NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 12a0946n.06 No. 11-1520 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. DAREL L EE DOMI

NI QUE GO RDON, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ON APPEAL FROM T HE UNI TED STATES DI STRI CT COURT FOR THE WES TERN DI STRICT OF MI CHI GAN

Be fore : NORRI S, McKEAGUE , and KETH L EDGE, Circuit Judges. KETHL EDGE, Circuit J udg e. Dar ellee Gordon challeng es his conviction and sentenc e for possession of an unreg istered sawe d-off shotgun. See 26 U.S.C. § 5861(d). Gordon contends that the evidenc e was insufficient to support his conviction, that the district court should have excluded evidenc e of his g ang membership, and that his entire fede ral sentenc e oug ht to run concur rently with his sentence on state cha

rg es. We aff

irm. I

. On April 8, 2010, Gordon’s g irlfriend contac ted the Ba ttle Cree k p o lice to reque st that office rs keep the peac e at her apar tment while she collec ted her belong ings to move out. She said she was fed up with the “rude , disrespec tful people” who wer e i n h er ap ar t m ent “all the time” at Gordon’s invitation. (Gordon himself had unlimit ed acc ess to the apar tment.) When office rs

arr ived, they noticed four or five y oung men at the rea r of the propert y . The y oung men leftNo. 11-1520

United States v. Gordon immediately

. One office r then spotted a Molotov cockta il and g raf fiti marking s on the wall. Among the marking s wer e the letters “M.O.B .” “M.O.B.” was short for the name of a local street g ang , “Money Over Bitche s.” The of

fice rs left a

round noon. That evening , another office r arr ived at the apar tment to investiga te further

. The owner g ave the officer ac ce s s to the apartment. I n the m ain room, the officer found a hacksaw—on which he noticed “small tiny particle s of what looked l ike s awdust.” Nea rby , the officer found the wood en “butt of wha t appea

red to be a shotg un.” The de tective f

ound a shotgun on the stairwa y leading to the baseme nt. The butt had bee n partly sawe d off. What rema ined was wra pped in duct tape. “The very end of the barr el” had also been removed and was located si x steps awa y . The cut throug h the barrel was jag g ed, sugg esting it had been remove d with a handsaw rathe r than a power saw. Wit h portions of the butt a nd barr el of the g un remove d, the g un was small enoug h to conce al inside a jac ket. The police arr ested Gordon (appa rently based on his suspected involvement in a fata l driveby shooting sever al day s ear lier). He signe d a form acknow ledg ing that he understood his Miranda rig hts. Gordon then admitted that he was a member of the M.O.B. g ang . He also said that he lived in the apar

tment where police found the shotgun. There afte r, the police examined fing erpr ints that they found on the duct tape. Three of the prints wer e of sufficie ntly “suitable quality ” for use in identification. Severa l lay ers of tape separ ated one print fr om the other two; all three matched f inge rprints from Gor don’s left ha nd. Under fede ral law, a shotgun must be reg istered if its barr el is shorter than 18 inches or if it is modified and the overa ll leng th is less than 26 inches. See 26 U.S.C. § 5845(a)

. The g overnme nt -2-No. 11-1520

United States v. Gordon conclude d that the sawe d-off shot gu n h ere met the reg istration require ment and indicted Gordon under 26 U.S.C. § 5861(d) for possessing the g un without reg istering it. Be fore trial, Gordon filed

a motion to suppress information rela ting to his membership in M.O.B., arg uing that it was inadmissible charac ter evidenc e under Rule 404(b). The district court denied the motion. I t explained that the evidenc e helped demonstrate Gordon’s “motive and opportunity , knowledg e, and intent to possess an u n re gistered wea pon”—all permissible purposes under Rule 404(b). Any prejudice t hat might result from admission, the court added, could be “cur ed with a limit ing instruction.” At trial, an o fficer testified to Gordon’s g ang membership. Another office r descr ibed the working s of Gordon’s g ang , say ing that M.O.B.’ s “main opera tion is violence towards [] rival g ang members which involves firea rms.” T h e o ff

icer added that M.O.B. members pref err ed g uns that could be “ea sily conce aled on their person.” Gordon’s g irlfriend als o t est ified that she had hear d Gordon talk a

bout guns. The jury

convicted him. The probation department pre pare d a pre sentenc e re port. The report re veale d that Gordon had rec ently been char g ed in state court with murder and sever al g un offe nses rela ted to the murder. Acc ording to the repor

t, the murder char g e alone require d an offe nse level of 33, which trumped the lower offe nse level otherwise applicable based on Gordon’s fede ral and state g un offe ns es . See U.S.S.G. § 2K2.1(c )(1) ; § 2A1.2(a ). The repor t sug g ested, howeve r, that the district court order the sentenc e to run concur

rently with the state-c ourt sentenc e. After the probation depar tment prepa

red the re port, Gordon wa s convicted on the murder a nd g un counts in state cour t.

-3-No. 11-1520

United States v. Gordon The court imposed a sentenc e of 120 months, 51 of which wer e to be serve d consec utively to Gordon’s state se ntence . This appea l followed. I I

. A. Gor d o n contends that no rational trier of fac t could have found him g uilty bey ond a

rea sonable doubt. See Jack son v. Virginia , 443 U.S. 307, 319 (1979). He say s that the only evidenc e that connec ts him to the sawe d-off shotgun is the testimony that he lived in the apar tment wher e the g un was found. Go rd o n say s that many others had acc ess to the apar tment and that such non-exclusive possession of the apar tment is insufficient to show that he exercised dominion over

a g un found there

. See generall y Un i t ed States v. Bailey , 553 F.3d 940, 944 n.3 (6th Cir. 2009). Moreove r, Gordon arg ues, the g overnme nt failed to show that he possessed the g un afte r it had been shortened to a leng th tha t r equire d reg istration. See 26 U.S.C. § 5845(a) ; Staples v. United States , 511 U.S. 600, 619 (1994). Gor don asks that we r ever se his conviction. But the g overnme nt produce d evidenc e at trial that Gordo n was the person who shortened the shotgun and thus had “‘know ing

. . . dominion and control’” over it at the time the g un require d reg istration. United S t a t es v. Jo hnson , 119 F. App’x 114, 119 (6th Cir. 2002) (citation omitted). Specifica lly , the police found Gordon’s left-ha nd fing erpr ints on the sticky side of the duct tape that had been wra

pped around the sawe d -o ff s t o ck of the shotgun. The tape’ s g lue had, during the

wra pping proce ss, lifted prints that h ad o rig inally been deposited on the smooth side of the tape. Acc ording to one witness, such “re verse prints” are most likely to be discovera ble when the culprit’s hand s ar e covered in a powder y substance—like sawdust. Moreove r, the prints wer e located on

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United States v. Gordon multipl e lay ers of

the tape, w hich sug g ests that Gordon wa s the one who w rappe d the tape around the stock. I f so, Gordon wa s al s o v er y likely to have possessed the g un afte r the stock had been

sawe d off, since the very purpose of the tape wa s t o p rotec t the shooter from the jag g ed edg e left from the cut. The end of the barr el, moreove r, was found near by and appea

red to have been cut off with the same hacksa

w used to remove the stock. That indicates that Gordon remove d the barr el as well as the stock. Finally , Gordon’s undisputed membership in M.O.B. sug g ested that he had motive and opportunity to possess a sawe d-off shotgun, g iven that g roup’s prefer en ce for conce alable

wea pons. The evidenc e, viewed in the light most favor ab le to the g overnme nt, was sufficie nt to support Gordon’s c onviction. See ge nerally Jac kson , 443 U.S. at 319. B. Gordon next arg

ues that the district court err ed in admi t t i n g evidenc e of his g ang membership. R ule 404(b) a llows admission of a defe ndant’s prior ba d acts to show, for ex ample, the defe ndant’s motive or identity , but not to show the defe ndant’s g ener al propensity to commit bad acts. Gordon insists that evidenc e of his g ang membership wa s rele vant only to show propensity

. Thus, Gordon c ontends, the district court should have excluded that evidenc e. District courts have ample discretion, howeve r, in deciding whether particula r bad-a cts evidenc e is admissible for a proper purpose. See, e.g. , United States v. Allen , 619 F.3d 518, 524 n.2 (6th Cir. 2010) (re viewing district court’s proper -purpose deter mination for an abuse of discretion); United St ates v. Mack , 258 F.3d 548, 5 5 3 n .1 (6th Cir. 2001). Her e, the district court had sever al g ood rea sons to admit evidenc e of Gordon’s g ang membership. The first was motive: Gordon may have wanted the sawe d-off s h o t g un beca use he belong ed to a violent g ang that pref err ed small, -5-No. 11-1520

United States v. Gordon

conce alable wea

p o n s . S ee g en erally United States v. Harris , 587 F.3d 861 (7th Cir. 2009). The

s ec o n d wa s opportunity : Gordon’s g ang membership helped to explain how Gordon might hav e g otten the shotgun and wher e he lear ned to shorten the g un to a con ce alable leng th. The district court was there fore corr ect to conclude that Gordon’s g ang membership was admissible for proper purposes unde r Rule 404(b). Gordon nonetheless insists that the evidenc e of his g ang membership was more prejudicia l than probati v e. The evidenc e was particula rly prejudicia l, Gordon say s, beca use one witness mentioned that member s of M.O.B . “dea lt in controlled subst ance s.” B ut the g overnme nt and the district court both minimi zed the prejudicia l eff ect of the g ang evidenc e. As Gordon conce des, the g overnme nt declined to mention his g ang membership in closi n g ar gu m en t. And, befor e delibera tions beg an, the district court instructed the jury that it could only consider the g ang -member ship evidenc e for purposes of Gordon’s motive, opportunity , intent, and knowledg e of the g un’s char acte ristics. This instruction was not perf ect, since it permitted consideration of the evidenc e for purposes that do not apply here

. See generally United States v. Merriweather , 78 F.3d 1070, 1076-77 (6th Cir. 1996). But it was mostly corr ect and fore closed consideration of Gordon’s g ang membership as evidenc e of Gordon’s propensity to commit bad acts. (Gordon has waived any challeng e to the instruction itself, since he mentions i t fo r the first time in his reply brief. See Clemente v. Vaslo , 679 F.3d 482 (6th Cir. 2012).) As for the single instan ce i n wh i ch a witness mentioned M.O.B.’ s association with drug s, the district court quickly instructed the jury to disreg ard the testimony

. Thus the prejudicia l impact of the g ang evidenc e was limit ed. Given the rele vance of that evidenc e, the district court did not err by admitting it. See generally Allen , 619 F.3d at 525. -6-No. 11-1520

United States v. Gordon I V. Finally , Gordon arg ues that U.S.S.G. § 5 G1

. 3 (b ) require d the district court to impose a fede ral sentenc e that runs concur rently with his state sentenc e. That provision say s that the court “shall” make the fede ral sentenc e run concur rent to the sent en ce for any other “off ense that is rele vant conduct to the” fede ral offe nse and that “wa s the basis for an incre ase in the offe nse level.” Gordon contends that his state murder and g un offe nses we re re l evant conduct here and that they incre ased his off

ense le vel. We need not decide , howeve r, whether § 5G1.3(b) appli es i n this case . Compare United States v. Hall , 632 F.3d 331, 337 (6th Cir. 2011). For the district court agreed with Gor d o n that § 5G1.3(b) applies. See R. 76 at 24. I t nonetheless decide d to disreg ard § 5G1.3(b), as it is entitled to do, in order to achie ve the sentenc ing g oals listed in 18 U.S.C. § 3553(a)

. See g en er a l ly Kimbrough v. United States , 552 U.S. 85, 1 0 1 -02 (2007); United States v. Booke r , 543 U.S. 220 (2005). The court explained that Gordon is “extremely dang erous” and that the fede ral g overnme nt has an inter est in Gordon’s punishment t hat “cannot .

. . be noticed or have a n impact on this case without the imposit ion of at least a partial consec utive sentenc e.” R. 76 at 24-25. That explanation

was an adequate one. See generally United States v. Herrera- Zuniga , 571 F.3d 568, 586-87 (6th Cir. 2009). Thus, the district court did not err in imposing a sentenc e that will run consec utively , in part, with Gordon’s state se ntence

. The district cour

t’s judgme nt is affirmed.

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