USA v. Lorenzo Tucker

Filing

FILED OPINION (RONALD M. GOULD, CONSUELO M. CALLAHAN and MORRISON C. ENGLAND, JR.) AFFIRMED. Judge: CMC Authoring, FILED AND ENTERED JUDGMENT. [7718053]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LORENZO TUCKER,
Defendant-Appellant.





No. 09-10319
D.C. No.
2:08-cr-00025KJD-LRL-1
OPINION

Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Argued and Submitted
November 3, 2010—San Francisco, California
Filed April 15, 2011
Before: Ronald M. Gould and Consuelo M. Callahan,
Circuit Judges, and Morrison C. England, Jr.,
District Judge.*
Opinion by Judge Callahan

*The Honorable Morrison C. England, Jr., District Judge for the U.S.
District Court for Eastern California, Sacramento, sitting by designation.

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UNITED STATES v. TUCKER

COUNSEL
Daniel G. Bogden, United States Attorney, Robert L. Ellman,
Appellate Chief, Adam M. Flake (argued) and Amber M.
Craig, Assistant United States Attorneys, Las Vegas, Nevada,
for plaintiff-appellee United States of America.
Mario D. Valencia (argued), Henderson, Nevada, for
defendant-appellant Lorenzo Tucker.

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OPINION
CALLAHAN, Circuit Judge:
Lorenzo Tucker was convicted by a jury in the district court
for being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1). He was sentenced to 96 months in prison
followed by three years of supervised release, and was given
a mandatory penalty assessment of $100.00. On appeal,
Tucker challenges his conviction and sentence on several
grounds. He asserts that (1) there was insufficient evidence to
demonstrate that he “possessed” the firearm, (2) the prosecutor committed misconduct during closing arguments, (3) the
district court erred by refusing to give his proposed “mere
presence” jury instruction, (4) the district court incorrectly
calculated the sentencing guidelines, and (5) the sentence he
received was substantively unreasonable. We reject all of
these arguments and affirm.
I.
Tucker was indicted on January 30, 2008, on one count of
being a Felon in Possession of a Firearm, in violation of 18
U.S.C. § 922(g)(1) and 924(a)(2). He was tried by a jury in
early December of 2008 and was found guilty. On July 28,
2009, the district court sentenced him to 96 months in prison
followed by three years of supervised release and a mandatory
penalty assessment of $100.00.
A.

Factual Background

At trial there was evidence presented that on September 2,
2007, Tucker signed a lease to rent an apartment in Las
Vegas, Nevada. The lease also listed Dawn Alexander and a
child as residents. On September 7, 2007, Alexander called
the Nevada Division of Parole and Probation and spoke with
Public Safety Officer Gerald Gutierrez. During this conversation, she told Officer Gutierrez that Tucker was her boyfriend

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and that they had been living together for “a few days” in the
apartment. She said that she had recently broken up with
Tucker, was moving out of the apartment, was “en route to”
Florida, and was calling because there was a shotgun in a
closet in the apartment that belonged to Tucker. Alexander
was crying during this phone call, and Officer Gutierrez testified that she seemed “mad,” “scared,” and “upset.” At the
time, Tucker was a felon on probation after pleading guilty to
“Attempt Child Abuse and Neglect” under Nevada law.
Based on the information that Alexander provided, Officer
Gutierrez and three other officers—Hector Aguilar, Darla
Vanallen and Ryko Aragaki — drove to the apartment complex and obtained a key to Tucker’s apartment. The officers
knocked and announced their presence; when there was no
response, they entered the apartment and looked around.
The apartment had a hallway in it. On one side of the hallway, there was a small bedroom. The small bedroom
appeared to belong to a child and contained children’s toys.
On the other side of the hallway, there was a master bedroom.
There were boxes scattered around, and Officer Guiterrez
could not tell “what stuff belonged to [Tucker] and what
belonged to someone else.”
Officer Aguilar went into the master bedroom and called
out “there’s a shotgun in the closet.” All of the officers then
entered the master bedroom, where they found the master
closet doors open, revealing a rack with men’s clothes, above
which was a shelf. A shotgun was on top of that shelf, next
to some shoe boxes. The closet contained men’s clothing and
shoes, and the officers did not see any female belongings in
the master bedroom. The officers also found in the bedroom
two shotgun shells, two prescription medication bottles bearing Tucker’s name, and mail addressed to him.
The officers called the Las Vegas Metropolitan Police
Department’s firearm unit to handle the shotgun. Officer

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Gutierrez checked the gun for ammunition and placed it
against the wall in the living room. He was the only one who
handled the gun at this time, and he used gloves when doing
so.
While the officers were waiting for someone from the Metropolitan firearm unit to arrive, Tucker arrived at the apartment, wearing a cast on one hand. The officers placed him
under arrest and read him his Miranda rights; Tucker waived
his right to remain silent. He told Officer Gutierrez that he
had just moved in to the apartment and was living with a
“roommate.”
Officer Gutierrez also asked Tucker about the shotgun and
Tucker denied that it was his. Officer Gutierrez testified that
Tucker seemed to know which shotgun the officer was talking
about, even before the gun had been shown to him, and that
Tucker “described it as a pop and lock or somethin’ like that.”
According to Officer Gutierrez’s trial testimony, Tucker said
that:
[a] couple days prior [he] was—he was hangin’ out
with some friends. He had seen the shotgun in somebody’s trunk. A lot of people were around. And he
was handling the gun, the shotgun. And he said—I
asked him, you know, Hey, are your fingerprints
gonna be on that gun? And he said, Yeah. You
know, I was handling the—the shotgun. So my fingerprints, yes, they would be on there.
Tucker could not recall the names of any of the people who
were present when he handled the shotgun. Officer Guiterrez
testified that Tucker changed his story a “couple times,” from
the shotgun being in the trunk of one friend’s car, to being
used by his roommate for protection, to telling the roommate
“to get rid of it because he’s not supposed to be around guns.”
While the officers and Tucker were in the apartment, Las
Vegas Metropolitan Police Officer Jessica Flink arrived and

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impounded the shotgun and shells. She did not use gloves to
handle the shotgun, having been told that it had already been
handled by people who were not wearing gloves. She read
Tucker his Miranda rights. She testified that Tucker told her
he lived in the master bedroom and he did not know how the
shotgun had gotten in the master closet. Tucker, however,
admitted to her that he had seen the shotgun before, and after
looking at it again he claimed he had seen it in the back of a
friend’s car. Officer Flink stated that Tucker said he had handled the shotgun with some friends and had “showed ‘em how
to use it; put it back in the trunk and that was the last he saw
of it.” She further stated that Tucker said he did not know the
names of the people who were with him, and could not
remember what the car looked like.
According to Officer Guiterrez, just as the officers were
about to leave the apartment with Tucker, Tucker asked to
have some of his pain medication, and said that the medication was next to “his television” in the master bedroom. Officer Vanallen retrieved the medication from the bedroom and
gave it to Tucker. Officer Guiterrez said Tucker asked to take
the medication with some Gatorade that was in the refrigerator, and the officers gave him some, and then brought him to
prison. On the way out, Tucker gave the officers an apartment
key and asked them to lock the door.
B.

Tucker’s Federal Criminal Trial

Tucker did not testify at his federal criminal trial. However,
the jury heard excerpts from a state court proceeding related
to the incident in this case, in which Tucker did testify about
his living arrangements and the events of September 7. During the state proceeding, Tucker testified that the shotgun was
not found in his room, that he did not know the gun was in
the large room, and that he lived in the small room and Alexander lived in the large room. He said that Alexander was
“mad” at him because he “didn’t want to be with her,” and
that is when she called Officer Guiterrez. On cross-

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examination in the state proceeding, Tucker testified that the
officers never asked him which room in the apartment was
his. He and the prosecutor then had the following exchange:
Q. Now, why did you have your own personal
effects in the master bedroom?
A. Well, those weren’t my effects. She had a boyfriend.
Q.

A boyfriend with the same name as you?

A.

Same name as me?

Q.

Well, you heard the testimony—

A.

I don’t know what his name is.

Tucker said that his prescription pills were in the master bedroom, where Alexander lived, and that she was a registered
nurse. He said he did not have any clothes in the master bedroom, and had never been inside the master closet. He also
said that he did not think he had any paperwork in that room,
but that “the movers could put anything anywhere.”
At Tucker’s federal criminal trial, there was evidence presented that a forensic scientist was asked to examine the shotgun and the two shells found in the apartment for fingerprints.
The scientist testified that he had not examined the shotgun
because it had not been properly packaged, and therefore he
would not be able to determine whether the gun had any fingerprints on it belonging to Tucker or anyone else. The scientist testified that he had examined the shells for fingerprints
but did not recover any.
The evidence related to fingerprints was referenced during
counsels’ opening and closing statements. During his opening
statement, defense counsel said “there are no fingerprints in

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[sic] that gun” and “the bottom line is that there’s no prints
in [sic] that firearm—that connect the firearm to Mr. Tucker
or anybody else.” During the government’s closing statement,
the prosecutor stated:
[The defense said it] was going to show you that he
did not possess the shotgun was that his fingerprints
were not on the gun. Well, we now know that that
was a misleading statement. We don’t know if his
fingerprints were ever on that gun. Unfortunately,
this gun went through many hands. It was contaminated. And neither the detective or the forensic scientist who examined it felt that it was proper to
examine an item of evidence for latent fingerprints
when it’s possibly been contaminated by other
human hands. So we can’t say one way or the other
whether or not his fingerprints are on it. We don’t
know. That was a misleading statement from the
defense.
Tucker’s counsel responded:
What is it that we said that was misleading? His fingerprints, Mr. Tucker’s fingerprints, were definitely
not found on that gun. The gun—they didn’t even do
an analysis on the gun. . . . But I guess we’re being
misleading about saying that his prints are not on the
firearm. If you think we were—I was, I apologize.
. . . But I don’t think so. I don’t think I was.
In addition, the prosecutor’s closing argument contained comments about Dawn Alexander’s “new boyfriend” or “new
man.” The prosecutor stated:
[W]hy is he denying that he lived in the master bedroom? Why is he claiming that Dawn Alexander had
a new boyfriend that she had moved in there? Well,
because he has to explain why there’s male posses-

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sions in the master bedroom; right? He has to come
up with some story because otherwise it’s obvious
the evidence points to the fact that he was residing
in that bedroom. And why did he claim that he
doesn’t even know the new boyfriend’s name? I
mean, clearly this is not a true story. He doesn’t even
know the name of this alleged person who is living
with him.
The prosecutor made several more references to Dawn Alexander’s “new man” or “new boyfriend” throughout her closing argument.1
The prosecutor, in her closing argument, also commented
on what the jury would have to find or believe, in order to
convict Tucker. The prosecutor said she wanted “to point out
a couple of things that you as jurors are going to have to find
to be true if you decide that the defendant is not guilty.
Because for you to say that he’s not guilty, these are the
things that you have to believe . . . .” The prosecutor went on
to list various aspects of the defense theory of the case that the
jury would “have to believe,” and stated “[y]ou will have to
believe that and that is not logical. It’s not reasonable.”
Defense counsel objected, arguing that the standard of
proof was being shifted to the defense. The district court
overruled the objection, stating that the jury had already been
correctly instructed on the burdens of proof. The prosecutor
continued:
1

One of these was:
Is it believable to you as jurors that five days after moving in this
apartment with Lorenzo Tucker that Dawn Alexander moved in
a new boyfriend? Because that’s what the defendant testified. The
defendant testified that Dawn had a new boyfriend and that the
new boyfriend was living there. They were all three living there
together in this two-bedroom apartment.

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To find the defendant not guilty, remember, you
have to have some kind of reasonable doubt. And the
key word there is “reasonable” . . . . If you are gonna
find him not guilty, you also have to believe that
[lists various points of the defense argument] . . . .
You will have to believe that. Because if you do not,
that means that that [sic] the personal property in
that master bedroom was the defendant’s. It means
it was his bedroom. It means that it was his shotgun.
It means that he is guilty. You would also have to
believe that the defendant did not lie. And do you
believe that? . . . . Again, if you’re going to have a
doubt it must be reasonable; it must be based on reason.
Throughout her closing argument, the prosecutor reiterated
that it was the government’s burden to prove all elements of
the charge beyond a reasonable doubt.
At several points during the trial, the district judge
instructed the jury on reasonable doubt and burdens of proof.
At the beginning of the trial, the district judge stated:
The statements that the lawyers make now, as well
as the arguments they present at the end of the trial,
are not to be considered by you as evidence in this
case or as a substitute for the instructions of law
which will come only from me. Nevertheless, the
statements and arguments of counsel are intended to
help you understand the issues and the evidence as
it comes in.
In addition, at the close of all the evidence, the district judge
reminded the jury that a defendant is presumed innocent, and
that the government has the burden of proving a defendant
guilty beyond a reasonable doubt. The district judge also
addressed the jury about the meaning of “proof beyond a reasonable doubt.” He instructed the jury that the verdict must be

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based on the evidence and the law, as articulated by the court,
and reminded the jury that the arguments and statements of
the attorneys are not evidence.
The district court also instructed the jury on possession of
the firearm, stating:
A person has possession of something if the person
knows of its presence and has physical control of it,
or knows of its presence and has the power and
intention to control it. More than one person can be
in possession of something if each knows of its presence and has the power and intention to control it.
Possession of a firearm can be actual or constructive.
Actual possession means physical custody or actual
physical dominion. Constructive possession exists
when a person does not have actual possession but
instead knowingly has the power and . . . intention
at a given time to exercise dominion and control
over an object, either directly or through another person or persons. To prove constructive possession, the
government must show a sufficient connection
between the defendant and the firearm to support an
inference that the defendant exercised dominion and
control over the item.
(emphasis added).
The court declined to give Tucker’s proposed jury instruction on possession, which generally tracked the given instruction but omitted the line about it being possible for more than
one person to be in “possession of something” and added the
following language at the end:
It is not the same as merely knowing the weapon is
nearby. Therefore, mere proximity to the firearm,
mere presence, or mere association with the person
who does control the firearm is insufficient to sup-

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port a finding of possession. A person’s brief touching or handling of a firearm, without other steps to
give him physical custody of or dominion and control over the firearm, is not sufficient to constitute
actual or constructive possession.
Tucker was convicted of being a felon in possession of a
firearm. At sentencing, the district judge considered, among
other factors, Tucker’s prior guilty plea for “Attempt Child
Abuse and Neglect” in 2005. The copy of the Guilty Plea
Agreement and the Judgment of Conviction before the district
court did not set forth the facts to which Tucker pleaded
guilty, but stated only that Tucker pleaded guilty to “ATTEMPT CHILD ABUSE AND NEGLECT (Category B Felony — NRS 193.330, 200.508), as more fully alleged in the
charging document attached hereto as Exhibit ‘1.’ ” The copy
of the Guilty Plea Agreement provided to the court did not
have an attachment labeled “Exhibit 1” but was accompanied
by a charging document, the “Information,” which stated in
pertinent part:
LORENZO DARNELL TUCKER, III, the Defendant above named having committed the crime of
ATTEMPT CHILD ABUSE AND NEGLECT (Felony — NRS 193.330, 200.508), on or about the 30th
day of January, 2005, within the County of Clark,
State of Nevada, contrary to the form, force and
effect of statutes in such cases made and provided,
and against the peace and dignity of the State of
Nevada, did wilfully, unlawfully, feloniously and
knowingly attempt to neglect, cause, or permit a
child under the age of 18 years, to-wit: [Child]2,
being approximately 6 years old, to suffer unjustifiable physical pain, or mental suffering, or by permitting the said [Child] to be placed in a situation where
he might have suffered unjustifiable physical pain or
2

The name of this individual has been redacted.

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mental suffering, by repeatedly attempting to strike
the said [Child] about the body with a belt.
The district court also considered the contents of the Presentence Report (“PSR”) that was prepared by the government.
The PSR recommended a sentence of 96 months’ imprisonment, followed by three years’ supervised release. The PSR
reflected that Tucker committed the “felon in possession”
offense after sustaining two felony convictions for crimes of
violence—one for battery with substantial bodily harm,3 and
one for Attempt Child Abuse and Neglect. The PSR included
the following comment on the 2005 conviction for Attempt
Child Abuse and Neglect:
According to the Nevada Parole and Probation presentence report on January 30, 2005, [Woman]4 left
her children with Lorenzo Tucker, father of one of
the children and who was the victim. When
[Woman] arrived to pick up the children, she noticed
a red mark on her son’s face and asked him about it.
The child advised that Lorenzo had told him to work
on a “Hooked on Phonics” program on the computer,
but that when he wasn’t doing it exactly the way
Lorenzo had told him to, he got a belt and beat him
with it. Photos of the child showed bruises and belt
marks to his face, throat, shoulders, arms, back,
abdomen, groin, and buttocks. When [Woman]
asked Lorenzo about the marks, he advised her that
the child got a “beat down” because the child wasn’t
doing what he wanted him to do . . . . This is a
3

The incident underlying the felony battery conviction took place in
1999. According to the PSR, Tucker “struck [a] female victim in the face
with a drinking glass, causing substantial bodily harm.” As a result, the
victim was left with a “7cm laceration on her left cheek, a four centimeter
laceration on her nose and a one centimeter laceration on her upper lip.
Approximately 100 stitches were required to close the wounds.”
4
The name of this individual has been redacted to protect the individual’s privacy.

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“crime of violence” as defined in U.S.S.G.
§ 4B1.2.
(emphasis in original). The PSR also reflected several other
criminal convictions and arrests for Tucker, including some
for battery, destruction of property, and weapons possession,
whose underlying incidents took place from 1992 to 1999.
In Tucker’s sentencing memorandum, he objected to the
PSR’s determination that his prior conviction for Attempt
Child Abuse and Neglect was a crime of violence, and argued
that the PSR’s recommended 96-month sentence was unreasonable.
The district court determined that the applicable Sentencing
Guidelines range was 77 to 96 months, based on a base
offense level of 24, seven criminal history points, and a criminal history category of IV. The court determined that Tucker’s
base offense was 24 because he had committed the felon in
possession offense after receiving two felony convictions of
a crime of violence, including the Attempt Child Abuse and
Neglect conviction. The court determined that although
Attempt Child Abuse and Neglect was not categorically a
crime of violence under Nevada law, Tucker’s conviction
constituted a crime of violence under the modified categorical
approach. In response to the defense objections, the court
noted that even though much of the Information was boilerplate, its specific language—“by repeatedly attempting to
strike the said [Child] about the body with a belt”—negated
any inference that the act was a matter of negligence or was
committed by someone else. Later in the sentencing proceeding, the district court reiterated that the evidence showed that
Tucker “actually did beat the boy with a belt, and noted that
“the reports indicate that this child was—had red marks on his
head, his neck, his body from the belt.” Defense counsel
objected to the reference to the PSR, stating that if it “played
any factor into the Court’s mind what’s stated in the PSR
about the red marks about the neck and face because it’s inap-

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propriate under Ninth Circuit case law to consider what’s in
the PSR.” The district judge appears to have agreed that he
had to go “strictly on the Information,” but indicated he could
make an adjustment when considering the factors set forth in
18 U.S.C. Section 3553(a).
Defense counsel also noted that the Guilty Plea Agreement
stated that Tucker was pleading guilty to Attempt Child
Abuse and Neglect “as more fully alleged in the charging
document attached hereto as Exhibit 1” (emphasis added),
and argued that it was the prosecutor’s burden to come forward with appropriate documentation of the conviction. The
district court, nonetheless, took notice of the Information,
commenting that it was “a copy of a certified copy which
bears no indication of forgery or fabrication,” mentioned
Tucker by name, and listed the same charge to which Tucker
had pleaded guilty (that is, “Attempt Child Abuse and
Neglect”). The district court also noted that defense counsel
did not suggest that the charging document was fabricated or
amended, or that some other charging document applied.
Accordingly, the district court determined the Information
was reliable as the applicable charging document, and that it
accurately described the offense to which Tucker had pled
guilty.
The district court recognized that in calculating the sentencing guidelines, it was limited to admissible information
including the plea agreement and the Information. However,
it noted that “at the end of the day, as you are well aware, the
Court can take into consideration other matters, including
whether the defendant’s criminal history is underrepresented
and I can take into consideration all of the defendant’s history, not just his conviction history.” The district court
reviewed Tucker’s criminal history, as reflected in the PSR,
and stated that a 96 months’ sentence met the purposes of sentencing.

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II.
On appeal, Tucker raises five objections to his conviction
and sentence: (1) there was insufficient evidence to demonstrate that he “possessed” the firearm, (2) the prosecutor committed misconduct during closing arguments, (3) the district
court erred by refusing to give his proposed “mere presence”
jury instruction, (4) the district court incorrectly calculated the
sentencing guidelines, and (5) the sentence he received was
substantively unreasonable.
A.

Knowing Possession of the Shotgun

Where, as here, the defendant preserves his claim of insufficient evidence by making a motion under Federal Rule of
Criminal Procedure 29 at the close of the evidence, we review
de novo the sufficiency of the evidence supporting the conviction. United States v. Ruiz, 462 F.3d 1082, 1087-88 (9th Cir.
2006). We “determine whether ‘after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt.’ ” United States v. Nevils, 598
F.3d 1158, 1163-64 (9th Cir. 2010) (en banc) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (italics omitted)).
[1] Tucker was convicted under the federal felon in possession statute, which “makes it unlawful for a person ‘who has
been convicted in any court of . . . a crime punishable by
imprisonment for a term exceeding one year’ to ‘possess in or
affecting commerce, any firearm or ammunition’ which ‘has
been shipped or transported in interstate or foreign commerce.’ ” Id. (quoting 18 U.S.C. § 922(g)). To obtain a conviction, the government was required to prove: “(1) that the
defendant was a convicted felon; (2) that the defendant was
in knowing possession of a firearm [or ammunition]; and (3)
that the firearm [or ammunition] was in or affecting interstate
commerce.” Id. at 1164 (alterations in original) (quoting
United States v. Beasley, 346 F.3d 930, 933-34 (9th Cir.

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2003)). Here, the only contested element of the federal felon
in possession statute was the element of “knowing possession.” We previously have stated that “[t]o establish that a
defendant acted ‘knowingly,’ the prosecution need not prove
that the defendant knew that his possession of a firearm was
unlawful; the prosecution need only prove that the defendant
consciously possessed what he knew to be a firearm.” Nevils,
598 F.3d at 1163 (citing Beasley, 346 F.3d at 934).
Tucker argues that the government did not prove that he
knowingly possessed the shotgun because, at most, the evidence showed that he was in close proximity to the shotgun
on or about September 7. Tucker’s theory is that Alexander
was angry at him because they had broken up, and so she
moved out of the apartment without anyone’s knowledge,
planted the shotgun, and then called Tucker’s probation officer to “report” the alleged probation violation.
[2] The evidence indicates that Tucker was the sole adult
occupant of the apartment on September 7, and the only person occupying the master bedroom and using the closet where
the firearm was found. Tucker signed the apartment lease
showing him as one of only two adult occupants of the apartment. Further, Tucker told Officer Flink that he lived in the
master bedroom, the officers observed that there were only
male belongings in the master bedroom, and there were prescription pill bottles bearing Tucker’s name and mail
addressed to Tucker in the master bedroom. Also, Alexander
told the police that she was “moving out” of the apartment
and was “en route to” Florida. This evidence is more than sufficient to support the jury’s finding of possession. Moreover,
Tucker’s relationship to the shotgun is strengthened by Tucker’s comments that the shotgun had previously been in the
apartment and that his roommate used it for protection, as
well as Officer Guiterrez’s testimony that Tucker seemed to
know what shotgun was at issue before the officers showed it
to him. In sum, the jury could reasonably disbelieve Tucker’s

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explanations and conclude that Tucker knowingly possessed
the gun.
Tucker seeks to analogize this case to several of our preNevils decisions, in which we concluded that there was a lack
of sufficient evidence regarding knowing possession. To the
extent that these decisions survive our en banc opinion in
Nevils, they are distinguishable because the evidence involved
was so weak. For instance, in Ruiz, 462 F.3d at 1088, the firearms at issue were found in the “loft area, in the main part of
the residence.” Id. The defendants did not own or lease the
premises where the contraband was found, and there was
nothing else to suggest that the defendants controlled items in
the area of the contraband. Id. at 1088-89. On these facts, we
determined that the government could not prove knowing possession, and reversed the conviction. Id. at 1089; see also
United States v. Cazares, 121 F.3d 1241, 1245 (9th Cir. 1997)
(holding that the government failed to prove that the defendant possessed the guns where the defendant occupied the residence with several other people, and the government had not
shown that the defendant knew the guns existed or that the
guns were found in the bedroom occupied by the defendant);
United States v. Reese, 775 F.2d 1066, 1074 (9th Cir. 1985)
(holding that the evidence was insufficient to support a conviction for unlawful possession of firearms, where the defendant shared the house with his wife and the firearms were
found behind a painting in the living room and under a pillow
in the largest bedroom, but there was no evidence that the pillow under which the gun was found was the same pillow used
by the defendant, or even that he used the bedroom in which
the gun was found). By contrast, the evidence of knowing
possession in this case is much stronger, and supports the
jury’s findings.
Tucker seeks to distinguish United States v. Young, 420
F.3d 915, 917 (9th Cir. 2005), on which the government
relies. There, we upheld a jury finding that the defendant
knowingly possessed a gun that was found inside his resi-

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dence. In Young, the only other occupant of the residence, the
defendant’s girlfriend, had testified that she had moved out of
the apartment and that she no longer had access to the apartment. Id. Tucker contrasts Young with this case, and argues
that because there was no testimony that Alexander had completely moved out and no longer had access to the apartment,
Young is inapposite.
Tucker’s interpretation of Young is overly simplified. Our
decision did not depend solely on the testimony of the defendant’s girlfriend that she had already moved out of the residence by the time the gun was found. See id. We also
considered letters addressed to the defendant and other personal belongings to suggest that he alone occupied the residence. Id. Similarly, here, Alexander’s testimony is just one
among many pieces of evidence that support the jury’s determination that Tucker possessed the shotgun. Tucker was free
to argue these distinctions to the jury, but ultimately the jury
may discount his assertions in favor of evidence of his control
over the apartment.
B.

Prosecutor’s Closing Statement

When a defendant fails to object to alleged prosecutorial
misconduct, the court reviews for plain error. United States v.
Geston, 299 F.3d 1130, 1134 (9th Cir. 2002). Where an objection is raised in the trial court and overruled, the court reviews
for abuse of discretion. United States v. Tam, 240 F.3d 797,
802 (9th Cir. 2001). “The defendant must show that it is more
probable than not that the misconduct materially affected the
verdict.” Id. (internal quotation omitted).
Prosecutors can argue reasonable inferences based on the
record, United States v. Cabrera, 201 F.3d 1243, 1250 (9th
Cir. 2000), and “have considerable leeway to strike ‘hard
blows’ based on the evidence and all reasonable inferences
from the evidence,” United States v. Henderson, 241 F.3d
638, 652 (9th Cir. 2000) (citation omitted). “A prosecutor

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may express doubt about the veracity of a witness’s testimony
[and] may even go so far as to label a defendant’s testimony
a fabrication.” Cabrera, 201 F.3d at 1250 (internal quotation
marks omitted). “[C]omments intended to highlight the weaknesses of a defendant’s case do not shift the burden of proof
to the defendant where the prosecutor does not argue that a
failure to explain them adequately requires a guilty verdict
and reiterates that the burden of proof is on the government.”
United States v. Vaandering, 50 F.3d 696, 701-02 (9th Cir.
1995) (citations and quotations omitted). “The trial judge has
broad discretion in controlling closing argument, and improprieties in counsel’s arguments to the jury do not constitute
reversible error unless they are so gross as probably to prejudice the defendant, and the prejudice has not been neutralized
by the trial judge.” United States v. Navarro, 608 F.3d 529,
535-36 (9th Cir. 2010) (internal quotations omitted).
1.

Prosecutor’s Comments About Alexander’s “New
Boyfriend” and “New Man”

[3] Tucker argues, for the first time on appeal, that the
prosecutor’s comments about Alexander’s “new man” or
“new boyfriend” were not based on evidence that had been
presented at trial. Tucker also takes issue with the prosecutor’s repeated comments that Tucker lied. We determine,
however, that the prosecutor’s statements were reasonable
inferences drawn from the evidence presented. When Tucker
was cross-examined at the related state court hearing, he testified that he slept in the small bedroom—the one that the officers testified was filled with children’s toys—and that
Alexander, with whom he was living, was “mad” at him
because he “didn’t want to be with her.” He further asserted
that Alexander “had a boyfriend.” This testimony — contrasted with the evidence that Tucker and Alexander had
recently moved into the apartment, and that Tucker was still
living in the apartment—allowed the prosecutor to infer that
Tucker lied in the state court hearing when he suggested that
the personal effects and clothing in the master bedroom

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belonged to Alexander’s “new” boyfriend. It was not plain
error for the district court to allow these comments.
2.

Prosecutor’s Statements Regarding Fingerprints

[4] Also for the first time on appeal, Tucker argues that the
prosecutor committed misconduct when she referred to the
fingerprint portions of defense counsel’s opening statement as
“misleading.” The prosecutor’s comment highlighted the distinction between saying “Tucker’s fingerprints are not on that
gun” and “we do not know whether Tucker’s fingerprints are
on that gun.” This distinction was supported by the forensic
expert’s testimony that he did not know whose fingerprints,
if any, were on the shotgun. Thus, although “misleading”
might be a slightly harsh adjective, it was not inaccurate. In
contrast to the case cited by Tucker, the adjective was limited
to one particular statement by defense counsel, rather than
directed at defense counsel himself. See United States v.
Rodrigues, 159 F.3d 439, 449 (9th Cir. 1998), opinion
amended on denial of rehearing at 170 F.3d 881 (9th Cir. 1999).5
More importantly, any prejudice was dissipated by the backand-forth exchange between the prosecutor’s closing statement and defense counsel’s closing statement. We determine
that the prosecutor’s “misleading” comment, examined in
context, was innocuous and the district court did not commit
plain error by allowing it.
3.

Prosecutor’s Statements Regarding the Burden of
Proof

Tucker argues that the prosecutor intentionally shifted the
burden of proof by listing various facts that the jury would
5

In Rodrigues, the prosecutor told the jury that defense counsel “tried
to deceive you from the start,” had “tried to pretend that this case is about”
something it was not about, had “tried to introduce a number of nonissues,
false issues” and had “harped” on something that was “flatout untrue.”
Rodrigues, 159 F.3d at 449.

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have to “find” if it were to determine that Tucker was “not
guilty.” Tucker contends that the district court made matters
worse by commenting, “I have instructed the jury on the burdens of proof already. However, this is argument. And I
believe that it is within bounds. So you may proceed.”
[5] The record shows that the prosecutor’s comments
about what the jury “must find” were made in the context of
explaining why the jury should reject Tucker’s version of
events, and only after the prosecutor already had said that the
government was required to prove beyond a reasonable doubt
that Tucker was guilty of possession of a firearm. In addition,
the prosecutor reiterated on several occasions that the government had the burden of proof. We further agree with the district court that the prosecutor’s comments were only
argument, and note that the district court correctly instructed
the jury on the proper standard. While the prosecutor’s phrasing was inartful, his meaning is evident from context: to
believe the defendant’s account, the jury would have to
believe implausible aspects of his testimony. This sort of
argumentation is permissible. See Vaandering, 50 F.3d at
701-02. Accordingly, the prosecutor’s comments did not constitute misconduct, and the district court did not err by allowing them. Furthermore, even if the comments were improper,
the court’s statements and instructions to the jury neutralized
any potential prejudice. See Tam, 240 F.3d at 802 (holding
that even if the prosecutor’s burden-shifting statements during
closing argument were improper, they were rendered harmless
as a result of the district court’s comments and instructions to
the jury).
C.

Tucker’s Proposed “Mere Presence” Jury
Instruction

A party’s claim that the district court’s instructions did not
adequately cover the theory of the defense is reviewed de
novo. United States v. Howell, 231 F.3d 615, 629 (9th Cir.
2000). “A defendant is entitled to have the judge instruct the

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jury on his theory of defense, provided that it is supported by
law and has some foundation in the evidence.” United States
v. Mason, 902 F.2d 1434, 1438 (9th Cir. 1990). A court may
reject a defendant’s theory of the case instruction if the other
instructions given in their entirety cover the defense theory.
United States v. Kenny, 645 F.2d 1323, 1337 (9th Cir. 1981).
“So long as the instructions fairly and adequately cover the
issues presented, the judge’s formulation of those instructions
or choice of language is a matter of discretion.” United States
v. Echeverry, 759 F.2d 1451, 1455 (9th Cir. 1985). “A district
court may properly refuse to give a ‘mere presence’ instruction when the government’s case rests on ‘more than just a
defendant’s presence, and the jury is properly instructed on all
elements of the crime . . . .’ ” United States v. Reed, 575 F.3d
900, 925 (9th Cir. 2009) (alteration in original) (quoting
United States v. Negrete-Gonzales, 966 F.2d 1277, 1282 (9th
Cir. 1992)).
[6] Tucker argues that his only link to the firearm was his
presence in the apartment and his statements that he had
briefly handled the firearm on an earlier date, and therefore
the district court should have issued a “mere presence” or
“mere handling” jury instruction. The record shows that the
government’s case was not limited to evidence regarding
presence or handling. The government presented evidence
that (1) Tucker was the only adult occupant of the apartment
on September 7; (2) the gun was in the same bedroom that
Tucker was using, near his personal effects; (3) Tucker knew
what gun the officers were talking about before they showed
it to him on September 7; and (4) Tucker had handled the gun
in the past and thought his fingerprints would be on it. This
evidence goes beyond “mere presence,” and makes a mere
presence instruction unnecessary. See United States v. McKnight, 953 F.2d 898, 903 (5th Cir. 1992) (holding that a mere
presence instruction was unnecessary where defendant owned
and lived in the house where contraband was found because
“[t]he dominion and control associated with owning and living in a small, open house . . . is utterly inconsistent with the

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legal conclusion that [the defendant] was ‘merely present.’ ”
(italics in original)).
We recognize that the facts in this case fall somewhere
between cases where we have required a presence-based
instruction, such as Negrete-Gonzales, and those where we
have not required the instruction, such as Howell. Compare
Howell, 231 F.3d at 629 (holding that a mere presence
instruction was not necessary where there was witness testimony that the defendant had placed the cocaine in the witness’s bag, instructed the witness to carry it, and promised the
witness money for her role in its delivery, and the defendant
had confessed to picking up the cocaine), with NegreteGonzales, 966 F.2d at 1277, 1282 (holding that defendant was
entitled to a mere presence instruction where the government’s case was based on evidence that he accompanied a
witness to a parking lot where some drug sale negotiations
took place and performed some “countersurveillance” activity, and that he was physically in the house—but not in the
relevant bedroom—when the drug sale took place). On balance, we determine that the facts are closer to those in Howell, and therefore a mere presence instruction was not
necessary.
[7] We conclude that the district court did not err in refusing to give the mere presence instruction, particularly as the
jury was properly instructed on the elements of the felon in
possession statute. See Negrete-Gonzales, 966 F.2d at 1282
(stating that “[i]f 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.”).6 Pursuant to these instructions, the jury
could not find Tucker guilty based on his mere presence or
handling of the shotgun. Rather, the jury had to find that
Tucker “knowingly ha[d] the power and . . . intention at a
6

Tucker does not dispute that the jury was properly instructed on the
elements of the crime.

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given time to exercise dominion and control” over the shotgun and that the government had shown “a sufficient connection” between Tucker and the shotgun “to support an
inference that [Tucker] exercised dominion and control” over
it. We conclude that the jury instructions adequately covered
Tucker’s theory of defense, and therefore the district court did
not commit reversible error.
D.

Calculation of Sentencing Guidelines, Using Tucker’s Prior Conviction for Attempt Child Abuse and
Neglect as a Conviction for a “Crime of Violence”

We “review the district court’s interpretation of the Sentencing Guildelines de novo, the district court’s application of
the Guidelines to the facts for abuse of discretion, and the district court’s factual findings for clear error.” United States v.
Garro, 517 F.3d 1163, 1167 (9th Cir. 2008) (italics omitted).
We review de novo a district court’s determination that a prior
conviction qualifies as a crime of violence. United States v.
Rodriguez-Guzman, 506 F.3d 738, 740 (9th Cir. 2007). We
use an abuse-of-discretion standard when reviewing a district
court’s determination about whether a particular item is sufficiently reliable to be considered at sentencing. United States
v. Pinto, 48 F.3d 384, 389 (9th Cir. 1995).
Here, the district court properly used the modified categorical approach to determine whether Tucker’s prior conviction
for Attempt Child Abuse and Neglect qualified as a “crime of
violence.” See United States v. Contreras-Salas, 387 F.3d
1095, 1096-97 (9th Cir. 2004). The Supreme Court reaffirmed
the use of this approach in Johnson v. United States, 130 S.
Ct. 1265, 1273 (2010):
When the law under which the defendant has been
convicted contains statutory phrases that cover several different generic crimes, some of which require
violent force and some of which do not, the “modified categorical approach” that we have approved,

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Nijhawan v. Holder, 129 S. Ct. 2294, 2302 (2009),
permits a court to determine which statutory phrase
was the basis for the conviction by consulting the
trial record—including charging documents, [and]
plea agreements . . . .
Id. When using the modified categorical approach, we look to
the factual description in the charging document to determine
whether the crime to which a defendant pled guilty constitutes
a crime of violence. See e.g., Penuliar v. MuKasey, 528 F.3d
603, 610 (9th Cir. 2008); Contreras-Salas, 387 F.3d at
1097-98.
Tucker argues that the district court improperly relied on
the PSR’s description of the incident giving rise to his
Attempt Child Abuse and Neglect conviction, pointing to the
district judge’s comments during sentencing about facts contained in the PSR but not in the Information. For example, the
district judge stated that Tucker had beaten the child with a
belt, and referenced the red marks on the child. However, the
court twice clarified that it was relying only on the Information when calculating the applicable guidelines. The issue
thus is whether the Information for Attempt Child Abuse and
Neglect compels a finding of a crime of violence under the
modified categorical approach.
[8] On first read, the language in the Information “by permitting [Child] to be placed in a situation where he might
have suffered unjustifiable physical pain or mental suffering”
might be problematic, as it could describe a non-violent
crime. However, this possibility is foreclosed by the closing,
qualifying phrase in the Information—“by repeatedly attempting to strike the [Child] about the body with a belt”—which
clarifies that Tucker personally attempted to strike the child,
rather than placed the child in a position where he might be
struck by someone else.
Tucker’s attempt to equate the Information in this case with
the one in Contreras-Salas is not persuasive. In Contreras-

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Salas, the Information covered two defendants, described several ways in which the offense could have been committed,
and used the conjunction “and/or.” Contreras-Salas, 387 F.3d
at 1098 n.2. Here, by contrast, the description of factual violence at the end of the Information makes it clear that Tucker
pleaded guilty to his own volitional, violent conduct. The
Information cannot be fairly read as allowing an alternative
scenario whereby Tucker could have pled guilty to an offense
that did not involve Tucker himself striking the child.
[9] Tucker also takes issue with the district court’s
assumption that the Information provided was the same
“charging document” referenced in the plea agreement. However, Tucker does not offer any factual allegations suggesting
that the Information submitted in the certified record was not
the same Information to which Tucker pleaded. As the district
judge noted, the charge of Attempt Child Abuse and Neglect
was the same in the Information as in the Guilty Plea Agreement, both documents were certified copies from the Clerk of
Court, and there was no evidence to suggest they were fabricated. Tucker did not point to a different Information that
applied to his guilty plea, or otherwise suggest a reason why
the Information being referenced might be inapplicable or
unreliable. Under these circumstances, the district court did
not abuse its discretion in relying on the Information and concluding that Tucker pleaded guilty to the violent crime
described therein. See United States v. Strickland, 601 F.3d
963, 968-69 (9th Cir. 2010) (holding that the district court
properly considered a docket sheet when applying the modified categorical approach because there were sufficient indicia
of reliability and the defendant had not offered any reasonable
ground for questioning the document).
E.

Reasonableness of Sentence

We “consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard,” taking
into account “the totality of the circumstances, including the

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extent of any variance from the Guidelines range.” Gall v.
United States, 552 U.S. 38, 51 (2007). “In determining the
relevant facts, sentencing judges are not restricted to information that would be admissible at trial. Any information can be
considered, so long as it has ‘sufficient indicia of reliability
to support its probable accuracy.’ ” United States v. Notrangelo, 909 F.2d 363, 364-65 (9th Cir. 1990) (quoting U.S.S.G.
§ 6A1.3, comment).
[10] Tucker argues that his sentence of 96 months’ incarceration is substantively unreasonable and greater than necessary, and that he is being punished for his past rather than for
his conduct in this case. We disagree. The district court properly considered Tucker’s violent criminal history, including
his conviction of Attempt Child Abuse and Neglect. The evidence of Tucker’s good deeds and deep sense of responsibility to his family, although admirable, did not, for the district
court, negate his pattern of violent criminal behavior.7 On balance, it is clear that the district court, having correctly calculated the applicable Guidelines, reasonably based its sentence
on Tucker’s lengthy history of convictions for crimes involving violent behavior.
7

Our conclusion is not undermined by Tucker’s argument that the trial
judge “mistakenly relied on what he claimed was ‘evidence’ at trial that
Mr. Tucker’s hand was in a cast when he was arrested in this case because
he ‘broke [it] on [Alexander’s] face.’ ” Tucker is correct that there was no
evidence at trial to suggest that he broke his hand on Alexander’s face.
However, the district court did not rely on any such evidence in issuing
Tucker’s sentence. The court specifically stated that the “actual record of
convictions” was sufficient to overrule Tucker’s objection to the PSR’s
statement that he was a danger to the community.
Moreover, the medical records Tucker presented showed that he broke
his hand by striking someone else, not Alexander. This evidence is in
keeping with the other indicia of Tucker’s violent nature and behavior.
Therefore, even if the trial judge had relied on the violent manner in which
Tucker broke his hand, the judge’s mistake as to the identity of the victim
likely would have been harmless error because it would not have changed
the significance of the incident in a way that impacted Tucker’s sentence.

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III.
In conclusion, we affirm Tucker’s conviction because the
government established that Tucker “knowingly possessed”
the shotgun, the prosecutor’s comments during closing argument did not shift the burden of proof, and Tucker was not
entitled to a “mere presence” jury instruction. We affirm his
sentence because the district court correctly calculated the
sentencing guidelines, correctly determined that Tucker’s
prior conviction for Attempt Child Abuse and Neglect was a
“crime of violence,” and imposed a reasonable sentence.
AFFIRMED.