United States v. Ohman

13 F. App'x 568

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 27, 2001
• Docket: No. 00-10074; D.C. No. CR-97-40210-SBA
• Status: Published

Opinions

MEMORANDUM

*

David Ohman appeals his jury conviction of being a felon in possession of a firearm, arguing that the felon-in-possession statute exceeds Congress’ power to regulate under the Commerce Clause; that he ought to have received a two-level reduction in his offense level for acceptance of responsibility; and that the court denied him his right to allocution at sentencing. We affirm. Because the facts are familiar to the parties, we recount them only as necessary to explain our decision.

1. As we have previously explained, the felon-in-possession statute, 18 U.S.C. § 922(g)(1), “requirefs] only ‘the minimal [jurisdictional] nexus that the firearm have been, at some time, in interstate commerce.’ ” United States v. Hanna, 55 F.3d 1456, 1462 (9th Cir.1995) (quoting Scarborough v. United States, 431 U.S. 563, 575, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977)); see also United States v. Casterline, 103 F.3d 76, 77 (9th Cir.1996). Nothing in the Supreme Court’s recent Commerce Clause jurisprudence undermines that holding. United States v. Davis, 242 F.3d 1162 (9th Cir.2001); cf. United States v. Jones, 231 F.3d 508, 513-15 (9th Cir.2000).

2. We reject Ohman’s contention that our decisions concerning the jurisdictional requirement of section 922(g) are inconsistent (and so require en banc review to maintain uniformity). United States v. Nukida, 8 F.3d 665 (9th Cir.1993), on which Ohman relies, held that a factual question exists whether items that were once “in commerce” — ie., items falling within the second category of Commerce Clause jurisdiction identified in United States v. Lopez, 514 U.S. 549, 558-559, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) — have come to rest and therefore lost their interstate character. Nukida, 8 F.3d at 671. But, as we observed in United States v. Jones, the activity regulated by section section 922(g) “can also be seen as falling within the third category,” ie., activities substantially affecting interstate commerce, “which requires only [the] minimal nexus that the firearm in question have moved in interstate commerce at some time.” Jones, 231 F.3d at 514.

3. It was not clear error for the district court to deny Ohman a two-level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. As the district court recognized, the fact that Ohman exercised his constitutional right to trial did not render him ineligible for the reduction, but in such cases “a determination that a defendant has accepted responsibility will be based primarily upon pre-trial statements and conduct.” U.S.S.G. § 8E1.1 cmt., n. 2. Here, as Ohman freely admits, “he never affirmatively admitted prior to trial that he had possessed a gun.” Appellant’s Op. Br. at 54.

As for post-trial conduct, Ohman declined to cooperate with the probation officer who prepared his presentence report. While he did admit to the offense conduct during the sentencing proceeding, the district court doubted both the genuineness of his expressions of remorse and the accuracy of Ohman’s explanation for the offense. We cannot say that those factual determinations were clearly erroneous. In short, “nothing in the circumstances of this case required the district court to find that [Ohman] had ‘clearly demonstrate[d] an acceptance of responsibility for [his] criminal conduct.’ ” United States v. Gillam, 167 F.3d 1273, 1280 (9th Cir.1999) (quoting U.S.S.G. § 3El.l(a)).

4. Finally, we conclude that Oh-man was properly afforded his right to allocution before being sentenced. See Fed. R.Crim. Pro. 32(c)(3)(C). He spoke at length during the sentencing proceeding on various topics, including many of a personal nature that might have influenced the district court’s exercise of discretion in sentencing. Moreover, the district court twice expressly invited Ohman to make further comments immediately before the sentence was imposed.

Federal Rule of Criminal Procedure 32(c)(3)(C) does not require the district court to engage in a lengthy colloquy with a defendant concerning the defendant’s right to make a statement to the court. See Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961) (plurality opinion) (finding that the defendant was accorded his right to allocution where the trial judge uttered “the single pertinent sentence ... ‘Did you want to say something.’ ”). The opportunities provided to Ohman during the sentencing proceeding easily sufficed.

Nor can we say on this record that Ohman was denied an opportunity to speak about personal matters, or that the district court ought to have advised him specifically of his right to make statements of a nonlegal nature. Throughout the sentencing proceeding, Ohman repeatedly stepped out of his role as pro se counsel and addressed the court from the standpoint of the defendant. For example, he stated: “I am here. My family is out there. They need me. I have let them down ...“[I]f I were a nefarious individual, there were opportunities for me to certainly have done a number of things, but I chose not to, and I think that looks toward the character of the individual;” “This is something I will have to live with all the rest of my life. It is not something I am pleased at;” “I’m not a contriving person, first of all. I do not play games with people and I do not like people doing so with myself. I’m very straightforward and very honest in what I do and how I deal with people.”

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.