Evidence Insufficient to Support Gun Convictions

U.S. v. Michel, --- F.3d ----, 2006 WL 1266514 (10th Cir. May 10, 2006)

Evidence of sawed-off firearm found with barrel sticking out from under driver’s seat in car in which D a passenger in the front passenger seat , coupled with evidence that cop saw D reaching into back seat area during stop, sufficient to support a jury verdict that D constructively possessed the gun for conviction as felon in possession. Government showed nexus between the gun and D and jury could infer that he knowingly had the power to control the gun. However, the same evidence was insufficient (no fingerprint evidence, e.g., showing he had ever handled gun) to show that he knowingly possessed a sawed-off (unregistered) shot gun and a gun lacking a serial number, and convictions on those counts reversed and case remanded for re-sentencing.
D not entitled to a jury trial to determine whether his 3 prior violent felonies (convictions), for ACCA purposes, were committed on occasions different from one another. That determination falls within Apprendi's prior conviction exception. Moreover, the district court did not err in its determination that the 3 priors were committed on different occasions: D assaulted first cop, fled, assaulted and attempted to rob a convenience store, fled and assaulted a second cop. He pleaded guilty to assaulting the first cop, attempting to rob the store, and assaulting the second cop. Because he could have ceased his activity after the first stop, and after the attempted robbery, the 3 events were distinct though all occurred within a short space of time. Finally, 10th rejects D’s DP void for vagueness argument regarding ACCA’s “occasions different from one another” provision.