     Case: 15-11036       Document: 00513695793         Page: 1    Date Filed: 09/28/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals

                                      No. 15-11036
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        September 28, 2016
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


               Plaintiff - Appellee

v.

CURTIS SEALY,

               Defendant - Appellant


                  Appeals from the United States District Court
                       for the Northern District of Texas
                            USDC No. 4:15-CR-119-1


Before BENAVIDES, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM:*
       Curtis Sealy was convicted of one count of being a felon in possession of
a firearm (in violation of 18 U.S.C. § 922(g)(1)) and filed this appeal to
challenge his sentence 1 on the grounds that the district court erred in setting



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
       1 Under plain error review, Sealy also challenges his conviction arguing that his
conviction is unconstitutional because it falls outside the government’s power to regulate
commerce; he also argues that the indictment failed to allege his knowledge that the firearm
travelled in interstate commerce. As Sealy acknowledges, these arguments have been
foreclosed by our precedent. United States v. Alcantar, 733 F.3d 143, 145-46 (5th Cir. 2013);
United States v. Rose, 587 F.3d 695, 705 (5th Cir. 2009). We thus affirm his conviction.
    Case: 15-11036      Document: 00513695793        Page: 2    Date Filed: 09/28/2016


                                    No. 15-11036

Sealy’s base offense level at 20 pursuant to United States Sentencing Guideline
§ 2K2.1(a)(4)(B),     imposing     a    two-level     enhancement       pursuant      to
§ 2K2.1(b)(1)(A), and imposing a four-level enhancement pursuant to §
2K2.1(b)(6)(B).     We agree, and accordingly VACATE Sealy’s sentence and
REMAND for resentencing.
                                    I. Background
      On February 10, 2015, a Confidential Informant (“Informant”) working
with the Fort Worth Police Department (“FWPD”) made a controlled purchase
of marijuana at 5836 Wilkes Drive in Fort Worth, Texas, where DeMarcus
Peoples had been living for two months. The Informant observed two black
males and three firearms in the house, where he purchased .15 ounces of
marijuana from the two males and then left the area.
      The next day, FWPD officers executed a search warrant at the house.
Upon entry, the officers found Peoples in the southeast bedroom, Sealy in the
living room, and two other people in the kitchen and living room areas. The
officers secured the house, detained everyone in the residence, and recovered
the following items: (1) a Bersa .380-caliber semi-automatic pistol and 2.16 2
ounces of marijuana on a glass table within Sealy’s reach; (2) a Ruger .44-
caliber revolver and 26.23 ounces of marijuana in a shoebox in the southeast
bedroom; (3) a Hi-Point .380-caliber pistol and 6.35 ounces of marijuana in the
kitchen; (4) a Norinco SKS semiautomatic rifle with two high-capacity
magazines in a hallway closet; and (5) $1,668.00 on Peoples’s person and in the
southeast bedroom.
      The Government subsequently charged Sealy with being a felon in
possession of a firearm, namely, the Bersa pistol discovered within Sealy’s




      2 Possession of 2.16 ounces of marijuana would be a Class A misdemeanor under Texas
law. See TEX. HEALTH & SAFETY CODE ANN. § 481.121(b)(2).
                                           2
    Case: 15-11036    Document: 00513695793     Page: 3   Date Filed: 09/28/2016


                                 No. 15-11036

reach. Sealy pleaded guilty without a plea agreement, and admitted that he
knowingly possessed the Bersa pistol, that the pistol had traveled in interstate
or foreign commerce, and that he was previously convicted of a felony.
      The probation officer prepared a Presentence Investigation Report
(“PSR”) and concluded that in addition to the Bersa pistol, Sealy should also
be held accountable for the Ruger, the Hi-Point, and the Norinco.          After
objections by the government, the revised PSR recommended that the district
court: (1) set Sealy’s base offense level at 20 because the offense involved the
Norinco, which was capable of accepting a high-capacity magazine pursuant to
§ 2K2.1(a)(4)(B); (2) enhance Sealy’s offense level by two because the offense
involved between three and seven firearms pursuant to § 2K2.1(b)(1)(A); and
(3) enhance Sealy’s offense level by four because Sealy possessed the Bersa in
connection with another felony offense, Possession of Marijuana With Intent
to Distribute, pursuant to § 2K2.1(b)(6)(B).        Based in part on these
recommendations, the PSR determined that Sealy’s total offense level was 25
with a criminal history category of IV, and that his advisory guidelines range
of imprisonment was 84 to 105 months. The PSR also noted that either an
upward departure or an upward variance might be warranted because of the
inadequacy of Sealy’s criminal history score and category.
      Sealy objected on the grounds that the PSR erred in concluding that he
possessed the Ruger, the Hi-Point and the Norinco, and that the PSR
incorrectly concluded that he possessed the Bersa in connection with
facilitating marijuana trafficking. Sealy argued that the facts set forth in the
PSR established only that he possessed the Bersa pistol and a misdemeanor
quantity of marijuana, and that there were no grounds for an upward
departure or variance. Over Sealy’s objections, the district court adopted all of
the PSR’s recommendations and imposed an upward variance, sentencing
Sealy to the statutory maximum of 120 months in prison, as well as three years

                                       3
     Case: 15-11036      Document: 00513695793         Page: 4    Date Filed: 09/28/2016


                                      No. 15-11036

of supervised release. At the conclusion of the sentencing hearing, Sealy
objected to his sentence as substantively unreasonable. Sealy timely appealed.
                                II. Standard of Review
       We review the district court’s application of the Guidelines de novo, and
its factual findings for clear error. United States v. Hagman, 740 F.3d 1044,
1047–48 (5th Cir. 2014). 3 A district court’s determination of what constitutes
relevant conduct is a factual finding. Id. at 1048. “The government must prove
sentencing enhancements by a preponderance of the evidence.” Id. (citation
omitted). A factual finding is clearly erroneous when, after reviewing the
entire record, we are left with the definite and firm conviction that a mistake
has been made. United States v. Coleman, 609 F.3d 699, 708 (5th Cir. 2010).
                                     III. Discussion
       First, Sealy contends that the district court clearly erred in concluding
that the Government established by a preponderance of the evidence that he
possessed the three other firearms (the Ruger, the Hi-Point, and the Norinco)
found in Peoples’s house. He argues that the district court improperly assigned
to him a base offense level of 20 for committing an offense that “involved” the
Norinco, which was a firearm capable of accepting a large capacity magazine.
U.S. SENTENCING GUIDELINES MANUAL (“U.S.S.G.”) § 2K2.1(a)(4)(B) (U.S.
SENTENCING COMM’N 2015). Sealy claims that his base offense level should
have been 14 pursuant to U.S.S.G. § 2K2.1(a)(6).            He further maintains that
the district court clearly erred in assigning him a two-level increase pursuant




       3 After Hagman was decided, we abandoned the use of the equipoise rule in assessing
sufficiency of the evidence to sustain a jury verdict which may call into question the
discussion of the equipoise rule in Hagman. See United States v. Malone, ___ F.3d ___, No.
14-31426, 2016 WL 3627319, at *4 n.21 (5th Cir. Jul. 6, 2016); United States v. Vargas-
Ocampo, 747 F.3d 299, 301-02 (5th Cir. 2014) (en banc) (abandoning use of the equipoise rule
in sufficiency of the evidence review of convictions). However, Hagman’s discussion of the
substantive law of what constitutes possession of a firearm remains undisturbed.
                                             4
     Case: 15-11036       Document: 00513695793         Page: 5     Date Filed: 09/28/2016


                                       No. 15-11036

to U.S.S.G. § 2K2.1(b)(1)(A) for committing an offense that “involved” between
three and seven firearms. Id. § 2K2.1(b)(1)(A).
       Sealy is correct. When determining how many firearms were involved
in an offense, the district court should include all “firearms that were
unlawfully sought to be obtained, unlawfully possessed, or unlawfully
distributed.” Id. § 2K2.1, cmt. n.5. Possession of a firearm may be actual or
constructive. Hagman, 740 F.3d at 1048. To prove actual possession of the
Ruger, the Hi-Point, and the Norinco, the Government must demonstrate that
Sealy “exercised direct physical control over them.” Id. To prove constructive
possession, the Government must show that Sealy exercised ownership,
dominion, or control over the firearms or the premises in which they were
discovered. See id.; see also United States v. Houston, 364 F.3d 243, 248–49
(5th Cir. 2004) (finding no constructive possession of a firearm because there
was no evidence that defendant knew of the pistol discovered in his wife’s
purse).    Even jointly occupying a space (which is more than what Sealy did
here) is insufficient to show constructive possession. United States v. Fields,
72 F.3d 1200, 1212 (5th Cir. 1996).
       Here, the PSR does not show that Sealy had actual or constructive
possession of the Ruger, the Hi-Point, or the Norinco. When FWPD executed
the search warrant, Sealy was in the living room, while the Ruger revolver was
in a shoebox in the southeast bedroom, the Hi-Point pistol was in the kitchen,
and the Norinco rifle was in a hallway closet. Nothing in the PSR suggests
that Sealy ever carried or handled these three firearms; nothing suggests that
Sealy even knew that these firearms, two of which were hidden from view, 4


       4  Two of the weapons were clearly out of view: the Norinco rifle in the closet and the
Ruger revolver in the shoebox. It is unclear as to the other one: the PSR simply indicates
that the Hi-Point pistol was found “in the kitchen.” Sealy’s objections indicated that it was
located in a drawer, so that weapon, too, may have been out of view. Only the Bersa, for
which Sealy was convicted, was clearly in his view.
                                              5
     Case: 15-11036      Document: 00513695793         Page: 6    Date Filed: 09/28/2016


                                      No. 15-11036

existed. Moreover, the PSR does not indicate that Sealy lived in or even jointly
occupied the house with Peoples. In sum, the district court clearly erred in
concluding that Sealy actually or constructively possessed the Ruger, the Hi-
Point, or the Norinco. As a result, the district court improperly assigned Sealy
a base offense level of 20 for possessing a firearm capable of accepting a large
capacity magazine, as well as the two-level increase for committing a crime
involving between three and seven firearms.
       Sealy also argues that the district court improperly enhanced his base
offense level by four levels because the Government failed to establish by a
preponderance that he possessed the Bersa pistol “in connection with another
felony offense,” namely, drug trafficking. U.S.S.G. § 2K2.1(b)(6)(B). We have
stated that when an offender is in “possession only of a ‘user’ quantity of drugs
and no evidence is presented that the defendant is a trafficker, the evidence
(under a preponderance of the evidence standard) must support a finding that
the firearm facilitated or had the potential to facilitate the drug possession in
order to apply the enhancement.” United States v. Jeffries, 587 F.3d 690, 694
(5th Cir. 2009) (citation omitted); see also Houston, 364 F.3d at 249 (noting that
committing an offense “in connection with” only a misdemeanor amount of
marijuana could not be grounds for an enhancement because the defendant
“was not in felonious possession of a controlled substance”).
       We conclude that this enhancement was improperly applied.                     Mere
presence, standing alone, is insufficient to prove Sealy was a drug trafficker.
See generally United States v. Benbrook, 40 F.3d 88, 94 (5th Cir. 1994)
(addressing sufficiency of the evidence under 21 U.S.C. § 841(d)(2)). Other
than Sealy’s mere presence in the house, there were no indications that Sealy
was a drug trafficker, 5 and there was nothing to suggest that Sealy used the


       5 His prior drug-related felony convictions were for possession of less than one gram
of cocaine (one in 1998 and one in 2011).
                                             6
     Case: 15-11036       Document: 00513695793          Page: 7     Date Filed: 09/28/2016


                                       No. 15-11036

Bersa in a way that “facilitated or had the potential to facilitate the drug
possession.” Jeffries, 587 F.3d at 694. Sealy was not holding the Bersa when
FWPD entered the home; rather, it was discovered on a glass table near where
Sealy was standing. The PSR does not state that the Informant who previously
purchased marijuana at Peoples’s residence and saw “two black males” ever
identified Sealy as being present when the purchase occurred. While Sealy
was standing in close proximity to a misdemeanor amount of marijuana, 6
vastly larger amounts were discovered elsewhere. Specifically, 26.23 ounces of
marijuana were discovered in a shoebox in the southeast bedroom and 6.35
ounces were found in the kitchen. The PSR also shows that $1,668.00 in cash
was found in the southeast bedroom or on Peoples’s person, but it does not
mention any cash being discovered in Sealy’s possession. Thus, the district
court improperly enhanced Sealy’s base offense level by four levels for
possessing the Bersa “in connection with another felony offense.” U.S.S.G.
§ 2K2.1(b)(6)(B).
       We conclude that the record does not support the determination that
Sealy possessed the Ruger, the Hi-Point, or the Norinco, or that Sealy
possessed the Bersa in connection with another felony offense. Accordingly,
the base offense level of 20 and the two-level and four-level enhancements at
issue were applied in error. Although the district court varied upward to the
statutory maximum, the Government does not argue, and the record does not
reflect, that the district court would have issued the same sentence regardless
of the Guidelines range. Thus, the incorrect Guidelines calculation was not
harmless error. 7 United States v. Ibarra-Luna, 628 F.3d 712, 718 (5th Cir.



       6The PSR notes that Sealy was charged with marijuana possession, but it does not
appear that he was ever charged with marijuana trafficking.
       7Without these errors by the district court, Sealy’s total offense level would be 13 and
his advisory guidelines range would be 24 to 30 months (rather than 84 to 105 months).
                                              7
    Case: 15-11036      Document: 00513695793      Page: 8    Date Filed: 09/28/2016


                                   No. 15-11036

2010). Accordingly, we AFFIRM Sealy’s conviction, VACATE Sealy’s sentence,
and REMAND for resentencing. 8




      8 Because we are remanding for resentencing, we do not address Sealy’s argument
that the district court abused its discretion in imposing a substantively unreasonable
sentence when it sentenced Sealy to the statutory maximum term of 120 months.
                                          8
