              United States Court of Appeals
                          For the Eighth Circuit

                   ___________________________

                           No. 16-3677
                   ___________________________

                        United States of America

                   lllllllllllllllllllll Plaintiff - Appellee

                                      v.

                           Dale Edward White

                 lllllllllllllllllllll Defendant - Appellant
                                 ____________

                Appeal from United States District Court
               for the Northern District of Iowa, Waterloo
                             ____________

                         Submitted: June 8, 2017
                           Filed: July 13, 2017
                              [Unpublished]
                             ____________

Before WOLLMAN, GRUENDER, and SHEPHERD, Circuit Judges.
                       ____________

PER CURIAM.
      Dale Edward White challenges the 47-month sentence imposed by the district
     1
court after he pleaded guilty to being a prohibited person in possession of a firearm
and ammunition, in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2). We affirm.

       On January 2, 2016, White and his father, K.W., were discussing a problem
White was having with the sights on one of his .22 caliber rifles while the two were
driving to their Nashua, Iowa, residence. K.W. owned the residence and lived there
with White and White’s fiancee. When the two arrived at their residence, White
retrieved the problem rifle, a Magtech .22LR, and brought it to K.W., who was seated
in a chair in the living room. The rifle did not contain a magazine, but White did not
check to see if it was loaded. The rifle slipped from White’s hand and accidentally
discharged as he handed it to K.W. The bullet struck K.W. in the head, causing his
death.

       Officers executed a search warrant at the residence later that day as part of their
investigation into K.W.’s death. They recovered from the living room the Magtech
rifle and spent shell casing, as well as an additional four rifles and two revolvers.
Officers recovered from White’s upstairs bedroom an extended-capacity, 25-round
.22 caliber magazine, a second .22 caliber magazine, and .22 caliber ammunition.
They recovered another .22 caliber magazine from a gun cabinet located at the top of
the stairs to the second floor. A second search warrant was executed at the residence
on January 5, 2016, resulting in the recovery of an additional 42 firearms from
various locations throughout the house. Officers seized three rifles and three
shotguns from the top of the stairs to the second floor; one rifle and five shotguns
from the living room; one shotgun from the kitchen; four rifles and seven shotguns
from a downstairs bedroom; four handguns, six rifles, and two shotguns from K.W.’s
bedroom; and two handguns, two rifles, and two shotguns from White’s bedroom.


         1
        The Honorable Linda R. Reade, then Chief Judge, United States District Court
for the Northern District of Iowa.

                                           -2-
All told, officers recovered 49 firearms from the residence, eight handguns, 21 rifles,
and 20 shotguns, none of which was secured in a safe, lock box, or gun cabinet. After
officers found marijuana and methamphetamine paraphernalia in White’s bedroom,
he admitted to “being a user” of both drugs, having last “smoked” on the morning of
January 5, 2016. White submitted a urine sample on January 6, 2016, which tested
positive for the presence of amphetamine and methamphetamine.

        White’s presentence report (PSR) calculated a base offense level of 20 under
§ 2K2.1(a)(4)(B) of the U.S. Sentencing Guidelines Manual (U.S.S.G. or Guidelines)
because the offense involved a semiautomatic firearm that was capable of accepting
a large-capacity magazine. It also recommended a 6-level enhancement under
Guidelines § 2K2.1(b)(1)(C) because the offense involved between 25 and 99
firearms. After a 3-level reduction for acceptance of responsibility, the PSR
calculated a total offense level of 23, which, coupled with a criminal history category
of I, resulted in an advisory sentencing range of 46 to 57 months’ imprisonment.

       White objected to the 6-level enhancement under § 2K2.1(b)(1)(C), arguing
that only two of the firearms recovered from the residence “belonged” to him and that
he did not have dominion over the residence owned by his father. In the alternative,
he argued that he should be assessed a 2-level enhancement under § 2K2.1(b)(1)(A)
because he was responsible for only seven firearms: the Magtech rifle and the six
firearms recovered from his bedroom. The district court overruled White’s objection
and found that he was responsible for at least 25 firearms. The court reasoned that
it was “immaterial who owned the firearms,” but nevertheless took a “more
conservative approach,” concluding that White actually or constructively possessed
the 26 “firearms found in his bedroom and in the common area” of the residence.
After considering the 18 U.S.C. § 3553(a) factors, the court imposed the sentence set
forth above.




                                         -3-
       White first argues that the district court improperly calculated his base offense
level under § 2K2.1(a)(4)(B). Because White did not raise this claim of procedural
error before the district court, we review only for plain error. United States v.
Vaughn, 519 F.3d 802, 804 (8th Cir. 2008). To obtain relief under plain-error review,
a defendant must show that there was an error, that the error was “clear or obvious
under current law,” and that the error affected his substantial rights. United States v.
Poitra, 648 F.3d 884, 887 (8th Cir. 2011). Even if a defendant makes this showing,
we will exercise our discretion to correct a plain error “only if it ‘seriously affects the
fairness, integrity, or public reputation of judicial proceedings.’” Vaughn, 519 F.3d
at 804 (citation omitted).

       Section 2K2.1(a)(4)(B) applies if the defendant was a “prohibited person” at
the time of the offense and the “offense involved a . . . semiautomatic firearm that is
capable of accepting a large capacity magazine,” which is defined in relevant part to
mean:

       a semiautomatic firearm that has the ability to fire many rounds without
       reloading because at the time of the offense (A) the firearm had attached
       to it a magazine or similar device that could accept more than 15 rounds
       of ammunition; or (B) a magazine or similar device that could accept
       more than 15 rounds of ammunition was in close proximity to the
       firearm.

U.S.S.G. § 2K2.1 cmt. n.2. The parties agree that, as a self-admitted drug user, White
was a “prohibited person” within the meaning of 18 U.S.C. § 922(g)(3); that he
possessed a large-capacity magazine for the Magtech rifle; and that there was no
magazine attached to the Magtech rifle at the time of the incident. White argues,
however, that the large-capacity magazine was not in “close proximity” to the
Magtech rifle as required under § 2K2.1(a)(4)(B), because the rifle was recovered
from the living room, while the large-capacity magazine was recovered from his
upstairs bedroom.


                                           -4-
       White cannot carry his burden to show that the district court committed an error
that was “clear or obvious” under the law at the time of the court’s ruling. See Poitra,
648 F.3d at 887. White cites no controlling authority from the Supreme Court or this
court that directly addresses the meaning of the phrase “close proximity,” as it is used
in § 2K2.1(a)(4)(B).2 In the absence of any controlling or persuasive authority on the
issue, it is at the very least “subject to reasonable dispute.” See Puckett v. United
States, 556 U.S. 129, 135 (2009). Accordingly, any alleged error committed by the
district court in determining that the large-capacity magazine and the Magtech rifle
were in close proximity for purposes of § 2K2.1(a)(4)(B) was neither clear nor
obvious under the law at the time of the court’s ruling, and was therefore not plain.
See id.; see also United States v. Olano, 507 U.S. 725, 734 (1993) (noting that “plain”
is synonymous with “clear” or “obvious” and that, “[a]t a minimum, court[s] of
appeals cannot correct an error [under plain-error review] unless the error is clear
under current law”); United States v. Watson, 843 F.3d 335, 336, 337 (8th Cir. 2016)
(finding no plain error when “neither the Supreme Court nor this court” had resolved
the issue presented and the issue was not “settled beyond debate”), cert. denied, 137
S. Ct. 1358 (2017); United States v. Pazour, 609 F.3d 950, 954 (8th Cir. 2010) (per
curiam) (finding no plain error when “our review of the [Guidelines] and relevant
precedent did not uncover any authority clearly and obviously supporting” the
defendant’s claim on appeal); United States v. Sickinger, 179 F.3d 1091, 1093 (8th
Cir. 1999) (finding no plain error when the defendant could not show that any district
court error was “clear and obvious”). We conclude that the district court’s calculation


      2
        White cites United States v. Muldock, 483 F. App’x 823, 828-29 (4th Cir.
2012), in support of his argument that the large-capacity magazine and the rifle were
not in close proximity for purposes of § 2K2.1(a)(4)(B). Apart from the fact that it
is not controlling authority in this circuit, Muldock did not directly rule on the issue.
Instead, the court noted the “undisputed testimony” that the magazine and firearm
were “six to ten feet” apart and concluded, “[W]e cannot say that the district court
erred in finding that . . . the magazine was in close proximity to the firearm.” 483 F.
App’x at 829.

                                          -5-
of White’s base offense level under § 2K2.1(a)(4)(B) was not plain error. We leave
resolution of the “close proximity” issue for a case in which it is properly raised and
preserved.

       White also argues that the district court erred in applying the 6-level
enhancement under § 2K2.1(b)(1)(C) based on the number of firearms involved in the
offense. He concedes that he possessed the Magtech rifle and the 6 firearms
recovered from his bedroom, but he renews his contention that he did not possess the
19 additional firearms recovered from the common areas of the residence. The
court’s determination of the number of firearms involved in the offense for purposes
of § 2K2.1(b)(1)(C) is a factual finding that we review for clear error. See United
States v. Vega, 720 F.3d 1002, 1003 (8th Cir. 2013).

       “A defendant’s possession of firearms may be actual or constructive, sole or
joint.” Id. at 1003. Constructive possession “requires both knowledge that the
contraband is present and dominion over the premises where the contraband is
located.” United States v. Ways, 832 F.3d 887, 897 (8th Cir. 2016), cert. denied, 137
S. Ct. 1125 (2017). White concedes that he had knowledge of the firearms recovered
from the common areas of the residence. He argues, however, that he did not have
dominion over the residence and thus was not in constructive possession of those
firearms. It is true that a defendant’s “mere presence” in or “mere connection” to a
residence where contraband is located is not sufficient to establish that he
constructively possessed that contraband. Id. at 897-98. But White was not merely
present at or connected to the residence from which the firearms were recovered; it
was his primary residence and had been so for many years, and in which he had
unrestricted access to the common areas. See United States v. Davis, 449 F.3d 842,
846 (8th Cir. 2006) (noting that constructive possession may not rest on “mere
proximity” but can “be established by a showing that the firearm was seized at the
defendant’s residence”). White thus had both knowledge of the firearms and
dominion over the residence sufficient to establish his constructive possession of the

                                          -6-
firearms recovered from the common areas. Also unavailing is White’s argument that
his father’s and brother’s ownership of the firearms recovered from the common areas
of the residence negated the government’s claim that he constructively possessed
those firearms, for constructive possession may be “sole or joint.” Vega, 720 F.3d at
1003. The district court thus did not clearly err in finding that White had constructive
possession of the 19 firearms recovered from the common areas of the residence.

      The judgment is affirmed.
                     ______________________________




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