FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MARCH 26, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-14483

Non-Argument Calendar

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D. C. Docket No. 07-00116-CR-WSD-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TREMAYNE D. CRAWFORD,

a.k.a. Truman Deon Crawford, etc.,

Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Georgia

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(March 26, 2009)

Before TJOFLAT, BIRCH and HULL, Circuit Judges.

PER CURIAM:

A Northern District of Georgia jury found Tremayne D. Crawford guilty of
possession of a firearm by a convicted felon, in violation of 18 U.S.C.

§§ 922(g)(1). Because Crawford had previously been convicted of three felony

drug offenses, he was subject to the penalty prescribed by 18 U.S.C. § 924(e), and

the court sentenced him to prison for a term of 235 months. He now appeals his

conviction and sentence.

Crawford challenges his conviction on three grounds, two of which merit

discussion : (1) the evidence was insufficient to prove that he “possessed” the

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firearm for purposes of § 922(g), and (2) the district court erred by instructing the

jury that one may constructively possess an object by exercising dominion or

control over the vehicle in which the object is located. We consider them in turn.

Sufficiency of the evidence

We review de novo the sufficiency of evidence to support a conviction.

United States v. Ortiz, 318 F.3d 1030, 1036 (11th Cir. 2003). We take “the

evidence in the light most favorable to the government, with all reasonable

inferences and credibility choices made in the government’s favor,” Ortiz, 318

F.3d at 1036 (quotation omitted), and, doing so, we affirm the conviction if “any

 Crawford moved the district court to dismiss the indictment on the ground that §

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922(g) was unconstitutional, exceeding the limits of the Commerce Clause. He conceded that

this challenge was foreclosed by Eleventh Circuit precedent. We reject the challenge for that

reason. See e.g., United States v. McAllister, 77 F.3d 387, 388, 390 (11th Cir. 1996) (holding

that the statute was facially valid, and that, “[b]ecause the government demonstrated that the

firearm possessed by [the defendant] previously had traveled in interstate commerce, the statute

is not unconstitutional as applied to him”) 

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rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” United States v. Hunt, 187 F.3d 1269, 1270 (11th Cir. 1999)

(quotation omitted). Crawford argues that the evidence failed to show that he had

the intention or power to exercise dominion or control over the firearm because

police officers prevented him from placing his hand on it.

To convict a defendant under 18 U.S.C. § 922(g)(1), the government must

prove (1) the defendant was a convicted felon, (2) the defendant knowingly

possessed a firearm or ammunition, and (3) the firearm or ammunition was part of

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

cert. denied, 129 S.Ct. 215 (2008). “Possession can be shown by circumstantial as

well as direct evidence . . . [and] can be either actual or constructive . . . . .” United

States v. Crawford, 906 F.2d 1531, 1535 (11th Cir. 1990) (citations omitted). “A

defendant has constructive possession if he exercises ownership, dominion, or

control over the firearm. A defendant also has constructive possession if he has the

power and intention to exercise dominion or control.” United States v. Gunn, 369

F.3d 1229, 1235 (11th Cir. 2004) (citations omitted). Constructive possession

exists when a defendant “has knowledge of the thing possessed coupled with the

ability to maintain control over it or reduce it to his physical possession even

though he does not have actual personal dominion,” or has “ownership, dominion,

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or control over the contraband itself or dominion or control over the premises or

the vehicle in which the contraband was concealed.” United States v. Derose, 74

F.3d 1177, 1185 (11th Cir. 1996) (quotation omitted). Mere presence near

contraband, or awareness of its location, is insufficient to establish possession.

United States v. Gardiner, 955 F.2d 1492, 1495 (11th Cir. 1992). A firearm “need

not be on or near the defendant’s person in order to amount to knowing

possession.” United States v. Wright, 392 F.3d 1269 (11th Cir. 2004). A

defendant can have “knowing possession of a firearm when driving a car with the

weapon beneath the driver’s seat.” Id. at 1273-74.

Crawford rammed the vehicle he was driving into a police car. After the

police approached his vehicle and while he was still in the driver’s seat, the police

observed a firearm on the floor in front of the adjacent passenger’s seat. Crawford

argues that the evidence was insufficient to show that he had the intention or power

to exercise dominion or control over the firearm because the officers prevented him

from placing his hand on it.

We disagree. The evidence showed that Crawford had the ability and the

intention to grab the firearm. Since he does not dispute the remaining elements of

the § 922(g) offense, we conclude that the evidence was sufficient to convict him

knowing, constructive possession of the firearm.

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Jury instruction

Crawford argues that the court’s instruction that a person who “has both the

power and the intention to exercise dominion and control over an object or over a

vehicle in which the object is located, . . . is in constructive possession of it” was

misleading and inaccurate. Specifically, he contends that the instruction was not

the Eleventh Circuit Pattern Jury Instruction for the § 922(g) offense, and thus

allowed the jury to convict him without proof that he knew the firearm was present

in the car he was driving.

Crawford did not object to the instruction; we therefore review it for plain

error. For an error to be “plain,” it “must either have been clear under the law at

the time the error was made, or clearly contrary to the law at the time of the

appeal.” United States v. Prieto, 232 F.3d 816, 823 (11th Cir. 2000).

A person has constructive possession over an object if he has knowledge of

the object and “ownership, dominion, or control over the [object] itself or

dominion or control over the premises or the vehicle in which the [object] was

concealed.” Derose, 74 F.3d at 1185. Mere presence near an object is insufficient

to establish possession. Gardiner, 955 F.2d at 1495. The pattern jury instruction

on the meaning of constructive “possession” is, in relevant part, as follows: “A

person . . . who has both the power and the intention to later take control over

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something . . . is in constructive possession of it.” Pattern Crim. Jury Instr. 11th

Cir. SI 6.

Although the court deviated from the pattern jury instruction, the instruction

was a correct statement of the law. In sum, the instruction was not erroneous,

much less plainly so.

Crawford challenges his sentence as unreasonable. See United States v.

Booker, 543 U.S. 220, 264, 125 S.Ct. 738, 767, 160 L.Ed.2d 621 (2005). He says

that it was greater than necessary and unjustified in light of the 18 U.S.C. § 3553(a)

sentencing factors. In particular, he argues that (1) the statutory minimum sentence

of fifteen years’ imprisonment would have been adequate, (2) his sentence was

disproportionately higher than sentences of more violent offenders and other armed

career criminals, such as he, and (3) his status as an armed career criminal was

based on predicate crimes that he committed when he was relatively young and

immature.

If the district court committed no significant procedural error at sentencing,

we evaluate a sentence’s substantive reasonableness under an abuse-of-discretion

standard, considering the totality of the circumstances. Gall v. United States, 552

U.S. __, __, 128 S.Ct. 586, 597, 169 L.Ed. 445 (2007).

Pursuant to § 3553(a), the court must impose a sentence “sufficient, but not

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greater than necessary, to comply with the purposes set forth in paragraph (2) of

this subsection,” namely to reflect the seriousness of the offense, promote respect

for the law, provide just punishment for the offense, deter criminal conduct, protect

the public from future crimes of the defendant, and provide the defendant with

needed educational or vocational training or medical care. See 18 U.S.C. §

3553(a)(2). The court must also consider the following factors in determining a

particular sentence: the nature and circumstances of the offense and the history

and characteristics of the defendant, the kinds of sentences available, the guidelines

range, the pertinent policy statements of the Sentencing Commission, the need to

avoid unwanted sentencing disparities, and the need to provide restitution to

victims. See 18 U.S.C. § 3553(a)(1), (3)-(7).

The record reflects that the court considered all of the § 3553(a) factors,

particularly Crawford’s history and characteristics, the nature and circumstances of

the offense, and the needs to avoid unwarranted sentence disparities, deter

Crawford, and protect the public. In light of these factors and the range of

reasonable sentences, it was not an abuse of discretion for the court to conclude

that a prison term of 235 months, the low end of the Guidelines sentence range,

was necessary to comply with the purposes of 18 U.S.C. § 3553. We therefore

reject Crawford’s argument that his sentence is unreasonable.

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For the foregoing reasons, Crawford’s conviction and sentence are

AFFIRMED.

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