United States of America, Plaintiff-appellee, v. Donnie Harris, Defendant-appellant.united States of America, Plaintiff-appellee, v. Tremayne Johnson, Defendant-appellant, 145 F.3d 1342 (9th Cir. 1998)

MEMORANDUM^* 

In these two companion appeals following a jury trial, Donnie Harris appeals from his conviction for participating in making a false statement in the purchase of a firearm, in violation of 18 U.S .C. §§ 922(a) (6), 2, and being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Tremayne Johnson appeals from his conviction for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

No. 97-30222

Johnson contends that there was insufficient evidence to establish his possession of a gun in count 15. Because counsel failed to properly preserve the issue below, we review only to prevent a "manifest miscarriage of justice." See United States v.. Smith, 924 F.2d 889, 893-894 (9th Cir. 1991) (internal quotations omitted).¹ 

Not only did Johnson have access to the guns in the closet, he also was identified, through his clothing and build, as the person who discharged a weapon outside the residence. Viewing the evidence in the light most favorable to the prosecution, a reasonable jury could have found that Johnson possessed the gun he was alleged to have fired outside Harris' residence. See Huffhines, 967 F.2d 314, 319-20 (9th Cir. 1992). Accordingly, no miscarriage of justice occurred. See Smith, 924 F.2d at 894.

Johnson next contends that the district court erred by enhancing his sentence by one level for possession of three to four firearms pursuant to U.S.S.G. § 2K2.1(b) (1) (A). This contention lacks merit.

The evidence presented at trial showed that Johnson: (1) had fired at least one of the firearms held in the closet; (2) had access to the keys to that closet; (3) had previously possessed a gun purchased by co-defendant Harris; and (4) was regularly at the residence. In relying on this evidence to support the enhancement at sentencing, the government established constructive possession by a preponderance of the evidence. See United States v. Cazares, 112 F.3d 1244-45 (9th Cir. 1997) (noting that although burden of proof at sentencing is different, the legal principle underlying cases regarding constructive possession is the same); see also Huffhines, 967 F.2d at 319-20 (evidence that defendant had dominion and control over gun found in motel room sufficient to establish constructive possession); United States v. Terry, 911 F.2d 272 (9th Cir. 1990) (knowledge of gun's location and unhindered access to it sufficient to establish constructive possession).

AFFIRMED.

No. 97-30216

Pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), Harris' counsel filed a brief stating he finds no meritorious issues for review. Counsel has identified the following potential issue: whether there was sufficient admissible evidence that Harris had been previously convicted of a felony. Defense counsel at trial had objected to the admission of the certified copy of the judgment of conviction from Georgia. However, the certified copy of the judgment, coupled with the probation officer's identifications, was more than sufficient to establish Harris' prior conviction. See Huffhines, 967 F.2d at 320 (9th Cir. 1992).

Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 83, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988), discloses no issue for review. Accordingly, counsel is relieved as Harris, appointed counsel of record and the district court's judgment is

AFFIRMED.²