Argued: July 30, 2013.
Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 1:11-cr-12-1—Sandra S. Beckwith, District Judge.
Joseph Cascio, KIRKLAND & ELLIS LLP, Washington, D.C., for Appellant. Benjamin C. Glassman, UNITED STATES ATTORNEY'S OFFICE, Cincinnati, Ohio, for Appellee.
Joseph Cascio, KIRKLAND & ELLIS LLP, Washington, D.C., for Appellant. Anthony Springer, UNITED STATES ATTORNEY'S OFFICE, Cincinnati, Ohio, for Appellee.
Before: GIBBONS, SUTTON, and KETHLEDGE, Circuit Judges.
JULIA SMITH GIBBONS, CIRCUIT JUDGE.
A federal jury convicted Terrance Walker of being a felon in possession of ammunition transported in foreign commerce. See 18 U.S.C. §§ 922(g)(1) & 924(a)(2). On appeal, Walker argues that the government did not introduce sufficient evidence at trial to prove that he possessed the firearm containing this ammunition. He also claims that the government constructively amended or prejudicially varied from the indictment with respect to its evidence showing that the ammunition he possessed traveled in foreign commerce. Finally, Walker challenges the district court's decision to sentence him to an additional twenty-four months in prison because his crime violated the terms of his supervised release. For the reasons that follow, we affirm the district court's judgment.
On November 11, 2010, undercover officers from the Cincinnati Police Department riding in an unmarked car observed a Chrysler 300 with heavily tinted windows "playing very loud [music]" at a drive-thru restaurant in Cincinnati's Avondale neighborhood. The undercover officers called in a "uniformed" police car with authorization to initiate a traffic stop of the Chrysler. The "uniformed" car pulled over the Chrysler, and the four officers in the unmarked car—Nathan Asbury, Shemel Davis, Steven Peponis, and an "Officer Hamlet"—exited their car and approached the Chrysler. Asbury testified that as they approached, the occupants of the car did not roll down the windows. After knocking on the Chrysler's windows several times, Antonio Evans, the driver and owner of the car, and Walker, the front seat passenger, rolled down the windows and began speaking to the officers. The officers smelled marijuana once the car windows were opened. Peponis also noticed that Walker was agitated, as he could "see [Walker's] heart beating through his T-shirt." Asbury, who was standing near the front driver's side window, directed Evans to exit the vehicle, which he did without incident.
Once Evans exited the vehicle and was under Hamlet's supervision, Peponis asked Walker to step out of the vehicle according to his instructions and keep his hands in the officers' sight at all times. He first told Walker to "unlatch your seatbelt with your right hand and release it." Instead, as Walker "unlatched the seatbelt, he held onto the clasp of the seatbelt and began following it across his body with his hands." Asbury, who was observing Walker's actions from the driver's side of the car, testified that "both [of Walker's] hands began to slowly move [the seatbelt] across his waistband back down toward the floor where I could no longer see his hands." According to Peponis, Walker "continued to follow the seatbelt with his right hand to such a point where he had his entire body turned[, ] his shoulders were square" with Peponis's shoulders, and his hands were positioned near his right hip in a place where Peponis and Asbury could not see them. Peponis believed that Walker was "reaching between the passenger seat and the passenger door." Asbury described Walker's movements as "completely unnatural" because the seatbelt retractor was at shoulder height.
Peponis and Asbury gave Walker several warnings to release the seatbelt and show his hands. Walker ignored the warnings and "continued doing what he was doing, moving his hands away, down and away, toward the floorboard." Peponis reached through the car window, grabbed Walker's hands, and dragged them through the passenger window in order to secure him. Davis quickly joined Peponis in order to help restrain Walker. Another officer, Kim Lowry, approached the Chrysler to provide further assistance while Davis and Peponis were restraining Walker. She opened the car's back door on the same side as the front passenger seat and saw a gun on the floor of the car between the passenger's seat and the door, near the floor mounting for the front passenger's seat belt. According to the officers, the gun was loaded, had a round in the chamber, and was positioned "where you could reach and grab it and come up with it like it was a normal hold" from the front passenger's seat.
The government indicted Walker on a single count of being a felon in possession of a firearm or ammunition shipped or transported in interstate or foreign commerce.Before trial, all parties agreed that the gun found in the car was manufactured in Ohio, meaning the government had to prove that the ammunition found in the gun had a connection to interstate or foreign commerce to convict ...