United States v. Jones

81 F. App'x 45
Court of Appeals for the Sixth Circuit·Decided November 12, 2003·No. No. 02-1351·Published·Cited by 7 cases

Opinion

KEITH, Circuit Judge.

Defendant-Appellant Juan Jones (“Jones”) appeals his conviction for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and for possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). Jones alleges that there was insufficient evidence for a jury to find him guilty beyond a reasonable doubt. For the reasons set forth below, we AFFIRM Jones’s conviction.

I. BACKGROUND

On March 21, 2001, three officers of the Narcotics Bureau of the Detroit Police Department executed a search warrant at 4473 18th Street in Detroit, Michigan. The search warrant was predicated upon an undercover purchase of cocaine at the address and law-enforcement observation of heavy foot traffic at the address. At approximately 5:30 pm, the three officers, Sergeant Alphonso Mitchell (“Sergeant Mitchell”), Officer Robert Gerak (“Officer Gerak”), and Officer Darrell Jones (“Officer Jones”) led the entry into the house. Sergeant Mitchell, who was in charge of executing the search warrant, approached the house, knocked on the door, and announced the police presence. After receiving no response, Sergeant Mitchell ordered that the door be opened. Officer Gerak opened the unlocked door and entered the house. Officer Jones and Sergeant Mitchell followed. Officer Gerak [47] and Officer Jones saw Jones with a firearm when they entered the residence. When Sergeant Mitchell entered the living room, he saw Jones’s arm stretched forward toward the couch and saw him pull his hand away from the couch. Officer Jones arrested Jones and retrieved a loaded Ruger semi-automatic pistol from underneath the couch. When Officer Jones searched Jones, as a search incident to arrest, he found a plastic bag containing 11.32 grams of crack cocaine in the breast pocket of Jones’s jacket. The officers also found a digital scale and zip-lock bags, which the officers determined were drug paraphernalia.

On June 21, 2001, a grand jury returned a one-count indictment charging Jones with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). On October 9, 2001, Jones proceeded with a jury trial. On October 12, 2001, after the jury was unable to reach a verdict following three days of deliberation, the district court declared a mistrial.

On November 8, 2001, a grand jury returned a two-count superseding indictment charging Jones with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). On November 9, 2001, the Government filed a penalty enhancement information, pursuant to 21 U.S.C. § 851, based upon Jones’s two prior drug convictions.

On December 6, 2001, Jones began his second jury trial. The jury returned a guilty verdict on both counts of the superseding indictment. On March 13, 2002, the district court conducted a sentencing hearing and accepted the guideline calculations in the Presentence Report. The district court sentenced Jones to 120 months imprisonment for the felon in possession of a firearm count and 360 months imprisonment for the possession with intent to distribute cocaine count, to be served concurrently. Jones was also sentenced to a supervised release term of three years for count one and five years for count two, to be served concurrently.

Jones now appeals his conviction for being a felon in possession of a firearm and for possession with intent to distribute cocaine. Jones argues that there was insufficient evidence for the jury to find him guilty beyond a reasonable doubt for either charge.1

II. DISCUSSION

A. Standard of Review

Jones asserts that there was insufficient evidence for the jury to return a guilty verdict for both counts of the superseding indictment. Pursuant to Federal Rule of Criminal Procedure 29, in order to appeal a conviction based on insufficient evidence, a defendant must move for judgment of acquittal during the trial or within seven days after the jury is discharged. Fed. R.Crim. P. 29; United States v. Horry, 49 F.3d 1178, 1179 (6th Cir.1995). A defendant’s failure to make such a motion constitutes a waiver of the right to challenge the sufficiency of the evidence on appeal absent a manifest miscarriage of justice. United States v. Morrow, 977 F.2d 222, [48]*48230 (6th Cir.1992). “A ‘miscarriage of justice’ exists only if the record is ‘devoid of evidence pointing to guilt.’ ” United States v. Price, 134 F.3d 340, 350 (6th Cir.1998) (citation omitted). Because Jones failed to move for judgment of acquittal for insufficiency of the evidence at any time in the proceedings, we review Jones’s conviction for a manifest miscarriage of justice.

B. Felon in Possession of a Firearm

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United States v. Jones, 81 F. App'x 45 (6th Cir. 2003).

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