FILED
UNITED STATES COURT OF APPEALS SEP 12 2011
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 07-30493
Plaintiff - Appellee, D.C. No. CR-07-00028-RHW
Eastern District of Washington,
v. Spokane
DEAN RUSSELL SHELTON,
ORDER
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 07-30494
Plaintiff - Appellant, D.C. No. CR-07-00028-RHW
v.
DEAN RUSSELL SHELTON,
Defendant - Appellee.
Before: KOZINSKI, Chief Judge, B. FLETCHER and RAWLINSON, Circuit
Judges.
On April 5, 2010, and again on July 22, 2010, we granted the Government’s
motion to stay the mandate in these appeals while the Solicitor General pursued a
writ of certiorari in United States v. Gonzalez, 578 F.3d 1130, 1132–33 (9th Cir.
2009), reh'g en banc denied, 598 F.3d 1095 (9th Cir. 2010). The Supreme Court
granted certiorari, vacated the judgment and remanded Gonzalez for further
consideration in light of its recent opinion in Davis v. United States, 131 S. Ct.
2419 (2011). United States v. Gonzalez, --- S.Ct. ----, 2011 WL 2518818 (June 27,
2011). In light of these developments, we lift the stay and withdraw our
memorandum disposition filed on March 29, 2010 and published at 374 Fed. Appx.
736 (9th Cir. 2010). A new memorandum disposition will be filed separately.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT SEP 12 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 07-30493
Plaintiff - Appellee, D.C. No. CR-07-00028-RHW
v.
MEMORANDUM *
DEAN RUSSELL SHELTON,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 07-30494
Plaintiff - Appellant, D.C. No. CR-07-00028-RHW
v.
DEAN RUSSELL SHELTON,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of Washington
Robert H. Whaley, District Judge, Presiding
Argued and Submitted November 18, 2008
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Withdrawn April 5, 2010
Resubmitted June 28, 2011
Before: KOZINSKI, Chief Judge, B. FLETCHER and RAWLINSON, Circuit
Judges.
Defendant Dean Russell Shelton appeals his conviction for possession of a
firearm and ammunition by a prohibited person in violation of 18 U.S.C. §
922(g)(1). The Government cross-appeals Shelton’s sentence. We have
jurisdiction under 28 U.S.C. § 1291.
Shelton challenges his conviction on two grounds: 1) his motion to suppress
filed below was denied in error and 2) there was insufficient evidence presented at
trial to justify his conviction. We review a district court’s determination of a
motion to suppress as to issues of law de novo and as to its findings of fact for
clear error. United States v. Jensen, 425 F.3d 698, 704 (9th Cir. 2005).
On January 6, 2007, the police found a firearm in a vehicle registered to and
occupied by Shelton during a warrantless search. The police searched the vehicle
after arresting Shelton and his passenger and removing them from the vehicle. The
police found a handgun behind the panel of the driver-side inner door. Shelton
filed a motion to suppress, asserting in part that neither the initial stop of the
vehicle nor the subsequent search were justified. The district court denied the
motion, finding the search proper under the United States’s Supreme Court’s ruling
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in New York v. Belton, 453 U.S. 454, 460 (1981). At that time, we read Belton as
permitting a warrantless vehicle search incident to the arrest of an occupant of the
vehicle. See United States v. Weaver, 433 F.3d 1104, 1106 (9th Cir. 2006)
(“Applying the Belton rule, we have held that a warrantless automobile search will
be valid if it is ‘roughly contemporaneous with the arrest.’” (quoting United States
v. Smith, 389 F.3d 944, 951 (9th Cir. 2004))).
We stayed the current appeal pending the Supreme Court’s decision in
Arizona v. Gant, 129 S. Ct. 1710 (2009), reviewing the Arizona Supreme Court’s
holding that the broad reading of Belton taken by our and other courts was in error.
The Court affirmed the Arizona Supreme Court and announced as the rule
applicable to vehicle searches incident to arrest:
Police may search a vehicle incident to a recent occupant’s arrest only
if the arrestee is within reaching distance of the passenger
compartment at the time of the search or it is reasonable to believe the
vehicle contains evidence of the offense of arrest. When these
justifications are absent, a search of an arrestee’s vehicle will be
unreasonable unless police obtain a warrant or show that another
exception to the warrant requirement applies.
Id. at 1723-24.
The Government conceded that, applying the rule stated in Gant, the search
of Shelton’s vehicle was improper because Shelton was secured at the time of the
search. The Government, however, argued that the search was in good faith under
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the then-prevailing interpretation of Belton and that, therefore, the exclusionary
rule should not be applied. This argument was rejected in our opinion in United
States v. Gonzalez, 578 F.3d 1130, 1132–33 (9th Cir. 2009), reh'g en banc denied,
598 F.3d 1095 (9th Cir. 2010). We stayed the case a second time while the
Government’s sought certiorari in Gonzalez. Recently, the Court granted
certiorari, vacated the judgment and remanded Gonzalez for further consideration
in light of its recent opinion in Davis v. United States, 131 S. Ct. 2419 (2011).
United States v. Gonzalez, --- S.Ct. ----, 2011 WL 2518818 (June 27, 2011).
In Davis, the Court held that the good-faith exception applies to searches
conducted in reliance on binding precedent:
It is one thing for the criminal “to go free because the constable
has blundered.” People v. Defore, 242 N.Y. 13, 21, 150 N.E. 585, 587
(1926) (Cardozo, J.). It is quite another to set the criminal free
because the constable has scrupulously adhered to governing law.
Excluding evidence in such cases deters no police misconduct and
imposes substantial social costs. We therefore hold that when the
police conduct a search in objectively reasonable reliance on binding
appellate precedent, the exclusionary rule does not apply.
Id. at 2434.
Davis is dispositive of Shelton’s Fourth Amendment argument. We
therefore affirm the district court’s denial of the motion to suppress.
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Shelton also challenges the sufficiency of the evidence that he knowingly
had possession of the handgun. See 18 U.S.C. § 922(g)(1); United States v. Nevils,
598 F.3d 1158, 1164 (9th Cir. 2010) (en banc). Viewing the evidence in the light
most favorable to the prosecution, we conclude that “any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). The police
found the handgun in Shelton’s car, easily accessible behind a loose panel of the
driver-side inner door. Shelton occupied the driver’s seat prior to and at the time
of the arrest. Shelton claims that his passenger had been seen recently alone in the
car, but the accuracy of that testimony is questionable. In any event, a reasonable
jury could find that Shelton, and not his passenger, was in knowing possession of
the gun. See United States v. Merriweather, 777 F.2d 503, 505, 507 (9th Cir.1985)
(holding that the presence of a shotgun hidden in defendant’s car was sufficient to
show possession despite the fact that another person had access to the car), cert.
denied, 475 U.S. 1098 (1986). Shelton’s conviction is affirmed.
Finally, we address the Government’s challenge to Shelton’s sentence. We
review the legality of a sentence de novo. United States v. Avila-Anguiano, 609
F.3d 1046, 1049 (9th Cir. 2010). We agree that the district court erred when it held
that, to be part of the sentencing calculus, prior convictions must be alleged in the
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indictment. See Almendarez–Torres v. United States, 523 U.S. 224, 243–47
(1998). We therefore reverse and remand for resentencing. On remand, the district
court should address Shelton’s argument that his prior convictions do not qualify
as predicate offenses under the Armed Career Criminal Act.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
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