United States v. Joseph Allen, Jr.

56 F.3d 73 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Joseph ALLEN, Jr. Defendant-Appellant. No. 94-50027. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 9, 1995. Decided June 1, 1995. 1 Before: SCHROEDER and KLEINFELD, Circuit Judges, and KING, * District Judge. 2 MEMORANDUM ** 3 Joseph Allen, Jr., appeals his conviction and sentence for using a firearm during a violent crime, in violation of 18 U.S.C. Sec. 924 (c)(1). Allen asserts that (1) the trial court confused the jury by instructing that "constructive possession" is sufficient for "using or carrying" a firearm, and that there is insufficient evidence of actual or constructive possession; and (2) the court improperly double-counted in sentencing by adjusting upward based on the same conduct for both (a) reckless endangerment during flight and (b) the value of the loss resulting from that flight. We have jurisdiction pursuant to 28…