Defendant-appellant Anthony White appeals from a judgment of the United States District Court for the Western District of New York (Larimer, J.), sentencing him to eighty-four months' imprisonment after a jury trial for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). White contends principally that: (1) the district court erred in declining to give a jury instruction on the affirmative defenses of necessity or innocent/fleeting possession; (2) he is entitled to a new trial because the government used its peremptory challenges to exclude two African American women from the jury, contrary to Batson v. Kentucky, 476 U.S. 79 (1986); and (3) his sentence is unreasonable, primarily because the district court erred in departing upward to criminal history category VI based on a conclusion that criminal history category V underrepresented the seriousness of White's past criminal conduct and the likelihood that he would commit other crimes in the future.
The opinion of the court was delivered by: Livingston, Circuit Judge
Before: KEARSE, SACK, LIVINGSTON, Circuit Judges.
Defendant-appellant Anthony White appeals from a judgment of the United States District Court for the Western District of New York (Larimer, J.), sentencing him to eighty-four months' imprisonment after a jury trial at which he was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). White contends principally that: (1) the district court erred in declining to give a jury instruction on the affirmative defenses of necessity or innocent/fleeting possession; (2) he is entitled to a new trial because the government used its peremptory challenges to exclude two African American women from the jury, contrary to Batson v. Kentucky, 476 U.S. 79 (1986); and (3) his sentence is unreasonable, primarily because the district court erred in departing upward to criminal history category VI based on a conclusion that criminal history category V underrepresented the seriousness of White's past criminal conduct and the likelihood that he would commit other crimes in the future. For the reasons that follow, we affirm.
White was charged on June 28, 2005 with one count of being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). The government's evidence at trial established that on June 10, 2005, at 4:36 p.m., one Catherine Mobley called 911, gave her address as 494 Seward Street in Rochester, New York, and told the operator that her boyfriend had hit her. She also indicated that no weapons were involved in the incident. Officer Francis Archetko of the Rochester Police Department responded to a dispatch for family trouble at 494 Seward Street, which he received "at about 4:40 [p.m.] or so," arriving at the address within minutes. He observed Mobley standing in the driveway and spoke with her briefly. During this conversation, Mobley reported that her live-in boyfriend, Anthony White, had hit her during an argument and she requested that Officer Archetko ask White to leave the residence. Mobley also told Officer Archetko that White was currently in the first-floor bedroom and that there were no weapons inside the residence. She did not indicate to the officer whether other people were inside the home.
When Officer Archetko entered the house, he knocked on the partially opened door to the bedroom, but did not announce his presence or otherwise speak. He heard a male voice say, "[C]ome in." Officer Archetko then opened the door and saw White sitting on the edge of a bed next to two .12 gauge shotgun shells. White was holding a sawed-off shotgun by the trigger area with his right hand while he loaded a round into the magazine tube with his left. He was aiming the shotgun at the doorway where Officer Archetko stood. Officer Archetko immediately pulled his service weapon, pointed it at White, and ordered White to drop the shotgun. White complied with this demand and Officer Archetko then arrested him. The round that Officer Archetko observed White load into the shotgun was still in the weapon when Officer Archetko retrieved both the weapon and the shells on the bed. According to Officer Archetko, no one other than White was in the house at the time of this incident.
John Clark, a firearms examiner for the Monroe County Department of Public Safety, demonstrated for the jury how to load and unload the weapon recovered from White. He also testified that he had test-fired the weapon using two of the recovered shells and that both shells discharged successfully.
The defense case consisted entirely of White's testimony. White testified that on June 10, 2005, he and Mobley were in their house at 494 Seward Street, as was Mobley's youngest son, who was about seven years old at the time. According to White, he and Mobley got into a fight over his conversation with another woman. White locked himself in the bathroom to "keep from hearing" Mobley's voice. When he emerged about twenty-five minutes later, Mobley was pointing a shotgun at him. White testified that Mobley pulled the trigger, but the gun did not fire. White then knocked the gun out of her hand, at which point Mobley fled the house.
White testified that he next picked up the gun and took it into the bedroom so that Mobley's young son-who "saw the whole thing" from the kitchen and had been pleading for his mother to put the gun down-would not "play cops and robbers and stuff" and "get the gun, [and] pull the trigger and kill his self or . . . blow his feet off." According to White, when he went into the bedroom, he put the gun on the floor and began removing the shells. He removed two shells from the shotgun with scissors, but was unable to get the third shell out because it was "stuck." White testified that he intended to give the shotgun to the police, that he did not call the police because the phone was on the porch, and that the "[o]nly thing [he] could think of was safety." While he was attempting to remove the third shell, he heard a knock on the bedroom door to which he responded that he "was coming." The police entered and arrested him. White denied pointing the weapon at Officer Archetko.
Before White was cross-examined, the government proffered evidence that White previously had engaged in several incidents of domestic violence in which he used or threatened to use firearms, including one occasion on which he brandished a gun and threatened to kill a girlfriend and a second in which he placed a gun to the head of a girlfriend's daughter and threatened to kill her. The government argued that such evidence was admissible pursuant to Federal Rule of Evidence 404(b) to show criminal motive and intent and, more specifically, to rebut the implication that White had possessed the shotgun innocently.The district court refused to allow admission of this evidence, ruling that White's reason for possessing the weapon was not relevant and opining, preliminarily, that the defense had not put on evidence sufficient to require an instruction as to a defense of necessity or fleeting possession.
On cross-examination, White acknowledged that he was at all times aware that the object that he had picked up was a shotgun. He also admitted that he had been convicted in state court in 1995 of possessing stolen property and in 2000 of third-degree rape, both of which crimes he knew to be felonies. He further indicated that when he initially picked up the shotgun in the living room he used a child's shirt to do so in order to avoid getting his fingerprints on the weapon since he did not know where it came from.
After the close of evidence, White requested that the jury be instructed on both the necessity and fleeting-possession defenses, based on the evidence that White had possessed the gun for only "three and a half minutes after the incident [with Mobley] was done." The district court denied the *fn1 request. It observed that this Court has recognized neither a necessity nor a fleeting-possession exception to felon-in-possession liability. The court concluded further that neither defense, even if it existed, was supported by the record, since White's possession was not fleeting and he was not shown to be in imminent danger after Mobley dropped the gun and left the house.
The district court charged the jury, specifically advising that the Government was required to prove three elements to establish that White had violated 18 U.S.C. § 922(g)(1) and affirming that each of these elements must be shown by "proof beyond a reasonable doubt." The court noted that *fn2 the defendant's motive or reason for possessing a firearm was not an element of the crime and that the Government need not prove or disprove "any particular reason or motivation" for possessing a weapon. An hour into deliberations, the jury sent a note asking, among other things, whether there are "any exceptions to the law of possession [such as] for self-defense purposes." With respect to this question, White asked the court to charge the jury "as a law professor would," describing ...