven
Winton and he produced identification in that name, the
police knew they had their man and arrested Stevens on the
outstanding warrant. Heck was arrested for drunken
driving, and Downing was arrested for public intoxication.
Not surprisingly, at Stevens’s trial, both professed drunken
amnesia for most of the happenings that day.
  Stevens was tried and convicted of two counts of being
a felon in possession of a firearm, namely the shotgun found
between his legs and the pistol from under his seat. Al-
though the police also contended they recovered a bullet
from Stevens’s pocket at the police station, Stevens was
acquitted of being a felon in possession of ammunition.
However, the bullet was of the type used in the pistol.


                      II. ANALYSIS
  A. Sufficiency of the Evidence
  Stevens argues that the evidence at trial was insufficient
to sustain his convictions. We have often pointed out the
difficulty Stevens now faces in arguing that the jury lacked
sufficient evidence upon which to convict. See, e.g., United
States v. Hicks, 368 F.3d 801, 804 (7th Cir. 2004) (“The
standard of review facing the defendants on their claim that
the jury had insufficient evidence to convict is a daunting
4                                                No. 05-3953

one.”) (citations omitted); United States v. Gardner, 238
F.3d 878, 879 (7th Cir. 2001) (“In attacking the sufficiency
of the evidence, a defendant bears a heavy burden.”)
(citation omitted). Mounting a challenge to the sufficiency
of the evidence is so difficult because to be successful, the
defendant must show that “after viewing the evidence in
the light most favorable to the prosecution, [no] rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” United States v. Curtis,
324 F.3d 501, 505 (7th Cir. 2003) (quoting Jackson v.
Virginia, 443 U.S. 307, 319 (1979)). Viewing the evidence in
the light most favorable to the prosecution means that on
review we will not—despite defendants’ frequent requests
to do so—“weigh the evidence or second-guess the jury’s
credibility determinations.” Gardner, 238 F.3d at 879. We
will certainly not overturn a conviction because we would
have voted to acquit; rather, “[w]e will overturn a conviction
based on insufficient evidence only if the record is devoid of
evidence from which a reasonable jury could find guilt
beyond a reasonable doubt.” Curtis, 324 F.3d at 505 (citing
United States v. Menting, 166 F.3d 923, 928 (7th Cir. 1999)).
  As to both weapons, Stevens argues there was insufficient
evidence to establish that he possessed them. Possession
may be either actual or constructive, exclusive or joint.
United States v. Gilbert, 391 F.3d 882, 886 (7th Cir. 2004).
Actual possession exists when a person knowingly main-
tains physical control over an object. United States v. Lane,
267 F.3d 715, 717 (7th Cir. 2001). Constructive possession
exists when, although a person does not have actual
possession, he has the power and intent to exercise control
over an object either directly or through others. United
States v. Thomas, 321 F.3d 627, 636 (7th Cir. 2003).
  As for the shotgun, two police officers saw the barrel was
on the floorboard between Stevens’s legs, and the pistol grip
was in his lap. Even assuming Stevens did not bring it into
the vehicle or put it between his legs, its location between
No. 05-3953                                                    5

his legs supports the reasonable inference that he was
possessing it at the time the officers approached. Stevens’s
argument is that, pursuant to United States v. Chairez, 33
F.3d 823, 825 (7th Cir. 1994), proximity to the shotgun
alone cannot be sufficient to infer possession. But in
Chairez, the government introduced no evidence of posses-
sion other than the fact that a gun was found underneath
the defendant’s seat in a car; there was no evidence the
defendant even knew the gun was there. Here, the evidence
indicated Stevens knew the gun (which belonged to his
brother) was there, and it was actually found on his person,
making Chairez readily distinguishable. There was ample
evidence upon which the jury could find he possessed it,
either solely or in conjunction with the others in the vehicle.
  As for the pistol found directly under Stevens’s seat, there
was again ample evidence upon which the jury could find he
possessed it. As the officers approached the vehicle, Stevens
bent and leaned over for several seconds, the inference
being he was placing the pistol underneath the seat. The
officer who later found the gun testified the pistol was
resting upright under the seat in a precarious position with
the barrel touching the bottom of the seat, the inference
being it had recently been placed there.1 Furthermore, the
other occupants did not come forward and claim possession,
or even knowledge of, the gun. However, Downing was seen
waving a similar-looking gun around just before he entered
the vehicle. The jury could reasonably infer he gave the gun
to Stevens, who later put it under his seat. Or, the jury
could have disregarded the testimony regarding Downing
waving a pistol around, and found Stevens was in posses-
sion of his own pistol the whole time, given that there was
testimony that a compatible bullet was found in Stevens’s
pocket. But we need not speculate which logical path the


1
 The testimony indicated the gun could not remain in its position
while the vehicle was in motion.
6                                                No. 05-3953

jury chose to follow. In any event, there was evidence from
which the jury could infer Stevens knew the gun was under
the seat and he put it under his seat (or at least was
reaching for it), and thereby possessed it in the process. See
United States v. Starks, 309 F.3d 1017, 1021-22 (7th Cir.
2002) (“[T]he trier of fact is entitled to employ common
sense in making reasonable inferences from circumstantial
evidence.”) (citation omitted).
  Stevens once again hangs his hat on Chairez (and other,
similar cases as well), arguing the mere fact a passenger
and a gun were in the same car is insufficient for the jury to
determine Stevens had knowledge and possession of the
gun. But Stevens ignores the other evidence (listed above)
that provides a reasonable linkage between Stevens and the
gun, and distinguishes Stevens’s case from Chairez. And
while Stevens argues the evidence could have supported a
different conclusion (e.g., the driver brought the gun into
the truck and was thereby the sole possessor), the jury was
entitled to “choose among various reasonable constructions
of the evidence.” See United States v. Robinson, 161 F.3d
463, 472 (7th Cir. 1998) (quoting United States v. Rose, 12
F.3d 1414, 1420 (7th Cir. 1994)).


    B. Findings as to Criminal History
   Stevens’s sentence of 240 months’ imprisonment exceeded
the otherwise applicable statutory maximum of 120 months.
See 18 U.S.C. § 924(a)(2). Stevens faced a higher sentence
because of the Armed Career Criminal Act, 18 U.S.C.
§ 924(e) (the “Act”). The Act provides that a defendant who
is found to be a felon in possession “and has three previous
convictions . . . for a violent felony . . . committed on
occasions different from one another . . . shall be . . .
imprisoned not less than fifteen years.” The district judge
made a factual finding that Stevens had three previous
No. 05-3953                                                7

qualifying felonies.2 Stevens argues his Sixth Amendment
rights were violated because the three convictions were not
presented to a grand jury for indictment or submitted to the
jury for fact-finding as an element of the offense in the
instant case.
  Stevens properly concedes the law is clearly against
him. In Almendarez-Torres v. United States, 523 U.S. 224
(1998), the Supreme Court “held that the existence of a
prior conviction need not be alleged in the indictment or
proven to a jury as an element of the offense, but rather
may be determined by the judge at sentencing, even if the
prior conviction increases the statutory maximum sen-
tence that may be imposed on the defendant.” United States
v. Williams, 410 F.3d 397, 401 (7th Cir. 2005) (citing
Almendarez-Torres). As we have noted, Almendarez-Torres
remains intact, notwithstanding the subsequent decisions
in Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v.
Washington, 542 U.S. 296 (2004), and United States v.
Booker, 543 U.S. 220 (2005). See id. at 402; see also Shepard
v. United States, 544 U.S. 13, 24-26, 37-38 (2005) (acknowl-
edging the continuing validity of Almendarez-Torres)
(plurality and dissenting opinions). In light of the current
status of the law, Stevens’s claim must fail. Unless or until
the Supreme Court overrules Almendarez-Torres, “the
district court does not violate a defendant’s Sixth Amend-
ment right to a jury trial by making findings as to his
criminal record that expose him to greater criminal penal-
ties.” Williams, 410 F.3d at 402 (citations omitted).
  Stevens makes clear that his real intent is to preserve his
right to seek review of this issue by the Supreme Court. We
note Stevens timely raised the issue both before us and the
district court, and his counsel admirably presented to us his
argument on the subject.


2
  Stevens does not dispute he has three prior violent felony
convictions.
8                                              No. 05-3953

                   III. CONCLUSION
  For the reasons set forth above, Stevens’s convictions and
sentence are AFFIRMED.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—7-17-06
