UNITED STATES of America, Plaintiff-Appellee, v. Elton NANCE, Defendant-Appellant, 481 F.3d 882

GIBBONS, J., delivered the opinion of the court, in which ROGERS, J., joined. HOLSCHUH, D.J. (pp. 889-95), delivered a separate opinion concurring in part and dissenting in part. OPINION JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellant Richard Nance was convicted by a jury of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). The district court determined that Nance was an armed career criminal and sentenced him to 235 months, which was at the bottom of the advisory guidelines range. Nance appeals his conviction and sentence.

For the following reasons, we affirm the district court’s judgment. I. 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. The officers arrested McPhearson. As a result of a routine patdown of McPhearson during which drugs were discovered, some officers went for and obtained a search warrant for the residence. While the warrant was being obtained, officers secured the residence and, in so doing, found Nance in a bathroom.

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. Nance was subsequently indicted and charged with being a felon in possession of a firearm “on or about December 12, 2003,” which was the date of Nance’s arrest. At trial, two of the investigating officers testified as to the events of December 12 — specifically, the discovery of Nance in the house and the subsequent search and discovery of the locked safe containing the firearm.

Lieutenant Patrick Willis then testified that Nance told the investigating officers which key would unlock the safe containing the firearm. 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. Curry also testified that he had seen a firearm at the residence on a prior occasion that was similar to the one recovered from the safe. Lieutenant Willis also testified that, after Nance was arrested, he provided a statement to the police in which he admitted handling the firearm in question.

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. Nance explained in his statement that his fingerprints would therefore be found on the gun and the safe because of his handling of it four days prior. Nicole Parker testified that she never handled the firearm nor asked Nance to put the firearm away. The jury convicted Nance of the single count of being a felon in possession of a firearm.

At sentencing, the district court found Nance to be an armed career criminal. The district court applied the armed career criminal enhancement and sentenced Nance to 235 months imprisonment. Nance timely appealed his conviction and sentence. II.

On appeal, Nance argues that the district court erred by: (1) denying his request for a jury instruction on the required nexus between the firearm and interstate commerce; (2) admitting evidence that Nance possessed the firearm four days prior to the date charged in the indictment, thereby permitting a constructive amendment to or unlawful variance from the indictment; (3) applying the armed career criminal enhancement; and (4) imposing an unreasonable sentence. We turn first to Nance’s challenge to the jury instruction regarding the requirement of the firearm’s nexus to interstate commerce.

At trial, Nance requested that the jury instructions state as an element of the offense that the firearm affected, as opposed to traveled in, interstate commerce. The district court denied Nance’s request. 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.

Where a proper request for a jury instruction is made in the district court, this court reviews the denial of that request under the abuse-of-discretion standard. See United States v. Ursery, 109 F.3d 1129, 1136 (6th Cir.1997). The jury was not required to find that the firearm had a substantial effect on interstate commerce. See United States v. Henry, 429 F.3d 603, 619-20 (6th Cir.2005). Rather, the instruction given was sufficient to establish an interstate nexus. See id. The district court did not abuse its discretion in denying Nance’s request.

Nance next argues that the court permitted a constructive amendment to or unlawful variance from the charge set forth in his indictment. According to Nance, because the jury had before it evidence that he actually possessed the firearm on December 8, there is a substantial likelihood that he was convicted on that basis rather than for constructively possessing the firearm on December 12, which is the date alleged in the indictment. We review de novo whether there has been an amendment to the indictment or a variance. United States v.

Manning, 142 F.3d 336, 339 (6th Cir.1998). “The Fifth Amendment guarantees that an accused be tried only on those offenses presented in an indictment and returned by a grand jury.” Id. (citing Stirone v. United States, 361 U.S. 212, 217-19, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960)). There are “two basic categories of indictment modification: ‘An amendment of the indictment occurs when the charging terms of the indictment are altered, either literally or in effect, by prosecutor or court after the grand jury has last passed upon them.

A variance occurs when the charging terms of an indictment are left unaltered, but the evidence offered at trial proves facts materially different from those alleged in the indictment.’ ” Martin v. Kassulke, 970 F.2d 1539, 1542 (6th Cir.1992) (quoting United States v. Ford, 872 F.2d 1231, 1235 (6th Cir.1989)) (emphasis omitted).

An amendment is considered per se prejudicial because it “directly infringes the defendant’s right to know of the charges against him by effectively allowing the jury to convict the defendant of a different crime than that for which he was charged.” Martin, 970 F.2d at 1542 (citing Ford, 872 F.2d at 1235). In contrast to an amendment, a “variance occurs when the charging terms are unchanged, but the evidence at trial proves facts materially different from those alleged in the indictment.” Manning, 142 F.3d at 339 (citing United States v. Hathaway, 798 F.2d 902, 910 (6th Cir.1986)).

A variance is not reversible error unless the defendant demonstrates prejudice. See Martin, 970 F.2d at 1542. If a variance “infringes too greatly upon” the defendant’s Sixth Amendment right to be “informed of the nature and cause of the accusation” against him, then it is considered a constructive amendment and is accorded the per se prejudicial treatment of an amendment.

Id. (citing Ford, 872 F.2d at 1235). “A variance crosses the constructive amendment line only when the variance creates ‘a substantial likelihood’ that a defendant may have been convicted of an offense other than that charged by the grand jury.” Manning, 142 F.3d at 339 (quoting Hathaway, 798 F.2d at 911). In this case, there was not a constructive amendment to the indictment. Nance was charged with and convicted of being a felon in possession of a firearm on or about December 12, 2003. The terms of the indictment were not altered. Nance’s variance argument more closely approximates what occurred in this case.

Put simply, the jury heard evidence that could permit an inference of possession on two different dates — one charged in the indictment and one not charged. The evidence as to the charged date, December 12, was that Nance told officers on the day of his arrest which key would unlock the safe containing the firearm. The evidence of possession on December 8 came from Nance’s December 12 statement to police in which he admitted putting the gun away in the safe four days earlier.

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. If this evidence could be considered a variance, its admission did not prejudice defendant. Nance next challenges the district court’s application of the armed career criminal enhancement. This court reviews de novo a district court’s determination that a defendant should be sentenced as an armed career criminal. United States v. Sawyers, 409 F.3d 732, 736 (6th Cir.2005).

Under the advisory sentencing guidelines, the minimum offense level for an armed career criminal is 33. See U.S.S.G. § 4B1.4(a), (b)(3)(B). A person possessing a firearm after three prior convictions for serious drug offenses or violent felonies is an armed career criminal under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). See Shepard v. United States, 544 U.S. 13, 15, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). The district court found that Nance had four prior violent felonies as listed in his PSR: two armed robberies, one aggravated burglary, and one facilitation of armed robbery.

Nance does not dispute the two armed robberies; he does, however, challenge the district court’s reliance on the other two prior felonies. With regard to the aggravated burglary conviction, Nance claims that the government failed to adequately prove the existence of this prior violent felony. At the outset, it is important to note that the ACCA “makes burglary a violent felony only if committed in a building or enclosed space (‘generic burglary’), not in a boat or motor vehicle.” Shepard, 544 U.S. at 15-16, 125 S.Ct. 1254.

In Shepard, the Court clarified what evidence might be considered when a court analyzes whether a plea of guilty to a nongeneric burglary statute necessarily admitted elements of the generic offense, thereby satisfying the ACCA’s generic-burglary requirement. Id. at 26, 125 S.Ct. 1254. On appeal, Nance claims that, under Shepard, the district court should not have considered the PSR’s presentation of his aggravated burglary conviction. Nance does not contest, however, that Shepard only applies to non-generic burglary statutes.

Nance argues, albeit without citing any authority, that Tennessee has a nongeneric aggravated burglary statute. In fact, the weight of authority indicates that Tennessee’s aggravated burglary statute is generic. The Supreme Court in Shepard reaffirmed “that a court sentencing under the ACCA could look to statutory elements ... to determine whether an earlier conviction after trial was for generic burglary.” Id. at 16, 125 S.Ct. 1254.

Therefore, turning to the statutory elements of Tennessee’s aggravated burglary statute, this court has previously said that “[aggravated burglary occurs when an individual enters a habitation ‘without the effective consent of the property owner’ and, ... intends to commit a felony....” Sawyers, 409 F.3d at 737 (quoting State v. Langford, 994 S.W.2d 126, 127 (Tenn.1999) (citing Tenn.Code Ann. §§ 39-14-402 and 39-14403)).

Thus, aggravated burglary in Tennessee clearly comports with Shepard’s definition of a generic burglary as “committed in a building or enclosed space.” In short, Tennessee aggravated burglary represents a generic burglary capable of constituting a violent felony for ACCA purposes.

With regard to the facilitation of armed robbery conviction, Nance argues that this is not a violent felony because (1) facilitation under Tennessee law is a separate, complete offense independent from a robbery offense; (2) the independent offense of facilitation does not require criminal responsibility for the underlying robbery offense; and therefore, (3) facilitation cannot be considered a violent felony. This court rejected the same argument in the context of facilitation of aggravated burglary in Sawyers.

See Sawyers, 409 F.3d at 737-40 (reasoning that the underlying felony constitutes “an element” that can be examined by the court because criminal facilitation in Tennessee requires the government to show that the underlying crime actually occurred). In Sawyers, the court held “that facilitation of aggravated burglary was, categorically, a violent felony under the ACCA.” Id. at 740. The reasoning of Sawyers applies with even greater force to the crime of facilitation of armed robbery.

See TenmCode Ann. § 39-134101 (“Robbery is the intentional or knowing theft of property from the person of another by violence or putting the person in fear.”). Nance’s challenges to the district court’s treatment of aggravated burglary and facilitation of armed robbery fail. Finally, Nance argues that the district court’s sentence was unreasonable. Nance claims that the district court failed to adequately consider his conduct and his ability to be rehabilitated. When a defendant challenges a district court’s sentencing determination, this court determines whether the sentence is unreasonable. United States v.

Webb, 403 F.3d 373, 383 (6th Cir.2005). As this court has repeatedly acknowledged, although a district court must clearly articulate its reasoning for imposing a particular sentence, it need not explicitly recite the § 3553(

a) factors in its sentencing determination. See United States v. Richardson, 437 F.3d 550, 554 (6th Cir.2006); United States v. Williams, 436 F.3d 706, 708 (6th Cir.2006); United States v. Kirby, 418 F.3d 621, 626 (6th Cir.2005). Because the district court sentenced Nance at the bottom of the advisory guideline range, Nance’s sentence is credited with a “rebuttable presumption of reasonableness” and it is incumbent on Nance to establish that his sentence was unreasonable. See Williams, 436 F.3d at 708. Nance has failed to show that his sentence was unreasonable.

The district court acknowledged the advisory nature of the guidelines and proceeded to hear argument from Nance’s trial counsel on the nature and circumstances of the offense and the alleged lack of evidence to support the conviction and the imposition of the ACCA enhancement. Nance presented no evidence to the district court at the sentencing hearing. In imposing sentence, the district court noted that, although a PSR may report “good things” and “bad things” about a defendant, Nance’s PSR reported only bad things and no good things had been presented to the court at the sentencing hearing.

The district court concluded that the application of the ACCA enhancement was reasonable in light of Nance’s eleven or twelve prior convictions and his 23 criminal history points, which is almost twice as many as needed to get to the highest criminal history category. The district court clearly articulated its reasoning for imposing the sentence that it did. In light of Nance’s extensive criminal history, the sentence imposed, which was within the guideline range, was not unreasonable. III. For the foregoing reasons, we affirm the judgment of the district court. .

We also note that, two days prior to oral argument in this appeal, Nance filed a pro se supplemental brief in which he argued that the firearm was obtained as the result of an unlawful seizure and search. Nance further contended that his counsel had refused to file a suppression motion or raise the issue on appeal. Under Federal Rule of Criminal Procedure 12(b)(3)(c), motions to suppress evidence must be made prior to trial, and the failure to bring such a pretrial motion constitutes a waiver of the issue. United States v.

Lopez-Medina, 461 F.3d 724, 738 (6th Cir.2006) (referencing Rule 12(e), the subsection addressing waiver of 12(b)(3) defenses that a party did not raise before the trial court’s pretrial motion deadline). We are therefore unable to consider the admissibility of the firearm on appeal. . While Nance’s argument about the December 8 evidence is limited to the constructive amendment or unlawful variance issue, the record reflects some confusion about the proper use of the December 8 evidence.

The government seems to have taken the position in its comments to the court that it did not matter whether Nance was found to have possessed the weapon on the day of his arrest or on the earlier date. The district court endorsed this view, noting that the two dates were close enough together to fall within the “on or about” language that is typically included in jury instructions. Underlying this discussion is an apparent misconception about what the government was required to do. The government's obligation was to prove the particular possession charged, not some earlier occasion of possession.

See Ford, 872 F.2d at 1236-37. 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. See id. at 1236. And the admission of the December 8 evidence was proper because it related to elements of the charged offense, not because the government was permitted to prove an instance of possession other than that charged.

With the exception of a passing comment in closing rebuttal argument, in response to defense counsel’s argument that the government was attempting to convict Nance for the offense on both dates, any confusion occurred outside the presence of the jury. And Nance does not complain about the prosecutor’s remark or any other event at trial related to the December 8 evidence, other than making an argument that a constructive amendment or unlawful variance occurred.

In fact, Nance requested a jury instruction that would have permitted the jury to consider whether he possessed the weapon on December 8 innocently or out of necessity. The district court refused the request. If the instruction had been given, defendant’s request would have increased his chances of conviction for a crime with which he was not charged. .

Under Tennessee law, "A person is criminally responsible for the facilitation of a felony if, knowing that another intends to commit a specific felony, but without the intent required for criminal responsibility [for the offense,] ... the person knowingly furnishes substantial assistance in the commission of the felony." Tenn.Code Ann. § 39-ll-403(a).