                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                              FILED
                            FOR THE NINTH CIRCUIT
                                                                               DEC 13 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        No.    15-10144

              Plaintiff-Appellee,                D.C. No.
                                                 4:14-cr-00294-JST-1
 v.

TOMMY LEONARD,                                   MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Northern District of California
                      Jon S. Tigar, District Judge, Presiding

                     Argued and Submitted November 17, 2016
                             San Francisco, California

Before: SCHROEDER, WARDLAW, and OWENS, Circuit Judges.

      Tommy Leonard appeals his sentence of incarceration following a guilty

plea to being a felon in possession of a firearm in violation of 18 U.S.C.

§ 922(g)(1). He challenges the calculation of his base offense level and the

sentencing enhancement based on the stolen AR-15 assault rifle that was found in



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
his girlfriend’s apartment. We have jurisdiction pursuant to 18 U.S.C. § 3742(a),

and we vacate the sentence and remand for resentencing.

      1.     The district court correctly applied a preponderance of the evidence

standard to the base level for an offense involving a semiautomatic firearm capable

of accepting a large capacity magazine pursuant to U.S.S.G. § 2K2.1. To

determine whether an enhancement had an “extremely disproportionate” effect on

the length of a sentence, we are guided by a six-factor test articulated in United

States v. Valensia, 222 F.3d 1173, 1182 (9th Cir. 2000). The district court did not

err when, properly considering the factors under the “totality of the

circumstances,” id., it found that the enhancement did not have an extremely

disproportionate effect.

      2.     However, the district court failed to apply the appropriate legal

standard in concluding that Leonard constructively possessed the stolen AR-15.

To demonstrate possession, the government must prove both access to and

knowledge of the item at issue. United States v. Kelso, 942 F.2d 680, 682 (9th Cir.

1991); see also United States v. Cazares, 121 F.3d 1241, 1245 (9th Cir. 1997) (“To

demonstrate constructive possession the government must prove a sufficient

connection between the defendant and the contraband to support the inference that

the defendant exercised dominion and control over the [contraband]”) (internal


                                           2
quotation marks omitted). Access alone cannot, without more, prove knowledge.

See, e.g., United States v. Highsmith, 268 F.3d 1141, 1142 (9th Cir. 2001) (holding

that a defendant’s access to a firearm found in a cohort’s bedroom did not establish

knowledge, and therefore did not prove possession); Cazares, 121 F.3d at 1245

(“‘Where, as here, a residence is jointly occupied, the mere fact that contraband is

discovered at the residence will not, without more, provide evidence sufficient to

support a conviction based on constructive possession against any of the

occupants.’”) (quoting United States v. Reese, 775 F.2d 1066, 1073 (9th Cir.

1985)).

       We recognize that neither party cited the Kelso line of authority to the

district court, however. We therefore remand for resentencing so that the district

court may apply the Kelso line of authority to the evidentiary record in this case in

the first instance.

       SENTENCE VACATED; REMANDED for resentencing.




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