United States v. Christopher Frushon, United States of America v. Christopher Frushon

10 F.3d 663 UNITED STATES of America, Plaintiff-Appellant, v. Christopher FRUSHON, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellee, v. Christopher FRUSHON, Defendant-Appellant. Nos. 93-10042, 93-10045. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 5, 1993. Decided Nov. 30, 1993. Jennifer Levy, Asst. U.S. Atty., Washington, DC, for plaintiff-appellant-appellee. Bram Jacobson, Arizona Federal Public Defenders, Phoenix, AZ, for defendant-appellee-appellant. Before: CANBY, and NOONAN, Circuit Judges, and ORRICK, * District Judge. Appeal from the United States District Court for the District of Arizona. NOONAN, Circuit Judge: 1 Christopher Frushon appeals his conviction of being a felon in possession of a firearm in violation of 18 U.S.C. Sec. 922 (g). The government appeals the sentence imposed by the district court. We affirm the conviction but remand for resentencing. THE EVIDENCE 2 Frushon contends that the evidence was insufficient to support his conviction. We must affirm if any rational trier of fact could have found all the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct.…

Christopher Frushon appeals his conviction of being a felon in possession of a firearm in violation of 18 U.S.C. § 922 (g). The government appeals the sentence imposed by the district court. We affirm the conviction but remand for resentencing.

THE EVIDENCE

Frushon contends that the evidence was insufficient to support his conviction. We must affirm if any rational trier of fact could have found all the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781, 2789 , 61 L.Ed.2d 560 (1979). Viewing the evidence in the light most favorable to the government, the following facts were established:

On December 19, 1991 agents of the Bureau of Alcohol, Tobacco and Firearms executed a search warrant at a mobile home identified in the warrant as that of Christopher Frushon. A woman who identified herself as Mrs. Frushon answered the door and admitted the agents. In the north bedroom they found a Mossberg 12-gauge shotgun leaning against the wall along the headboard of the bed and in a gun rack directly over the bed a Savage 24 Series combination gun, an H & R single barrel Model 58 shotgun and a Mossberg Model 500A 12-gauge…

concurring:

I concur in that portion of Judge Noonan’s opinion that deals with sufficiency of the evidence. I also concur in the result reached with regard to the sentence, but on different grounds.

In my view the sentencing issue is controlled by 18 U.S.C. § 924 (e), which provides an enhanced sentence for a person who “has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another....” (Emphasis added). When the question is whether several crimes that are tried together constitute one offense or multiple offenses for purposes of federal enhancement, this language controls. If the offenses of which Frushon was previously convicted were committed on different occasions, as the presentence report suggests, they each count as one offense for purposes of career offender enhancement.

It is true that 18 U.S.C. § 20 provides that “[w]hat constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the pro- • ceedings were held.” But that reference is clearly intended to deal with the meaning of…