United States Court of Appeals for the Sixth Circuit · 2007-04-06
18usc922: author: Fable · not independently reviewed
Case and law context
Role: applied; posture: criminal; jury conviction on one felon-in-possession count, 235-month armed-career-criminal sentence; defendant appeals the commerce-nexus jury instruction, a claimed constructive amendment / variance (evidence of handling the gun four days before the charged date), the ACCA enhancement and reasonableness; affirmed, one judge dissenting on constructive amendment; sufficiency of the evidence not raised; result: claimant-won; claim: (g)(1)
Uncertainty
None recorded
Misfit
New: the decided question is WHICH possession (which date / incident) the conviction rests on. Possession under 922(g) is charged per incident; the notation has no notion of the charged unit, so "evidence of an earlier actual possession is admissible proof of the later constructive possession but may not itself be the offense" is a relation between two possession variants (actual on Dec. 8 -> constructive on Dec. 12) that lives only in `theory`/gloss. Recorded under possession as `not-reached` with scope procedural (an indictment/variance ruling, not an element holding).
Known (no value for "found by the jury, not reviewed"; jury-instruction review has no basis): the jury found possession but the appellate court never reviewed sufficiency, so the possession block is `not-reached` + scope procedural and the verdict is visible only in gloss. The commerce block is an approved instruction, written rule-announced/not-reached, which likewise hides that the jury did find the nexus.
About half of the majority opinion is sentencing: ACCA (18 U.S.C. 924(e)) predicate analysis of Tennessee aggravated burglary and facilitation of armed robbery (categorical approach, Shepard), and reasonableness of the 235-month sentence. No declared id; not recorded. A pro se suppression argument was held waived (Fed. R. Crim. P. 12) - also not an element.
The majority notes that the defendant asked for an innocent-possession / necessity instruction for the December 8 handling and that the district court refused it; neither opinion decides whether such a defense exists, and the law file declares no such defense id.
Known (polarity whole-line, whose version): the statement that Nicole Parker asked Nance to put the gun away was contradicted by Parker's testimony; the fact line cannot mark it as the defendant's own disputed account. The dissent block's facts are trial-record events (no limiting instruction), not facts of the offense.
B · Case × element grid
Top-level elements follow claim order in panels of up to six elements. Case rows repeat across panels. Every recorded block retains its holding and basis; multiple blocks are not merged into a case-level verdict. ✓ satisfied · ✗ not satisfied · ○ not reached · · not addressed. Muted blocks are not counted. Sub-element evidence remains on case and element pages.
Elements 1–6 of 12
| Case | One applicable prohibited category | Section 925(a)(1) government-use firearm or ammunition exception | Actual or constructive possession | Firearm or ammunition under section 921 | Possession in or affecting commerce | Knowledge of possessing the firearm or ammunition |
|---|---|---|---|---|---|---|
| United States v. Nance — 481 F.3d 882 (2007) · United States Court of Appeals for the Sixth Circuit · 2007 (18usc922: author: Fable · not independently reviewed) | · not addressed | · not addressed | ○ not reached · basis not recordedNot counted: applied/dissent ○ not reached · basis not recordedNot counted: applied/procedural | · not addressed | ○ not reached · basis not recordedNot counted: rule-announced/merits | · not addressed |
Elements 7–12 of 12
| Case | Knowledge of the relevant disqualifying status | Second Amendment limit on the unlawful-user theory applied to Hemani | Ship or transport in interstate or foreign commerce | Knowing shipping, transportation or receipt | Receipt of the prohibited object | Received object previously shipped or transported across borders |
|---|---|---|---|---|---|---|
| United States v. Nance — 481 F.3d 882 (2007) · United States Court of Appeals for the Sixth Circuit · 2007 (18usc922: author: Fable · not independently reviewed) | · not addressed | · not addressed | · not addressed | · not addressed | · not addressed | · not addressed |
Instances and excluded annotation blocks
| Case | Element | Holding and scope | Pattern | Exact source quotations |
|---|---|---|---|---|
| United States v. Nance — 481 F.3d 882 (2007) · United States Court of Appeals for the Sixth Circuit · 2007 — not reached (18usc922: author: Fable · not independently reviewed) | Possession in or affecting commerce | not_reached Excluded from merits counts rule-announced / merits claim: (g)(1) Jury-instruction review only (abuse of discretion): the requested "affected commerce" / substantial-effect instruction was properly refused. The opinion states no evidence about where the gun was made or travelled and does not review sufficiency on this element. | crossed-state-line-before-possession | The district court instructed the jury that the government must prove that the firearm in question had traveled in interstate commerce prior to Nance’s possession of it and that this fact could be proven by showing that prior to the date of the crime the firearm had crossed a state line.Source: docroot/ir/caselaw/f3d_481.jsonl#/f3d/481/0882-01; Unicode character offsets [3871:4159] (end exclusive); SHA-256 03ea3428cc10720ce0c1777ddb67462d58fc71540e14a484244981dc79beed2f.The jury was not required to find that the firearm had a substantial effect on interstate commerce.Source: docroot/ir/caselaw/f3d_481.jsonl#/f3d/481/0882-01; Unicode character offsets [4388:4487] (end exclusive); SHA-256 03ea3428cc10720ce0c1777ddb67462d58fc71540e14a484244981dc79beed2f.Rather, the instruction given was sufficient to establish an interstate nexus.Source: docroot/ir/caselaw/f3d_481.jsonl#/f3d/481/0882-01; Unicode character offsets [4553:4631] (end exclusive); SHA-256 03ea3428cc10720ce0c1777ddb67462d58fc71540e14a484244981dc79beed2f. |
| United States v. Nance — 481 F.3d 882 (2007) · United States Court of Appeals for the Sixth Circuit · 2007 — not reached (18usc922: author: Fable · not independently reviewed) | Actual or constructive possession | not_reached Excluded from merits counts applied / dissent claim: (g)(1); count: single count, possession "on or about December 12, 2003"; opinion: Holschuh, D.J., concurring in part and dissenting in part; subject: count=single count, possession "on or about December 12, 2003"; opinion=Holschuh, D.J., concurring in part and dissenting in part The dissent would vacate for constructive amendment (the actual-possession instruction and the prosecutor's rebuttal invited conviction for the uncharged December 8 handling; unanimity doubtful); it does not say constructive possession on December 12 was unproven, and agrees the December 8 statement was relevant to it. | control | It is undisputed that on the date of the offense charged in the indictment, December 12th, the defendant did not have actual possession of the firearm. It was found by the police in a safe in the home of a friend of the defendant.Source: docroot/ir/caselaw/f3d_481.jsonl#/f3d/481/0882-01; Unicode character offsets [34323:34553] (end exclusive); SHA-256 03ea3428cc10720ce0c1777ddb67462d58fc71540e14a484244981dc79beed2f.The evidence of this separate, uncharged incident of possession, however, was submitted to the jury without any limitation.Source: docroot/ir/caselaw/f3d_481.jsonl#/f3d/481/0882-01; Unicode character offsets [30118:30241] (end exclusive); SHA-256 03ea3428cc10720ce0c1777ddb67462d58fc71540e14a484244981dc79beed2f.The only method of convicting the defendant of the offense charged in the indictment was to prove that he had constructive possession of that firearm, i.e., he had the right to exercise physical control over it, knew that he had that right, and intended to exercise that right.Source: docroot/ir/caselaw/f3d_481.jsonl#/f3d/481/0882-01; Unicode character offsets [34554:34831] (end exclusive); SHA-256 03ea3428cc10720ce0c1777ddb67462d58fc71540e14a484244981dc79beed2f.Because I strongly believe that there is a substantial likelihood that Nance was convicted of a crime other than the one charged in the indictment, I would reverse the conviction.Source: docroot/ir/caselaw/f3d_481.jsonl#/f3d/481/0882-01; Unicode character offsets [18669:18848] (end exclusive); SHA-256 03ea3428cc10720ce0c1777ddb67462d58fc71540e14a484244981dc79beed2f. |
| United States v. Nance — 481 F.3d 882 (2007) · United States Court of Appeals for the Sixth Circuit · 2007 — not reached (18usc922: author: Fable · not independently reviewed) | Actual or constructive possession | not_reached Excluded from merits counts applied / procedural claim: (g)(1); count: single count, possession "on or about December 12, 2003"; theory: constructive possession on the charged date (key to a locked safe in another person's residence); admitted handling four days earlier used as evidence of access and control; subject: count=single count, possession "on or about December 12, 2003"; theory=constructive possession on the charged date (key to a locked safe in another person's residence); admitted handling four days earlier used as evidence of access and control REAL RULING: constructive amendment / variance (and admissibility of the December 8 statement), not sufficiency of possession - hence not-reached, scope procedural. The jury found possession; the appeal did not challenge sufficiency and this court does not hold that the evidence established it. What the court decides is that proof of an earlier actual possession did not constructively amend the indictment or prejudicially vary from it, because it was evidence of constructive possession on the charged date. The cuts-against line is the only fact in the majority opinion pointing away from control (the house and safe were at another person's residence); the court does not discuss it. | control | Upon executing the search warrant, officers discovered a locked safe containing a firearm. Nance told the officers which key to use to open the safe.Source: docroot/ir/caselaw/f3d_481.jsonl#/f3d/481/0882-01; Unicode character offsets [1147:1296] (end exclusive); SHA-256 03ea3428cc10720ce0c1777ddb67462d58fc71540e14a484244981dc79beed2f.Terry Wayne Curry, an informant who had been assisting the gang task force, testified that he had seen Nance open the same safe using a key on a prior occasion.Source: docroot/ir/caselaw/f3d_481.jsonl#/f3d/481/0882-01; Unicode character offsets [1819:1979] (end exclusive); SHA-256 03ea3428cc10720ce0c1777ddb67462d58fc71540e14a484244981dc79beed2f.Nance stated that four days prior to his December 12 arrest he had been asked to put the gun away by Nicole Parker, who was at the house, and that he did so because children were sometimes at the house.Source: docroot/ir/caselaw/f3d_481.jsonl#/f3d/481/0882-01; Unicode character offsets [2276:2478] (end exclusive); SHA-256 03ea3428cc10720ce0c1777ddb67462d58fc71540e14a484244981dc79beed2f.On December 12, 2003, members of the Jackson police department’s gang task force went to 228 Shelby Street in Jackson, Tennessee to serve an arrest warrant on Martedis McPhearson, who lived at the residence.Source: docroot/ir/caselaw/f3d_481.jsonl#/f3d/481/0882-01; Unicode character offsets [636:843] (end exclusive); SHA-256 03ea3428cc10720ce0c1777ddb67462d58fc71540e14a484244981dc79beed2f.The government's obligation was to prove the particular possession charged, not some earlier occasion of possession.Source: docroot/ir/caselaw/f3d_481.jsonl#/f3d/481/0882-01; Unicode character offsets [16634:16750] (end exclusive); SHA-256 03ea3428cc10720ce0c1777ddb67462d58fc71540e14a484244981dc79beed2f.The “on or about” language permits the jury to conclude that the offense charged occurred on some date reasonably close to the one contained in the indictment, but does not permit conviction of an uncharged offense that occurred in close temporal proximity to the charged offense.Source: docroot/ir/caselaw/f3d_481.jsonl#/f3d/481/0882-01; Unicode character offsets [16782:17062] (end exclusive); SHA-256 03ea3428cc10720ce0c1777ddb67462d58fc71540e14a484244981dc79beed2f.The December 8 evidence was relevant to establish Nance’s access to the safe and his ability to exercise control over the weapon on December 12 and properly admissible.Source: docroot/ir/caselaw/f3d_481.jsonl#/f3d/481/0882-01; Unicode character offsets [8185:8353] (end exclusive); SHA-256 03ea3428cc10720ce0c1777ddb67462d58fc71540e14a484244981dc79beed2f.If this evidence could be considered a variance, its admission did not prejudice defendant.Source: docroot/ir/caselaw/f3d_481.jsonl#/f3d/481/0882-01; Unicode character offsets [8354:8445] (end exclusive); SHA-256 03ea3428cc10720ce0c1777ddb67462d58fc71540e14a484244981dc79beed2f. |
| United States v. Nance — 481 F.3d 882 (2007) · United States Court of Appeals for the Sixth Circuit · 2007 — not reached (18usc922: author: Fable · not independently reviewed) | Conviction punishable by more than one year | not_reached Excluded from merits counts applied / merits claim: (g)(1) Felon status not contested; the prior convictions (two armed robberies, aggravated burglary, facilitation of armed robbery) are analysed only as ACCA predicates. | Unspecified route | No source quotation recorded for this block. |