                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                           March 2, 2018
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 17-1024
                                                  (D.C. No. 1:16-CR-00197-RBJ-1)
JAMES ALBERT FERRELL,                                        (D. Colo.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, EBEL, and PHILLIPS, Circuit Judges.
                   _________________________________

      Defendant-Appellant James Albert Ferrell appeals the district court’s

application of a four-level sentencing enhancement for possessing a firearm in

connection with another felony offense under U.S.S.G. § 2K2.1(b)(6)(B). We

exercise jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. We

REVERSE and REMAND for resentencing.




      *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                            I

A. Stipulated Facts in the Parties’ Plea Agreement

      On October 21, 2016, Ferrell pled guilty to violating 18 U.S.C. § 922(g)(1) for

possessing a firearm as a previously convicted felon. See ROA, Vol. I, at 7–12. In

the plea agreement, the parties stipulated to the following facts.

             On May 10, 2016[,] CDOC Parole Officers (POs) were on
             surveillance outside of a home in Colorado Springs associated
             with James Albert Ferrell. The officers were attempting to serve
             a warrant on Mr. Ferrell for absconding from parole. The PO’s
             [sic] observed Mr. Ferrell leave the house and approach a vehicle
             parked outside of the house. One of the PO’s [sic] approached
             Mr. Ferrell who ran into a garage. That officer told him to come
             out and when he peered into the garage, he observed Mr. Ferrell
             with a holster with a firearm in it on his right hip. After the PO
             arrested him, Mr. Ferrell called out to the man in the vehicle: ‘ya
             man, I got popped with a pistol.’ The pistol was a Taurus 9mm
             semi-automatic handgun and was manufactured out of Colorado
             (in Brazil and imported through Miami, Florida) and is fully
             functional.

             Mr. Ferrell was searched and found with 10 live rounds of 9mm
             ammo in his pants pocket. Mr. Ferrell has been convicted of at
             least four felonies, none violent or serious drug crimes, and all
             out of El Paso County[,] Colorado.

ROA, Vol. I, at 10–11.

B. Facts in the Presentence Investigation Report

      The probation office incorporated the parties’ stipulated facts in the plea

agreement into the presentence investigation report. See ROA, Vol. II, at 6–7. The

presentence investigation report also included the subsequent two paragraphs—

paragraphs ten and eleven—of factual information.



                                            2
            According to discovery, the involved parole officers were
            conducting surveillance on a location where they had learned the
            defendant may be located. At the time, he was on absconder
            status from state parole. After approximately two hours at this
            location, parole agents observed the defendant exit the garage,
            meet with an individual identified as Cleveland Vance in the
            alley, and then go back into the garage. As agents approached
            the garage, one of them observed the defendant through a
            window. The parole agent entered the garage and gave the
            defendant loud verbal commands to ‘come out with his hands up.’
            Initially the defendant did not comply with the agent’s directives,
            but the agent persisted and continued toward the defendant. The
            agent then observed that the defendant had a firearm on his right
            hip in a holster. After the defendant complied with directives and
            was placed into custody, the agents conducted a general search.
            By the window where agents first saw the defendant, agents
            recovered a clear plastic baggy containing a white powdery
            substance of suspected methamphetamine. The substance field
            tested positive for methamphetamine with a field weight of 13.2
            grams. A green leafy substance of suspected marijuana was also
            located and field tested with a weight of 5.7 grams. Also located
            were a gray scale and a black scale commonly used to weigh
            illegal narcotics, and a glass pipe commonly used for
            consumption of illegal narcotics. In plain view on a table, agents
            found $76.35 in cash and a pair of brass knuckles.

            The firearm was loaded with 10 live rounds of 9mm ammunition
            in a magazine contained within the firearm. Two additional live
            rounds of 9mm ammunition were located in the defendant’s left
            front pants pocket. As a result of this arrest, the defendant was
            charged in the El Paso County District Court, in Colorado
            Springs, Colorado, with Possession with Intent to Distribute a
            Controlled Substance M/H/K/C 7-112 grams (felony), Controlled
            Substance-Special Offender-Deadly Weapon (felony), Weapon
            Possession/Previous Offender-Any Prior Felony (felony) and
            Possession of Drug Paraphernalia (drug petty offense), Case No.
            2016CR2399. This case was dismissed[,] however[,] on June 17,
            2016.

Id. at 7.




                                         3
C. The District Court’s Factual Findings at Ferrell’s Sentencing Hearing

      The district court found the following facts at the sentencing hearing.

            Mr. Ferrell was on absconder status. The parole officers set up
            their surveillance outside the place where they expected to find
            him and did find him. And they saw him leave a garage, meet
            with someone in an alley, and then reenter the garage.
            Importantly, they were able to see Mr. Ferrell in a particular
            location within the garage by looking through a window.

            They entered the garage and told Mr. Ferrell to come out with his
            hands raised. Mr. Ferrell initially did not comply, but as the
            officers moved towards him, they saw the gun on his hip which
            changed the dynamics, obviously. They were able to place him
            in custody.

            They then found in the area of the garage where they had seen
            Mr. Ferrell a bag containing 13.2 grams of methamphetamine and
            5.7 grams of marijuana, plus two scales commonly used to weigh
            narcotics and a glass pipe commonly used for consumption of
            illegal narcotics. The quantity of meth, although not huge, when
            in conjunction with the scales, is indicative of drug distribution.

            All right. How do you put all that together[?]

            If Mr. Ferrell possessed the meth and the scales, then he
            possessed a firearm and the ammunition with the knowledge that
            it had the potential of facilitating another felony offense, i.e.,
            drug possession and/or distribution. And the drugs were in close
            proximity to Mr. Ferrell, the firearm, and the ammunition. It’s
            not unusual to find that drug dealers frequently possess weapons
            for protection and other purposes. Mr. Ferrell himself had a prior
            felony conviction for possession for methamphetamine, and he
            was released form a concurrent sentence that included a meth
            felony approximately one month before committing the firearm
            charge.

            He was charged in this case, in the state court he was charged
            with possession with the intent to distribute as well as possession
            of a deadly weapon and a weapon by a previous offender in [the]
            El Paso case, case 16-cr-2399. So in this very fact scenario, he
            was charged both with the drugs and with the possession by a

                                          4
             prohibited person under state law. But those charges were
             dismissed. Presumably because of the federal charge that brings
             us here today.

             I look at the totality of those circumstances. And I conclude that
             I can reasonably infer and do reasonably infer that Mr. Ferrell
             possessed the drugs and the drug paraphernalia. Could I say that
             beyond a reasonable doubt? No. Mr. O’Hara has offered a
             possible explanation; namely, that the person who lived at the
             residence where the garage was had some type of history himself
             and maybe those were his; but on a preponderance of the
             evidence basis I infer and find that it is probable that these were
             possessed by the defendant and not a mere coincidence that he
             happened to be in the part of the garage where he was arrested
             where all these same items were found.

             Therefore, I conclude that the enhancement under 2K2.1(b)(6)(B)
             applies; and from that I conclude that the offense level in fact is
             15, as calculated by the probation office.

ROA, Vol. III, at 39–41.

D. Procedural Background and the Sentencing Dispute

      The plea agreement did not indicate Ferrell would be subject to a sentencing

enhancement under U.S.S.G. § 2K2.1(b)(6)(B). In the plea agreement, the parties

determined Ferrell’s total offense level was 12. ROA, Vol. I, at 11. Ferrell’s offense

level of 12 consisted of a base offense level of 14 under U.S.S.G. § 2K2.1(a)(6) and a

two-level reduction for acceptance of responsibility under U.S.S.G. §§ 3C1.1 or

3E1.1. Id. Ferrell and the government determined that “no specific offense

characteristics” were applicable. Id. The parties estimated Ferrell’s criminal history

category “may be as high as V” and agreed on a sentencing guideline range of 27–33

months in prison. Id. at 11–12. In exchange for Ferrell’s guilty plea, the government

would recommend a within-guideline sentence. Id. at 8.

                                          5
      The probation office calculated the same base offense level of 14. ROA, Vol.

II, at 33. The probation office then recommended a three-level decrease for

acceptance of responsibility. Id. at 34. However, the probation office believed

Ferrell was subject to a four-level sentencing enhancement under U.S.S.G.

§ 2K2.1(b)(6)(B).1 Id. at 33. The probation office determined Ferrell had 21

criminal history points, placing him in criminal history category VI, rather than V.

Id. at 41. The presentence investigation report’s guideline sentencing range was 41–

51 months in prison. Id. at 46. The probation office recommended 51 months in

prison. Id. at 50.

      Ferrell objected to the U.S.S.G. § 2K2.1(b)(6)(B) four-level sentencing

enhancement both in writing, in response to the presentence investigation report, and

orally, at sentencing. ROA, Vol. I, at 21–27; ROA Vol. III, at 18–19, 24–25. In his

objections to the presentence investigation report, Ferrell argued the government did

      1
         Section 2K2.1(b)(6)(B) of the sentencing guidelines provides for a four-level
sentencing enhancement “[i]f the defendant . . . used or possessed any firearm or
ammunition in connection with another felony offense; or possessed or transferred
any firearm or ammunition with knowledge, intent, or reason to believe that it would
be used or possessed in connection with another felony offense.” Part B of
Application Note 14 explains that the four-level enhancement applies “in the case of
a drug trafficking offense” (including possession of a controlled substance with intent
to distribute) “in which a firearm is found in close proximity to drugs, drug-
manufacturing materials, or drug paraphernalia.” Id. cmt. n.14(B); U.S.S.G. § 2L1.2
cmt. n.2. When there is no drug trafficking offense, for “another felony offense”—or
“any federal, state, or local offense, other than the explosives or firearms possession
or trafficking offense, punishable by imprisonment for a term exceeding one year,
regardless of whether a criminal charge was brought, or a conviction obtained,”
(including possession of a controlled substance), U.S.S.G. § 2K2.1 cmt. n.14(C)—the
four-level enhancement applies “if the firearm or ammunition facilitated, or had the
potential of facilitating, another felony offense or another offense.” U.S.S.G.
§ 2K2.1 cmt. 14(A).
                                           6
not prove that he possessed drugs, nor did the record support a finding of possession.

ROA, Vol. I, at 21–23. Ferrell also argued that there was insufficient evidence of a

drug trafficking offense, or of a connection between the drugs and the firearm on his

person. Id. at 24–27. At sentencing, Ferrell maintained that the government’s and

the probation department’s evidence was insufficient to support the enhancement, as

it showed only “that Mr. Ferrell was located in a garage where there happened to be

drugs found.” ROA, Vol. III, at 19; see also id. at 24–25 (“It just doesn’t appear that

the mere presence inside of a location [where there are drugs] is going to be

sufficient for that connection to apply.”). The government supported the imposition

of the four-level enhancement, but the government did not change its sentencing

recommendation of 27–33 months in prison because it felt “constrained by the Plea

Agreement.” ROA, Vol. I, at 35.

       The district court applied the four-level enhancement, ROA, Vol. III, at 41,

imposed a 41-month prison sentence and a three-year period of supervised release,

ROA, Vol. I, at 71–72, and entered final judgment on January 20, 2017. Id. at 70.

       Ferrell filed a timely notice of appeal on January 24, 2017. Id. at 77–78. On

November 21, 2017, we retained jurisdiction, abated this appeal, and remanded this

case to the district court to: (i) clarify a fact in the record, (ii) resolve two factual

discrepancies, and (iii) determine anew whether the factual record supports a finding

of possession of a controlled substance by Ferrell and whether the four-level

sentencing enhancement applies. The district court has now issued its order in

response to our remand, and the parties have filed supplemental briefing.

                                              7
                                            II

      The sole issue raised by Ferrell is whether the district court erred in applying

the four-level sentencing enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for

possessing a firearm in connection with another felony offense.2

      In our November 21 order, we noted it is unclear from the record when a

parole officer observed Ferrell through a window in the part of the garage where

drugs and drug paraphernalia were later recovered. We also highlighted two material

factual discrepancies between the district court’s findings of fact at sentencing—

which closely mirror those in the presentence investigation report—and the stipulated

facts in the parties’ plea agreement: (i) whether Ferrell left the house or the garage

before approaching a car parked outside, and (ii) whether Ferrell first entered the

garage because he was fleeing from the parole officers. On remand, in an attempt to

resolve the two material fact discrepancies, the district court adopted as its factual

findings the presentence investigation report.

      Following remand, our task on appeal remains unchanged, as does the lack of

clarity in the factual record. We emphasized the materiality of the factual

inconsistencies in our remand order, noting the factual findings listed above “are


      2
        “[W]e review the district court’s interpretation of the sentencing guidelines
de novo, [and] we review its factual findings for clear error.” United States v. Hoyle,
751 F.3d 1167, 1174 (10th Cir. 2014). “A finding of fact is ‘clearly erroneous if it is
without factual support in the record or if the appellate court, after reviewing the
evidence, is left with a definite and firm conviction that a mistake has been made.”
United States v. Pulliam, 748 F.3d 967, 970 (10th Cir. 2014) (citation omitted).
“This court [also] reviews compliance with the Rules of Criminal Procedure de
novo.” United States v. Rodriguez-Delma, 456 F.3d 1246, 1253 (10th Cir. 2006).
                                            8
critical to the ultimate question of whether Ferrell possessed the drugs and the drug

paraphernalia in the garage.” Remand Order, at 11. Though the district court

resolved the two factual discrepancies we identified, there is no evidentiary support

for the district court’s factual findings.3 As the record now stands, we conclude the

evidence does not support a finding that Ferrell possessed a controlled substance. As

a result, the four-level sentencing enhancement under U.S.S.G. § 2K2.1(b)(6)(B) is

unsupported.

A. The Factual Ambiguity: When a Parole Officer Observed Ferrell in the Garage

      First, we identified that, while the parties’ plea agreement, the presentence

investigation report, and the district court’s factual findings at sentencing all indicate

that a parole officer observed Ferrell through a window in the general area of the

garage where drugs and drug paraphernalia were later recovered, it is not clear when

      3
         We note that the affidavit of probable cause in support of Ferrell’s arrest was
not presented to the district court. This affidavit first surfaced as an attachment to
the government’s response brief on appeal. See Aple. Br., at 34–36; see also Remand
Order, at 11 n.1. The affidavit would have provided the district court factual
predicates tending to show possession. The affidavit states: (i) Ferrell was observed
“exiting the garage,” “quickly” approaching Cleveland Vance in the alley, and then
going “back into the garage”; (ii) “in Ferrell’s left rear pocket was an individual
key,” and when asked where the key went, Ferrell responded, “it goes to the house”;
(iii) while being transported to jail for booking, Ferrell asked where his money was,
stating he “had 86 bucks,” and he did not know whether “it [wa]s inside or” on him;
and (iv) the owner of the house “stated that Ferrell c[ame] over several times a week
and consume[d] Marijuana.” Affidavit of Probable Cause, at 1–2. The government’s
failure to provide the district court with the affidavit precluded the district court and
us from its consideration. See United States v. Kennedy, 225 F.3d 1187, 1191 (10th
Cir. 2000) (“This court will not consider material outside the record before the
district court . . . . Rule 10(e) ‘allows a party to supplement the record on appeal’ but
‘does not grant a license to build a new record’ . . . . Because the affidavit was not
before the district court, Rule 10(e) does not countenance supplementing the record
in this instance.’”) (citation omitted).
                                            9
the officer observed Ferrell through the window in this part of the garage. See ROA,

Vol. I, at 10 (“One of the PO’s [sic] approached Mr. Ferrell[,] who ran into a garage.

That officer told him to come out and when he peered into the garage, he observed

Mr. Ferrell with a holster with a firearm in it on his right hip.”); ROA, Vol. II, at 7

(“After approximately two hours at this location, parole agents observed the

defendant exit the garage, meet with an individual identified as Cleveland Vance in

the alley, and then go back into the garage. As agents approached the garage, one of

them observed the defendant through a window.”); ROA, Vol. III, at 39 (“And they

saw him leave a garage, meet with someone in an alley, and then reenter the garage.

Importantly, they were able to see Mr. Ferrell in a particular location within the

garage by looking through a window.”). Though not explicit, it appears the district

court found at sentencing that the first time the parole officer observed Ferrell in the

garage was not sometime during the alleged two-hour long surveillance of the

premises, but rather after Ferrell had fled into the garage. We asked the district court

to clarify when the parole officer observed Ferrell in the garage in the general area

where the drugs and drug paraphernalia were later recovered.

      In its order following remand, the district court found, “a parole officer [first]

observed Mr. Ferrell in the garage . . . after [Ferrell] entered the garage as opposed to

any other time during the officer’s two-hour surveillance.” Order Following

Remand, at 10. The district court explicitly found, “Ferrell was observed to be in

th[e] general area [where the drugs and drug paraphernalia were later recovered]

when one of the officers looked into the garage through the window after Mr. Ferrell

                                           10
went into the garage following his alley meeting with the other individual.” Id. at 11.

Neither party disputes these factual findings, nor does the record contradict them.

We find no error as regards this factual clarification.

B. The Factual Discrepancies

      i. Whether Ferrell First Left the House or the Garage

      The first factual discrepancy we identified in our November 21 order is

whether parole officers saw Ferrell leave the house or the garage prior to approaching

a vehicle parked outside of the house. The district court found at sentencing that

Ferrell left the garage. ROA, Vol. III, at 39 (“[T]hey saw him leave a garage, meet

with someone in an alley, and then reenter the garage.”). The presentence

investigation report likewise states that Ferrell left the garage before approaching the

vehicle. ROA, Vol. II, at 7 (“[P]arole agents observed the defendant exit the garage,

meet with an individual identified as Cleveland Vance in the alley, and then go back

into the garage.”). However, this factual finding directly contradicts the parties’

stipulated facts in the plea agreement that Ferrell left the house, not the garage,

before approaching a vehicle parked outside. ROA, Vol. I, at 10 (“The PO’s [sic]

observed Mr. Ferrell leave the house and approach a vehicle parked outside of the

house.”).

      Ferrell objected at the sentencing hearing to the district court’s factual finding

that he left the garage, not the house. ROA, Vol. III, at 47 (“The Court in its factual

statement stated that [Ferrell] left the garage. That is from a paragraph that the

probation department asserted . . . . I would maintain an objection to that portion of

                                           11
the Court’s findings.”). We also note that, “[a]t sentencing, the court . . . must—for

any disputed portion of the presentence report or other controverted matter—rule on

the dispute or determine that a ruling is unnecessary either because the matter will

not affect sentencing, or because the court will not consider the matter in

sentencing.” Fed. R. Crim. P. 32(i)(3)(B). The district court did not rule on Ferrell’s

objection as regards the house/garage distinction.

      In its order following remand, the district court noted it “cannot resolve the

discrepancy with any certainty.” Order Following Remand, at 8. Rather than

deferring to the parties’ stipulated facts in the plea agreement—which the parties

presumably agreed upon following discussion and negotiation—the district court

adopted the facts as recited in the presentence investigation report. The court stated,

if it “had to pick one or the other of the two versions [it] would pick the Probation

Department’s version.” Id. at 9. The district court then justified this approach by

stating its reliance on the credibility and diligence of probation office personnel. The

court speculated, “the probation officer probably found the information in the

officers’ reports,” and found credible “the probation officers in this Probation

Department, and Mr. Burney in particular.” Id. at 9.

      ii. Whether Ferrell Fled to the Garage

      The second factual discrepancy we identified is whether Ferrell fled to the

garage upon seeing a parole officer approaching him, or whether he was observed

moving about the premises and entering the garage prior to seeing a parole officer

pursuing him. The district court found that parole officers observed Ferrell “reenter”

                                           12
the garage. ROA, Vol. III, at 39 (“[T]hey saw him leave a garage, meet with

someone in an alley, and then reenter the garage.”). Similarly, the presentence

investigation report states that Ferrell went “back into the garage.” ROA, Vol. II, at

7 (“[P]arole agents observed the defendant exit the garage, meet with an individual

identified as Cleveland Vance in the alley, and then go back into the garage.”).

These two factual findings imply Ferrell simply entered the garage, without an

external stimulus prompting him to do so, and before noticing that parole officers

were near the premises or pursuing him. This contradicts a stipulation contained in

the plea agreement. The parties’ stipulated that one of the parole officers moved

toward Ferrell while he was outside of the house, at which point Ferrell “ran into a

garage.” ROA, Vol. I, at 10 (“One of the PO’s [sic] approached Mr. Ferrell[,] who

ran into a garage.”).

      Here, the presentence investigation report, which the district court largely

incorporated into its own findings of fact, contradicts itself by explicitly adopting the

parties’ stipulated facts in the plea agreement but then finding different facts. As

mentioned, the stipulated facts are that Ferrell emerged from the house in the first

instance, not from the garage where the drugs and drug paraphernalia were found,

and that he “ran into” the garage upon being approached by a parole officer. ROA,

Vol. I, at 10–11. While explicitly adopting these factual findings in paragraph eight,

the presentence investigation report goes on to contradict those factual findings in

paragraph ten, stating “parole agents observed the defendant exit the garage, meet



                                           13
with an individual . . . in the alley, and then go back into the garage.” ROA Vol. II,

at 6–7.

       In its order following remand, the district court stated, “if [it] had to decide,

[it] would infer that Mr. Ferrell did not see the officers before he went into the

garage,” Order Following Remand, at 10, again adopting the presentence

investigation report as its factual finding. In doing so, the district court reasoned that

this finding “is at least consistent with both” the plea agreement and the presentence

investigation report, as “neither . . . clearly states that [Ferrell] saw the officers and

ran or fled to the garage.” Id. It is true that neither the plea agreement nor the

presentence investigation report explicitly state that Ferrell saw a parole officer prior

to fleeing or walking into the garage.

       However, the district court’s factual finding that Ferrell did not see an officer

prior to entering the garage is not consistent with both factual versions. In fact, the

district court’s own logical inferences contradict its assertion of congruity. The

district court stated:

              The Plea Agreement states that “[o]ne of the PO’s approached
              Mr. Ferrell who ran into a garage.” ECF No. 22. Even that
              statement does not definitely establish that Mr. Ferrell saw the
              PO before he ran into the garage, although that is the inference I
              would draw.

Order Following Remand, at 9. We draw the same inference from the parties’

stipulated facts—that Ferrell saw a parole officer which prompted him to “r[u]n into

the garage.” The district court continued:



                                             14
              The . . . Presentence Investigation Report states only that the
              “parole agents observed the defendant exit the garage, meet with
              an individual identified as Cleveland Vance in the alley, and then
              go back into the garage.” ECF Nos. 25 at ¶ 10 and 29 at ¶ 10.
              That doesn’t address whether Mr. Ferrell saw the officers before
              he entered the garage, but the inference I would draw from it is
              that he did not.

Id. at 9–10. We agree. But this inference is the exact opposite of the inference we

(and the district court) draw from the plea agreement.

       iii. Legal Error

       As regards the two factual discrepancies, the district court adopted the

presentence investigation report as its findings. In doing so, the district court erred.

“[A] sentencing court does not satisfy its Rule 32 obligation by ‘simply adopting the

presentence report as its finding.’” United States v. Rodriguez-Delma, 456 F.3d

1246, 1253 (10th Cir. 2006) (quoting United States v. Guzman, 318 F.3d 1191, 1198

(10th Cir. 2003)). Moreover, “the purpose of Rule 32 is to ensure that sentencing is

based on reliable facts found by the court itself after deliberation.” United States v.

Begay, 117 F. App’x 682, 685 (10th Cir. 2004) (emphasis added) (unpublished

opinion). The district court’s own acknowledgement that it “cannot resolve” our

identified discrepancies “with any certainty,” Order Following Remand, at 8, and the

district court’s guesses as to the facts because “it had to pick one or the other,” id. at

9, leave us unconvinced that Ferrell’s sentence is based on reliable facts.

       We next discuss the implication of the two factual findings that lack

evidentiary support on the question of whether Ferrell’s sentence enhancement is



                                            15
supported by evidence that he possessed the drugs and the drug paraphernalia in the

garage.

C. The Sentencing Enhancement

      Overlooking the factual discrepancies and factual ambiguity, the district court

found at sentencing that Ferrell possessed the drugs and drug paraphernalia and

determined it was “not a mere coincidence that he happened to be in the part of the

garage where . . . all these same items were found,” enhancing Ferrell’s sentence

under U.S.S.G. § 2K2.1(b)(6)(B). ROA, Vol. III, at 39–41. But an obvious

precondition for possession of a controlled substance and for possession of a

controlled substance with intent to distribute is possession. There are two types of

possession—“actual” and “constructive.” See Henderson v. United States, 135 S. Ct.

1780, 1784 (2015). “Actual possession exists when a person ha[d] direct physical

control over a thing.” Id. “Constructive possession is established when a person,

though lacking such physical custody, still ha[d] the power and intent to exercise

control over the object.” Id. There was insufficient evidence presented by the

government, or found by the district court, to support a conclusion that Ferrell

possessed the drugs found in the garage.

      In its order following remand, the district court again determined the

enhancement was appropriate. Order Following Remand, at 11. The district court

noted, “Ferrell was arrested in the garage with a loaded firearm on his person,”

“methamphetamine and two scales were found in the same general area of the



                                           16
garage,” and Ferrell was convicted in 2013 “for possession of methamphetamine.”

Id. at 11–12. The district court also listed the unknowns:

              We do not know why [Ferrell] met with the individual in the alley
              or whether he engaged in a drug transaction with him. We do not
              know whether there were drugs in the house at any time. We do
              not know whether the individual who is said to have resided in
              the house . . . had any drugs or drug paraphernalia, then or ever.
              We do not know why Mr. Ferrell entered the garage rather than
              the house.

Id. at 11.

       The district court’s “we do not know[s]” highlight perfectly the lack of

evidentiary support for the enhancement—we know very little from the record, and a

“mere coincidence that” Ferrell was in the proximity of the contraband is all the

record supports. We do not have evidentiary support for the district court’s factual

findings that (i) Ferrell left the garage from where the drugs and drug paraphernalia

were later recovered, rather than the house, in the first instance; and (ii) Ferrell did

not flee to the garage, but was moving about the premises of his own volition. Nor

do we have a factual finding that a parole officer observed Ferrell in the garage

sometime during the alleged two-hour long surveillance of the premises, not upon

Ferrell’s fleeing into the garage. The following evidence remains. Though we do not

know for what purpose or for how long, Ferrell—who had a loaded firearm in a

holster on his right hip and additional ammunition in the front left pocket of his

pants—met with an individual named Cleveland Vance in an alley behind a house

that he did not own. ROA, Vol. II, at 7; ROA, Vol. III, at 39–41. Ferrell was also

seen in the general area of a garage that he did not own. Id. He was seen near

                                            17
methamphetamine, marijuana, two scales, and a glass pipe. Id. It is unclear how far

from Ferrell a pair of brass knuckles and $76.35 in cash were seen “[i]n plain view

on a table” in the garage. ROA, Vol. II, at 7. We further know Ferrell was

previously convicted of possession of methamphetamine. ROA, Vol. III, at 39–41.

Finally, the facts of this case also gave rise to a state court charge of possession with

intent to distribute a controlled substance, which was later dismissed. ROA, Vol. II,

at 7; ROA, Vol. III, at 39–41.

      Although these facts are known, they demonstrate only proximity to the drugs,

and other unknown facts bring a finding of possession into doubt. For instance, we

do not know how often Ferrell frequented the garage, which could have indicated his

familiarity with the garage and its contents and served as evidence of his control over

the drugs. Indeed, as an initial matter, the record lacks evidence of joint occupancy

of the premises from which contraband was recovered, and the government further

failed to present evidence showing a connection between Ferrell and the contraband.

See United States v. McKissick, 204 F.3d 1282, 1291 (10th Cir. 2000).

      For these reasons, resolution of the factual discrepancies between the parties’

stipulated facts and the presentence investigation report was critical in this case,

leading us to remand in the first instance rather than moving forward with a ruling on

the merits. Resolved against Ferrell, these pieces of evidence lend support for the

finding that Ferrell intended to exercise dominion and control over the drugs. See

United States v. Little, 829 F.3d 1177, 1182 (10th Cir. 2016). Resolved in favor of

Ferrell, without evidence of Ferrell’s familiarity and control over the garage and the

                                           18
drugs therein, the record does not support a finding of drug possession. Without a

finding of possession, we cannot sustain the four-level sentencing enhancement based

on either possession of a controlled substance or possession of a controlled substance

with the intent to distribute.

                                          III

       We therefore REVERSE and REMAND this case for resentencing.


                                           Entered for the Court


                                           Mary Beck Briscoe
                                           Circuit Judge




                                          19
