United States v. Alvoid Kennon

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 15, 2019
• Docket: 18-10441
• Status: Unpublished

Opinion

Case: 18-10441 Date Filed: 02/15/2019 Page: 1 of 9

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-10441 Non-Argument Calendar ________________________

D.C. Docket No. 8:16-cr-00532-MSS-TBM-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ALVOID KENNON,

Defendant - Appellant.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(February 15, 2019)

Before WILLIAM PRYOR, JORDAN and ANDERSON, Circuit Judges.

PER CURIAM: Case: 18-10441 Date Filed: 02/15/2019 Page: 2 of 9

A jury convicted Alvoid Kennon of being a felon in possession of a firearm

and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). On appeal, Mr.

Kennon challenges his conviction on sufficiency of the evidence grounds. After

careful review, we affirm.

I

On the morning of April 13, 2016, police officers were preparing to execute a

search warrant for a home on West 3rd Street in Bradenton, Florida. Detective Carl

Jones was stationed in an unmarked vehicle about one block away from the

residence. He observed a green Ford Expedition drive up to the residence and park

in front of it. He then saw Mr. Kennon exit from the driver’s side of the Expedition.

Detective Jones did not see anybody else in the Expedition, or anybody else exit the

Expedition. He radioed the search-warrant team about having seen Mr. Kennon, who

had an outstanding warrant for a failure to appear at a prior court date.

Two additional detectives, Detective Ben Pieper and Detective Andres Perez,

arrived within minutes, also in an unmarked vehicle. Shortly thereafter, they exited

their vehicle and yelled, “Stop, police.” Mr. Kennon ran. After a brief pursuit,

Detective Perez caught up with Mr. Kennon, and took him into custody.

When the search-warrant team arrived at the residence, two detectives

searched the Expedition. Through the window, they saw a pistol in plain view. They

secured the pistol, and found several rounds of ammunition within it. Inside the car,

2 Case: 18-10441 Date Filed: 02/15/2019 Page: 3 of 9

the officers also found title for a different vehicle that had previously been registered

to Mr. Kennon, as well as a Florida photo identification card and gym membership

card, both belonging to Mr. Kennon.

In December of 2016, a federal grand jury charged Mr. Kennon, in a one-

count indictment, with being a felon in possession of a firearm and ammunition. The

case proceeded to a jury trial. At trial, the government presented testimony from,

among others, Special Agent Walton Lanier of the Bureau of Alcohol, Tobacco,

Firearms, and Explosives (ATF). Agent Lanier testified that he had examined the

pistol found in the green Expedition and determined that it was a Glock

manufactured in Austria. He similarly testified that the ammunition found inside the

pistol been manufactured in Arkansas and the Czech Republic.

Mr. Kennon presented three witnesses, including his mother, who testified

that she was the registered owner of the Expedition. She further stated that several

days before Mr. Kennon was arrested, she had given the keys to the Expedition to

Frederick Jefferson, the sole occupant of the West 3rd Street residence, so that Mr.

Jefferson could perform maintenance on the vehicle. She also testified that Mr.

Jefferson frequently carried a gun and that the gun found in the Expedition was a

favorite of his.1

1 Mr. Jefferson passed away in November of 2016. 3 Case: 18-10441 Date Filed: 02/15/2019 Page: 4 of 9

Mr. Kennon moved for a judgment of acquittal under Fed. R. Crim. P. 29,

arguing, among other things, that the evidence was insufficient to prove that he

knowingly possessed the firearm and ammunition. The district court denied Mr.

Kennon’s motion, and the jury found him guilty.

II

We review de novo the denial of a motion for acquittal on sufficiency-of-the-

evidence grounds. See United States v. Peters, 403 F.3d 1263, 1268 (11th Cir. 2005).

In doing so, we view all evidence in the light most favorable to the government and

draw all reasonable inferences in favor of the jury’s verdict, and we ask whether any

rational trier of fact would have found all the essential elements of the crime beyond

a reasonable doubt. See United States v. Eckhardt, 466 F.3d 938, 944 (11th Cir.

2006); United States v. Ramirez, 426 F.3d 1344, 1351 (11th Cir. 2005). But where a

defendant raises on appeal a challenge to the sufficiency of the evidence that he did

not raise in the district court, we review only for plain error. See United States v.

Joseph, 709 F.3d 1082, 1093 (11th Cir. 2013); United States v. Baston, 818 F.3d

651, 663-64 (11th Cir. 2016).

To prevail under plain-error review, Mr. Kennon must show “(1) that the

district court erred, (2) that the error was plain, and (3) that the error affected his

substantial rights.” United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir.

2014) (internal quotation marks omitted).

4 Case: 18-10441 Date Filed: 02/15/2019 Page: 5 of 9

III

To prove that a defendant violated § 922(g)(1), the government must show

that he knowingly possessed a firearm or ammunition, that he was a convicted felon,

and that the firearm or ammunition was in or affecting interstate commerce. See

United States v. Palma, 511 F.3d 1311, 1315 (11th Cir. 2008).

A

Mr. Kennon contests the first element of the offense, arguing that there was

no evidence that he knowingly possessed the firearm, and insufficient evidence to

find that he constructively possessed it. For purposes of § 922(g)(1), “the

government need not prove actual possession in order to establish knowing

possession; it need only show constructive possession through direct or

circumstantial evidence.” United States v. Green, 565 F.3d 832, 841 (11th Cir. 2009)

(citations omitted). A defendant constructively possesses a firearm or ammunition

if he “has knowledge of the [item] coupled with the ability to maintain control over

it or reduce it to his physical possession.” United States v. Derose, 74 F.3d 1177,

1185 (11th Cir. 1996). In order to establish constructive possession, the government

must produce evidence of ownership, dominion or control over the item, or of the

vehicle or premises in which the item is found. See United States v. Wright, 392 F.3d

1269, 1273 (11th Cir. 2004).

5 Case: 18-10441 Date Filed: 02/15/2019 Page: 6 of 9

Here, there was sufficient circumstantial evidence indicating that Mr. Kennon

constructively possessed the pistol and ammunition. Mr. Kennon exited the

Expedition from the driver’s side, and shortly afterwards detectives saw a pistol in

plain view on the passenger seat. There were no other passengers in the Expedition

when Mr. Kennon drove and parked it in front of the target house. And two cards in

Mr. Kennon’s name, including his Florida identification card, were found inside the

vehicle along with the firearm.

Viewing this evidence in the light most favorable to the government, a

reasonable fact-finder could have found that Mr. Kennon had driven the Expedition

with the pistol in the passenger seat. Based on this, it could also reasonably have

found that Mr. Kennon had knowledge and control of the pistol and ammunition.

See United States v. Howard, 742 F.3d 1334, 1341-42 (11th Cir. 2014) (finding

evidence sufficient to show constructive possession where officers found firearm in

glove compartment and defendant had been in driver’s seat shortly before the

search); United States v. Gates, 967 F.2d 497, 499 (11th Cir. 1992) (defendant who

was passenger in vehicle with two firearms found under the driver’s seat “had

sufficient access to the firearms to establish possession”).

6 Case: 18-10441 Date Filed: 02/15/2019 Page: 7 of 9

B

Mr. Kennon also argues that the evidence was insufficient to prove the

interstate commerce element of the offense. Because he did not raise this objection

in the district court, we review this argument only for plain error.

The main evidence that the pistol and ammunition traveled in interstate

commerce was the testimony of ATF Agent Lanier. As to the firearm, Agent Lanier

testified that it was a “Glock model 22, generation 3, .4 caliber semiautomatic

handgun,” and that it was manufactured in Austria. He based his conclusion on,

among other things, an inscription on the gun indicating the manufacturing location

and importing location, his experience as a Glock user and armorer, his experience

inspecting firearms, and his experience training officers how to use Glock firearms.

As to the ammunition, Agent Lanier testified, again based partly on inscriptions on

the rounds, that the rounds were manufactured in Arkansas and the Czech Republic.

The jury did not err, much less plainly err, in finding this evidence sufficient

to establish the interstate commerce nexus. We have explained that § 922(g) “only

requires that the government prove some minimal nexus to interstate commerce,

which it may accomplish by demonstrating that the firearm possessed traveled in

interstate commerce.” United States v. Wright, 607 F.3d 708, 715 (11th Cir. 2010)

(internal quotation marks omitted). And we have noted that inscriptions on weapons

provide “a clear indication of interstate commerce.” United States v. Brantley, 68

7 Case: 18-10441 Date Filed: 02/15/2019 Page: 8 of 9

F.3d 1283, 1287 (11th Cir. 1995). See also United States v. Clay, 355 F.3d 1281,

1286 (11th Cir. 2004) (firearm inscription indicating the manufacturer’s name and

location was sufficient to establish interstate commerce element of § 922(g)); United

States v. Patterson, 820 F.2d 1524, 1526 (9th Cir. 2016) (an inscription indicating

that a gun, found in California, was manufactured in Florida was sufficient to

establish that the gun traveled in interstate commerce). 2

C

Finally, Mr. Kennon argues that there was insufficient evidence for a

reasonable jury to find that the gun at issue here was a firearm as defined by the

applicable statute. See 18 U.S.C. § 921(a)(3) (defining a “firearm” as, among other

things, “any weapon . . . which will or is designed to or may readily be converted to

expel a projectile by the action of an explosive”). Specifically, he points to the fact

that there was no trace report for the serial number on the gun, no testing performed

on the gun, no specific evidence that the gun was operable, and no formal expert

opinion that the gun met the statutory definition of a firearm.

We disagree. “The government need not show to a scientific certainty that a

defendant is carrying a device that fires projectiles by means of an explosive. Indeed,

2 Mr. Kennon also appears to argue that the inscription on the pistol was inadmissible testimonial hearsay evidence in the context of this case. But Mr. Kennon cites no authority and provides scant reasoning to support the notion that a manufacturing inscription on a firearm is testimonial in the sense that its “primary purpose [is] to establish or prove past events potentially relevant to later criminal prosecution.” Davis v. Washington, 547 U.S. 813, 822. 8 Case: 18-10441 Date Filed: 02/15/2019 Page: 9 of 9

the government need not offer the gun itself into evidence or produce an expert

witness to identify a firearm.” United States v. Woodruff, 296 F.3d 1041, 1049 (11th

Cir. 2002) (internal quotation marks omitted). Here, the actual firearm and the

ammunition it contained were in evidence, and the jury heard witness testimony

about the firearm’s make and model. The jury therefore had a sufficient basis on

which to find that the pistol satisfied the statutory definition of a firearm.

IV

For the foregoing reasons, we affirm.