                                                                                 FILED
                                                                     United States Court of Appeals
                                      PUBLISH                                Tenth Circuit

                      UNITED STATES COURT OF APPEALS                         April 8, 2020

                                                                        Christopher M. Wolpert
                            FOR THE TENTH CIRCUIT                           Clerk of Court
                        _________________________________

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                            No. 19-4070
 v.                                               (D.C. No. 2:17-CR-00637-JNP-1)
                                                              (D. Utah)
 FERNANDO MIGUEL SAMORA,

       Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                               for the District of Utah
                          (D.C. No. 2:17-CR-00637-JNP-1)
                       _________________________________

Ryan D. Tenney, Assistant United States Attorney (John W. Huber, United States Attorney,
with him on the briefs), Salt Lake City, Utah, for Plaintiff-Appellee.

Jessica Stengel, Assistant Federal Public Defender (Scott Keith Wilson, Federal Public
Defender, with her on the briefs), Salt Lake City, Utah, for Defendant-Appellant.
                        _________________________________

Before BACHARACH, BALDOCK, and MURPHY, Circuit Judges.
                 _________________________________

BALDOCK, Circuit Judge.
                    _________________________________

      On May 26, 2017, officers from a multi-agency task force located Defendant to

arrest him on an outstanding warrant. That day, Defendant had borrowed his ex-

girlfriend’s car and drove it alone to a restaurant. When Defendant left the restaurant

and approached the vehicle, the officers converged to arrest him. Defendant fled on
foot and a chase ensued. After the officers caught and arrested Defendant, they

searched the vehicle he had been driving and found a loaded firearm inside the center

console. The Government charged Defendant with being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1). Defendant proceeded to trial where the

district court gave an erroneous instruction on constructive possession.1 The jury

returned a guilty verdict and Defendant appeals. Specifically, Defendant argues: (1)

the Government presented insufficient evidence to sustain his conviction, and (2) even

if the Government presented sufficient evidence, the failure to properly instruct the

jury constitutes plain error requiring remand for a new trial. Exercising jurisdiction

pursuant to 28 U.S.C. § 1291, we reverse and remand for a new trial.

                                             I.

       We turn first to Defendant’s insufficiency-of-the-evidence claim. We review

the sufficiency of the evidence de novo, applying the law in effect at the time of trial,

to determine whether a rational jury could find the defendant guilty beyond a

reasonable doubt. United States v. Benford, 875 F.3d 1007, 1014 (10th Cir. 2017). We

consider all the evidence, both direct and circumstantial, along with reasonable

inferences taken therefrom, in the light most favorable to the government. United



1
  Although counsel for Defendant and the Government tendered the correct jury
instruction, the district court substituted its constructive possession instruction for that
of the parties. Neither party objected to the change in the instruction. This appears to
be a reoccurring problem in the District of Utah, as we have heard oral argument on
two cases this year in which the district court gave an erroneous instruction on
constructive possession. See United States v. Gomez-Castro, 2:16-CR-00267-DN-1
(D. Utah 2018), appeal docketed, Case No. 18-4090 (10th Cir. June 14, 2018).
                                             2
States v. Jameson, 478 F.3d 1204, 1208 (10th Cir. 2007). Nevertheless, we will not

“uphold a conviction obtained by piling inference upon inference.” Id. (quoting United

States v. Anderson, 189 F.3d 1228, 1239 (10th Cir. 1999)). Instead, there must be

“substantial evidence supporting a conviction that does more than raise a mere

suspicion of guilt.” Id.

      To convict a person of being a felon in possession in violation of § 922(g)(1),

the government must prove: (1) the person had previously been convicted of a felony;

(2) he thereafter knowingly possessed a firearm; and (3) the possession was in or

affecting interstate commerce. Benford, 875 F.3d at 1015. The only element at issue

is whether Defendant knowingly possessed a firearm.

      Possession under § 922(g)(1) can be actual or constructive.         Id.   Actual

possession occurs where “a person has direct physical control over a firearm at a given

time.” Jameson, 478 F.3d at 1209. Thus, to convict on actual possession, the defendant

must have held the firearm “for a mere second or two” during the time specified in the

indictment.   United States v. Adkins, 196 F.3d 1112, 1115 (10th Cir. 1999).

Constructive possession occurs “when a person not in actual possession knowingly has

the power and intent to exercise dominion and control over [a firearm].” United States

v. Little, 829 F.3d 1177, 1182 (10th Cir. 2016). Knowledge, dominion, and control can

be inferred when a defendant has exclusive control over the premises in which the

firearm was found. Jameson, 478 F.3d at 1209. But when “a defendant jointly

occupies the premises on which the firearm is found, we have required the government

to show a nexus between the defendant and the firearm . . .” Benford, 875 F.3d at 1015.

                                          3
      In this case, although the evidence is by no means overwhelming, the

Government presented sufficient evidence for a rational jury to find Defendant

constructively possessed the firearm at issue. 2 As an initial matter, Defendant was the

sole occupant of the vehicle in which officers located the firearm. The Government

presented evidence that Defendant borrowed the vehicle from his ex-girlfriend earlier

in the day, drove it alone to a restaurant, and left the restaurant alone to return to the

vehicle before he was arrested. Thus, Defendant had sole possession of the vehicle in

the hours leading up to Defendant’s arrest and discovery of the firearm. Officers found

the firearm in the center console of that vehicle and Defendant’s wallet in the driver’s

side door.

      Nevertheless, because Defendant borrowed the car from his ex-girlfriend, we

consider this a joint occupancy case. 3 See United States v. Hishaw, 235 F.3d 565, 572

(10th Cir. 2000) (applying the joint occupancy rule where the defendant was the sole

occupant of his brother’s friend’s vehicle). Thus, the Government was required to

show some nexus between Defendant and the firearm that supports a “plausible

inference that the defendant had knowledge of and access to the weapon or



2
 We need not address the sufficiency of the evidence with respect to actual possession
because we conclude that the evidence of constructive possession was sufficient.
3
  In this vein, Defendant argues the firearm belonged to his ex-girlfriend, Ms.
Hernandez. Ms. Hernandez testified the gun belonged to her and she had placed it in
the center console a couple days before letting Defendant borrow the car. At the same
time, however, Ms. Hernandez could not identify the make or model of the firearm.
She also testified she kept the firearm for home security, and yet, it was found in her
car. On these grounds, the jury might have found her testimony less than credible.
                                            4
contraband.” Id. at 571 (quoting United States v. Mills, 29 F.3d 545, 550 (10th Cir.

1994)); see also United States v. Hooks, 551 F.3d 1205, 1212 (10th Cir. 2009)

(knowledge may be “inferred from circumstantial evidence, so long as the

circumstantial evidence includes something other than mere proximity”).

      Defendant relies in part upon Hishaw to argue the Government did not

demonstrate a sufficient nexus between Defendant and the firearm to sustain a

conviction based upon constructive possession.        In Hishaw, police stopped the

defendant for a traffic violation. 235 F.3d at 567. The defendant was the sole occupant

of the vehicle, which belonged to his brother’s friend. Id. at 572. Upon a search of

the vehicle, the officers located a firearm under the passenger seat. Id. at 567. The

only other evidence linking the defendant to the firearm was testimony that the

defendant had handled firearms on several occasions two years prior to the charged

offense. Id. at 573. Because the defendant had several drug charges, the government

also argued “drugs and guns often go together.” Id. We vacated the conviction,

holding the evidence was “simply too remote and too vague to support the inference

that [the defendant] constructively possessed the pistol.” Id. at 572.

      While Hishaw is comparable to the instant matter, it is readily distinguishable

on two grounds. First, the officers in Hishaw located the firearm under the passenger

seat, whereas the firearm in this case was found in the center console. This distinction

is meaningful. While the floorboard under the passenger seat is not within arm’s reach

of the driver of the vehicle, the center console was readily accessible to Defendant

here. Cf. Benford, 875 F.3d at 1015 (finding it relevant that the firearm was located

                                           5
“two-and-a-half feet” from the defendant’s bed). Second, and more importantly, the

government in Hishaw lacked the DNA evidence present in the case before us. This

DNA evidence provides the necessary nexus to link Defendant to the firearm and

establish constructive possession.

      Here, the Government presented expert testimony that the firearm contained

DNA from at least three individuals.       But the DNA expert explained Defendant

contributed the most DNA to the firearm, making his DNA the “major profile” on the

gun.4 Because Defendant’s DNA matched the major profile on the firearm, the DNA

expert concluded Defendant likely handled the gun at some point.5

      While the government in Hishaw presented evidence that the defendant handled

firearms generally, that evidence is far less probative than the DNA evidence in this

case. The evidence in Hishaw showed the defendant handled firearms—not necessarily

the firearm at issue—two years prior to the charged offense. See Hishaw, 235 F.3d at


4
  The Government’s DNA expert concluded it was highly improbable someone other
than Defendant matched the “major profile” on the firearm. Nevertheless, Defendant
suggests his daughter’s DNA could have transferred to the firearm, making it appear
as though Defendant’s DNA was the major profile when in fact it was not. Defense
counsel presented the jury with this alternative theory at trial, and the jury decided
what to believe. Because the jury is well-equipped to weigh and evaluate the DNA
evidence, we will not second guess the jury’s fact-finding on appeal.
5
  Defendant further argues his DNA may have been transferred to the firearm by
secondary transfer. That is, Defendant suggests he touched someone who then touched
the firearm, or he sneezed while in the presence of the firearm, thereby transferring his
DNA to the firearm. By this argument, Defendant may have never actually handled
the gun. The DNA expert concluded this was unlikely, and in any event, it is again
within the province of the jury to weigh the evidence and decide how to credit the
expert’s testimony.

                                           6
573. In this case, the evidence showed Defendant handled the specific firearm at issue,

and because Defendant’s DNA matched the major profile on the firearm, it is

reasonable for the jury to infer Defendant handled the firearm more recently than two

years ago. While the Government’s expert testified the DNA evidence was degraded,

due in part to passage of time, neither party elicited testimony as to how much time

must have passed since Defendant handled the firearm. This is a question of fact for

the jury.

        This DNA evidence, absent in Hishaw, provides a nexus between Defendant

and the firearm. See Benford, 875 F.3d at 1021 (holding evidence that the defendant

handled a firearm “may provide circumstantial evidence of the ability and intent to

exercise control over the firearm necessary to establish constructive possession”). The

DNA combined with Defendant’s proximity to the firearm—as he was the sole

occupant of the vehicle on the day the firearm was found in the center console—is

sufficient to establish Defendant’s constructive possession of the firearm.6 Thus, while

the evidence is far from overwhelming, the Government presented sufficient evidence

to sustain Defendant’s § 922(g)(1) conviction.




6
 The Government argues Defendant’s flight from law enforcement also bears upon
Defendant’s knowledge of the firearm. We disagree. Defendant’s flight has little, if
any, persuasive value. While evidence of flight may show consciousness of guilt, see
United States v. Martinez, 681 F.2d 1248, 1256 (10th Cir. 1982), it is equally likely
Defendant fled in this case because he had an outstanding warrant for his arrest.

                                           7
                                            II.

       While we find the Government presented sufficient evidence to sustain

Defendant’s conviction, Defendant argues we must nevertheless remand for a new trial

because the district court improperly instructed the jury on constructive possession.

Specifically, Defendant argues the district court erred when it failed to instruct the jury

that Defendant must have intended to exercise control over the firearm in order to

convict on a constructive possession theory.

       As our precedents clearly provide, the Supreme Court’s decision in Henderson

v. United States, 135 S. Ct. 1780 (2015), “change[d] the law of constructive possession

in our circuit” so that “constructive possession requires both the power to control an

object and intent to exercise that control.” Benford, 875 F.3d at 1016 (quoting Little,

829 F.3d at 1182). Although the district court omitted the intent element in its

instruction, Defendant failed to object. Accordingly, we review for plain error.

       To prevail on plain-error review, Defendant must establish: (1) the district court

committed error; (2) the error is plain; and (3) the error affected his substantial rights.

Id. Once Defendant satisfies these three prongs, we will exercise our “discretion to

correct the error if it ‘seriously affects the fairness, integrity or public reputation of

judicial proceedings.’” Id. (quoting Molina-Martinez v. United States, 136 S. Ct. 1338,

1343 (2016)).     We apply plain error “less rigidly when reviewing a potential

constitutional error,” United States v. James, 257 F.3d 1173, 1182 (10th Cir. 2001), as

is the case here because “an improper instruction on an element of the offense violates



                                            8
the Sixth Amendment’s jury trial guarantee.” Neder v. United States, 527 U.S. 1, 12

(1999).

       In this case, the Government concedes Defendant has established the first two

prongs of the plain-error test. We agree. The district court instructed the jury that

“[c]onstructive possession exists when a person knowingly holds the power and ability

to exercise dominion and control over a firearm.” ROA Vol. 1 at 249. The law is

clear, however, that constructive possession also requires Defendant have the intent to

exercise control over the firearm. See Henderson, 575 U.S. at 1784; see also Little,

829 F.3d at 1182. The district court’s failure to instruct the jury on the intent element

is error, and that error is plain because it is “clearly contrary to the law at the time of

appeal.” Johnson v. United States, 520 U.S. 461, 468 (1997). Therefore, we turn to

prong three of the plain-error test.

       Under the third prong of the plain-error test, Defendant must show the error

affected his substantial rights. Benford, 875 F.3d at 1017. To demonstrate the error

affected his substantial rights, Defendant must “‘show a reasonable probability that,

but for the error,’ the outcome of the proceeding would have been different.” Id.

(quoting Molina-Martinez, 136 S. Ct. at 1343).          “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” United States v.

Wolfname, 835 F.3d 1214, 1222 (10th Cir. 2016) (quoting United States v. Rosales-

Miranda, 755 F.3d 1253, 1258 (10th Cir. 2014)). In the case of an erroneous jury

instruction “on the principal elements of the offense,” we often conclude that the error



                                            9
affected the outcome of the proceedings. Benford, 875 F.3d at 1017 (quoting United

States v. Duran, 133 F.3d 1324, 1333 (10th Cir. 1998)).

         Given the particular facts of this case, we find a reasonable probability exists

that, had the jury been instructed on the intent element, it would not have convicted

Defendant. We have summarized the evidence above, and we need not repeat that

summary here. Suffice it to say, the Government’s case is not so strong as to convince

us that the jury would have been “compelled to conclude” that Defendant intended to

exercise dominion and control over the firearm. Cf. Little, 829 F.3d at 1183 (applying

the harmless error standard and finding a jury would have been “compelled to

conclude” the defendant intended to exercise control over the firearm). We need look

no further than United States v. Simpson, 845 F.3d 1039 (10th Cir. 2017), and Benford

to reach this conclusion. In each of these cases, the district court omitted the intent

element of the constructive possession instruction, counsel did not object to the

erroneous instruction, and we reviewed for plain error. And in each case, we held the

error affected the defendant’s substantial rights and therefore reversed.

         Turning to the specifics of these cases, in Simpson, law enforcement located

firearms and ammunition in places the defendant “jointly occupied” with his wife. 845

F.3d at 1061. The government presented evidence that the defendant had brandished

firearms in the past, and the defendant admitted to holding each of the handguns at

issue.    Id. at 1062. Despite this relatively strong evidence, we held “there is a

reasonable probability that the outcome would have been different with a correct jury

instruction.” Id.

                                            10
      In Benford, officers searched the defendant’s apartment that he shared with his

girlfriend and found a firearm in the master bedroom. 875 F.3d at 1011. After officers

confronted the defendant about the discovery of the firearm, the defendant “registered

no surprise” and stated, “I guess I’ll have to take the charge.” Id. The government

also presented evidence that the defendant brandished a firearm nineteen days prior to

the charged offense. Id. at 1011–12. Finally, the government presented a text

exchange from three months prior which implied the defendant would trade firearms

for a motor.7 Id. at 1011. Based on this evidence, we held a jury would not “be

compelled to find” the defendant intended to exercise control over the firearm and

remanded for a new trial. Id. at 1018.

      This case is bound by Simpson and Benford. Like Simpson and Benford, the

Government presented evidence that Defendant jointly occupied the space in which the

firearm was found with his ex-girlfriend. See Benford, 875 F.3d at 1011 (finding the

defendant occupied the apartment with his girlfriend), and Simpson, 845 F.3d at 1061

(finding the defendant occupied the spaces where the firearms were found with his

wife). The Government also demonstrated that Defendant had handled the firearm at

some point, as established by the DNA evidence. See Benford, 875 F.3d at 1011–12


7
 The specific text exchange was as follows. The defendant text someone about a motor
for sale and asked what he could trade for it. Benford, 875 F.3d at 1011. The seller
responded, “Guns, tools, lathe and/or mill tooling. H-D stuff.” Id. The defendant
asked what kind of guns, and the seller responded, “Concealed carry or a 12 ga.” The
defendant replied, “I got some nice toys ;)” and promised to get back to the seller the
next day. Id. Although the defendant disputed what he meant by “some nice toys,”
the testimony at trial showed the defendant probably meant firearms.

                                          11
(finding the defendant brandished a firearm 19 days prior to the charged offense and

implied he had firearms available for trade via text messages three months prior to the

charged offense), and Simpson, 845 F.3d at 1062 (finding the defendant admitted to

handling the firearms at issue prior to the charged offense). This evidence without

more, however, is not sufficient to convince us that the jury would have reached the

same conclusion if properly instructed.

      None of the Government’s cited authority convinces us otherwise.              The

Government maintains Defendant’s conviction should be upheld based on Little,

United States v. Campbell, 763 F. App’x 745 (10th Cir. 2019), and United States v.

Martinez, 749 F. App’x 698 (10th Cir. 2018). In each of these cases, the Government’s

evidence was significantly stronger than the case before us. For example, in Little, the

defendant was suspected of stealing seven guns. 829 F.3d at 1180. Officers obtained

a search warrant for the defendant’s six-by-eight foot “well house.” Id. The defendant

lived alone in the house. Id. Officers found two firearms in the well house matching

firearms stolen in the burglary. Id. We affirmed the conviction, finding a reasonable

jury would be “compelled to conclude” that the defendant intended to exercise control

over the weapons because: (1) the defendant had exclusive possession of the well house

and was the sole occupant; (2) the defendant registered surprise that law enforcement

only found two firearms; and (3) the officers observed the defendant leave the well

house and, upon entering the house thereafter, saw plainly visible ammunition and

firearms. Id. at 1183. Because the evidence in Little was overwhelming, Little offers



                                          12
little to our analysis here.8 Bound by Simpson and Benford, and presented with no

authority that convinces us otherwise, we thus conclude the instructional error affected

Defendant’s substantial rights.

      Nevertheless, the Government urges us to affirm Defendant’s conviction on

alternate grounds. Specifically, the Government argues we can affirm the conviction

because the jury was properly instructed on actual possession, and the Government

proved Defendant actually possessed the gun. Thus, the Government argues “this

alternative theory of guilt was unaffected by any error regarding constructive

possession.” Appellee Br. at 20. We are not persuaded.

      Generally, when the court’s instructions permit the jury to convict on alternative

theories, one of which is valid and one of which is legally erroneous, a general verdict

must be set aside when the verdict is supported on one ground but not on the other “and

it is impossible to tell which ground the jury selected.” Yates v. United States, 354 U.S.

298, 312 (1957), overruled in part on other grounds by Burks v. United States, 437

U.S. 1, and Griffin v. United States, 502 U.S. 46 (1991). But on plain-error review,

the inquiry differs markedly. United States v. Sorensen, 801 F.3d 1217, 1238–39 (10th

Cir. 2015). “Instead, we apply the substantial-rights test and consider the strength of

the government’s case.” Id. at 1239 (citing United States v. Wood, 384 F. App’x 698,

709 (10th Cir. 2010) (unpublished)).




8
 The evidence was similarly overwhelming in Campbell and Martinez, both of which
are unpublished cases.
                                           13
      In this case, the Government’s evidence supporting actual possession is weak.

To prove actual possession, the Government was required to show Defendant held the

firearm on the date specified in the indictment. See Benford, 875 F.3d at 1020–21

(holding that “evidence that the defendant actually handled a firearm outside the

indictment period does not suffice to show actual possession”). In this case, the

Government presented DNA evidence tending to show Defendant handled the firearm

at some point, but the DNA evidence did not establish Defendant handled the firearm

on or about May 26, 2017. Because the Government’s evidence demonstrating actual

possession is weak, the fact that the jury was properly instructed as to actual possession

is of no moment. There is still a reasonable probability that, had the jury been properly

instructed on constructive possession, it would not have convicted Defendant.

      Finally, turning to the fourth prong of plain-error review, we consider whether

the error seriously affects the fairness, integrity or public reputation of judicial

proceedings. Id. at 1016. While a district court’s failure to properly instruct the jury

“won’t always satisfy the fourth prong of the plain-error test,” when the evidence of

an omitted element is “neither overwhelming nor uncontroverted,” the fourth prong is

met. Wolfname, 835 F.3d at 1223. As we have previously explained, the evidence

regarding Defendant’s intent is not overwhelming or uncontroverted.            Thus, the

erroneous jury instruction “may have allowed the jury to convict without requiring the

government to prove all elements of the crime beyond a reasonable doubt.” Benford,

875 F.3d at 1021. “In light of the revered status of the beyond-a-reasonable-doubt

standard in our criminal jurisprudence, a jury instruction that allows a conviction where

                                           14
one important element may not have been found against the defendant by such a

standard cannot be overlooked.” Duran, 133 F.3d at 1334. Therefore, we hold the

fourth prong of plain-error review is met.

                                             III.

      For the reasons provided herein, we REVERSE and REMAND for a new trial

based on the plainly erroneous jury instruction. Judge Bacharach joins except for

footnote one.




                                             15
19-4070, United States v. Samora
MURPHY, J., dissenting.

      Because I do not agree that Samora has met his burden under the third

prong of the plain error test, I dissent. In its recitation of evidence supporting

constructive possession, the majority limits its consideration to Samora’s joint

occupation of his former girlfriend’s vehicle and his handling of the firearm at

some point in time. Majority Op. at 11. The evidence, however, is not so limited.

Samora’s former girlfriend, Maria Hernandez, was called as a defense witness and

her testimony is key to the constructive possession issue.

      Hernandez testified the firearm found in the vehicle was given to her

several years before Samora’s arrest. She further testified she used the gun for

protection, storing it both in her home and in the console of her vehicle.

Hernandez stated she was not romantically involved with Samora at the time of

his arrest and the only people she lived with were her daughter, mother, and

stepfather. Finally, she testified Samora borrows her vehicle six to seven times a

month for a “couple of hours” each time.

      When Hernandez’s testimony is coupled with the fact Samora’s DNA was

found on the firearm, a reasonable jury would be compelled to find that Samora

handled the weapon while it was in the vehicle. Hernandez’s testimony

established that she often left the weapon in the center console of her car and

Samora consistently borrowed the vehicle for hours at a time. Because Samora’s

wallet was found in the driver’s side door, indicating he stored his possessions in
the vehicle, it is clearly reasonable to infer that Samora opened the center

console—an obvious place to store possessions—during one of the many times the

firearm was in the vehicle. But a jury would not have to draw inferences to reach

this conclusion because Samora’s DNA was actually found on the weapon.

Because Hernandez (1) only kept the gun in her home or in her car and (2)

Samora did not live with Hernandez and was not romantically involved with her,

the only reasonable conclusion to draw is that Samora handled 1 the gun when it

was in the vehicle.

       In United States v. Little, we held that a reasonable jury would be

compelled to convict the defendant of constructive possession—despite being

erroneously instructed on the intent element of the crime—because of the strength

of the evidence. 829 F.3d 1177, 1183-84 (10th Cir. 2016). In Little, law

enforcement discovered ammunition and firearms in an extremely small “well

house” rented by the defendant from another individual. Id. at 1180. The

evidence showed the defendant had exclusive control of the well house at the time

the firearms were discovered, shotgun shells were plainly visible on a shelf, the

firearms were found on or under the defendant’s bed, and the defendant had been

alone in the well house for “at least seven and a half minutes” when officers


      1
       As the majority notes, the jury rejected Samora’s arguments that it was not
his DNA on the weapon or that his DNA was transferred to the gun by secondary
transfer. Majority Op. at 6.

                                         -2-
arrived. Id. at 1180-81, 1183. The evidence of constructive possession in this

case is just as strong as the evidence presented in Little. If Hernandez testified

truthfully, the evidence established: (1) on the day of his arrest, Samora had been

alone in the car for several hours; (2) the firearm was discovered in the center

console of the vehicle, immediately adjacent to where Samora was sitting; and (3)

Samora knew the gun was in the vehicle and knew how to access it on the day of

his arrest because he had previously exercised control over it while it was in the

vehicle.

      In United States v. Benford, we noted that evidence a “defendant actually

handled a firearm outside the indictment period . . . may provide circumstantial

evidence of . . . intent to exercise control over the firearm necessary to establish

constructive possession.” 875 F.3d 1007, 1020-21 (10th Cir. 2016). Here, the

evidence did not merely show Samora actually handled the firearm at some point

before his arrest. It established he handled the gun while in the car. As in Little,

based on the strength of this evidence “there is no reasonable possibility that the

jury would have found that [Samora] had knowledge of the weapon[] at issue but

lacked intent to exercise control over [it].” See 829 F.3d at 1183. Thus, a

reasonable jury properly instructed on the intent element of constructive

possession would be compelled to convict Samora.

      The alternative, of course, is that the jury wholly disbelieved Hernandez.


                                          -3-
In that case, the only explanation for the presence of the gun in the vehicle is that

Samora placed it there. Again, this would compel his conviction.

      Samora’s conviction should be affirmed.




                                          -4-
