FILED
NOT FOR PUBLICATION OCT 26 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-10243
Plaintiff - Appellee, D.C. No. 4:13-cr-02221-CKJ-
BGM-1
v.
JESSE LYNN FOX, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Submitted October 21, 2015**
San Francisco, California
Before: THOMAS, Chief Judge and REINHARDT and McKEOWN, Circuit
Judges.
Jesse Fox appeals his conviction and sentence for being a felon in possession
of ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a). We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
I
The district court did not err in admitting Detective Huser’s recorded
telephone call with Fox. The government established that the voice on the
recording was in fact the defendant’s by relying on Fox’s own self identification
and his reference to the police’s recent search of his residence. United States v.
Miller, 771 F.2d 1219, 1234 (9th Cir. 1985).
Fox’s arguments that the recording was admitted in violation of Federal
Rules of Evidence 401, 403, and 404(b) are without merit. Rule 401 does not
require the proffered evidence to “prove anything.” United States v. Boulware,
384 F.3d 794, 805 n.3 (9th Cir. 2004). It only requires that “the proffered evidence
have a tendency to prove a fact in issue.” Id. Evidence is not unfairly prejudicial
in violation of Rule 403 “merely because it tends to prove a defendant’s guilt.”
United States v. Rizk, 660 F.3d 1125, 1133 (9th Cir. 2011) (citing United States v.
Boesen, 541 F.3d 838, 848–49 (8th Cir.2008)). Finally, 404(b) is inapplicable
because there are no “other acts” suggested by the admitted portions of the
recording.
II
The district court did not err in admitting evidence regarding Fox’s arrest as
evidence of flight. The probative value of flight evidence depends on the degree
2
with which inferences can be drawn: “(1) from the defendant’s behavior to flight;
(2) from flight to consciousness of guilt; (3) from consciousness of guilt to
consciousness of guilt concerning the crime charged; and (4) from consciousness
of guilt concerning the crime charged to actual guilt of the crime charged.” United
States v. Felix–Gutierrez, 940 F.2d 1200, 1207 (9th Cir. 1991). In this case, the
first inference is satisfied because when the police arrived at his residence, Fox
attempted to flee out the back. He did so wearing nothing more than a tee-shirt,
shorts, and sandals in four degree weather with four inches of snow on the ground.
The second, third, and fourth inferences may be drawn from the fact that Fox was
aware of the criminal charges against him. See United States v. King, 200 F.3d
1207, 1215 (9th Cir. 1999).
Fox also argues, for the first time on appeal, that this evidence of flight
constituted improper character evidence under Rule 404(b). However, this
evidence supports an inference of consciousness of guilt and is admissible under
Rule 404(b). See United States v. Meling, 47 F.3d 1546, 1557 (9th Cir. 1995)
(admitting evidence probative of consciousness of guilt under Rule 404(b)); United
States v. Sims, 617 F.2d 1371, 1378 (9th Cir. 1980) (admitting evidence of flight
under Rule 404(b)).
3
III
Fox’s challenge to the district court’s in limine ruling excluding fingerprint
evidence is not properly before us. The ruling was tentative and anticipatory. Fox
did not attempt to introduce the evidence at trial. Therefore, he waived the
objection and cannot challenge its exclusion on appeal. See United States v.
Whittemore, 776 F.3d 1074, 1082 (9th Cir. 2015).
IV
The evidence was sufficient to support Fox’s conviction. The government
was required to prove that Fox constructively possessed the ammunition. United
States v. Nungaray, 697 F.3d 1114, 1117 (9th Cir. 2012). In this case, over 1,450
rounds of ammunition were found in Fox’s bedroom in close proximity to many of
his personal possessions. Thus, the evidence is sufficient to support a rational
jury’s finding that Fox constructively possessed the ammunition beyond a
reasonable doubt. See United States v. Vasquez, 654 F.3d 880, 886 (9th Cir. 2011)
(affirming constructive possession where guns found at defendant’s residence were
in close proximity to many of the defendant’s possessions).
Fox’s argument that the government must establish that he occupied the
residence when the ammunition was present is not persuasive. See United States v.
Nevils, 598 F.3d 1158, 1169 (9th Cir. 2010) (noting we must view the facts in the
4
light most favorable to the prosecution). The government introduced testimony
from Fox and others that Fox resided at the location where the ammunition was
found. “The government did not need to show ownership or actual possession.”
Vasquez, 654 F.3d at 886.
V
The district court did not err when it sentenced Fox to 41 months of
imprisonment. The district court properly added 3 points to Fox’s criminal history
score under U.S.S.G. § 4A1.1(e) even though Fox’s prior offenses arose from the
same occasion. Section 4A1.1(e) no longer distinguishes prior offenses that
occurred on the same occasion from prior offenses that occurred on different
occasions.
The district court adequately explained the sentence because it considered
the parties’ arguments and 18 U.S.C. § 3553(a)’s sentencing factors. A district
court’s explanation for a sentence, albeit brief, will be “legally sufficient” if the
“record makes clear that the sentencing judge listened to each argument and
considered the supporting evidence.” United States v. Chhun, 744 F.3d 1110, 1123
(9th Cir. 2014) (quoting Rita v. United States, 551 U.S. 338, 358 (2007)).
The court also did not impose a substantively unreasonable sentence because
it determined that Fox’s mitigating factors warranted a sentence at the low end of
5
the Guidelines range. See United States v. Gutierrez-Sanchez, 587 F.3d 904, 908
(9th Cir. 2009) (rejecting argument that district court improperly “weigh[ed] or
ignored[d] . . . other factors”). Rather, the court reasonably denied a downward
departure from the Guidelines range. See United States v. Apodaca, 641 F.3d
1077, 1082 (9th Cir. 2011) (noting that a district court's refusal to grant a
downward departure is reviewed for abuse of discretion).
AFFIRMED.
6