United States v. Goode

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
April 16, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

U N ITED STA TES O F A M ER ICA,

Plaintiff - Appellee,
v. No. 06-2093
DO NA LD H . GO OD E,

Defendant - Appellant.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE D ISTRICT OF NEW M EXICO
(D.C. NO . CR-03-2106 JB)

Leon Schydlower, El Paso, Texas, for D efendant - Appellant.

Clinton J. Johnson, Assistant United States Attorney, (David C. Iglesias, United
States Attorney, Albuquerque, New M exico, and Terri J. Abernathy, Assistant
United States Attorney, Las Cruces, New M exico, on the brief) for Plaintiff -
Appellee.

Before H E N RY, HA RTZ, and HO LM ES, Circuit Judges.

HA RTZ, Circuit Judge.

A jury in the United States District Court for the District of New M exico

found Donald H. Goode guilty of being a convicted felon in possession of a

firearm. On appeal he contends that there was insufficient evidence to convict
him under the jury instructions, which required the firearm he possessed to have

“moved from one state to another,” R. Vol. IV at 220, because evidence at trial

showed only that the firearm had been manufactured in Spain and discovered in

New M exico. He also contends that he m ust be resentenced because the court

violated Fed. R. Crim. P. 32(i)(1)(A) when it proceeded to sentence him after he

had said that he had not read his presentence report (PSR). W e have jurisdiction

under 28 U.S.C. § 1291 and affirm his conviction and sentence. Because he did

not raise his present insufficiency contention in district court, we review the

contention for plain error and hold that justice would not be served by a reversal

of his conviction. As for his sentencing contention, we hold that the court

properly found that he had read the PSR and discussed it with counsel.

I. B ACKGR OU N D

On October 23, 2003, a grand jury indicted M r. Goode on one count of

being a felon in possession of a firearm under 18 U.S.C. §§ 922(g)(1) and

924(e)(1). Section 922(g)(1) makes it unlawful for anyone who has been

convicted of a crime punishable by imprisonment for more than a year “to . . .

possess in or affecting commerce[] any firearm.” The firearm that M r. Goode was

charged with possessing had been recovered from his vehicle by police officers

after he was arrested in Capitan, New M exico, on unrelated charges.

At M r. Goode’s trial, Agent Paul Jessen of the Bureau of Alcohol, Tobacco,

Firearms and Explosives testified that the firearm at issue w as “a Llama. It’s

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manufactured in Spain, and it came from Spain to this country through an

importer.” R. Vol. IV at 165. He further testified that no firearms are

manufactured in New M exico, so a firearm found in New M exico must have

traveled in either interstate or foreign comm erce.

The district court instructed the jury that to convict M r. Goode, it must find

that the government proved beyond a reasonable doubt that:

First, the defendant was previously convicted of a felony, that
is, a crime punishable for a term exceeding one year;
Second, the defendant knowingly possessed a firearm after the
conviction; and
Third, before the defendant possessed the firearm, the firearm
had moved from one state to another.

Id. at 219–20. After the jury was instructed, M r. Goode moved for a judgment of

acquittal under Fed. R. Crim. P. 29. His counsel argued “that there [was not a]

sufficiently legal nexus . . . between the weapon and M r. Goode to meet the

element of possession.” Id. at 229. He said nothing about the commerce element

of the crime. The court denied the motion, stating that “there was sufficient

evidence for a jury to conclude that M r. Goode was in possession of the weapon.”

Id. at 230.

During deliberations the jury sent the district court a note asking whether a

gun that was not manufactured in New M exico must have traveled in interstate or

foreign commerce. The court responded: “Your question presents a factual issue

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that is one for the jury to decide.” R. Vol. V at 328. After the jury found

M r. Goode guilty, he did not renew his motion for a judgment of acquittal.

The PSR prepared by the probation office calculated an offense level of 33

and a criminal-history category of IV, which w ould result in an advisory

guideline range of 188 to 235 months’ imprisonment under the United States

Sentencing Guidelines. At the sentencing hearing the district court first asked

M r. G oode whether he had reviewed the PSR. After some confusion about

whether he had a copy, he apparently handed the court a copy of the PSR with an

attached letter. He then responded:

[M r. Goode]: No, sir. W hat I did— what I did was I wrote the letter
that was on the front of it and I sent it right back with a refusal for
cause under the UCC, Section 3-501. I did a refusal for cause and
sent it back. So I didn’t read it. I didn’t go over it.

THE COURT: Well, let me hand that back to the marshal.

[M r. Goode]: I would like the Court to keep that, because that’s a
presentment that I would like to present to the Court.

THE COURT: All right. Before we do that, though, before you
refuse it, let me ask you, you didn’t read it at all?

[M r. Goode]: Besides having to write the Certified M ail Number on
the top of each page that I actually did that, I can’t honestly say I in
depth read it, your Honor.

THE COURT: I would like for you to review it. W ould you take a
few minutes to review it?

[M r. Goode]: Actually, I want to refuse it for cause, your Honor,
without dishonor.

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 THE COURT: You don’t want to review it? Because the reason it’s
important, M r. Goode, it’s going to— I’ve read it. The counsel have
read it. And it’s going to impact the decision that I make as to how
to sentence you. So I’d like for you to know what I’ve review ed in
thinking about your sentence this morning. Could I take a recess and
[have] you review it?

[M r. Goode’s A ttorney]: If I may your Honor.

THE COURT: You may.

[M r. Goode’s Attorney]: I actually reviewed it with M r. Goode.

R. Vol. VI at 3–5. M r. Goode’s attorney then explained that he had personally

gone through the PSR with M r. Goode, and when M r. Goode had questioned some

of the listed prior convictions, he had reviewed court records, verified that each

listed conviction was accurate, and sent a letter to M r. Goode explaining his

findings. M r. Goode’s attorney accordingly recommended that the court move

forward with sentencing, stating that there were no disputes regarding the content

of the PSR. Once again the court asked M r. Goode if he would like time to

review the PSR; M r. Goode declined.

Despite M r. Goode’s repeated assertions that he had not reviewed the PSR,

some comments made by him at the hearing appear to contradict that. At one

point he stated that everything in it “is mere hearsay . . . . None of it is firsthand

knowledge.” Id. at 39. Later he claimed that he had written “a letter to the U.S.

Probation Department concerning the PSR,” presumably as a challenge to certain

aspects of it. Id. at 56.

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 The district court sentenced M r. Goode to 188 months’ imprisonment.

II. D ISC USSIO N

A. Sufficiency of the Evidence

M r. Goode first argues that there was insufficient evidence for the jury to

find that the firearm he possessed “had moved from one state to another” as

required by the jury instructions. R. Vol. IV at 220. Evidence at trial showed

that the firearm was manufactured in Spain and discovered in New M exico.

M r. Goode’s opening brief on appeal admits that this evidence was sufficient to

satisfy 18 U.S.C. § 922(g)’s requirement that the firearm be possessed “in or

affecting commerce.” But he contends that the jury instructions narrowed this

requirement by stating that the weapon must have moved from one state to

another, and there was no evidence of such movement. (Of course, M r. Goode’s

contention is premised on geography. New M exico is a border state. If the

firearm had been found in Kansas, by contrast, the evidence would have been

sufficient because the firearm would have had to travel from Spain through other

states to reach its destination.)

M r. Goode’s contention is supported by the law-of-the-case doctrine, which

“hold[s] the government to the burden of proving each element of a crime as set

out in a jury instruction to w hich it failed to object, even if the unchallenged jury

instruction goes beyond the criminal statute’s requirements.” United States v.

W illiam s, 376 F.3d 1048, 1051 (10th Cir. 2004). Under the jury instruction in

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this case, the sufficiency of the evidence is at least questionable. But

M r. Goode’s challenge to the sufficiency of the evidence comes too late. The

Rules of Criminal Procedure do not allow a defendant to w ait until appeal to raise

such a challenge. Pertinent provisions of Fed. R. Crim. P. 29 state:

(a) B efore Submission to the Jury. After the government closes
its evidence or after the close of all the evidence, the court on the
defendant’s motion must enter a judgment of acquittal of any offense
for which the evidence is insufficient to sustain a conviction.

...

(c) After Jury Verdict or Discharge.
(1) Time for a M otion. A defendant may move for a
judgment of acquittal, or renew such a motion, within 7 days after a
guilty verdict or after the court discharges the jury, whichever is
later.

Fed. R. Crim. P. 29(a), (c)(1); cf. United States v. Luciano, 329 F.3d 1, 5 (1st Cir.

2003) (“[C]laims of insufficient evidence must be presented in the first instance

to the district court.”).

To be sure, M r. Goode moved for acquittal under Rule 29 after the district

court instructed the jury. But his motion was not predicated on the ground raised

now. He argued only “that there is [not a] sufficiently legal nexus . . . between

the weapon and [himself] to meet the element of possession.” R. Vol. IV at 229.

He said nothing about the commerce element that he now challenges, even though

the instructions including the commerce element had already been read to the

jury. Nor did he make a Rule 29 motion after the jury’s verdict. See Fed. R.

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Crim. P. 29(c). W hen a defendant challenges in district court the sufficiency of

the evidence on specific grounds, “all grounds not specified in the motion are

waived.” United States v. Kimler, 335 F.3d 1132, 1141 (10th Cir. 2003) (internal

quotation marks omitted); see also United States v. Dandy, 998 F.2d 1344,

1356–57 (6th Cir. 1993) (“Although specificity of grounds is not required in a

Rule 29 motion, where a Rule 29 motion is made on specific grounds, all grounds

not specified are waived . . . .” (citation omitted)); 2A Charles A lan W right,

Federal Practice and Procedure § 469, at 321–22 (3d ed. 2000).

Although we have described the failure to raise a challenge in district court

as a “waiver,” it is more precisely termed a forfeiture when there is no suggestion

of a knowing, voluntary failure to raise the matter. See United States v. Teague,

443 F.3d 1310, 1314 (10th C ir. 2006). Because of M r. Goode’s forfeiture we

review the sufficiency of the evidence under the plain-error doctrine. See Kimler,

335 F.3d at 1141. To obtain relief under this doctrine, M r. Goode “must show:

(1) an error, (2) that is plain, which means clear or obvious under current law, and

(3) that affects substantial rights. If he satisfies these criteria, this Court may

exercise discretion to correct the error if it seriously affects the fairness, integrity,

or public reputation of judicial proceedings.” Id. (internal quotation marks

omitted). 1

1
W e recognize that on occasion we have stated that when considering the
sufficiency of the evidence, the plain-error “standard actually applied is
(continued...)

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 W e w ill assume that the first three elements of the plain-error standard are

satisfied. But we deny relief because this is one of those rare cases in which the

defendant’s insufficient-evidence claim fails on the fourth element. The alleged

error does not “seriously affect[] the fairness, integrity, or public reputation of

judicial proceedings.” Id. (internal quotation marks omitted). There was no

miscarriage of justice. M r. Goode seeks to set aside his conviction on the ground

that the government failed to prove that his firearm had traveled in interstate

comm erce. Yet it is a certainty that the firearm had traveled in foreign

1
(...continued)
essentially the same as if there had been a timely motion for acquittal.” United
States v. Bowie, 892 F.2d 1494, 1497 (10th Cir. 1990). Accord United States v.
Cox, 929 F.2d 1511, 1514 (10th Cir. 1991). W e take these comments to convey
only the noncontroversial proposition that a conviction in the absence of
sufficient evidence of guilt is plainly an error, clearly prejudiced the defendant,
and almost always creates manifest injustice. See United States v. Duran, 133
F.3d 1324, 1335 n.9 (10th Cir. 1998) (“review under the plain error standard . . .
and a review of sufficiency of the evidence usually amount to largely the same
exercise”); see also Kimler, 335 F.3d at 1141 n.10 (quoting Duran); United States
v. Lawrence, 405 F.3d 888, 900 n.7 (citing Kimler). To the extent that our
statements might suggest that the fourth prong of plain-error review does not
apply in the context of a challenge to the sufficiency of the evidence, they are
contrary to binding circuit precedent. See Corbin v. United States, 253 F.2d
646, 647–48 (10th Cir. 1958) (requiring showing of miscarriage of justice); Johns
v. United States, 227 F.2d 374 (10th Cir. 1955) (same). Nevertheless, to avoid
any future uncertainty, this opinion has been circulated to all active members of
this court, and all agree that a forfeited claim of insufficient evidence must be
reviewed under the plain-error standard set forth in Kimler, 335 F.3d at 1141.
See United States v. Atencio, 476 F.3d 1099, 1105 n.6 (10th Cir. 2007)
(describing en banc adoption of footnote); see also Carlisle v. United States, 517
U.S. 416, 436 (1996) (Ginsburg, J., concurring) (noting government’s recognition
that defendant who raises untimely motion for acquittal can still obtain plain-error
review on appeal).

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comm erce, so that M r. Goode’s possession was “in or affecting comm erce,” as

charged in the indictment. See United States v. Wallace, 889 F.2d 580, 583 (5th

Cir. 1989) (“[S]ection 922(g) reaches . . . those firearms that traveled in interstate

or foreign commerce.”). The alleged insufficiency of the evidence could have

been quickly cured by amending the instruction if M r. Goode had challenged at

trial the insufficiency he raises on appeal. In Johnson v. United States, 520 U.S.

461 (1997), the Supreme Court affirmed under plain-error review a defendant’s

conviction for perjury even though the district court had failed to submit to the

jury the materiality of the false statement. The evidence supporting materiality

was overw helming and essentially uncontroverted. Id. at 470. The Court

reasoned that there was “no basis for concluding that the error seriously affected

the fairness, integrity or public reputation of judicial proceedings. Indeed, it

would be the reversal of a conviction such as this which would have that effect.”

Id. (brackets and internal quotation marks omitted). W e can say the same of

M r. Goode’s conviction.

B. Sentencing

M r. Goode also argues that he must be resentenced because the district

court violated Fed. R. Crim. P. 32(i)(1)(A), which requires the court to “verify

that the defendant and the defendant’s attorney have read and discussed the

presentence report and any addendum to the report.” He claims that he told the

court that he had not read the PSR or review ed it with counsel.

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 W e reject M r. Goode’s argument. The district court verified that

M r. Goode and his counsel had read and discussed the PSR. To be sure,

M r. Goode did claim that he had not reviewed it. But he then contradicted

himself to some extent by making assertions that suggested his familiarity with

the PSR’s contents. M ore importantly, M r. Goode’s attorney emphatically

declared that his client had read the PSR and they had discussed it. On this

record the district court could properly find that Fed. R. Crim. P. 32(i)(1)(A) had

been satisfied. Cf. United States v. Rangel-Arreola, 991 F.2d 1519, 1525 (10th

Cir. 1993) (sentencing court “may draw reasonable inferences from court

documents, the defendant’s statements, and counsel’s statements” to satisfy prior

version of Rule 32(a)(1)(A ) and need not address the defendant personally

(internal quotation marks omitted)). W e decline to require that the defendant

personally acknowledge having read the PSR; such a requirement could engender

obstructive tactics by defendants.

III. C ON CLU SIO N

W e AFFIRM M r. Goode’s conviction and sentence.

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