UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 93-1479
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERICK EARL WRIGHT,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
(June 20, 1994)
Before JOHNSON, BARKSDALE, and DEMOSS, Circuit Judges.
DEMOSS, Circuit Judge:
Erick Earl Wright pled guilty to possession of a weapon. At
sentencing, the district court made several factual findings and,
based on those findings, made an upward departure from the
sentencing guidelines by sentencing Wright to 60 months in prison.
Because we find that one of the sentencing court's factual findings
was clear error, we vacate Wright's sentence and remand the case
for re-sentencing.
I.
In January 1993, Wright pled guilty to possession of a weapon
in violation of 18 U.S.C. § 922(g)(1). Wright's pre-sentence
investigation report (PSIR) concluded that Wright should be
assessed an offense level of 17 and a criminal history category of
III, which would result in a sentencing range of 30 to 37 months.
The PSIR also recommended that Wright's sentence should depart
upward from the applicable sentencing guideline range.
At sentencing in May 1993, two officers who had arrested
Wright on separate occasions testified. First, in March 1990,
Wright was arrested near a high school for possession of a handgun.
The arresting officer testified at sentencing that, on the day
prior to Wright's arrest, two individuals reportedly exchanged
gunfire near the same school. The officer obtained a description
of a vehicle involved in the shooting. The officer returned the
following day and found the vehicle, which was occupied by Wright
and a friend, in front of the school. The officer searched the
vehicle, found various weapons, and arrested Wright for unlawful
possession of a handgun.
Second, in November 1991, Wright was arrested for attempting
to elude a police officer by vehicle. At sentencing, the arresting
officer testified that he attempted to stop a vehicle for a faulty
inspection sticker and driving erratically. The officer stated
that he pursued Wright, who was driving, for six blocks with his
lights and siren engaged. The officer further testified that,
while in pursuit, he noticed Wright and his passenger making
furtive movements in the area of the glove box. Once Wright and
his passenger had been arrested, the officer searched the vehicle
and found that the glove box was locked. The key was found in the
2
back seat of the police cruiser where the passenger had been
sequestered by himself after his arrest. The officer eventually
found a handgun in the glove box and charged the passenger -- and
not Wright -- for possession of the weapon.
The district court then adopted the PSIR's findings. The
court also departed upward and imposed a 60-month sentence. In
making its upward departure, the court stated that it "had spent a
lot of time thinking about this" and "concluded that there is
reliable information that indicates that the Criminal History
Category in this case does not adequately reflect the seriousness
of the defendant's past criminal conduct and, more importantly,
does not adequately reflect the likelihood that the defendant will
commit other crimes."
The court based its upward departure on three separate
instances of prior similar conduct by Wright that were not
considered in calculating his criminal history category.
Specifically, the court first noted that, in July 1989, Wright was
arrested for delivery of a controlled substance and possession of
a weapon. The charge for possession of the weapon was dropped
after Wright was sentenced in state court for delivery of the
controlled substance. The court then pointed to the March 1990
incident where Wright was arrested for possession of a weapon near
a local high school. Finally, the court relied on the November
1991 incident where, even though Wright was charged only with
attempting to evade arrest, the court found that Wright
constructively possessed the weapon found in the glove box. The
3
court also noted that the November 1991 incident occurred when
Wright was a convicted felon.
The court then summarized: "Taking the overall picture into
account, the court has concluded that an upward departure should be
made and has concluded the upward departure should be for a total
of . . . 60 months." Given Wright's offense level was 17, the
court's upward departure of 23 months meant his criminal history
category jumped from Category III to Category VI. Wright's counsel
objected to the court's upward departure, whereupon the court
informed Wright that he could appeal his sentence. Wright now
appeals his sentence.
II.
Wright first argues the sentencing court's factual finding
that he constructively possessed the handgun in the November 1991
incident was clearly erroneous and, therefore, we should remand
this case for re-sentencing. At sentencing, the government's
burden of proof is not as heavy; it must prove its case by only a
preponderance of the evidence. United States v. Buckhalter, 986
F.2d 875, 879 (5th Cir. 1993). On appeal, we then review those
factual findings for clear error. Id. Thus, the issue here is
whether the sentencing court clearly erred when it concluded that
the government had demonstrated by a preponderance of the evidence
that Wright constructively possessed the handgun in the November
1991 incident.
The elements of § 922(g)(1) are that (1) the defendant had a
previous felony conviction, (2) that the defendant possessed a
4
firearm, and (3) the firearm had travelled in or affected
interstate commerce. United States v. Garrett, 903 F.2d 1105, 1110
(7th Cir. 1990). We have established that the second element,
i.e., possession of a firearm, may be actual or constructive, the
latter being defined as ownership, dominion, or control over the
contraband itself or dominion or control over the premises or
vehicle in which the contraband is concealed. United States v.
Smith, 930 F.2d 1081, 1085 (5th Cir. 1991); United States v. Ferg,
504 F.2d 914, 916-17 (5th Cir. 1974). The determination of whether
constructive possession exists is not a scientific inquiry.
Instead, we employ a common sense, fact-specific approach. United
States v. Mergerson, 4 F.3d 337, 349 (5th Cir. 1993).
The facts of this case compel us to conclude that the district
court clearly erred in concluding that Wright constructively
possessed the gun. The only evidence the government proffered to
support its theory was that Wright operated the vehicle, eluded the
police,1 and made furtive movements near the glove box. The
government failed to adduce any additional evidence linking Wright
to the gun, such as fingerprints or continual, long-term use of the
vehicle. More importantly, the facts establish, if anything, that
the passenger -- and not Wright -- exercised complete dominion and
control over the gun: (1) the key which unlocked the glove box was
found in the cruiser where the passenger had been detained, (2) the
1
Wright maintains that the rear view mirror of the passenger's
vehicle was missing, thereby precluding him from observing whether
he was being pursued. The arresting officer corroborated Wright's
claim that the mirror was missing.
5
passenger alone was charged with possession of the gun,2 and (3)
the passenger owned the car.
We recognize that in other cases we have indicated that mere
dominion over a vehicle in which a firearm is found can lead to an
inference of constructive possession. See e.g., United States v.
Prudhome, 13 F.3d 147, 149 (5th Cir. 1994); United States v.
Knezek, 964 F.2d 394, 400 (5th Cir. 1992). But in those cases, we
were not confronted with such overwhelming countervailing evidence.
In Prudhome, for example, the government demonstrated not only that
the defendant was driving the vehicle but also that the gun was
found directly beneath him and that three rounds of matching
ammunition were found in his waist pocket. Prudhome, 13 F.3d at
149. Likewise, in Knezek, the government demonstrated the
defendant not only was driving the vehicle but also admitted
ownership of the weapons. Thus, while dominion over the vehicle
certainly will help the government's case, it alone cannot
establish constructive possession of a weapon found in the vehicle,
particularly in the face of evidence that strongly suggests that
somebody else exercised dominion and control over the weapon.
We stress that our holding is conditioned upon this
countervailing evidence because a sentencing court's factual
findings typically are entitled to great deference. United States
2
We note with some interest that, while the arresting officer
believed he did not have probable cause to charge Wright with
possession, the sentencing court nonetheless found that Wright,
more likely than not, possessed the weapon. We further note that
the officer's acts and omissions were contemporaneous with the
arrest, whereas the sentencing court's inferences were drawn nearly
two years later.
6
v. Perez, 897 F.2d 751, 752-53 (5th Cir. 1990). The sentencing
court probably would not have erred in finding that Wright
constructively possessed the weapon if such countervailing evidence
did not exist. See e.g., United States v. Flenoid, 718 F.2d 867
(8th Cir. 1983) (weapon found beneath defendant's/driver's seat
after officer noticed defendant bend over); see also, United States
v. Garrett, 903 F.2d 1105 (7th Cir. 1990) (loaded weapon found on
the floor beneath the steering wheel); United States v. Whitfield,
629 F.2d 136 (D.C. Cir. 1980) (two loaded weapons found within
three inches of defendant, who owned vehicle). But see United
States v. Blue, 957 F.2d 106 (4th Cir. 1992) (weapon found beneath
defendant's/passenger's seat after officer noticed defendant bend
over).
The extent of this countervailing evidence in this case is too
large to ignore. Nearly fifty years ago, the Supreme Court defined
the clearly erroneous standard to mean: "A finding is 'clearly
erroneous' when although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed." United
States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)
(emphasis added). Given all the evidence here, we find such a
mistake has been made. The district court clearly erred in
concluding that the government demonstrated that Wright, more
likely than not, constructively possessed the weapon during the
November 1991 incident.
7
In stating its reasons for departing upward, the sentencing
court noted that, at the time of the November 1991 incident, Wright
was a convicted felon. The court's comment indicates to us that it
relied more on this incident than either the July 1989 or March
1990 incidents in deciding to depart upward. We have concluded,
however, that the court's finding that Wright constructively
possessed the gun in the November 1991 incident was erroneous.
Subtracting that incident from the quantum of facts the court used
in deciding to depart upward, we cannot conclude whether the
sentencing court still would have decided to depart upward and, if
so, by how much. In other words, we cannot conclude that the
court's error was harmless. We therefore must vacate Wright's
sentence at this point and remand the case for re-sentencing.
United States v. Wilder, 15 F.3d 1292, 1298 (5th Cir. 1994).
II.
Wright alternatively claimed that the sentencing court failed
to adequately explain its reasons for departing upward. Because
Wright's requested relief (i.e., that we vacate his sentence and
remand the case for re-sentencing) has been granted, this issue is
moot. We would note, however, that Wright's claim is a valid one
given our recent opinion in United States v. Lambert, 984 F.2d 658
(5th Cir. 1993) (en banc). Specifically, the court increased
Wright's criminal history category from Category III to Category
VI, which translates into a 23-month upward departure. In so
doing, the court, contrary to Lambert, failed to explain why it
rejected any intermediate categories. At re-sentencing, the court
8
must comply with the directions we issued in Lambert and, more
recently, in United States v. Ashburn, ___ F.3d ___ (5th Cir.
1994).
III.
We find that the sentencing court clearly erred in concluding
that Wright constructively possessed the weapon during the November
1991 incident. Because this erroneous finding was a major reason
in the court's decision to depart upward, we VACATE Wright's
sentence and REMAND the case for re-sentencing.
wjl\opin\93-1479.opn
jwl 9