NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0054n.06 No. 11-5368 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. TONY CURRUTHERS, aka Tony Nee ly Def endant- Appellant. ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE WESTERN DI STRI CT OF TENNESSEE

Before: KEITH, MARTIN and ROGERS, Circuit Judges.

P ER CURIAM

. Def

endant- Appellant Tony Curruthers was convicted by a fede ral jury on two counts of being a felon in a possession of a firea rm in violation of 18 U.S.C. § 922(g ). He argu es t h at : (1) there was insufficient evidenc e to prove that he possessed the firea rms; (2) the district court abused its discretion in allowing an office r to testify that he was “one hundred perc ent” positive about Curruthers’ identity ; and (3) the district court impos ed a proce durally and substantively unrea sonable sentenc e. For the following rea sons, we hold: (1) the re co rd was not devoid of e vidence that Curruthers possessed the firea rms at issue; ( 2) the off

icer ’s testimony

was permissible to reha

bilitate his cre dibilit y afte r it was attacke d by defe nse counsel; a n d (3) Curruthers’

sentenc e was not unrea sonable. There fore , we AF F IRM the district court. We addre s s ea ch of Curruthers’ claims and the f acts re levant to ea ch one in turn.No. 11-5368

United States of America v . Tony Curruthers Pag e 2 I. Suf

fi ciency of the Evidence Be ing a felon in possession of a firea rm consists of three elements. Curruthers disputes only the element of possession. Although no one ever observe d him in phy sical possession of a firea rm,

no firea rms wer e found on his person when he was arr ested, and his fing erpr ints wer e not found on the firea rms, the Gover

nment offere d s u fficie nt evidenc e for a jury to conclude that Curruthers possessed the f

irea rms. A. F actual Background

Curruthers’ Arrest On J uly 22, 2009, at approximately 12:00 p.m., Offic er Fe lipe Boy ce of the Memphis Police Depa rtment responde d to a robber y call at a near

by Walgr eens store. Whil e investiga ting the immediate area around the store, Officer Boy ce saw a driver and passeng er w ho wer e traveling in a 1987 Cadillac D eVille with a br oken-out re ar ve nt w indow. Due to the br oken window, Of fice r Boy ce suspe cted the c ar mig ht be stolen, a suspi cion conf irmed af ter he ran the car ’s tag

number. He then c alled for

backup a nd beg an following the vehicle

. Whil e Offic er Boy ce followed the Cadillac, the driver beg an watching him throug h the rearview mirror. As the Cadillac enter ed a residential neig hborhood, Offic er Boy ce noted that the driver and passeng er beg an “moving all around” in the vehicle and looking back and forth at ea ch other

. Shortly there afte r, the drive r stopped the Cadillac , and the unknown passeng er exit ed the vehicle. As Offic er Boy ce exi ted hi s patrol car to detain the passe n ger , t h e driver s ped off. Offic er Boy ce decide d to abandon the passeng er and pursue the Cadillac, suspecting that there might be some contra band in it.No. 11-5368

United States of America v . Tony Curruthers Pag e 3 A chase ensued throug h the residential are a, continuing throug h red lights and stop signs in

some instances. Howeve r, the Cadillac quickly beg an to stall and eventua lly came to a stop in front of a residenc e. Offic er Boy ce and the driver exit ed their re spective ve hicles, the driver exit ing the Cadillac out of the passeng er si d e. At t h i s point, Offic er Boy ce saw the driver’ s fac e. He also observe d that the driver was unusually dresse d, wea ring a white lab coat and white cotton g loves,

as well as a black shirt and black- g ray ish pants. Offic er Boy ce pursued the driver on foot, losing sight of him for a couple of m i n u t es af ter the driver jumped a fence into the backy ard of a nearby residenc e. Over the dispatch radio, Offi ce r Bo y ce relay ed a descr iption of the driver to other office rs ar

riving on the sce ne and note d the direc tion in which the driver w as hea ding. Offic er Cecil Davis, one of the responding off icer s, observe d Curruthers run out of the backy ard of a near

by residenc e. Ba sed on Offic er Boy ce’ s radio descr iption, Offic er Davis detained Curruthers. Offic er Boy ce arrive d shortly th er ea ft er and identified C urruther s as t he driver of the stolen Cadillac. Thoug h Curruthers was swea ting and out of brea th, he was not wea ring a white lab coat, white g loves, or blac k-g ray ish pants. These c lothes were never found. Offic er Equinta Washington conducte d an i nventory sear ch of the stolen Cadillac afte r Curruthers’ arr est and rec overe d a black ny lon bag , which was located betwee n the vehicle’ s cente r console and front passeng er seat. The following it ems wer e found inside the bag: (1) a loade d Hi Point .38 caliber semi-automatic pist ol, (2) a loaded Col t .38 specia l caliber revolve r, (3) one pair of g loves, (4) one ski mask, and (5) one walkie talkie.No. 11-5368

United States of America v . Tony Curruthers Pag e 4 Trial Procee dings On October 27, 2009, Curruthers was indicted on two counts of being a felon in possession of a firea rm in violation of 18 U.S.C. § 922(g ). During the trial, Offic er Boy ce, Offic er Davis, and Offic er Washington testified consistently with the afor ementioned fac ts on behalf o f the Gover nment. Offic er Juaquatta Ha

rris, a deputy jailer, testified that she l ocate d jail phone ca lls made by Curruthers w hile he wa s housed at the Shelby County J ail. She revie wed and authentica ted a disc that contained an excerpt of a call made by Curruthers. The call was play ed, rela y ing the following

conver sation: Unknown Male : Yeah, the y caug ht y ou with that thing? Curruthers: Nah, they uh, they found that shi t in the car

. Unknown Male : For r eal? Curruthers: Y

eah, they didn’t catch me in t h e ca r, you know what I’m saying ?

. . . Dave , he supposed to ran with that s hit

. The Gover

nment’s final witness was Serg eant Robin Hulley of t h e Memphis Police Depa rtment. She testified t hat s he chemically proce ssed both firea rms, but was unable to rec over any latent finger p ri n t s . At the conclusion of the Gover nment’s case , Curruthers made a Rule 29 motion for judgme nt of acquittal. The motion wa s denied. Curruthers chose to present proof. He did not renewthe motion after r esting

.No. 11-5368

United States of America v . Tony Curruthers Pag e 5 I n November 2010, the fede ral jury found Curruthers g uilty on both counts. Curruthers now appea ls, cla i m i n g t h e rec ord is devoid of evidenc e that he possessed the firea rms found in the Cadillac. B. Stand ard of Review For insufficienc y -of- the-e vidence claims, we view the evidenc e in the light most favor able

to the prosec ution to see if “any rational trier of fac t could have found the essential elements of the crime bey ond a rea sonable doubt.” United States v. Castano , 54 3 F. 3 d 8 2 6, 837 (6th Cir. 2008) (quoting United States v. Newsom , 452 F.3d 593, 608 (6th Cir. 2006)). We must draw all rea sonable infere nces and cre dibilit y deter minations in support of t he jury ’s verdict. Id

. Be cause Curruthers failed to rene w his motion for judgme nt of acquittal, we mus t u p hold the conviction “abse nt a showing of a ma

nifest miscarr iag e of justice.” United States v. Price , 134 F.3d 340, 350 ( 6th Cir. 1998). A miscar

riag e of justice e x ists “only if the rec ord is de void of evidenc e pointing to g uilt.” Id . (interna l quotation marks omitted). C. P roof of

P ossession A d ef en d ant may be convicted under 18 U.S.C. § 922(g ) based on either actua l o r constructive possession of a firea rm. Both forms of possession may b e p ro v en by direc t or circ umstantial evidence

. Newsom , 452 F.3d at 609 (citing United St ates v. Hadle y , 431 F.3d 484, 507 (6th Cir. 2005) ). “Constructive possession e x ists whe n a person . . . knowing ly has the power and the intention at a g iven time to exercise dominion and control over an object, either direc tly or throug h others.” United S t a t es v. Gardner , 488 F.3d 700, 713 (6th Cir. 2007) (interna l quotation marks omitted). Mer e presence alone near a g un is insufficient to prove constructive possession.No. 11-5368

United States of America v . Tony Curruthers Pag e 6 United States v. Arnold , 486 F.3d 177, 183 (6th Cir. 2007) (en banc)

. I nstead, “[o] ther incriminating evidenc e must supplement a defe ndant’s proxi mity to a firea rm in or der to tip the scale in f avor of constructive posse ssion.” United States v. Campbell , 549 F.3d 364, 374 ( 6th Cir. 2008). Her e, Offic er Washington tes t i fi ed t h at the firea rms wer e found in the Cadillac in a black duffe l bag that contained a ski mask, a walkie talkie, and g loves. Off icer Boy ce a lso testified that he saw Curruthers exit ing the Cadillac wea ring a white lab coat. This could imply proof of a motive

to possess the firea

rms beca use, taken toge ther, these items could be considere d tools of “the robber y trade .” The jury might have conclude d that the ski mask and clothes wer e m ea n t t o obscure Curruthers’ identity and the g uns wer e meant to help him procur e and protec t ill-g otten g ains. See United States v. Hatfield , 815 F.2 d 1068, 1072–73 (6th Cir. 1987) (holding that a loaded firea rm found along with a police scanne r and iron bars in a van the defe ndant was driving was “proba tive of [t he defe ndant’s] know ledg e of the prese nce of the g un,” beca

use it “ could be considere d a tool of the burg lary

trade and usef

ul in protecting ill-gotten booty ”). Offic e Boy ce testified that he s aw C u rr u t h ers beg in “moving all around” over the cente r console and passeng er are a wher e the firea rms wer e found when Curruthers noticed that he was being followed by the police. Such a g esture imply ing control could rationally sug g est that he had

some po we r o ver the firea rms and had knowledg e that they wer e there

. The jury might have conclude d the g esture meant h e wa s hiding the firea rms or doing something else with them. See United States v. Clark , 184 F.3d 858, 863 (D.C. Cir. 1999) (re asoning that office r testimony that he saw de fenda

nt “re aching ” behind the passeng er se at towar d the location whe re a firea rm was late r found wa s “suffic ient to link him to the g un”).No. 11-5368

United States of America v . Tony Curruthers Pag e 7 The Gover

nment introduced an audio tape of a call Curruthers made from jail in which he

was asked if he wa s caug ht “with that thing.” Curruthers r esponded tha t “ that shit” was found “in the car ” and that “Da

ve”—pr esumably the unknown passeng er in the vehicle—w as “supposed to ran [si c] with that shit.” Even if “t h at s h i t ” was only meant to ref er to ever y thing but the g uns—as Curruthers contends it does—it was not irrational to infer that the statement was in ref ere nce to the g uns. See Arnold , 486 F.3d at 181–82 (“[W] e cannot overturn the jury ’s dec ision merely beca use it had to draw rea sonable infere nces . . . [T] he critica l poi n t is that the jury could have draw n differ ent infere nces from [t he Gover nment’s] evidenc e, and our mandate is to aff irm when the jury ’s choice was a

rational one .”). For these reasons, the rec ord was not devoid o f an y evidenc e of that Curruthers possessed the fire arms. II. Adm ission of O ff icer Boyce’s Test im ony Currut h er s contends that the district court committed an abuse of discretion by allowing Offic er Boy ce to testify on redire ct that he was “one hundred perc ent” cer tain of Curruthers’ identity

. Curruthers asser

ts the testimony improperly went bey ond the scope of cross examination. Be cause the testimony was g iven afte r Curruthers attacke d the cre dibilit y of Offic er Boy ce’ s identification, Curruthers’ contention lacks me rit. During cross-e x amination of Offic er Bo y ce , defe nse counsel asked and confirme d that Offic er Boy ce had provided the information on Curruthers’ arr est ticket. Def ense counsel then noted that Curruthers’ arr est t i ck et i n correctly stated that he had blond hair and blue ey es. When the Gover nment objected to the admission of the arr est ticket on the basis that it was irrele vant, defe nseNo. 11-5368

United States of America v . Tony Curruthers Pag e 8 counsel told the court during a sidebar that the questions about the ticket wer e “off ere d to impeach [Officer Boy ce’ s] cre dibilit y .” The court allowed the arr est ticket to be admitted into evidenc e, and defe nse counse l questioned Off icer Boy ce a bout the discrepa

ncy on the ticket. On re- direc t examination, the Gover nment asked Offic er B o y

c e , “ H o w p o s itive are y ou about y our i dentifica tion here today ? ” Def ense counsel obj ecte d to the questi on on the basis that it was outside the scope of cross-e x amination, but the objection was overr uled. Offic er Boy

ce responde d that he was “one hundred perc ent” positive about his identification. The district court then allowed d efe nse counsel to re- cross Offic er Boy ce, which involved more questions about the incorrec t descr iption of Curruthers in the ar rest ticket. A. Stand ard of Review We revie w the conduct of criminal trials for an abuse of discretion. United States v. W ilson , 27 F.3d 1126, 1129 ( 6th Cir. 1994). Trial j udg es have “broa d discretion in deter mining the scope of redire ct examinatio n an d in assessing the rele vancy of proff ere d testimony .” United States v. Segines , 17 F.3d 847, 856 (6th Cir. 1994) (quoting United States v. Touloumis , 771 F.2d 235, 241 (7th Cir. 1985)). There is an abuse of discretion only if we are firmly convince d that a mistake has been made. United States v. Newsom , 452 F.3d 593, 601 (6th Cir. 2006) (citing Mor a l es v. A m. Honda Motor Co., Inc. , 151 F.3d 500, 516 (6th Cir. 1998)). Pursuant to the harmless err or rule, any improperly admitted evidenc e must have “pre judiced the outcome of t h e t ri al and resultant convictions” for a defe ndant to obtain reve rsal. United States v. Gibbs , 182 F.3d 408, 430 (6th Cir. 1999).No. 11-5368

United States of America v . Tony Curruthers Pag e 9 B. Analysis The Gover

nment’s question was a response to an attack on Offic er Boy ce’ s cre dibilit y . Since Officer Boy

ce provided the information on the arr est ticket, the questions reg arding th e t i ck et ’s

err ors i mplied that his identification of Curruther s was errone ous as well. Def ense counsel s tated

as much during a sidebar reg arding the admissibili ty of the arr est ticket. Be cause Curruthers opened the door on cross examination reg arding the cre dibilit y of Offic er Boy ce’ s identification, we are not firmly convinced t h at the court err ed in allowing testimony reg arding the cer tainty of his identification on redire ct. See United States v. Lochmondy , 890 F.2d 817, 822 (6th Cir. 1989) (“[C] ross-examination attacking a witness’s cre dibilit y and char acte r will open the door to redire ct examination reha

bilitating the witness.”) (interna l citation and quotation marks omitted). Presented with the discrepa

ncy , it was for the jury to come to its own conclusion about Offic er Boy ce. “Where there are two permissible views of the evidenc e, the fac tfinder’ s choic e b et we en t hem cannot be clea rly err oneous.” Anderson v. Be ssemer Cit

y , 470 U.S. 564, 574 (1985) (citing United St ates v. Y ellow Cab Co. , 338 U.S. 338, 342 (1949). Yet even if the district court had abused its discretion, Curruthers fails to show how the testimony prejudice d the outcome of the trial when the district court allowed him to re- cross Of fice r B oy ce. III. Reasonableness of the Sentence Finally , Curruthers claims his sentenc e is proce durally and substantively unrea sonable. He

asser ts tha t the court impermissibly overe mphasized his criminal history , some of it r emote, in the formulation of his sentence and that the court disreg arde d expert medical opinion diag nosing him as having border line intellectual func tioning. We disag ree .No. 11-5368

United States of America v . Tony Curruthers Pag e 10 Prior to sentenc ing, a Pre-Sentenc e I nvestig ation R eport (“PSI R”) was prepa red, which assig ned Curruthers a total offe nse level of 33 and place d him into a criminal history cate g ory of VI , resulting in an applicable g uideline rang e of 235–93 months of imprisonment. The PSI R also found that Curruther s wa s re fe rr ed to Southeast Mental Hea lth Center on April 21, 2009, wher e he was diag nosed as border line intellectual functioning

. On Marc h 22, 201 1 , a sentenc ing hear ing was held. Wit hout objection, the sentenc ing court adopted the finding s of fac t and leg al conclusions outlined in the PSI R. The district court discussed the serious nature of the offe nse, noting that it involved multipl e firea rms, a stolen vehicle that contained suspicious items (the ski mask, walkie talkie, and g loves),

rec kless driving throug h a residential neig hborhood, and an attempt to eva de ar rest by flig ht. The

court a lso noted that no one wa s hurt. The district court discussed Curruthers’ criminal history , noting he was a cate g ory VI

. The

court also noted that he had thirty criminal history points when he wa s s en t ence d for arme d bank robber y in 2004 , b u t d u e t o the age of hi s prior convictions, had only twenty -one criminal history points at the time of sentenc ing. The district court re p ea t edly expressed conce rn that Curruthers committed t h e i n s t ant offe nse so close in time to his rele ase in Fe bruar y 2009 for the 2004 conviction. The district court addre ssed Curruthers’ p ersona l life and mental health. Reg arding his medical diag nosis, the judge thought Curruthers appea red to “oper ate[] at a highe r l ev el of intellectual functioning

. He’ s s m ar ter than that.

. . . He’ s g ot a lot of savvy .” R. 59 at 46–47. Howeve r, the judge immediately added that he would “not try

. . . to g et behind the diag nosis beca useNo. 11-5368

United States of America v . Tony Curruthers Pag e 11 [t he judge was] not a profe ssional.” Id

. The district court imposed a sentenc e of 241 months of imprisonment—a sentenc e nea r the low-e nd of the a

pplicable g uideline ra

ng e. A. Stand ard of Review We revie w a district court’s application of the Uni t ed States Sentencing Guidelines (“G uidelines”) de novo . United States v. Hicks , 4 F.3d 1358, 1361 (6th Cir. 1993). Howeve r, since the Guidelines are “advisory only ,” the touchs tone of revie w is rea sonablene ss, which applies “re g ardle ss of whether the sent ence imposed is inside or outside the Guidelines rang e.” United States v. Herrera- Zuniga , 571 F.3d 568, 581 (6th Cir. 2009) (interna l quotation marks and citation omitted). Our re view has a proce dural c omponent and a substantive c omponent. Id

. Be cause Curruthers f

ailed to object to the pr ocedur al re asonable ness of the s entenc e when g iven the opportunity , we r eview it for plain err or. Herrera- Zuniga , 571 F.3d at 580. There must be (1) err or that is (2) obvious and clea r which (3) aff

ecte d the defe ndant’s substantial rig hts and (4) aff ecte d the fairne ss, i n t egr i t y , o r public reputa tion of the judicial proce eding s. Id

. at 589. Procedur al rea sonablene ss require s the district court to proper ly ca l cu late the applicable advisory Guidelines rang e, consider the enumer ated § 3553(a) fac tors and the parties’ arg ument s fo r a sentenc e outside the Guidelines rang e, and adequately articula te its rea soning for imposing the chosen sentenc e. United States v. Petrus , 588 F.3d 347, 351–52 (6 t h Cir. 2009). Whil e the

sentenc ing court must make an “individualized assessment of the appropr iate sentenc e based on the fac ts prese nted,” Herrera- Zuniga , 571 F.3d at 582 (quoting Gall v. United States , 552 U.S. 38, 50 (2007)) , th e district court only needs to “provide a clear ex planation of why it has .

. . chosen theNo. 11-5368

United States of America v . Tony Curruthers Pag e 12 particula r sentenc e imposed, reg ardle ss of whether it is within or outside of the Guidelines.” United States v. Bolds , 511 F.3d 568, 580 ( 6th Cir. 2007). A sentenc e within the calc ulated Gu i d elines rang e is presumed to be substantively

rea sonable. United States v. P o l i honki , 543 F.3d 318, 322 (6th Cir. 2008). We revie w the substantive rea sonablene ss of a sentenc e for an abuse of discretion. United States v. Smith , 516 F.3d 473, 476 (6th Cir. 2008). B. Analysis Criminal history is one of the § 3553(a) fac tors to be considere d when sentenc ing. Wit h twenty -one criminal history p o i n t s , Curruthers was place d into criminal history cate g ory VI —the highe st level cate g ory . What he ch ar acterizes as impermissible consideration of remote criminal history is a remark that his score had been even highe r at the t ime of a 2004 conviction fo r armed robber y . Curruthers has a long criminal hist o ry , and this play ed a signific ant role in sentenc ing. Howeve r, there is nothing in the rec ord showing that the sentenc ing judge place d an unreasonable amount of empha sis on his criminal hist ory . Curruth er s al s o claims that the court disreg arde d expert medical opinion placing him at border line intellectual functioning

. He points to a single statement by the court expressing s o m e skepticism reg arding the diag nosis. The court, never theless, immediately defe rre d to the diag nosis beca use the judge was not a medical expert. When place d in context, the statement does not convey a “disre g ard” of the medic al opinion as Curruther s would sugg est. Whil e Curruthers’ mental health and the fac t no one was hurt in the instant offe nse kept the

sentenc e from g oing into the highe r eche lon of his Guidelines rang e, the court also conclude d that:No. 11-5368

United States of America v . Tony Curruthers Pag e 13 (1) Curruthers prese nted a risk to the public due to his violent criminal history ; (2) he had a “disturbing ” disrespec t for the law, as demonstrated by his kicking a marshal during prisoner transport for his 2004 arme d robber y conviction; and (3) he prese nted a high rec idivism risk. At the time of Curruthers’ arr est for the instant offe nse, he was o n s u p er vised rele ase for felony bank robber y . There fore , we cannot find any plain err or and cannot say that the court err ed proce durally in sentenc ing Curruthers. His sentenc e is presume d t o b e s u bstantively rea sonable beca use it is within his Gu i d el ines rang e. Since Curruthers’ arg uments failed to show proce dural

unrea sonablene ss, they

also fail to re but this presumption. IV. Conclusion For the aforementioned rea sons, we AF F IRM both the conviction and the sentenc e of the district court.