United States v. White

Case: 19-11010 Document: 00515730428 Page: 1 Date Filed: 02/02/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 2, 2021
No. 19-11010 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Lee White,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:17-CR-638-1
Before King, Elrod, and Willett, Circuit Judges.
Per Curiam:*
On April 9, 2019, pro se defendant-appellant Lee Dale White pled
guilty to possession with intent to distribute a controlled substance in
violation of 21 U.S.C. § 841(b)(1)(C) and possession of a firearm by a felon
in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). White was subsequently
sentenced to 94 months’ imprisonment and three years of supervised release.
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 19-11010 Document: 00515730428 Page: 2 Date Filed: 02/02/2021
No. 19-11010
He now appeals the sentence, arguing that the district court erred in its
application of the Sentencing Guidelines and imposed a substantively
unreasonable sentence. He also challenges his conviction under 18 U.S.C.
§ 922(g)(1), citing the Supreme Court decision in Rehaif v. United States, 139
S. Ct. 2191 (2019).
For the reasons stated below, we AFFIRM White’s conviction under
18 U.S.C. § 922(g)(1), VACATE his sentence, and REMAND to the
district court for resentencing in accordance with this opinion.
I.
On August 23, 2017, an undercover agent of the Bureau of Alcohol,
Tobacco, Firearms and Explosives (“ATF”) purchased marijuana and crack
cocaine from pro se defendant-appellant Lee Dale White. After the purchase,
a surveillance team followed White to 2701 Burger Avenue Dallas, Texas,
where he was observed unlocking the door and entering the residence.
Another purchase of crack cocaine was arranged by an undercover agent on
October 11, 2017, and a surveillance team observed White stop at 2701 Burger
Avenue prior to meeting the agent. White was observed returning to the
Burger Avenue address after the purchase.
On November 28, 2017, a “trash pull”1 was conducted at 2701 Burger
Avenue, yielding a shoe box with marijuana, a letter addressed to White, drug
packaging materials, drum magazine instructions, .223-caliber ammunition
boxes, and measuring cups with cocaine residue. On November 30, 2017,
Dallas Police Department officers executed a search warrant at the address,
where officers encountered White and two other individuals inside the
residence. A search of the living room yielded cocaine, marijuana, and
1
“A ‘trash pull’ is the term for searching the trash after a suspect has been
observed discarding trash.” United States v. Haines, 803 F.3d 713, 723 n.1 (5th Cir. 2015).
2
Case: 19-11010 Document: 00515730428 Page: 3 Date Filed: 02/02/2021
No. 19-11010
assorted pills. They also found a rifle magazine and a Glock magazine.
The officers’ search of the bedroom yielded, inter alia, $3,466 in U.S.
currency, 166.4 grams of cocaine, 705 grams of marijuana, and clothing with
a dry-cleaning tag in White’s name. A search of the property’s garage yielded
$241 in U.S. currency, 2.6 grams of cocaine, a drum magazine box with 59.3
grams of marijuana, and a .40 caliber handgun.
Two vehicles found on the property were also searched: a 2007 Chevy
Tahoe and a 2001 Mercedes-Benz. After searching both vehicles, officers
found a second .40-caliber pistol with live rounds, a box of Promethazine, 88
grams of marijuana, 134.9 grams of cocaine, 46.8 grams of vapor liquids, a
scale, drug packaging materials, a .223-caliber rifle,2 another .40-caliber
handgun, and miscellaneous documents containing White’s name.
The presentence report (“PSR”)—on which the district court relied
at sentencing and to which the Government cites on appeal—does not
specify what items were found in each vehicle. Indeed, it fails to even identify
the vehicles. However, both White and the Government agree that the .40-
caliber Glock pistol and a particular document—the title to the Mercedes—
were found in the Tahoe. White further concedes that the Tahoe belonged to
him but states that the title to the Mercedes was not in his name. The parties
agree that the drugs retrieved from the vehicles and the rest of the firearms—
including the other .40-caliber handgun and the .223-caliber rifle—were
located in the Mercedes. But White contends that the Mercedes belonged to
another individual in the house.
White was arrested on December 4, 2018, and subsequently pled
guilty to two counts: possession with intent to distribute a controlled
2
This is a semiautomatic firearm that had an extended magazine attached, which
meant it was capable of accepting more than fifteen rounds of ammunition.
3
Case: 19-11010 Document: 00515730428 Page: 4 Date Filed: 02/02/2021
No. 19-11010
substance and possession of a firearm by a felon. In support of the second
count, White stipulated that he was previously convicted of a crime
punishable by imprisonment for a term exceeding a year and knowingly and
unlawfully possessed a .40-caliber Glock pistol after having been convicted
of the felony.
On June 12, 2019, the PSR was issued in White’s case, setting his base
offense level at 22 pursuant to the United Sates Sentencing Guidelines
(“U.S.S.G.”) § 2K2.1(a)(3) because White’s offense involved both a
semiautomatic firearm capable of accepting a large-capacity magazine and
White had a prior conviction for a controlled substance offense. The PSR also
recommended a two-level enhancement under § 2K2.1(b)(1)(A) because the
offense involved at least three firearms. It further added four levels under
§ 2K2.1(b)(6)(B) because White possessed a firearm in connection with
another felony offense—in this case, drug trafficking. The PSR ultimately
calculated a total offense level of 25 after subtracting three levels for
acceptance of responsibility. With White’s criminal history category of IV,
his advisory Guidelines range was 84 to 105 months.
White filed objections to the PSR and argued that the money, drugs,
and firearms found in the garage and the Mercedes belong to another man,
B.B., whom police encountered in the garage while executing the search
warrant. White argued that the firearms and drugs found in the garage and
Mercedes could not be factored into the offense level calculation as they were
not in his actual or constructive possession. Though White conceded that the
Chevy Tahoe belonged to him, he asserted that the title to the Mercedes was
present in that vehicle because he was passing it from his girlfriend to B.B.
after B.B. had purchased the vehicle from her. The probation officer
responded in an addendum, stating that no changes to the PSR would be
made.
4
Case: 19-11010 Document: 00515730428 Page: 5 Date Filed: 02/02/2021
No. 19-11010
At a subsequent sentencing hearing, defense counsel for White
notified the court that White’s girlfriend was present and available to testify
that she sold the Mercedes to B.B. and had given White the title to pass along
to B.B. He further asserted that B.B. had informed officers that the gun found
in the garage would have his fingerprints on it. The district court ultimately
overruled White’s objections “for the reasons stated in the addendum to the
PSR as well as the arguments presented by the Government.” The court then
sentenced White to 94 months’ imprisonment—in the middle of the
Guidelines range. This appeal followed.
II.
On appeal, White challenges those aspects of his sentence calculation
that relied on or took into account the firearms found in the Mercedes,
including the base level of 22 for an offense involving a semiautomatic firearm
capable of accepting a large capacity magazine, the two-level enhancement
for an offense involving three to seven firearms, and the four-level
enhancement for possession of a firearm in connection with another felony
offense. He also contests the attribution of drugs found in the Mercedes and
garage to him and argues that the district court imposed a substantively
unreasonable sentence. Finally, he challenges his conviction for being a felon
in possession of a firearm pursuant to the Supreme Court’s Rehaif decision.
We consider each argument in turn.
A. Base Offense Level Under U.S.S.G. § 2K2.1(a)(3)
White contends that the district court erred in applying U.S.S.G.
§ 2K2.1(a)(3) to determine a base offense level of 22 based on the court’s
erroneous finding that the offense involved a semiautomatic firearm capable
of accepting a large capacity magazine. We review the district court’s
application of the Sentencing Guidelines de novo and its factual findings for
clear error. See United States v. Cortez-Gonzalez, 929 F.3d 200, 203 (5th Cir.
5
Case: 19-11010 Document: 00515730428 Page: 6 Date Filed: 02/02/2021
No. 19-11010
2019). In particular, “[t]he determination of relevant conduct is a factual
finding reviewed for clear error.” United States v. Hagman, 740 F.3d 1044,
1048 (5th Cir. 2014). “Under the clearly erroneous standard, we will uphold
a finding so long as it is plausible in light of the record as a whole.” Id.(quoting United States v. Ekanem, 555 F.3d 172, 175 (5th Cir. 2009)). “[A]
finding will be deemed clearly erroneous if, based on the record as a whole,
we are left with the definite and firm conviction that a mistake has been
committed.” Id. “The government must prove sentencing enhancements by
a preponderance of the evidence.” United States v. Juarez, 626 F.3d 246, 251
(5th Cir. 2010). In addition, “[a] district court may draw reasonable
inferences from the facts when determining whether an enhancement
applies.” Id.Section 2K2.1(a)(3) provides for a base offense level of 22 if:
(A) the offense involved a (i) semiautomatic
firearm that is capable of accepting a large
capacity magazine; or (ii) firearm that is
described in 26 U.S.C. § 5845(a); and (B) the
defendant committed any part of the instant
offense subsequent to sustaining one felony
conviction of either a crime of violence or a
controlled substance offense . . .
U.S. Sent’g Guidelines Manual § 2K2.1(a)(3). In White’s case, the PSR
applied § 2K2.1(a)(3) because “the offense involved a . . . semiautomatic
firearm that is capable of accepting a large capacity magazine.” Specifically,
the .223-caliber rifle recovered during the execution of the search warrant
was a semiautomatic firearm with an extended magazine attached that was
capable of accepting more than 15 rounds of ammunition. The parties agree
that this firearm was found in the Mercedes. Because White argues that the
Mercedes belonged to B.B., he contends that he did not have possession of
the .223-caliber rifle.
6
Case: 19-11010 Document: 00515730428 Page: 7 Date Filed: 02/02/2021
No. 19-11010
The Government responds that, though it had not sought to prove
that White exercised actual possession of the gun in the form of direct
physical control, the “circumstances enabled the district court to find by a
preponderance of the evidence that White constructively possessed” the
guns in the Mercedes. The Government cites three facts in support of
White’s constructive possession: (1) the title to the Mercedes was found in
White’s Tahoe; (2) the keys to the Mercedes were found in the same room
as White; and (3) “the distribution quantities and varieties of drugs and
accoutrements of trafficking found in the Mercedes . . . matched the varieties
of drugs and trafficking implements found in White’s control in the house.”
“Constructive possession of a firearm can be proven by showing that
the defendant had ownership, dominion, or control over the firearm or the
premises in which it was concealed or recovered.” Hagman, 740 F.3d at 1049.
“Constructive possession need not be exclusive, it may be joint with others,
and it may be proven with circumstantial evidence.” United States v.
McKnight, 953 F.2d 898, 901 (5th Cir. 1992). We have previously explained
that “constructive possession is the ability to reduce an object to actual
possession.” United States v. Posner, 868 F.2d 720, 723 (5th Cir. 1989)
(quoting United States v. Martinez, 588 F.2d 495, 498 (5th Cir. 1979)).
Typically, “the issue of constructive possession is raised . . . where a
defendant is found to be in the vicinity of a firearm but not in actual
possession of it; a firearm is found in his residence . . . or . . . in some other
place over which the defendant has dominion or control.” Hagman, 740 F.3d
at 1049–50.
The Government cites no case in which we have found constructive
possession of a firearm based on a such a paucity of evidence linking the
defendant to the premises or vehicle in which the firearm was found. To be
sure, the Government’s evidence falls short of establishing White’s
ownership of the Mercedes—even by a preponderance of the evidence.
7
Case: 19-11010 Document: 00515730428 Page: 8 Date Filed: 02/02/2021
No. 19-11010
Indeed, there is no evidence clarifying in whose name the title to the
Mercedes is made. Cf. Am. Econ. Ins. Co. v. Tomlinson, 12 F.3d 505, 508 n.2
(5th Cir. 1994) (explaining that, under Texas law, “[a] certificate of title is
not conclusive proof of ownership” but “merely creates a presumption of
ownership in the name of the person shown on the certificate”). On appeal,
the Government cites to White’s objections to the PSR for support of the fact
that the title was found in the Tahoe. However, in the very objections on
which the Government relies, White asserts that the title was not in his name.
The Government offers no evidence to the contrary.
The question is therefore whether White’s dominion or control over
the vehicle has been established. There is no evidence that White ever drove
the Mercedes. See, e.g., United States v. Prudhome, 13 F.3d 147, 149 (5th Cir.
1994) (finding sufficient evidence of constructive possession where
defendant was driving vehicle, “the gun was located directly under his seat,
and he had three rounds of matching ammunition in his waist pouch”). Nor
is there evidence that the vehicle was kept at his house beyond the day of the
search. See, e.g., United States v. Orozco, 715 F.2d 158, 161 (5th Cir. 1983)
(constructive possession of firearm located in vehicle where defendant-
passenger did not own vehicle but it “was being kept at his house”). Further,
the mere presence of the vehicle’s keys in the same room as the defendant is
not sufficient to establish White’s control of the vehicle. The record does not
support that White had actual possession of the keys, which would support
his control over the vehicle.3 See, e.g., United States v. Caballero, 712 F.2d 126,
129–30 (5th Cir. 1983). Moreover, in cases where mere proximity to a
3
Despite the Government’s attempt to characterize the evidence in the PSR and
its addendum as supporting that White “possessed” the keys to the Mercedes, the
addendum merely states that “agents encountered the defendant in the living room . . . ,
where the keys to the Mercedes-Benz were located.”
8
Case: 19-11010 Document: 00515730428 Page: 9 Date Filed: 02/02/2021
No. 19-11010
vehicle’s keys has been sufficient to demonstrate control of the vehicle, we
have emphasized additional facts such as the defendant’s consent to a search
of the vehicle and familiarity with “the key’s idiosyncratic functionality.”
United States v. Fields, 977 F.3d 358, 366 (5th Cir. 2020). In those cases the
mere presence of the defendant in the same room as the keys was not alone
enough to find constructive possession.
Based on the foregoing, we find that the Government has not shown
that White was in constructive possession of the requisite semiautomatic
weapon. Recognizing that the Government need only prove sentencing
enhancements by a preponderance of the evidence, we nonetheless conclude
that the finding is simply not plausible in light of the record as a whole and is
thus clearly erroneous. Hagman, 740 F.3d at 1049–50. Consequently, there
is no evidence supporting the base offense level of 22 under U.S.S.G.
§ 2K2.1(a)(3) absent other evidence that White’s offense involved a
semiautomatic firearm capable of accepting a large-capacity magazine.
B. Enhancement Under U.S.S.G. § 2K2.1(b)(1)
White argues that the district court erred in imposing a two-level
enhancement under U.S.S.G. § 2K2.1(b)(1) for an offense involving three to
seven firearms. As above, we review for clear error. Hagman, 740 F.3d at
1048. Once again, the Government must prove this sentencing enhancement
by a preponderance of the evidence. Id.
Section 2K2.1(b)(1) provides for a two-level enhancement when an
offense involves three to seven firearms. U.S. Sent’g Guidelines Manual
§ 2K2.1(b)(1). The district court is instructed to “count only those firearms
that were unlawfully sought to be obtained, unlawfully possessed, or
unlawfully distributed.” U.S. Sent’g Guidelines Manual § 2K2.1, cmt. (n.5).
In order to reach the minimum number of guns required to apply the
enhancement in this case, the Government must count the firearms found in
9
Case: 19-11010 Document: 00515730428 Page: 10 Date Filed: 02/02/2021
No. 19-11010
the Mercedes. Accordingly, for the reasons stated in the preceding section,
we find clear error in the application of § 2K2.1(b)(1) insofar as the district
court erroneously found that White had constructive possession of the
firearms in the Mercedes.
C. Enhancement Under U.S.S.G. § 2K2.1(b)(6)(B)
White challenges a four-level enhancement he received pursuant to
U.S.S.G. § 2K2.1(b)(6)(B) for possession of a firearm in connection with
another felony offense. White argues there is an insufficient factual basis
supporting this enhancement and that the record demonstrates only that he
possessed a gun while simultaneously engaging in a drug trafficking offense
without a sufficient nexus between the gun and the trafficking. White
concedes that he failed to raise this argument below and that, as a result, we
must review for plain error. Under this standard of review, the defendant
must show (1) an error (2) that is clear or obvious and (3) that affected his
substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If those
three prongs are satisfied, we have the discretion to correct the error but will
do so only if it seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Id.Section 2K2.1(b)(6)(B) provides for a four-level enhancement where
the defendant “used or possessed any firearm or ammunition in connection
with another felony offense.” U.S. Sent’g Guidelines Manual
§ 2K2.1(b)(6)(B). The enhancement will be applied if the firearm
“facilitated, or had the potential of facilitating, another felony offense.” Id.
§ 2K2.1, cmt. (n.14(A)). When the other felony offense is a drug trafficking
offense, the enhancement automatically applies if the “firearm is found in
close proximity to drugs, drug-manufacturing materials, or drug
paraphernalia.” United States v. Jeffries, 587 F.3d 690, 693 (5th Cir. 2009)
(quoting U.S. Sent’g Guidelines Manual § 2K2.1 cmt. (n. 14(B)(ii))).
10
Case: 19-11010 Document: 00515730428 Page: 11 Date Filed: 02/02/2021
No. 19-11010
On appeal, the Government argues that, even setting aside the
firearms found in the Mercedes in close proximity to drugs, the enhancement
is supported by White’s possession of a pistol in his Tahoe, his movement
“between his home and drug-transaction locations,” and drug dealers’
frequent use of firearms in their trafficking activities. The Government
emphasizes that White cannot show clear or obvious error under the plain
error standard.
White emphasizes that there were no drugs found in the Tahoe along
with the firearm he admittedly possessed. However, proximity to drugs is
“sufficient but not necessary” to applying this enhancement in drug
trafficking cases. United States v. Caldwell, 770 F. App’x 175, 177 (5th Cir.
2019). Indeed, as detailed above, the enhancement may still apply if the
firearm “had the potential of facilitating . . . another felony offense.” U.S.
Sent’g Guidelines Manual § 2K2.1, cmt. (n.14(A)). In this case, where the
firearm was found in White’s vehicle and the PSR clearly states that White
traveled to both of the arranged drug sales, White has identified no clear or
obvious error in a finding that the firearm had the potential of facilitating his
drug trafficking. Accordingly, we affirm application of a four-level
enhancement under U.S.S.G. § 2K2.1(b)(6)(B).
D. Calculation of Drug Weight
White also raises a challenge to the PSR’s inclusion of drugs found in
the Mercedes and garage in the 61.63 kilograms of converted drug weight
attributed to him. Based on this claimed error, he argues that his correct base
offense level was 16. However, as White admitted in his objections to the
PSR, even if his offense level is not calculated pursuant to U.S.S.G.
§ 2K2.1(a)(3) based on the possession of the semiautomatic firearm in the
Mercedes, it would not be based on the amount of drugs attributable to
White. Rather, his base offense level would be 20 pursuant to § 2K2.1(a)(4)
11
Case: 19-11010 Document: 00515730428 Page: 12 Date Filed: 02/02/2021
No. 19-11010
because he committed the offenses subsequent to sustaining a felony
conviction of a controlled substance offense. Accordingly, because White’s
argument on this issue, even if successful, would not affect the calculation of
the Sentencing Guidelines range, we do not consider it. See United States v.
Roberts, 594 F. App’x 249, 250 (5th Cir. 2015).
E. Substantive Reasonableness of the Sentence
White argues that the district court imposed a substantively
unreasonable sentence by “varying upward from the advisory guidelines
range.” White appears to rely on his own calculations of his base offense level
and corresponding Guidelines range in advancing this argument. However,
we proceed to review a sentence for substantive reasonableness “[i]f the
sentence is determined to be ‘procedurally sound.’” United States v.
Delgado-Martinez, 564 F.3d 750, 752 (5th Cir. 2009). Indeed, a significant
procedural error in the calculation of the Guidelines range that warrants
reversal—such as those discussed above—will “prevent our review of the
sentence for substantive reasonableness.” Id.; see, e.g., United States v.
Teuschler, 689 F.3d 397, 400 (5th Cir. 2012) (declining to consider
substantive reasonableness of sentence because we remanded for
resentencing and “the new sentence may differ”). Accordingly, because we
have already identified errors in the calculation of White’s Guidelines range
that warrant reversal, we will not consider the substantive reasonableness of
White’s sentence.
F. Felon in Possession Conviction
White challenges his conviction under 18 U.S.C. § 922(g)(1) for being
a convicted felon in possession of a firearm because the Government did not
show that he knew his prohibited status. In Rehaif v. United States, the
Supreme Court held that the Government must establish knowledge not only
of possession but also of prohibited status in order to support a conviction
12
Case: 19-11010 Document: 00515730428 Page: 13 Date Filed: 02/02/2021
No. 19-11010
under § 922(g). 139 S. Ct. at 2194. White accepts that, because this argument
was not raised below, we review for plain error. United States v. Lavalais, 960
F.3d 180, 184 (5th Cir. 2020). As discussed above, the defendant must show
(1) an error (2) that is clear or obvious and (3) that affected his substantial
rights. Puckett, 556 U.S. at 135. In similar Rehaif-based challenges, we have
held that, under the third prong of plain error review, a defendant must show
that “there is a reasonable probability that he would not have pled guilty had
he known of Rehaif.” Lavalais, 960 F.3d at 187 (cleaned up).
With regard to the first and second prongs of plain error review, we
have previously held that, where a district court did not consider whether the
factual basis provided sufficient evidence that the defendant knew that he had
been convicted of a crime punishable by imprisonment for a term exceeding
one year, the error is clear and obvious. See United States v. Brandon, 965 F.3d
427, 431 (5th Cir. 2020). Though Rehaif had not been decided at the time of
White’s guilty plea, we nonetheless assess the district court’s error at “the
time of appellate consideration.” Id. Accordingly, we find that the district
court’s error was clear and obvious under current law. See id. at 432.
However, moving to the third prong of plain error review, we find that
White is not entitled to relief because he has not shown that the district
court’s error affected his substantial rights. Specifically, he cannot show that
“there is a reasonable probability that he would not have pled guilty had he
known of Rehaif.” Lavalais, 960 F.3d at 187. Indeed, in evaluating this prong,
we have previously considered evidence that was “overwhelming” that a
defendant “knew he was a felon when he possessed the firearm[] at issue.”
Id.; see also Brandon, 965 F.3d at 433. For example, in Lavalais, we
emphasized that a defendant had admitted to being a felon convicted of a
crime punishable by more than one year in his factual basis and had in fact
been sentenced to a two-year sentence. 960 F.3d at 187; see also United States
v. Montgomery, 974 F.3d 587, 591 (5th Cir. 2020) (relying on the fact that
13
Case: 19-11010 Document: 00515730428 Page: 14 Date Filed: 02/02/2021
No. 19-11010
defendant “had spent several years in prison only a couple years before the
crimes in question”). Similarly, in his stipulated factual basis, White
admitted to having been previously convicted of a crime punishable for a term
exceeding one year and the PSR reflects that he was in fact sentenced to 120
months’ imprisonment in 2010. Because the record establishes that White
had knowledge of his status as a convicted felon when he possessed the
firearm, there is no reasonable probability that he would have refused to enter
the plea absent the district court’s error. See Brandon, 965 F.3d at 433.
Accordingly, the district court’s acceptance of the factual basis for White’s
guilty plea was not in plain error.
III.
For the foregoing reasons, we AFFIRM White’s conviction under 18
U.S.C. § 922(g)(1), VACATE his sentence, and REMAND to the district
court for resentencing in accordance with this opinion.
14