Appeal from the United States District Court for the Southern District of California. D.C. No. CV 90-0890-H. Marilyn L. Huff, District Judge, Presiding.
Before: Jerome Farris, Edward Leavy, and Stephen S. Trott, Circuit Judges. Opinion by Judge Farris.
Fredrick Garcia-Cruz appeals his jury conviction for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g) (1988), and his sentence imposed under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (1988). Cruz argues that his conviction should be reversed because the district court erred in: (1) refusing his proffered jury instruction on constructive possession; (2) failing to hold a Franks hearing and failing to suppress evidence seized during a search of Cruz's residence; (3) admitting statements made by Cruz allegedly after his invocation of the right to remain silent; (4) denying Cruz's acquittal motion. Cruz also argues that sentence enhancement under the Armed Career Criminal Act was improper because his prior conviction as a felon in possession was not a "violent felony" under the Act. We affirm Cruz's conviction but vacate his sentence and remand for resentencing.
San Diego Police, along with a California State Parole officer, searched Cruz's residence on December 23, 1988. The search was conducted pursuant to both a state search warrant and the search and seizure conditions of Cruz's state parole. Cruz was arrested after the officers discovered a Ruger.357 magnum revolver in a kitchen cupboard.
During a subsequent custodial interview, initiated at Cruz's specific request, Cruz made self-incriminating statements concerning his possession of the revolver. The statements were made after Cruz had been informed of his Miranda rights, and after he voluntarily agreed to their waiver.
On September 26, 1990, the Grand Jury for the Southern District of California returned a one-count indictment against Cruz, charging him with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The indictment also informed Cruz of the government's intention to seek sentencing enhancement under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1). Cruz had been convicted twice previously of assault with a deadly weapon and once of being a felon in possession of a concealable firearm.
Cruz was convicted of the charged offense on June 12, 1991, and was sentenced on October 21, 1991, to a prison term of 200 months. In calculating the sentence, the district court applied the Armed Career Criminal Act, finding that felon in possession was a predicate "violent felony" within the meaning of the Act.
Cruz argues that the district court erred by failing to give his proffered instruction on constructive possession. Where the question to be resolved is whether other instructions adequately covered the defense theory of the case, our review is de novo. See United States v. Gomez-Osorio, 957 F.2d 636, 642 (9th Cir. 1992). The same standard applies to whether the proposed instruction is supported by law. See id. Our review is for an abuse of discretion where the question is whether the factual foundation for a proposed instruction exists. Id.
"A proposed instruction regarding the [defendant's] theory of the case should be given if there is foundation for it in the evidence and it is supported by the law." United States v. Tabacca, 924 F.2d 906, 912 (9th Cir. 1991) (citing United ...