267 F.3d 715 (7th Cir. 2001)
Donald Lane, a convicted felon and parolee, knew he was not permitted to possess firearms.1 On two occasions, he discussed his interest in hunting with his parole officer and obtained permission to observe a hunt without handling any firearms.2 On March 18, 2000, Lane and his girlfriend, Diane Stumph, went to the Twin Oaks Tavern.3 While there, Lane overheard Leroy Bowen discussing plans to sell a right-handed .22 caliber 10 shot Ruger and expressed interest in buying it.4
Bowen retrieved the gun from his home.5 Lane removed the gun from its box, held and inspected it, negotiated a price, and purchased it, stating that he bought it for Stumph to use while hunting.6 Stumph gave Lane money for the purchase but never handled the gun.7 The gun was placed in Stumph's car, with conflicting accounts about whether Lane carried it out or Russ Swonger placed it there after examining it.8 Roughly one month later, probation and police officers arrested Lane for violating parole and, after he consented to a search of the home he shared with Stumph, found the .22 Ruger in the garage.9
Lane was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and was convicted by a jury.10 Lane had two prior state felony convictions from January 1996 and February 1996.11 He petitioned the sentencing court to disregard the January 1996 conviction, arguing it was obtained without counsel, but the district judge denied the motion.12 These prior convictions increased his offense level from 20 to 24 and his criminal history category from III to VI.13
Lane appealed both his conviction and his sentence to the United States Court of Appeals for the Seventh Circuit.14
Whether the district court erred by instructing the jury that momentarily handling a firearm satisfies the legal definition of possession as a matter of law?15
To prove a violation of 18 U.S.C. § 922(g)(1), the government must establish that the defendant had a prior conviction punishable by more than one year in prison, knowingly possessed a firearm, and the firearm traveled in or affected interstate commerce.16 Actual possession requires direct physical control.17 In the context of firearms, holding a gun establishes possession as a matter of law because once the firearm is in the defendant's hands he need only pull the trigger, an act completed in a split second.18
No. Lane removed the gun from its box, held and inspected it, negotiated a price, and purchased it at the Twin Oaks Tavern on March 18, 2000. This direct physical contact satisfied the possession element under the standard applied by the district court.19 The court distinguished drug possession precedents such as Kitchen because control over a gun requires no additional factor beyond holding it, unlike the authority or ability to exercise control needed for drugs.20
The district court did not err in its jury instruction on the possession standard.21
Related opinions on this issue
Fairchild concurred in the result.22 He rejected the unqualified proposition that holding a firearm establishes possession as a matter of law.23 He observed that momentary holding may not constitute forbidden possession in circumstances such as lifting a gun to retrieve keys or snatching one from a child.24
Fairchild maintained that an assertion or exercise of control must accompany the ability to control the object.25 He noted that the distinction between holding and obtaining control is not academic.26
Whether the district court abused its discretion by striking as irrelevant testimony about the defendant's motive for purchasing the gun?27
Motive evidence offered by the government may be admitted to prove possession when it makes the conclusion more likely.28 However, when the government relies on direct evidence that the defendant held the firearm, motive testimony offered by the defendant to negate intent to control is irrelevant because the statute imposes only a general intent requirement that the defendant knew the object was a gun.29
No. Lane admitted he knowingly held the gun at the tavern and sought to introduce motive evidence solely to show he purchased it for Stumph without intending to exert control himself.30 Because the government proved possession through the act of holding, the excluded testimony could not rebut the government's theory and was properly refused by the district court.31
The district court did not abuse its discretion in excluding the motive testimony.32
Whether the district court erred when it took the defendant's uncounseled prior felony conviction into account when determining his sentence?33
A defendant who enters a plea agreement waiving the right to appeal a prior conviction and agreeing to let that conviction stand may not later collaterally attack the conviction during federal sentencing proceedings.34 This applies even on Sixth Amendment grounds, absent a showing of cause and prejudice for failing to pursue the issue on direct appeal.35
No. Lane signed the February 1996 plea agreement in which he agreed to withdraw any appeal regarding the January 1996 conviction and to let that conviction stand.36 He was aware of the purported Sixth Amendment violation at the time he signed the agreement and freely chose to waive his right to appeal, thereby procedurally defaulting on the claim.37
The district court did not err in considering the January 1996 conviction at sentencing.38