IKUTA, Circuit Judge:
Earl Anthony Nevils appeals from his conviction for being a felon in possession of firearms and ammunition in violation of 18 U.S.C. § 922(g)(1).
Late in the evening of April 14, 2003, three officers of the Los Angeles Police Department's Special Enforcement Unit were on patrol in a high-crime area of south Los Angeles. Driving past an apartment building known for criminal activity associated with the "Rollin' 30s" gang, the officers encountered three men and two women standing on the sidewalk. Officer Jason De La Cova asked the group about its activities that evening. One of the men answered that they were doing "[n]othing." Upon being asked whether any of the
After trying and failing to convince the man to open the door to Apartment 2, the officers turned their attention to Apartment 6. First, they asked two women standing in the walkway who lived there; the women indicated that no one did. Approaching the door to Apartment 6, Officer De La Cova noted that the black security gate was ajar by several inches, and that the main wooden door was open and leaning off its hinges against the living-room wall. Looking through the security door, Officer De La Cova was able to see into the well-lit apartment. There, lying upon the couch, was Nevils, apparently asleep, with his right leg dangling off of the couch. A "machine gun" sitting on Nevils's lap was clearly in view from De La Cova's position at the front door. A handgun leaning against Nevils's right leg was also visible.
Officer De La Cova gave a hand-sign to his partner and the two jointly entered the apartment, weapons drawn. No one else was there. As the officers approached Nevils, he woke up, and as Officer Clauss testified, "his eyes ... fully opened and for a brief second he appeared like he was going to, you know, grab towards his lap and then he stopped and put his hands up." On command of the officers, Nevils got on the ground, leaving the firearms lying on the couch. Officer De La Cova retrieved the firearms, discovering that both were loaded. A coffee table, laden with marijuana packaged for sale, ecstasy, over $500 in cash, and a cell-phone, was situated one foot away from the couch where Nevils had been sleeping.
Other officers arrived on the scene shortly thereafter, including Sergeant Jean Coleman, who asked Nevils whether he was injured or sick. Nevils indicated he was not, and instead cursed absent cohorts, saying that he couldn't believe that "[they] left me sleeping and didn't wake me." The loaded firearms found in Nevils's possession later were identified as a Tec-9 semi-automatic weapon, loaded and chambered with 14 live rounds of ammunition, and a .40-caliber handgun, also loaded and chambered with 13 live rounds of ammunition.
Initially booked on charges of possession of marijuana for sale, Nevils was charged on a single count of being a felon in possession of firearms and ammunition in violation of 18 U.S.C. § 922(g)(1). At trial, the defense stipulated to Nevils's prior felony conviction, and did not attempt to rebut testimony that the weapons and ammunition had traveled in interstate commerce. Rather, the defense pursued a theory that Nevils could not have known of the loaded firearms because he was drunk and asleep.
To support this theory, Nevils offered the testimony of Jonnetta Campbell. Campbell testified that in the early afternoon of April 14, she and Nevils attended a baby shower for a friend. After the baby shower ended, she, Nevils, and several other people lingered to drink alcohol (in Nevils's case, "a lot" of Remy Martin). Sometime after dark, though Campbell could not remember exactly when, Nevils got "[r]eal drunk," to the point that "[h]e couldn't stand." Campbell and two female friends carried Nevils into Apartment 6
During the jury charge, the jury was permitted to hold and examine the firearms that had been found on or near Nevils's body in Apartment 6, as well as the ammunition with which they were loaded. The jurors examined that evidence again during their deliberations. After three days of deliberations, the jury returned a unanimous verdict, finding Nevils guilty of the single count of possession with which he was charged.
The district court sentenced Nevils to 77 months' imprisonment, at the lowest limit of the applicable range specified by the Sentencing Guidelines. During the sentencing hearing, the district court discussed the need to avoid unwarranted sentence disparities among defendants. The court noted that there was possibly a "difference in the sentence the defendant might have received in state court for the same offense and the sentence in federal court," but stated that "[w]e're not permitted to consider the state court [sentence] when we impose our [sentence]." Defense counsel did not raise any objection to this ruling.
Nevils filed a timely notice of appeal, raising two issues. First, Nevils argues that the government failed to produce evidence sufficient to prove every element of his crime beyond a reasonable doubt. Second, Nevils contends that the district court erred in refusing to consider analogous state sentences in its calculations, and therefore the sentence imposed by the district court was unreasonable. We address these contentions in turn.
The federal felon-in-possession statute makes it unlawful for a person "who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year" to "possess in or affecting commerce, any firearm or ammunition" which "has been shipped or transported in interstate or foreign commerce." 18 U.S.C. § 922(g). Conviction under this provision requires that the government prove three elements: "(1) that the defendant was a convicted felon; (2) that the defendant was in knowing possession of a firearm [or ammunition]; and (3) that the firearm [or ammunition] was in or affecting interstate commerce." United States v. Beasley, 346 F.3d 930, 933-34 (9th Cir. 2003). "To establish that a defendant acted `knowingly,' the prosecution need not prove that the defendant knew that his possession of a firearm was unlawful; the prosecution need only prove that the defendant consciously possessed what he knew to be a firearm." Id. at 934. For purposes of this appeal, Nevils contests only this element of knowledge. According to Nevils, the government failed to prove beyond a reasonable doubt that he knowingly possessed the firearms and ammunition at issue because there was insufficient evidence to establish that he was aware of the loaded firearms found on or near his body in the apartment.
Our review of the constitutional sufficiency of evidence to support a criminal conviction is governed by Jackson v. Virginia, 443 U.S. at 319, 99 S.Ct. 2781, which requires a court of appeals to determine whether "after viewing the evidence
Second, after viewing the evidence in the light most favorable to the prosecution, the reviewing court must determine whether this evidence, so viewed, is adequate to allow "any rational trier of fact [to find] the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319, 99 S.Ct. 2781. This second step protects against rare occasions in which "a properly instructed jury may... convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt[.]" Id. at 317, 99 S.Ct. 2781. More than a "mere modicum" of evidence is required to support a verdict. Id. at 320, 99 S.Ct. 2781(rejecting the rule that a conviction be affirmed if "some evidence" in the record supports the jury's finding of guilt). At this second step, however, a reviewing court may not "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt," id. at 318-19, 99 S.Ct. 2781(quoting Woodby v. INS, 385 U.S. 276, 282, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966)) (internal quotation marks omitted), only whether "any" rational trier of fact could have made that finding, id. at 319, 99 S.Ct. 2781.
Because the government does not need to rebut all reasonable interpretations of the evidence that would establish the defendant's innocence, or "rule out every hypothesis except that of guilt beyond a reasonable doubt" at the first step of Jackson, id. at 326, 99 S.Ct. 2781, a reviewing court may not ask whether a finder of fact could have construed the evidence produced at trial to support acquittal.
Over the years, we have struggled with the correct approach to construing evidence produced at trial, in accordance with the first step of Jackson. Almost three decades before Jackson, we reached a conclusion directly contrary to its holding, namely that "evidence is insufficient to sustain [a] verdict ... if we can conclude as a matter of law that reasonable minds, as triers of the fact, must be in agreement that reasonable hypotheses other than guilt could be drawn from the evidence." Stoppelli v. United States, 183 F.2d 391, 393 (9th Cir.1950). Under this rule, if a reasonable finder of fact could construe the evidence at trial in a manner that supported the defendant's innocence, the verdict could not stand. Id. Following Stoppelli, we frequently invoked this test, holding that convictions must be reversed unless "reasonable minds could find the evidence excludes every hypothesis but that of guilt." United States v. Nelson, 419 F.2d 1237, 1243 (9th Cir.1969) (internal quotation marks omitted) (citing cases).
In United States v. Nelson, however, we abandoned this approach, on the ground that it had been rejected by the Supreme Court in Holland v. United States as "confusing and incorrect." 419 F.2d at 1243-44(quoting Holland, 348 U.S. 121, 140, 75 S.Ct. 127, 99 L.Ed. 150 (1954)). Nelson noted that the approach adopted in Stoppelli had led "to serious departures from the proper appellate role in evaluating the sufficiency of evidence," because reviewing courts were invited to "divide the evidence into separate lines of proof, and analyze and test each line of proof independently of others." Id. at 1245. As a result, "[t]he sufficiency of the evidence is often tested against theoretical and speculative possibilities not fairly raised by the record, and inferences are sometimes considered which, though entirely possible or even probable, are drawn from evidence which the jury may have disbelieved." Id.
Instead, Nelson held that a court reviewing the sufficiency of evidence must determine whether "there is `relevant evidence from which the jury could properly find or infer, beyond a reasonable doubt, that the accused is guilty.'" Id. at 1242 (quoting Am. Tobacco Co. v. United States, 328 U.S. 781, 787 n. 4, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946)). The reviewing court must "inquire whether the evidence, considered most favorably to the government, was such as to permit a rational conclusion by the jury that the accused was guilty beyond a reasonable doubt." Id. As we subsequently explained, "[i]n determining the sufficiency of circumstantial evidence, the question is not whether the evidence excludes every hypothesis except that of guilt but rather whether the trier of fact could reasonably arrive at its conclusion." United States v. Eaglin, 571 F.2d 1069, 1076 (1977) (internal quotation marks omitted). Although Nelson predated Jackson by a decade, the test we adopted in Nelson was consistent with that ultimately mandated by Jackson.
Notwithstanding the Supreme Court's decision and our own precedent, we subsequently strayed from our obligation under step one of the Jackson standard to construe the evidence at trial in the light most favorable to the prosecution, returning instead to an approach similar to that of
Some subsequent cases have followed Bishop, and similarly considered whether evidence at trial could be construed in a manner that supports innocence, contrary to the first step of Jackson. In United States v. Vasquez-Chan, 978 F.2d 546, 548-49 (9th Cir.1992), for instance, we considered the sufficiency of the evidence to support the convictions of two defendants found guilty of conspiracy to sell cocaine. The evidence introduced at trial established that one defendant knew that the cocaine was stored in her bedroom and that her fingerprints were found on six of the cocaine storage containers, including one print inside of a container. Id. at 549. We determined that the evidence could be construed in a manner supporting innocence, explaining that "it is reasonable to assume that [the defendant] touched [the containers] at some time, including on one occasion the inside lid of a cannister, as she passed in and out of the room or made space in the small bedroom so that she and her infant child could have a comfortable place in which to sleep." Id. at 551. Again, this approach misapplied the first step of Jackson, which limits us to construing the evidence in a manner favoring the prosecution. Based on this error, we then concluded at the second step of Jackson that the government had failed to "establish [the defendant's] guilt beyond a reasonable doubt" because the "evidence presented at [defendant's] trial did not establish any reason to believe that an innocent explanation of that evidence was any less likely than the incriminating explanation advanced by the government." Id. at 551. We have made the same misstep in construing the evidence produced at trial in cases following Vasquez-Chan. See, e.g., United States v. Wiseman, 25 F.3d 862, 866-67 (9th Cir.1994) (holding that the evidence was insufficient to convict the defendant, in part because "the only evidence submitted by the government is wholly susceptible to innocent explanations"); United States v. Corral-Gastelum, 240 F.3d 1181, 1184-85 (9th Cir.2001) (reversing drug-trafficking conviction based in part on the reviewing court's exculpatory construction of evidence). As Nelson warned, considering whether the evidence produced at trial may be innocently explained has led reviewing courts to "divide the evidence into separate lines of proof, and analyze and test each line of proof independently of others," to test the sufficiency of the evidence "against theoretical and speculative possibilities not fairly raised by the record," and to rely on hypotheses "drawn from evidence which the jury may have disbelieved." Nelson, 419
The Supreme Court's recent decision in McDaniel v. Brown, reversing a decision by this court, highlights our error. 130 S.Ct. at 673-74. In McDaniel, the defendant had been convicted of sexual assault of a child. Id. at 666. On appeal, we concluded that the evidence was insufficient to establish defendant's guilt beyond a reasonable doubt. See Brown v. Farwell, 525 F.3d 787, 797-98 (9th Cir.2008). In so holding, we discounted the government's argument that the defendant had washed his clothes when he returned home in order to destroy physical evidence of the rape, stating that while the government's theory was "plausibly consistent with him being the assailant," the defendant had provided an alternative reason for washing his clothes. Id. at 797. The Supreme Court rejected this analysis, holding that had we reviewed the evidence as required by Jackson, we would have concluded that "the evidence supports an inference that [defendant] washed the clothes immediately to clean blood from them," rather than adopting an exculpatory explanation. McDaniel, 130 S.Ct. at 674. The Court concluded that "the Court of Appeals' analysis failed to preserve `the factfinder's role as weigher of the evidence' by reviewing `all of the evidence ... in the light most favorable to the prosecution.'" Id. (alteration in original) (emphasis omitted) (quoting Jackson, 443 U.S. at 319, 99 S.Ct. 2781).
Accordingly, to the extent Bishop and its progeny construed evidence in a manner favoring innocence rather than in a manner favoring the prosecution, and required reversal when such a construction was not "any less likely than the incriminating explanation advanced by the government," Vasquez-Chan, 978 F.2d at 551, they strayed from the test established in Jackson, and made "plausible" exculpatory constructions disapproved of in McDaniel v. Brown. We now overrule them.
In reaching this conclusion, however, we acknowledge our obligation under Jackson to identify those rare occasions in which "a properly instructed jury may ... convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt[.]" Jackson, 443 U.S. at 317, 99 S.Ct. 2781. Although Jackson requires the reviewing court initially to construe all evidence in the favor of the government, the evidence so construed may still be so supportive of innocence that no rational juror could conclude that the government proved its case beyond a reasonable doubt. Moreover, the evidence construed in favor of the government may be insufficient to establish every element of the crime. We have held, for example, that evidence is insufficient to support a verdict where mere speculation, rather than reasonable inference, supports the government's case, see Juan H. v. Allen, 408 F.3d 1262, 1277-79 (9th Cir.2005), or where there is a "total failure of proof of [a] requisite" element, Briceno v. Scribner, 555 F.3d 1069, 1079 (9th Cir.2009). Further, we have long held that evidence of mere proximity to contraband, or association with a person having possession of such contraband, is insufficient standing alone to support a finding of possession of that contraband. See United States v. Chambers, 918 F.2d 1455, 1459 (9th Cir. 1990); see also Arellanes v. United States, 302 F.2d 603, 606 (9th Cir.1962).
We consider Nevils's challenge to the sufficiency of the evidence in his case pursuant to these principles.
Nevils claims the evidence produced at trial was insufficient to prove his guilt beyond a reasonable doubt for two reasons. First, Nevils asserts that the government
We first turn to Nevils's argument that the evidence produced at trial was not sufficient to eliminate the possibility that he was merely present in the apartment. Under our case law, as noted above, if evidence produced at trial established only Nevils's presence in the vicinity of contraband, it would be insufficient standing alone to support a finding of knowing possession of firearms and ammunition beyond a reasonable doubt. See Chambers, 918 F.2d at 1459; see also United States v. Sanchez-Mata, 925 F.2d 1166, 1169 (9th Cir.1991) (holding that knowledge that drugs are present in a car is not enough to prove involvement in a drug conspiracy); United States v. Behanna, 814 F.2d 1318, 1320 (9th Cir.1987) ("When the government charges an individual with possession of a weapon in a vehicle, we have squarely held that the government must do more than show that the defendant was present as a passenger in the vehicle and within reach of the weapon.").
On the other hand, evidence that shows more than mere presence is sufficient to support a finding of knowing possession of contraband. For example, in United States v. Gutierrez, 995 F.2d 169 (9th Cir.1993), we affirmed a defendant's conviction for firearm possession under 18 U.S.C. § 922(g)(1) where a firearm was found in the seat below each passenger (including defendant) and officers testified that they saw the defendant make "suspicious or furtive movements inside the car." 995 F.2d at 172 (internal quotation marks omitted). After noting that "[i]t would tax credulity to assert that [defendant] was sitting on top of a pistol without knowing of its presence, or that he just happened to be a passenger in an automobile equipped with a pistol for each passenger, and that he knew nothing of that odd coincidence," and considering the officers' testimony that they witnessed defendant's "furtive movements," we held that the "jury had ample evidence to support its finding" that the defendant had possession of the weapons. Id. at 171-72; see also United States v. Carrasco, 257 F.3d 1045, 1048-50 (9th Cir.2001) (holding that the jury did not plainly err in finding that defendant knowingly possessed shotgun shells left in plain view in the car he owned, along with other items such as drugs, money, and baggies that were known to be used "for the packaging and sale of drugs"); United States v. Terry, 911 F.2d 272, 279-80 (9th Cir.1990).
Here, Nevils argues that the evidence introduced at trial shows only his presence in the apartment, and is consistent with the innocent explanation that third parties entered Apartment 6 while Nevils slept, and then left their loaded firearms and drugs behind when they became aware of police in the vicinity. Nevils notes that the government did not introduce any evidence of fingerprints tying him to the loaded firearms, drugs, or any other item in Apartment 6. Nevils also points to the officers' testimony that the apartment was unsecured and located in a high-crime neighborhood, where drugs and firearms were presumably abundant. Nevils contends that because the government did not rebut his innocent explanation, and because
We begin by viewing the evidence produced at trial in the light most favorable to the prosecution, as required by the first step of Jackson. Viewing the evidence in this light, it is sufficient to support a reasonable conclusion that Nevils knew he possessed firearms and ammunition. Nevils's actual possession of two loaded weapons, each lying on or against Nevils's body, would permit a reasonable juror to infer that Nevils knew of those weapons. See United States v. Hernandez, 476 F.3d 791, 797 (9th Cir.2007) (indicating that evidence that defendant was found with a package of methamphetamine on his person was "overwhelming evidence" that the defendant "was guilty of at least possession of methamphetamine"). Further, Nevils initially reached toward his lap when the officers first awakened him, raising the inference that he knew a loaded weapon was within reach. Nevils later cursed his cohorts who had left him in this compromising situation without warning him that the police were in the vicinity. Finally, and contrary to Nevils's representations, there was evidence tying Nevils to the particular apartment where he was found: Nevils had been arrested on narcotics and firearms charges in the same apartment just three weeks earlier. This evidence, construed in favor of the government, raises the reasonable inference that Nevils was stationed in Apartment 6 and armed with two loaded firearms in order to protect the drugs and cash in the apartment when he fell asleep on his watch. At this step of Jackson, we do not construe the evidence in the light most favorable to innocence, and therefore do not consider Nevils's argument that there is an equally plausible innocent explanation for the loaded firearms lying on and near his body. See McDaniel, 130 S.Ct. at 673-74.
Moving to the second step of Jackson, we must consider whether the evidence, as construed above, is sufficient to allow any rational juror to conclude that the government has carried its burden of proof. As discussed above, the evidence shows more than Nevils's mere presence in the apartment, and reasonably supports the conclusion that Nevils was aware of the loaded firearms on or near his body. Nevils has not pointed to evidence so supportive of innocence that no rational trier of fact could find guilt beyond a reasonable doubt. Jackson, 443 U.S. at 317, 99 S.Ct. 2781. We conclude that a rational juror could find beyond a reasonable doubt that Nevils had knowledge of the weapons in his possession. See id. at 319, 99 S.Ct. 2781; see also Gutierrez, 995 F.2d at 171-72.
We next turn to Nevils's argument that a reasonable juror could not find that he knowingly possessed the loaded firearms in the apartment because evidence introduced at trial established that there were no firearms in the apartment when he arrived there, and Nevils was sleeping from the time he entered the apartment until the time officers arrived. Specifically, Nevils contends that the government did not rebut the testimony of Jonnetta Campbell, who indicated that Nevils was incapacitated on the afternoon of the 14th when she left him in Apartment 6, which at the time was empty.
Even assuming that Campbell's testimony established that Nevils was sleeping when she left him in the apartment (although on cross-examination, she stated that Nevils never "passed out"), at the first step of Jackson we must recognize the jury's entitlement to disbelieve her. See Jackson, 443 U.S. at 326, 99 S.Ct. 2781. The issue of Campbell's credibility was argued to the jury by both defense
In sum, applying Jackson's two-part test to the evidence produced at trial, we conclude that, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt that Nevils knowingly possessed firearms and ammunition. We reject Nevils's invitation to construe the evidence in the light most favorable to his claim of innocence, because such an approach is foreclosed by Jackson. Accordingly, we affirm the denial of Nevils's motion for acquittal, and affirm his conviction under 18 U.S.C. § 922(g)(1).
Finally, we turn to Nevils's contention that his sentence was not reasonable because the district court stated it could not consider the sentence Nevils would have received if he had been convicted of the same conduct in state court. Nevils argues that the district court's decision was erroneous, because no case after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), explicitly prohibits a court from considering that factor. Nevils's counsel, however, failed to object to this alleged error at sentencing. Therefore, we review only for plain error. United States v. Watson, 582 F.3d 974, 981 (9th Cir.2009). Plain error is: "(1) error, (2) that is plain, and (3) that affects substantial rights." Id. If all three conditions are met, an appellate court may then exercise its discretion to address a forfeited error, but only if "the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id. (internal quotation mark omitted).
The district court did not plainly err in its sentencing determination. After Booker,