Opinion
Argued and Submitted April 13, 2004.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Joan G. Ruffennach, Esq., USPX-Office of the U.S. Attorney, Phoenix, AZ, for Plaintiff-Appellee.
Jon M. Sands, Esq., Gregory A. Bartolomei, Esq., FPDAZ-Federal Public Defender'S Office, Phoenix, AZ, for Defendant-Appellant.
Appeal from the United States District Court for the District of Arizona, Paul G. Rosenblatt, District Judge, Presiding. D.C. No. CR-02-00986-PGR.
Before: T.G. NELSON, W. FLETCHER, and BERZON, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
John Henry Owens appealed his conviction under 18 U.S.C. § 922(g)(1) for being a felon in possession of a firearm. He also appealed his resulting sentence. We affirmed his conviction and sentence in a memorandum disposition. The Supreme Court vacated that disposition and remanded to this court for further consideration in light of United States v. Booker. We affirm Owens' conviction, and vacate and remand his sentence. Because the facts are familiar to the parties, we do not recite them here except as necessary to clarify our decision.
United States v. Owens, 98 Fed.Appx. 595(9th Cir.2004) (unpublished disposition).
--- U.S. ----, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Owens v. United States, --- U.S. ----, 125 S.Ct. 997, 160 L.Ed.2d 1013 (2005).
Owens contends that the district court erred by failing to provide the jury with a "mere presence" instruction. The Government's case against Owens, however, rested on more than his mere presence at the scene of the crime. Other evidence the Government presented supporting Owens' possession of the firearms included: (1) Owens' ownership of the vehicle in
See United States v. Technic Servs., Inc., 314 F.3d 1031, 1038 (9th Cir.2002) ("Whether a jury instruction adequately covers a defendant's proffered defense is reviewed de novo."); United States v. Dixon, 201 F.3d 1223, 1230 (9th Cir.2000) (stating that the relevant inquiry regarding jury instructions is "whether the instructions as a whole are misleading or inadequate to guide the jury's deliberation").
See United States v. Negrete-Gonzales, 966 F.2d 1277, 1282 (9th Cir.1992) ("If the government's case is based on more than just a defendant's presence, and the jury is properly instructed on all elements of the crime, then a 'mere presence' instruction is unnecessary.").
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which they were found; (2) the fact he was driving that vehicle; (3) the open and obvious locations of the firearms in the car; (4) Owens' knowledge that the correct license plates for the car were in the trunk (where two of the firearms were also located); and (5) Owens' knowledge that his live-in girlfriend had inherited the firearms and intended to keep them. Additionally, the district court properly instructed the jury regarding the knowledge and control elements of 18 U.S.C. § 922(g)(1). The district court therefore properly did not provide the jury with a "mere presence" instruction.
Owens also argues that the district court erred in sentencing him when it applied a two-level enhancement under United States Sentencing Guidelines § 2K2.1(b)(4) for an obliterated serial number on a firearm that was not included in the indictment. Owens adequately preserved his Sixth Amendment claim in his objections to the presentence report. In light of Booker, we vacate Owens' sentence and remand for resentencing.
See Booker, 125 S.Ct. at 769.
Conviction AFFIRMED; Sentence VACATED AND REMANDED.