                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         NOV 12 2003
                                     TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 03-6084
          v.                                      (D.C. No. CR-96-121-T)
 STEVEN DANIEL CARTER, also                          (W.D. Oklahoma)
 known as Steven Carter,

               Defendant-Appellant.


                            ORDER AND JUDGMENT          *




Before EBEL , HENRY , and HARTZ , Circuit Judges.




      Defendant Steven Daniel Carter appeals an order from the United States

District Court for the Western District of Oklahoma revoking his supervised

release and sentencing him to eighteen months’ imprisonment followed by



      *
        After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
eighteen months’ supervised release. We exercise jurisdiction under 28 U.S.C.

§ 1291 and affirm the decision of the district court.

      On February 7, 1997, after pleading guilty to money laundering, a class C

felony, see 18 U.S.C. § 1956(a)(1); 18 U.S.C. § 3559(a)(3), Defendant was

sentenced to 46 months’ imprisonment to be followed by 36 months’ supervised

release. He commenced his term of supervised release on June 27, 2000. Among

other conditions of his supervised release, Defendant was not to possess a

firearm, associate with any person convicted of a felony without the permission of

his probation officer, or commit any federal, state, or local crime.

      On August 23, 2002, an Oklahoma County sheriff’s deputy stopped

Defendant for speeding and following too closely behind another vehicle.

Defendant’s passenger in the car, William Winder, had previously been convicted

of carjacking. During the course of the traffic stop, while the car’s passenger

door was open, the deputy sheriff observed a handgun in plain view on the car’s

floor. Defendant denied knowing that the gun was in the car, which he had

borrowed from a friend.

      The United States Probation Office filed a Petition for Warrant or

Summons alleging that Defendant had violated the terms of his supervised release

by (1) transporting a loaded firearm in a motor vehicle and possessing a firearm

after a prior felony conviction, and (2) associating with a convicted felon also on


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supervised release. After conducting an evidentiary hearing, the district court

determined that sufficient evidence existed to establish both violations, and

revoked Defendant’s supervised release. Under the United States Sentencing

Commission’s policy statement for sentences to be imposed following the

revocation of supervised release, the recommended sentence would be four to ten

months’ incarceration. The district court, however, sentenced Defendant to

eighteen months’ imprisonment and eighteen months’ supervised release.

      Defendant raises two issues on appeal. His first contention is that the

district court lacked sufficient evidence to find that Defendant had violated the

conditions of his supervised release. His second is that the district court

impermissibly departed from the sentencing range recommended by the

Sentencing Commission’s policy statement.

Revocation of Supervised Release

      We review for clear error the district court’s findings of fact regarding

Defendant’s alleged supervised-release violations. United States v. Hall, 984

F.2d 387, 390 (10th Cir. 1993). To revoke a defendant’s supervised release, a

district court must find by a preponderance of the evidence that the defendant

violated a condition of his release. Id. (citing 18 U.S.C. § 3583(e)(3)).

      Regarding the first allegation (transporting a loaded firearm in a motor

vehicle and possessing a firearm after a prior felony conviction), the district court


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heard testimony from the deputy sheriff who stopped Defendant. The deputy

testified that the firearm was “clearly visible with the [car’s passenger] door

open.” Tr., Sept. 5, 2002, at 7. The firearm, the deputy stated, was located

“under the passenger’s seat, the muzzle facing inside, and the handle and the

trigger guard [were] between the doorjamb and the seat.” Id. at 6.

      Defendant presented no evidence at his initial hearing that he was unaware

of the gun’s presence in the car. Instead, he called only his mother to testify that

Defendant was on his way to Enid, Oklahoma, to pick up his niece when he was

stopped. Defendant did, however, file a motion to reconsider almost three months

after the district court revoked his supervised release. The court granted

Defendant’s motion, and heard from Marvin Perry, who testified that he had

placed the gun inside the car, unknown to Defendant or Mr. Winder. Mr. Perry

also testified, however, that he had placed the handgun in the car “where the

barrel was facing towards the door,” and that he then pulled the floor mat over the

gun to conceal it. Tr., Feb. 27, 2003, at 13-14. After hearing Mr. Perry’s

testimony, the district court concluded that even if Mr. Perry had placed the gun

in the car, clearly someone inside the car had discovered it, because during the

traffic stop the gun was no longer concealed by the floor mat.

      It is well established that possession may be either actual or constructive.

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


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demonstrate constructive possession in a situation where, as in this case, the

defendant was a joint occupant of the automobile, the government must “show

some connection or nexus individually linking the defendant to the contraband.”

Id. (internal quotation marks and citations omitted). The government bears the

burden of offering “some evidence supporting at least a plausible inference that

the defendant had knowledge of and access to the . . . contraband.” Id. (internal

quotation marks and citation omitted).

      The above testimony was sufficient to allow the district court to find by a

preponderance of the evidence that Defendant was in constructive possession of a

firearm on August 23, 2002. The district court found that Defendant had

knowledge of the firearm because it was in plain view when the deputy sheriff

stopped him. Furthermore, as the United States asserts on appeal, the gun’s barrel

was pointing in a different direction when the deputy discovered it than it was

when Mr. Perry allegedly placed it in the car, also indicating that someone inside

the car had moved the gun. The district court could plausibly infer that Defendant

had access to the firearm because it was discovered within a few feet of where he

was sitting, inside the car’s passenger compartment.

      Defendant did not dispute that there was sufficient evidence of the second

allegation (associating with a convicted felon) for the district court to find that he

had also violated this condition of his supervised release. The district court did


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not clearly err by finding Defendant in violation of the conditions of his

supervised release.

Sentence Following Revocation of Supervised Release

         We next consider the sentence of eighteen months’ imprisonment imposed

by the district court. We will uphold a sentence following the revocation of

supervised release as long as it “can be determined from the record to have been

reasoned and reasonable.” United States v. Lee, 957 F.2d 770, 774 (10th Cir.

1992).

         Defendant argues that the sentence of eighteen months’ imprisonment was

not reasoned and reasonable because it exceeded the range suggested by the

Sentencing Commission’s policy statement, see USSG § 7B1.4(a), p.s.

Defendant’s possession of a firearm constituted a Grade B violation for purposes

of the policy statement, USSG § 7B1.1(a), p.s., and his criminal history category

was Category I, see USSG § 7B1.4(a). The policy statement suggested a sentence

of four to ten months’ imprisonment. See USSG § 7B1.4(a). Defendant points

out that by sentencing him to eighteen months’ imprisonment, the district court

imposed a sentence at the top of the range suggested for a Grade A violation

committed by someone in his criminal history category, see id.

         We hold that the sentence of eighteen months’ imprisonment was reasoned

and reasonable. The district court clearly considered the four- to ten-month


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sentence suggested by the Sentencing Commission’s policy statement, as both

Congress and our precedents require, see, e.g., United States v. Brooks, 976 F.2d

1358, 1360 (10th Cir. 1992) (citing 18 U.S.C. § 3553(a)). The district court heard

the evidence against Defendant, and heard Defendant’s argument as to why it

should impose a sentence at the bottom of the suggested range. After also

considering other factors from 18 U.S.C. § 3553(a) enumerated in 18 U.S.C.

§ 3583(e), the court concluded that a sentence of four to ten months would be

“inadequate to reflect the seriousness of the violations and to deter others from

like conduct,” United States v. Carter, No. CR-96-121-T (W.D. Okla. Sept. 9,

2002) (order revoking supervised release), and imposed a sentence of eighteen

months’ imprisonment, a term well under the two-year maximum sentence

permitted by Congress, see 18 U.S.C. § 3583(e)(3).

      The nature and circumstances of Defendant’s violation support the district

court’s sentence. After all, Defendant’s conduct was not limited to the single

Grade B violation of possessing a (loaded) firearm after a previous felony

conviction; Defendant was traveling with both a loaded firearm and a convicted

carjacker.

      It was reasonable for the district court to impose a sentence that it felt

would deter convicted felons on supervised release from traveling together while

armed. Because the record demonstrates that the district court considered the


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sentencing range recommended by the Sentencing Commission’s policy statement

and other appropriate factors before imposing this sentence, we cannot say that

the district court’s decision was not reasoned.

      Therefore, we AFFIRM the district court’s revocation of Defendant’s

supervised release and the sentence of eighteen months’ imprisonment imposed

upon revocation.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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