United States v. Couch

94 F. App'x 373
CourtCourt of Appeals for the Seventh Circuit
DecidedApril 6, 2004
DocketNo. 03-4038
StatusPublished
Cited by2 cases

This text of 94 F. App'x 373 (United States v. Couch) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Couch, 94 F. App'x 373 (7th Cir. 2004).

Opinion

ORDER

Ancy Couch was convicted by a jury of possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1). The district court sentenced him as an armed career criminal, 18 U.S.C. § 924(e)(1), imposing 235 months of imprisonment, five years of supervised release, and a special assessment of $100. Couch filed a notice of appeal, but his appointed counsel now seeks to withdraw because he cannot find a nonfrivolous basis for appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel’s brief is facially adequate, so we limit our review to the potential issues he identifies along with those that Couch addresses in his response filed under Circuit Rule 51(b). See United States v. Tabb, 125 F.3d 583, 584 (7th Cir.1997).

Couch’s conviction stems from an incident in November 2002, when a police officer heard gunshots and observed a flash emanating from the car in which Couch was a passenger. The officer stopped the vehicle and questioned Couch and his girlfriend, who had been driving. Both stated that there were no firearms in the vehicle, and Couch suggested that he had lit some fireworks and thrown them out the car window. Couch’s girlfriend agreed to a search of the car, and a .9 millimeter semi-automatic handgun was recovered from the glove compartment. Under further questioning, Couch admitted that he was holding the gun for someone who owed him money and that he had shot the gun four times as a salute to “Scotty,” a friend who had recently died. At trial, however, Couch’s girlfriend testified that she had fired the weapon out the window of the car “right in front of his face” in an attempt to dissuade him from [375]*375going to a local motorcycle club, where she feared he would encounter danger and “come out bleeding.” She stated that Couch had reflexively grabbed the weapon from her, removed a cartridge, and put both the weapon and the cartridge in the glove box. This testimony formed the basis for Couch’s argument at trial that his possession of the weapon was justified by necessity, in essence that he grabbed the gun because he feared his girlfriend would accidentally shoot him or someone passing them on the highway. Although the court instructed the jury on this defense over the prosecution’s objection, Couch was found guilty.

Counsel and Couch first consider whether Couch could argue that the statute under which he was convicted, 18 U.S.C. § 922(g), is unconstitutional because it does not require a sufficient nexus with interstate commerce. As Couch points out, purely criminal statutes that have nothing to do with economic activity between the states exceed Congress’ powers. United States v. Lopez, 514 U.S. 549, 560, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). However, § 922(g) deals with economic activity because it prohibits only possession by a felon that is “in or affecting commerce,” making it a constitutionally valid exercise of the commerce power. United States v. Bass, 325 F.3d 847, 849 (7th Cir.2003). Any argument to the contrary would be frivolous.

Counsel and Couch next ask whether Couch could challenge the sufficiency of the evidence underlying his conviction for being a felon in possession. In reviewing such a challenge, we would view the evidence in the light most favorable to the government, affirming so long as any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Bowman, 353 F.3d 546, 552 (7th Cir.2003). The elements of being a felon in possession are: (1) a previous felony conviction, (2) possession of a firearm, and (3) that the firearm traveled in interstate commerce. 18 U.S.C. § 922(g)(1); United States v. Morris, 349 F.3d 1009, 1013 (7th Cir.2003). At trial Couch stipulated to the first and third elements, and his girlfriend testified as to the second-that he handled the weapon. The charge that Couch possessed the weapon was further supported by the police officer’s observations of gunshots and a flash that appeared to be a gun filing, as well as Couch’s own statement during the stop that he had fired the weapon. Therefore, an argument that Couch’s conviction was not supported by the evidence would be frivolous.

Counsel then considers whether Couch could argue that the police violated his Fourth Amendment rights by stopping him without reasonable suspicion. Counsel asserts that the “officer’s initial questions ... implied some uncertainty as to whether what he saw and heard was the result of gunshots.” Couch forfeited this challenge, however, by failing to raise it in the district court, so we would review it only for plain error. United States v. Smith, 230 F.3d 300, 309 (7th Cir.2000). Regardless, any claim that the officer’s investigatory stop was not supported by reasonable suspicion would be frivolous. See Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (officer need only have specific, articulable facts that gave rise to a reasonable suspicion of criminal activity). The officer here acted upon gunshots that he heard and a flash that he saw coming from Couch’s vehicle, and these details are sufficient to establish reasonable suspicion of criminal activity. See United States v. Woods, 233 F.3d 482, 485 (7th Cir.2000). Accordingly, an argument that the stop was unconstitutional would be frivolous.

Counsel next explores whether Couch might argue that the district court’s calcu[376]*376lation of his sentence was incorrect. However, because Couch not only failed to object to the guideline calculations in the presentence report but agreed at the sentencing hearing that he had no “reason to dispute” them, appellate review of this issue would be altogether precluded. United States v. Fudge, 325 F.3d 910, 916 (7th Cir.2003).

Similarly, counsel considers whether Couch could raise a claim of ineffective assistance of counsel. As counsel concludes, however, such a claim would be better reserved for a petition under 28 U.S.C. § 2255, where matters outside the record could be considered. See United States v. Rezin, 322 F.3d 443, 445 (7th Cir.2003).

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United States v. Jamison Krahenbuhl
88 F.4th 678 (Seventh Circuit, 2023)
Couch v. United States
543 U.S. 982 (Supreme Court, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
94 F. App'x 373, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-couch-ca7-2004.