No Errors in Felon-in-Possession Case

U.S. v. Herron, --- F.3d ----, 2005 WL 3475781(10th Cir. December 20, 2005)

In trial on charge of felon in possession of a firearm, D stipulated to his prior felony conviction. His defense was innocent possession. It was not error for court to allow redacted parole conditions which included drug testing, no firearms, submission to searches. It was not abuse of discretion to deny mistrial when parole officer testified that it was important to find the firearm because it could be in possession of a parolee with a violent history when court gave curative instruction. On sentencing: under ACCA, D’s prior for menacing under Colorado law was a violent felony because it has as an element the use of a threat or physical action, to knowingly place another person in fear of imminent serious bodily injury. District court did not err in finding that D did not admit factual guilt entitling him to acceptance of responsibility reduction: he did not admit knowing possession, and he challenged the commerce element (court noted that D never claimed he was going to trial to preserve issues on appeal unrelated to factual guilt).