                                        PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                   _____________

                       No. 11-2906
                      _____________

             UNITED STATES OF AMERICA

                            v.

                NATHANIEL BENJAMIN,
                   a/k/a James Burch


                NATHANIEL BENJAMIN,
                             Appellant

                      ____________

      On Appeal from the United States District Court
         for the Eastern District of Pennsylvania
                 (No. 2-10-cr-00131-001)
          District Judge: Hon. Berle M. Schiller

               Argued: September 11, 2012
                     ____________

Before: SMITH, CHAGARES, and GARTH, Circuit Judges.

                  (Filed: March 26, 2013)

Sarah S. Gannett, Esq. (Argued)
Brett G. Sweitzer, Esq.
Leigh M. Skipper, Esq.
Federal Community Defender Office for the Eastern District
of Pennsylvania
Suite 540 West – Curtis Center
601 Walnut Street
Philadelphia, PA 19106
       Attorneys for Appellant
Zane David Memeger, Esq.
Robert A. Zauzmer, Esq.
Eric B., Henson, Esq. (Argued)
Office of the Attorney General
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106

      Attorneys for Appellee
                      ____________

                        OPINION
                       ___________

CHAGARES, Circuit Judge.

        Nathaniel Benjamin raises four issues on appeal from
the District Court‘s judgment of conviction and sentence.
First, Benjamin argues that there was insufficient evidence
supporting one of his felon-in-possession convictions and his
conviction for possession with intent to distribute marijuana
and cocaine base. Second, Benjamin contends that if the
evidence was sufficient to convict him of gun possession in
the house, then his conviction on that count should have
merged with his conviction on another felon-in-possession
charge involving the same gun at a gun range. Third,
Benjamin argues the District Court abused its discretion by
allowing repeated references at trial to Benjamin‘s parole
status.    Fourth, Benjamin contends that the felon-in-
possession statute is facially unconstitutional or, in the
alternative, unconstitutional as applied to him. For the
reasons that follow, we will affirm the judgment of the
District Court in part and remand in part.

                             I.

       At the time of his arrest, Benjamin was on parole and
living with his fiancée, Stacy Esprit, her four children, and
her infant grandchild in Norristown, Pennsylvania. Benjamin
supplemented his income by buying and refurbishing cars.
Although his own driver‘s license was suspended, he obtained
a license under the name ―James Burch,‖ using his own
photograph. Benjamin‘s parole officer, who knew that

                             2
Benjamin‘s driver‘s license had been suspended, observed
Benjamin driving, and he organized a search of Esprit‘s home
where Benjamin was residing.

        In the search of the master bedroom, agents found a
bag underneath the foot of the bed containing hearing and eye
protection, targets from a shooting range, receipts for
ammunition, a postcard with Benjamin‘s name and address on
it, and a handgun trigger lock. Agents found a box of 9
millimeter ammunition next to maxi-pads and a gold purse in
the master bedroom closet. On the right side of the bed,
agents found an envelope containing car titles in the name of
James Burch, as well as the James Burch driver‘s license, an
identification card for Nathanial Benjamin, Benjamin‘s social
security card, and receipts for payment on an auto loan for
James Burch. Agents also found a notebook that, according
to the Government‘s narcotics trafficking expert, contained
car information, cell phone information, and illegal drug
information. The District Court sustained some objections to
the expert‘s testimony as speculative, but allowed him to
testify that he understood the ledger to contain information
about illegal drugs as well as other items. Agents also found
a digital cooking scale just to the right of the bed, which
Esprit testified she did not recognize.

        In the basement, Esprit directed agents to a loaded 9
millimeter Kel-Tec handgun in a black bag underneath a
flowered blanket. The bag also contained Esprit‘s permit to
carry a concealed handgun and a box of empty ammunition.
At trial, Esprit testified that she had the gun on her person and
was folding laundry in the basement when the agents knocked
at the door. When she came upstairs, Benjamin told her that
his parole officer was at the door, at which point she went
back to the basement and put the gun on the table with clothes
on top of it. Esprit also testified that she knew Benjamin was
not allowed to be in the vicinity of a gun, and explained that
she always carried the gun with her and had loaded it with
ammunition that day because she was planning on going to
the shooting range.

      At trial, Esprit explained that she had gone with
Benjamin to purchase the handgun for herself because she
wanted to be able to protect herself from an abusive ex-

                               3
spouse who was soon to be released from prison, and that
Benjamin suggested a different model than the gun she
purchased. According to Esprit, the day after the gun
purchase, Benjamin accompanied her to the gun range where
he used the name James Burch to fill out paperwork. Esprit‘s
testimony that Benjamin fired two clips at the range forms the
basis for Benjamin‘s first conviction of being a felon in
possession of a firearm.

        Also in the basement, agents discovered a pit bull in a
cage and, stacked by the back door, the stereo and car
equipment Benjamin used to fix cars. In ceiling joists near
the back door, agents found bags containing 6.62 grams of
cocaine base and 326.93 grams of marijuana. Esprit denied
any knowledge of the drugs in the basement. She testified
that none of her children had ever had any problems with
drugs and that she had a zero tolerance policy for drugs. She
also stated that her granddaughter‘s father, her two godsons,
and their friend used to visit the house and would congregate
in the basement to play pool and air hockey.

        When they searched the kitchen, agents found an open
box of nitrile gloves, which Esprit testified she used for
cleaning. In Benjamin‘s cars, agents also found latex and
nitrile gloves. The Government‘s narcotics expert testified
that individuals on parole used those types of gloves when
packaging narcotics so that they would not be caught with
drugs present in their system in a random drug test. He also
testified that the facts and circumstances of the case were
consistent with distribution rather than personal use. He
based his opinion on how the drugs were packaged, the
amount of drugs, the presence of the scale, and the lack of
any crack pipe in the house. The drug expert further stated
that he believed Benjamin to be the drug dealer based on the
nitrile gloves in Benjamin‘s car, Benjamin‘s familiarity with
guns, the presence of the pit bull, Benjamin‘s use of the alias
―James Burch,‖ Benjamin‘s use of multiple vehicles
registered to the alias, and the presence of the notebook that
the expert believed to be a drug ledger.

       Benjamin was charged with one count of possession
with intent to distribute five grams or more of cocaine base,
in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B); one count of

                              4
possession with intent to distribute marijuana, in violation of
21 U.S.C. §§ 841(a)(1), (b)(1)(D); and two counts of
possession of a firearm by a convicted felon, in violation of
18 U.S.C. § 922(g)(1).1 The case was tried to a jury, with the
felon-in-possession charges bifurcated from the first set of
charges. Benjamin was convicted on all counts on March 9,
2011.

       Benjamin filed a post-trial motion challenging the
sufficiency of the evidence and certain evidentiary rulings,
which the District Court denied on July 5, 2011. On July 13,
2011, the District Court sentenced Benjamin to twenty years
of imprisonment, consisting of twenty years on the cocaine
base count and ten years each on the other counts, running
concurrently. The District Court further sentenced Benjamin
to eight years of supervised release, consisting of eight years
on the cocaine base count, four years on the marijuana count,
and three years on each felon-in-possession count, all to run
concurrently, as well as a fine of $2,000 and a special
assessment of $400. Benjamin timely appealed.

                              II.

       The District Court had jurisdiction pursuant to 18
U.S.C. § 3231 and this Court has jurisdiction pursuant to 28
U.S.C. § 1291. Benjamin raises four issues on appeal. We
will address each in turn.

                              A.

       Benjamin does not challenge his conviction for being a
felon in possession of a firearm at the gun range, but argues
that the Government‘s evidence on the second felon-in-
possession charge, for possession inside the house, was

1
  18 U.S.C. § 922(g)(1) provides, in pertinent part: ―It shall
be unlawful for any person . . . who has been convicted in any
court of, a crime punishable by imprisonment for a term
exceeding one year . . . to ship or transport in interstate or
foreign commerce, or possess in or affecting commerce, any
firearm or ammunition; or to receive any firearm or
ammunition which has been shipped or transported in
interstate or foreign commerce.‖
                              5
insufficient. Benjamin further contends that the evidence
offered to support his convictions on the counts of possession
with intent to distribute drugs was insufficient.

       ―In reviewing a jury verdict for sufficiency of the
evidence, we ‗must consider the evidence in the light most
favorable to the government and affirm the judgment if there
is substantial evidence from which any rational trier of fact
could find guilt beyond a reasonable doubt.‘‖ United States
v. Brown, 3 F.3d 673, 680 (3d Cir. 1993) (quoting United
States v. Frorup, 963 F.2d 41, 42 (3d Cir. 1992)).

       The convictions on both the felon-in-possession charge
for the gun in the house and the drug charges rested on a
theory of constructive possession. Constructive possession
occurs when ―‗[a] person who, although not in actual
possession, knowingly has both the power and the intention at
a given time to exercise dominion or control over a thing,
either directly or through another person or persons.‘‖ United
States v. Garth, 188 F.3d 99, 112 (3d Cir. 1999) (quoting
United States v. Blackston, 940 F.2d 877, 883 (3d Cir.
1991)). ―Dominion and control are not established, however,
by ‗mere proximity to the [item], or mere presence on the
property where it is located or mere association with the
person who does control the [item].‘‖ United States v.
Jenkins, 90 F.3d 814, 818 (3d Cir. 1996) (quoting Brown, 3
F.3d at 680). ―Such dominion and control need not be
exclusive but may be shared with others.‖ United States v.
Davis, 461 F.2d 1026, 1035 (3d Cir. 1972).

       In Brown, defendant Baltimore had a key to a ―cut
house‖ where large quantities of illegal drugs were found.
Brown, 3 F.3d at 680-81. Although she referred to the
building as ―my own house,‖ and her shorts and switchblade
were found on the premises, id. at 680, we noted that none of
her possessions were found in a room where drugs were
found, that her fingerprints were not found on any drugs or
drug paraphernalia, and that there was no other evidence that
she exerted any control over the drugs or drug paraphernalia.
Accordingly, we held that the evidence of Baltimore‘s
proximity was insufficient to establish constructive
possession. Id. at 683. Benjamin cites this case to argue that
his proximity was no greater than Baltimore‘s, and that

                              6
therefore the evidence of constructive possession was
similarly insufficient.

       Proximity, however, is not the only factor that courts
consider in determining whether a defendant had constructive
possession. Indeed, in Jenkins this Court warned that
―proximity alone is not enough, no matter how near that
proximity is,‖ and specified that ―[i]t is a serious misreading
of [Brown] to conclude that the degree of proximity of
Baltimore or her clothing to the drugs was a controlling
factor.‖ Jenkins, 90 F.3d at 819-20. In that case, the
defendant had been found in his boxer shorts at 1:30 a.m. on a
couch with large quantities of drugs on a coffee table before
him and a sawed-off shotgun on the floor, but the Court held
that something more was required to show constructive
possession. Id. at 821.

       We now consider whether there was ―more‖ evidence
sufficient to show that Benjamin had the dominion and
control necessary to establish constructive possession over the
gun and drugs. In support of the felon-in-possession count,
the Government contends that the jury was free to reject
Esprit‘s testimony that the gun was for her sole use and that
she kept it on her person at all times. Benjamin‘s control over
the gun was demonstrated by the fact that it was found in the
basement, along with the stereo and car equipment he used to
repair cars outside the basement door. The gun box was
found under the bed he shared with Esprit and the
ammunition was stored in the closet of the room they shared.
On the same side of the bed, agents discovered an envelope
with documents tied to Benjamin. Furthermore, unlike in
Brown and Jenkins where the defendants were merely shown
to have been near drugs, there is direct evidence that
Benjamin had used the gun in the past.

       The Government further contends that Benjamin‘s
dominion and control over the gun were demonstrated by
Esprit‘s testimony that when Benjamin told her that his parole
officer was at the door, she immediately hid the gun in the
basement. The Government also argues that evidence that
Benjamin was involved in the drug trade strengthened the
conclusion that he had dominion and control over the gun.
Based on this evidence, the District Court correctly held that,

                              7
viewed in the light most favorable to the Government, there
was sufficient evidence to support the second gun possession
charge.

       In support of the drug convictions, the District Court
noted that the drugs were found in a secreted location in the
same area of the basement as Benjamin‘s stereo equipment
and near the door he used to access the cars he was repairing.
A scale, of which Esprit denied any knowledge, was found in
the bedroom Benjamin and Esprit shared. Nitrile gloves were
found in the kitchen and in a car registered to Benjamin‘s
alias ―James Burch.‖ The jury was entitled to credit the
Government expert‘s testimony that the notebook found
beside Benjamin‘s bed in an envelope with paperwork
bearing his name was, in part, a drug ledger. Although
Benjamin argues that evidence showed that teenagers used
the basement for recreation, suggesting that the drugs may
have belonged to them, we are required to view the evidence
in the light most favorable to the Government. The District
Court correctly held that there was sufficient evidence on the
drug charges, and thus, we will affirm.

                                B.

       Benjamin argues that if this Court determines that
there was sufficient evidence to uphold his conviction for
possession of the gun in the house, then that charge should
merge with his conviction for possession of the gun at the gun
range, which he does not otherwise challenge on appeal,
because the two charges are duplicative and violate the
Double Jeopardy Clause. Benjamin did not raise this issue in
the District Court, so we review for plain error. United States
v. Miller, 527 F.3d 54, 70 (3d Cir. 2008). We must determine
whether entry of the two separate felon-in-possession
convictions ―constitutes ‗(1) error, (2) that is plain, and (3)
that affect[s] substantial rights. If all three conditions are
met, an appellate court may then exercise its discretion to
notice a forfeited error, but only if (4) the error seriously
affect[s] the fairness, integrity, or public reputation of judicial
proceedings.‘‖ Id. (alteration in original) (quoting United
States v. Vazquez, 271 F.3d 93, 99 (3d Cir. 2001)).



                                8
                               1.

        We begin by considering whether the District Court‘s
entry of separate convictions and sentences for possession of
a firearm by Benjamin in violation of § 922(g)(1) constituted
―error.‖ To answer that question, we must first consider
whether the § 922(g)(1) felon-in-possession crime is a
continuing offense. This is an issue of first impression in this
Court, though our sister Courts of Appeals that have
considered this issue have uniformly held that it is a
continuing offense. See, e.g., United States v. Ellis, 622 F.3d
784, 793-96 (7th Cir. 2010); United States v. Rivera, 77 F.3d
1348, 1351-52 (11th Cir. 1996); United States v. Horodner,
993 F.2d 191, 193-94 (9th Cir. 1993); United States v. Jones,
533 F.2d 1387, 1390-92 (6th Cir. 1976).

       Possession is generally understood as a course of
conduct. Rivera, 77 F.3d at 1351; Horodner, 993 F.2d at 193;
Jones, 553 F.2d at 1391. Accordingly, ―by prohibiting
possession Congress intended to punish as one offense all of
the acts of dominion which demonstrate a continuing
possessory interest in a firearm.‖ Jones, 553 F.2d at 1391.
We thus join our sister Courts of Appeals in holding that the
felon-in-possession crime in § 922(g)(1) is a continuing
offense.

       We now turn to the issue of whether Benjamin‘s two
convictions for the possession of a single gun should merge
into one.      Because the felon-in-possession crime is
continuing, charging and punishing a defendant twice for the
same firearm requires an interruption in continuity of
possession. Rivera, 77 F.3d at 1351 (―Where there is no
proof that possession of the same weapon is interrupted, the
Government may not arbitrarily carve a possession into
separate offenses.‖); Horodner, 993 F.2d at 193
(acknowledging ―that a new possession, separately
chargeable, could begin if possession was interrupted‖);
Jones, 533 F.2d at 1391 (holding defendant Jones could only
be convicted of one count under § 922(g)(1) when there
existed ―no proof that there was any interruption in the
possession by Jones of the weapon‖). More specifically,
continuity must be interrupted by ―relinquishment of both


                               9
actual and constructive possession of the gun before it is
reacquired.‖ Ellis, 622 F.3d at 794.

       The Government argues here that Benjamin‘s second
gun possession conviction was based on constructive
possession, which was interrupted when Benjamin was away
from home because, while he was away from home, he would
have lacked the ability to control the firearm that Esprit kept
with her. As set forth earlier, physical proximity is not
necessary to establish constructive possession. See Ellis, 622
F.3d at 795 (concluding that evidence that the defendant was
able to ―reacquire actual physical possession‖ of a gun from a
fellow gang member suggested that the defendant had
maintained constructive possession); Horodner, 993 F.2d at
193-94 (holding that even though the defendant left a gun at a
repair shop, constructive possession remained because the
defendant ―retained the right to possess and control it‖); cf.
Garth, 188 F.3d at 113 (noting that access is not sufficient to
show constructive possession). Additionally, under the
theory of joint possession, ―‗dominion and control need not
be exclusive but may be shared with others.‘‖ United States
v. Introcaso, 506 F.3d 260, 271 (3d Cir. 2007) (quoting
Davis, 461 F.2d at 1035). The fact that Esprit had actual
possession of the gun and may not have always been with
Benjamin, then, does not preclude Benjamin‘s constructive
possession of the same weapon.

       The evidence supporting constructive possession — as
explained more fully above — came not only from the
presence of the gun in the couple‘s shared home, but also
from Benjamin‘s participation in the gun purchase and
Esprit‘s attempt to hide the gun when Benjamin warned her
that his parole officer had arrived. See Davis, 461 F.2d at
1034-36 (holding that a jury could reasonably infer
possession in part from evidence that occupants of house
containing drugs had unsuccessfully attempted to destroy the
drugs before police entered). The jury did not hear evidence
that Benjamin‘s possession of the gun was ever interrupted,
and the Government may not simply rely on the fact that
Esprit and Benjamin were not always at home together to
show an interruption in possession that would permit a second
conviction. Without evidence that Benjamin relinquished
constructive possession of the gun, there could be only one

                              10
possession conviction. As a result, we hold that the District
Court committed error when it convicted and punished
Benjamin for two separate counts of possession of a firearm
by a convicted felon.

                              2.

        The Court must now determine whether the District
Court‘s error was ―plain.‖ In United States v. Tann, 577 F.3d
533 (3d Cir. 2009), this Court addressed the similar question
of whether the district court committed plain error when it
convicted the defendant of simultaneous possession of a
firearm and ammunition at the same location, and concluded
that it had. Id. at 537-43. Although the continuing nature of
the conduct criminalized by the felon-in-possession statute is
a matter of first impression for this Court, we hold that the
District Court‘s error was plain. See id. at 537-38 (reasoning
that although its holding regarding the ―allowable unit of
prosecution under § 922(g) is a matter of first impression,‖
the district court‘s error was plain). In so holding, we
reiterate that the Courts of Appeals that have addressed the
question have uniformly held that § 922(g)(1) is a continuing
offense. Further, the Government does not contest this legal
conclusion.

                              3.

       We next consider whether the error affected
Benjamin‘s substantial rights. The Government argues that
because Benjamin was sentenced to concurrent terms for the
two felon-in-possession convictions, the only additional
punishment stemming from the second conviction is a one
hundred dollar special assessment, which does not affect
Benjamin‘s substantial rights. However, as this Court
recognized in Tann, the Supreme Court has made clear that
even when a second conviction does not add time to a
defendant‘s sentence, ―‗the potential adverse collateral
consequences‘‖ of an unauthorized conviction ―‗may not be
ignored‘‖ when determining whether a defendant‘s
substantial rights have been affected. Id. at 538 (quoting Ball
v. United States, 470 U.S. 856, 865 (1985)). While the
second conviction may not have had the ―immediate practical
effect‖ of increasing the length of his sentence, Benjamin

                              11
does risk additional adverse consequences due to the second
conviction, such as delayed parole, increased social stigma, or
even a higher sentence under a recidivist statute if he were
convicted of any future crimes. See Tann, 577 F.3d at 540.
We therefore follow Tann, and hold that Benjamin‘s
substantial rights were affected by the second conviction.

                               4.

        Having determined that the error below was plain and
affected Benjamin‘s substantial rights, we now examine
whether the District Court‘s error ―seriously affect[ed] the
fairness, integrity or public reputation of judicial
proceedings‖ such that this Court should exercise its
discretion to correct the error. United States v. Olano, 507
U.S. 725, 732 (1993) (quotation marks and citations omitted).
The arguably limited nature of the additional assessment does
not erase the fact that Benjamin was saddled with an
unauthorized conviction with the potential to cause him
serious adverse consequences.              ―[A]ny additional
unauthorized conviction and its accompanying special
assessment . . . seriously calls into question the fairness and
integrity of judicial proceedings.‖ United States v. Lewis,
660 F.3d 189, 196 (3d Cir. 2011). We hold that leaving the
error uncorrected would seriously and detrimentally affect the
fairness, integrity and public reputation of these proceedings
and, therefore, it is appropriate for this Court to use its
discretion to grant relief.

                               C.

       Benjamin argues that the District Court erred in
allowing repeated references to his parole status in violation
of Federal Rule of Evidence 404(b)(1), which prohibits the
use of ―[e]vidence of a crime, wrong, or other act . . . to prove
a person‘s character in order to show that on a particular
occasion the person acted in accordance with the character.‖
We review the District Court‘s decision to admit evidence for
abuse of discretion. United States v. Cruz, 326 F.3d 392, 394
(3d Cir. 2003).

       We have held that Rule 404(b) is a rule of inclusion
rather than exclusion. United States v. Kellogg, 510 F.3d

                               12
188, 197 (3d Cir. 2007). ―To be admissible under Rule
404(b), evidence of uncharged crimes or wrongs must (1)
have a proper evidentiary purpose; (2) be relevant; (3) satisfy
Rule 403; and (4) be accompanied by a limiting instruction
(where requested) about the purpose for which the jury may
consider it.‖ United States v. Green, 617 F.3d 233, 249 (3d
Cir. 2010).2

       We hold that Benjamin‘s parole status was admitted
for a proper purpose under Rule 404(b) as ―helpful
background.‖ See id. at 247 (―[A]llowing the jury to
understand the circumstances surrounding the charged crime
— completing the story — is a proper, non-propensity
purpose under Rule 404(b).‖). As the District Court noted,
the trial could not have been conducted without the jury
hearing that Benjamin was on parole. The Government
correctly argues that the evidence of Benjamin‘s parole status
was relevant to the jury‘s understanding of why the search
took place. The Government further correctly argues that the
evidence was relevant to explain Benjamin‘s motive for using
an alias, for using gloves to hide his drug trafficking activity,
and to explain Esprit‘s testimony that she hid the gun because
she knew Benjamin was not allowed to be around firearms as
a condition of his parole. See Cruz, 326 F.3d at 395 (―Here
the government articulated the logical inferences that render
Cruz‘s parole status relevant to establishing Cruz‘s motive,
intent and method of concealing his illegal drug activity in
order to avoid the risk of parole revocation. A defendant‘s
parole status has been held to be probative of why a defendant
would take extra steps to hide his criminal activity.‖). The
probative value of this evidence is not substantially
outweighed by whatever limited prejudice may have been
caused by the references to Benjamin‘s parole status, which

2
  Benjamin did not request such a limiting instruction and
does not suggest that the District Court should have given
such an instruction sua sponte. See generally Ansell v. Green
Acres Contracting Co., 347 F.3d 515, 526 (3d Cir. 2003)
(holding that the defendant had waived any challenge to the
district court‘s failure to give a limiting instruction addressing
Rule 404(b) evidence by failing to request one at trial or raise
the issue on appeal).

                               13
the District Court was careful to minimize by, for instance,
preventing the Government from presenting evidence of
Benjamin‘s underlying drug trafficking convictions.

       We hold that the District Court did not abuse its
discretion in admitting evidence that Benjamin was on parole,
and we will affirm on this ground.

                             D.

       Benjamin argues that 18 U.S.C. § 922(g)(1) is
unconstitutional on its face and as applied to him under the
Commerce Clause in order to preserve the issue for Supreme
Court review. He correctly recognizes that his constitutional
arguments are foreclosed by our precedent in United States v.
Singletary, 268 F.3d 196 (3d Cir. 2001). Therefore, we need
not discuss his constitutional challenges any further.

                             III.

       Based on the foregoing, we will remand this case to
the District Court with instructions to vacate the sentence on
Benjamin‘s conviction under § 922(g)(1) for possession of
the gun in his house and to merge the two convictions under §
922(g)(1) into one conviction. We will affirm the judgment
of the District Court in all other respects.




                             14
