Free Mandate of 9th Circuit - District Court of Arizona - Arizona

_ UNITED STATES COURT OF APPEALS _
‘ FOR THE NINTH CIRCUIT
_ UNITED STATES OF AMERICA, No. 03-10395
D.C. No. CR-02-00986—PGR
Plaintiff - Appellee, - l
v.
JUDGMENT
JOHN HENRY OWENS,
Defendant - Appellant.
Appeal from the United States District Court for the District of Arizona I
(Phoenix).
This cause came on to be heard on the Transcript of the Record from the
United States District Court for the District of Arizona (Phoenix) and was duly
submitted.
On consideration whereof, it is now here ordered and adjudged by this
Court, that the Conviction of the said District Court in this cause be, and hereby is
AFFIRMED; SENTENCE VACATED AND REMANDED.
Filed and entered 07/25/05
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Case 2:02-or-00986-PGR Document 81 Filed O8/O1/2005 Page 1 of 4

A} Ys?*—fi??”'”””"`
l · I NOT FOR PUBLICATION ` _
, UNITED STATES coURT.oP APPEALS Fl L E D
A _ I FOR THE NTNTH CIRCUIT JUL 25 gggg
CATHY A. CATTERSON cusnx
u.s. count or APPEALS
UNITED STATES OF AMERICA, No. 03-10395
Plaintiff- Appellee, D.C. No. CR-02-00986-PGR
v. p
MEMORANDUM*
JOHN HENRY OWENS,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Paul G. Rosenblatt, District Judge, Presiding
Argued and Submitted April 13, 2004 _
San Francisco, Califomia .
Before: T.G. NELSON, W. FLETCHER, and BERZON, Circuit Judges.
Jolm 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.
. " 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.
Case 2:02-cr-00986-PGR Document 81 Filed O8/O1/2005 Page 2 of 4


I _ `
` 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.
Owens contends that the district court erred by failing to provide the jury
with a “mere presence” instruction.3 The Govermnent’s case against Owens,
l 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 which they were found; (2) the
1 United States v. Owens, 98 Fed. Appx. 595 (9th Cir. 2004)
(unpublished disposition).
2 ____ U.S. _, 125 S. Ct. 738 (2005). Owens v. United States, _ U.S.
___, 125 S. Ct. 997 (2005). `
3 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 ju1y’s
de1iberation”).
4 See United States v. Negrete-Gonzales, 966 F.2d 1277, 1282 (9th Cir.
1992) ("If the govemment’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?).
2
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` 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.l(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.5 .
. Conviction AF FIRMED; Sentence VACATED AND REMANDED.
5 See Booker 125 S. Ct. at 769.
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