     Case: 12-50242       Document: 00512219887         Page: 1     Date Filed: 04/24/2013




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

                                                                            FILED
                                                                           April 24, 2013

                                       No. 12-50242                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

TERRENCE CHEMISE EWING,

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:11-CR-92-1


Before JONES, BARKSDALE, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Terrence Chemise Ewing, convicted for being a felon in unlawful
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2),
presents one issue on appeal. He challenges a six-level sentence enhancement
imposed pursuant to Guidelines §§ 2K2.1(b)(1)(A) (increase by two levels for
possession of three to seven firearms) and 2K2.1(b)(4)(B) (increase by four levels
if serial number on any firearm is altered or obliterated). AFFIRMED.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                 No. 12-50242

                                          I.
      On 16 February 2011, Waco, Texas, police department officers were
dispatched to 1615 Harrison Avenue, in Waco, in response to a reported assault.
Upon arrival, Ewing was seen running toward, and entering, a vehicle; after he
drove around the corner, the officers stopped him. After Ewing exited the
vehicle, he was placed in handcuffs and searched incident to his arrest.
      At that time, another officer learned Ewing allegedly sexually assaulted
a 15-year-old girl at Ewing’s home, which was nearby at 1510 Harrison Avenue.
Officers obtained a search warrant for that address. The search produced three
firearms: two were discovered in the living-room closet, one with an obliterated
serial number; one, in Ewing’s bedroom. After officers learned Ewing had been
convicted of a felony, he was arrested.
      A 12 April 2011 indictment charged Ewing with being a felon in unlawful
possession of:
             at least one of the following firearms, to-wit:
                    A Lorcin, .380 caliber semi-automatic handgun,
                    with unknown serial number;
                    A Terrior One, .32 caliber revolver . . . ;
                    A Smith & Wesson, . . . semi-automatic handgun
                    ...;
             which had moved in commerce and affecting commerce,
             in violation of [18 U.S.C. §§] 922(g)(1) and 924(a)(2).
(Emphasis added.) After a two-day trial in January 2012, a jury found Ewing
guilty. The verdict did not require specifying which firearm Ewing unlawfully
possessed.
      Less than two months later, at the sentencing hearing presided over by the
district judge who had presided at Ewing’s trial, the court rejected Ewing’s
enhancement challenge, quoted infra, and adopted the pre-sentence
investigation report (PSR), which recommended, inter alia:             a two-level
enhancement for officers’ discovering three firearms in Ewing’s possession,


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                                   No. 12-50242

pursuant to Guideline § 2K2.1(b)(1)(A); and a four-level enhancement for an
obliterated serial number on one of the firearms in his possession, pursuant to
Guideline § 2K2.1(b)(4)(B). As a result of the six-level enhancement’s being
applied, Ewing’s offense level increased to 26; together with his criminal-history
category of five, his advisory Guidelines sentencing range was 110 to 137
months’ imprisonment (without the six-level enhancement, the range would
have been 63 to 78 months). Because, pursuant to 18 U.S.C. § 924(a)(2), the
maximum term of imprisonment was 120 months, the high-end of the range was
changed to 120 months. Ewing was sentenced, inter alia, to 110 months’
imprisonment.
                                         II.
      As noted, for conviction, the jury was required only to attribute one of the
three discovered firearms to Ewing. He acknowledges the Smith and Wesson
pistol was found in his bedroom and contained his DNA; he does not contest the
conviction. He challenges only the six-level enhancement.
      Ewing’s challenge to the enhancement arises out of its requiring the two
firearms found in the living-room closet to be attributed to him. Consistent with
his objection to the PSR, he asserts there was insufficient evidence to establish
either his knowledge of those two firearms in the home, or an intent to exercise
dominion and control over them.
      Because Ewing preserved his sentence-enhancement challenge in district
court, his sentence is reviewed for reasonableness under an abuse-of-discretion
standard. E.g., Gall v. United States, 552 U.S. 38, 50-51 (2007). The court’s
interpretation and application of the advisory Sentencing Guidelines is reviewed
de novo; its factual findings, only for clear error. E.g., United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas, 404 F.3d
355, 359 (5th Cir. 2005).



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      The enhancement ruling at issue is a finding of fact, reviewed only for
clear error. United States v. Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011). In
that regard, “[a] district court cannot impose a sentence enhancement . . . unless
the [G]overnment has proven any facts necessary to support the enhancement
by a preponderance of the evidence”. Id. The burden of proof to establish such
a preponderance requires “evidence, which, as a whole, shows that the fact sought
to be proved is more probable than not”. 3 FED. JURY PRAC. & INSTR. § 104:01.
Such evidence, “when considered and compared with the evidence opposed to it,
has more convincing force, and produces [a] belief that what is sought to be proved
is more likely true than not true”. Id.
      It goes without saying that the clear-error standard of review is
deferential. E.g., Rodriguez, 630 F.3d at 380. There is no clear error if the
challenged findings are “plausible in [the] light of the record as a whole”.
Cisneros-Gutierrez, 517 F.3d at 764. Re-stated, a finding of fact is clearly
erroneous “only if a review of all the evidence leaves us with the definite and
firm conviction that a mistake has been committed”. Rodriguez, 630 F.3d at 380
(internal quotation marks and citation omitted).
      For sentencing, to properly calculate the number of firearms attributable
to defendant, the court may include only firearms unlawfully possessed. U.S.S.G.
§ 2K2.1(b)(1) cmt. n.5. Where, as here, there was no actual possession of the
firearms, the court must find constructive possession vel non, defined as
“ownership, dominion, or control over the item itself, or control over the premises
in which the item is concealed”. United States v. Houston, 364 F.3d 243, 248 (5th
Cir. 2004) (citing United States v. Mergerson, 4 F.3d 337, 349 (5th Cir. 1993)).
      The searched residence was the home of Ewing’s parents, which had
belonged to Ewing’s great-grandmother. Ewing was 12 when his family moved
into the house in 1995; he moved out in 2000, around age 17, and returned
approximately 10 years later, in November 2010, when he was 27 years of age.

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In that vein, Ewing’s joint occupancy of the residence cannot “by itself” establish
constructive possession. Houston, 364 F.3d at 248.
      In such instances, our court applies a “commonsense, fact-specific
approach”, Mergerson, 4 F.3d at 349 (internal quotation marks and citation
omitted), to determine whether the evidence supports “a plausible inference that
the defendant had knowledge of, and access to, the item[s]”. Houston, 364 F.3d
at 248 (citing United States v. Hinojosa, 349 F.3d 200, 204 (5th Cir. 2003)); see
Mergerson, 4 F.3d at 348-49 (no plausible inference for constructive possession
where weapon not in plain view and pawnshop receipt indicated co-defendant
purchased weapon well before co-habitating with defendant). There need not be
an affirmative link between defendant and the items. Mergerson, 4 F.3d at 349.
      Because the two contested firearms were found in a bag underneath
various items in the living-room closet, the facts arguably align with “hidden
compartment” cases, in which the knowledge element can be satisfied only
through “additional circumstantial evidence that is suspicious in nature or
demonstrates guilty knowledge”. United States v. Mudd, 685 F.3d 473, 477 (5th
Cir. 2012) (internal quotation marks and citation omitted). Such circumstantial
evidence includes inconsistent statements or implausible explanations, and is
sufficient to establish knowledge. Id. at 478.
      Prior to the sentencing hearing, Ewing filed the following objection to the
six-level enhancement:
            Terrence Ewing objects to paragraph 23 of the [PSR]
            which adds 6 points (2 + 4) for the 2 firearms found in
            the front closet of the house. The basis for this
            objection is that (a) the house was owned and occupied
            by Emory & Sandra Ewing, not Terrence Ewing; (b)
            during the trial there was no evidence connecting
            Terrence Ewing to the two firearms in the front closet;
            (c) the only evidence presented at trial was that the 2
            guns had been placed in the front closet by Terrence
            Ewing’s great-grandmother and Terrence Ewing knew

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            nothing about the firearms; (d) there is no information
            in the offense report which would, in any way, connect
            Terrence Ewing to the firearms in the closet; and (e) the
            [PSR] fails to remind the court that Terrence Ewing
            only lived in the house for [sic] short time and that the
            guns found in the front closet where [sic] hidden from
            view.
The following related colloquy occurred at the sentencing hearing:
            The Court: [Defense counsel], what matters need to be
            ruled on this afternoon?
            [Defense counsel]: Your Honor, just one issue and that
            is whether or not the two guns that were found in the
            front closet of Terrence Ewing’s parents’ house should
            be attributed to Terrence Ewing. I think six points was
            [sic] added for that. Our argument is that mere
            presence alone is not enough to add that, that there was
            no affirmative evidence that showed that Mr. Ewing –
            Terrence Ewing knew of those weapons in the closet. In
            fact, the only evidence presented was that those guns
            had been placed in the closet years prior when Terrence
            Ewing was not living in the house and that he – that
            Terrence Ewing did not know about those weapons.
            The Court: Wait. Wait. You said the only evidence.
            Where is that evidence found?
            [Defense counsel]: That evidence comes from the
            testimony of Emory Ewing [defendant’s father] and –
            well, the witnesses – all the defense witnesses testified to
            that at the trial.
            The Court: Okay.
            [Defense counsel]: And they’re here in the courtroom if
            the Court needs them to testify again.
                   I would also point out that had the government
            relied on those weapons in their closing argument, that
            might have been something, but they didn’t. And since
            there was another gun and the only argument that the
            government made concerned the gun that had the DNA
            on it that was next to Terrence Ewing. Again, that’s


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                                  No. 12-50242

            some indication that the guns in the closet had no
            connection whatsoever to Terrence Ewing. And so
            based on that, I mean, we understand that they’re in
            the house that he’s in and it’s a common area, but at
            the same time without – if you don’t have something
            more than mere presence, our argument is that’s just
            not enough.
(Emphasis added.)      Following additional argument by Ewing and the
Government, the court ruled as follows: “The Court would find that the firearms
are properly attributed to Mr. Ewing and overrule the objections” to the six-level
enhancement recommended by the PSR.
      “Generally, a PSR bears sufficient indicia of reliability to permit the
sentencing court to rely on it at sentencing. The defendant bears the burden of
demonstrating that the PSR is inaccurate; in the absence of rebuttal evidence,
the sentencing court may properly rely on the PSR and adopt it.” United States
v. Ollison, 555 F.3d 152, 164 (5th Cir. 2009) (citation and internal quotation
marks omitted). For the basis for the recommended six-level enhancement, the
PSR stated: “Officers discovered in the living room closet two pistols”, on one of
which “[t]he serial number had been scratched off”; because “the instant offense
involved three (3) to seven (7) firearms, add two (+2) levels”, and because
“defendant possessed a firearm with obliterated serial numbers, increase by four
(+4) levels”. As discussed, the only evidence relied upon to challenge the PSR’s
six-level-enhancement recommendation is the trial testimony of Ewing’s father,
mother, grandmother, and girlfriend.
      Along that line, Ewing did not testify at trial.      His mother, father,
grandmother, and girlfriend testified on his behalf. Each of the three family
members testified that Ewing had no knowledge of the firearms in the closet; the
girlfriend testified only concerning the firearm found in Ewing’s bedroom.
      The testimony by the family members was consistent in each stating
Ewing’s great-grandmother placed the two firearms in the living-room closet;

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but, the details in that regard are less certain. Ewing’s father and grandmother
were certain the firearms were placed in the closet in 2000; but, Ewing’s mother
testified it could have been anytime between 1996 and 2000. With respect to
from whom the firearms were obtained, one testified it was Ewing’s great-
grandfather; one, Ewing’s great-grandmother’s “live-in friend”; and the other,
Ewing’s step great-grandfather. Ewing’s grandmother and mother testified each
firearm was obtained on a separate occasion, and each time placed in the closet;
but, Ewing’s father’s testimony suggests both firearms were obtained and placed
in the closet at the same time. Ewing’s father and mother testified the firearms
were obtained because Ewing’s great-grandfather (or step great-grandfather, or
his great-grandmother’s “live-in friend”, whichever is accurate), who brought the
firearms to the house, was intoxicated, whereas Ewing’s grandmother stated the
events had nothing to do with alcohol. And each family member testified the
other two family members were present, except Ewing’s mother could not
remember if Ewing’s father was present. (The dissent takes issue with relying
on the lack of credibility of witness testimony as evidence of defendant’s guilt.
See Dissent at 5. As noted, Ewing exercised his right not to testify at trial; he
chose not to testify at sentencing as well, which, too, was his right. The
testimony of his witnesses was, therefore, all the more important.              At
sentencing, the burden was on Ewing—not the Government—to establish the
PSR was unreliable. E.g., Ollison, 555 F.3d at 164. His relying only on the
testimony of his witnesses to rebut the PSR left the district court with the
requirement to examine their credibility in concluding whether the firearms in
the closet should be attributed to Ewing.)
      Other testimony from Ewing’s family members called into question their
credibility as well. (The dissent fails, for the most part, to address this portion
of the defense witnesses’ testimony, relying only on their testimony related to
the firearms in the closet to conclude it does not incriminate Ewing. See Dissent

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at 3-5. This narrow review ignores the requirement that evidence must be
reviewed as a whole before a finding of fact can be overturned. See, e.g., Johnson
v. Collins, 964 F.2d 1527, 1532 (5th Cir. 1992) (“[A] review of all of the evidence”
must leave our court with the “definite and firm conviction that a mistake has
been committed” before findings of fact may be overruled.). This is an obvious
matter the court could have relied upon in concluding the firearms in the closet
were properly attributed to Ewing.) Ewing’s mother and grandmother testified
they did not approve of firearms, did not know anything about them, and did not
want them in the house, yet, according to their testimony, they left these
firearms in the home for over a decade. Even though Ewing’s mother testified
she was not comfortable around firearms, she allegedly took the Smith and
Wesson (the firearm discovered in Ewing’s bedroom) from a young man named
Kenny in her front yard who was confronting another young man in a heated
argument after Kenny pulled the firearm on the young man—a situation she
considered “dangerous”. She then took this loaded firearm, with a round in the
chamber, and threw it in a clear bin containing clothes. The testimony by
Ewing’s parents was extremely detailed regarding the state of the bin: they
noticed ashes and dust on the lid, indicating it had not been removed recently;
the bin was so close to the wall the lid could not be lifted without moving the bin;
and there were no indentations in the carpet indicating the bin had been moved.
On the other hand, while Ewing’s father testified on direct he forgot about the
firearm in the bedroom, on cross he testified he asked someone to retrieve the
weapon; Ewing’s mother testified on cross she later tried to return the firearm
in the bedroom. (The dissent concludes our reliance on this testimony to find
implausibility is in error. See Dissent at 5-6 (stating the contradictions in the
testimony “were on such minor points, and nothing was implausible”, that an
inference of guilty knowledge is not present). Again, at sentencing, the burden
was on Ewing to establish the PSR’s unreliability, Ollison, 555 F.3d at 164; and

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                                  No. 12-50242

his rebutting the PSR only with the testimony of his witnesses left the court to
rely on that testimony as well. As discussed, the Government was required to
establish only by a preponderance of the evidence the enhancements were
proper; and, our review is only for clear error.)
      At trial, beyond Ewing’s living in the home with his parents and his access
to the common area where the two firearms were located, the Government did
not present evidence suggesting Ewing had knowledge of the firearms in the
living-room closet. The Government focused its attention primarily on the
firearm in the bin in Ewing’s bedroom; for the two firearms in the living-room
closet, the Government pursued discrediting Ewing’s witnesses on cross-
examination.
      At sentencing, the Government asserted only that the evidence presented
at trial showed the two firearms in the closet were in a common area of the home
where Ewing resided, of which he would have access, dominion, and control, and
those firearms were charged in the indictment that went to the jury. As noted,
neither party presented additional evidence at the sentencing hearing; as also
noted, Ewing’s family was present to testify if needed. After hearing from each
side, and finding the PSR “properly attributed” the firearms to Ewing and,
therefore, denying his objection to the six-level enhancement recommended by
the PSR, the court heard Ewing’s denial of knowledge of all three firearms,
including the one in his bedroom, when he accepted the court’s invitation for
allocution: “[H]ad I known the guns was [sic] in the house I would have got
[sic] rid of them. . . . Or I would have had my mother and them get rid of them”.
      As discussed, the Government was required only to satisfy a
preponderance-of-the-evidence standard for the enhancements to be imposed.
Pursuant to our review of the record, and given the applicable deferential clear-
error standard of review, Rodriguez, 630 F.3d at 380, and the “commonsense,
fact-specific approach” on whether Ewing constructively possessed the two

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                                   No. 12-50242

firearms in the living-room closet, Mergerson, 4 F.3d at 349 (internal quotation
marks and citation omitted), the district court did not clearly err in adopting the
PSR’s recommended six-level enhancement. Re-stated, “a review of all the
evidence [does not] leave[] us with the definite and firm conviction that a
mistake has been committed”. Rodriguez, 630 F.3d at 380 (internal quotation
marks and citation omitted).
      There is no question Ewing had access to the two firearms because of their
location in a common area of the home where he resided. For the knowledge
requirement, as Ewing was 17 years old at the time the firearms were
supposedly placed in the closet, it is plausible he would have learned of their
presence over the next ten years. The only evidence presented to contest
Ewing’s knowledge was the testimony of his family members, which contained
numerous inconsistencies. The family members’ testimony concerning their
opinions of firearms, as compared to their treatment of the firearms in their
home, calls into question their credibility as well. Needless to say, the district
judge, who presided at trial, had the opportunity to evaluate their credibility.
      “When findings of fact are based on credibility determinations regarding
witnesses, we must show even more deference to the trial court’s findings.”
Johnson, 964 F.2d at 1532 (citing Anderson v. City of Bessemer, 470 U.S. 564,
574 (1985)). And, Ewing’s statements at the sentencing hearing asserting he
“would have got [sic] rid of” the firearms had he known they were there is
inconsistent with his DNA on the firearm in his bedroom, yet he did not “g[e]t
rid of” that firearm. Accordingly, it is “plausible in [the] light of the record as a
whole” that Ewing was in constructive possession of the two firearms in the
living-room closet, rendering the six-level-enhancement finding not clearly
erroneous. Cisneros-Gutierrez, 517 F.3d at 764.
                                        III.
      For the foregoing reasons, the judgment is AFFIRMED.

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Leslie H. Southwick, Circuit Judge, dissenting:
      The majority correctly notes that we apply a clear-error standard of review
to a district judge’s fact-finding on sentencing enhancements. The standard
“only requires a factual finding to be plausible in light of the record as a whole.”
United States v. Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011). Still, “the
government [must] prove[ ] any facts necessary to support the enhancement by
a preponderance of the evidence.” Id.
      The government was required to prove that Ewing had constructive
possession of the two firearms found in a closet accessed from the living room.
Respectfully, I disagree with the majority that such evidence exists. I dissent.
      Whether we analyze constructive possession in a joint occupancy context
or in the hidden compartment context as the majority does, “something else (e.g.,
some circumstantial indicium of possession) is required besides mere joint
occupancy [in a residence with a firearm] before constructive possession is
established.” United States v. Mergerson, 4 F.3d 337, 349 (5th Cir. 1993). We
have required “additional ‘circumstantial evidence that is suspicious in nature
or demonstrates guilty knowledge.’” United States v. Mudd, 685 F.3d 473, 477
(5th Cir. 2012). The additional evidence must support “a plausible inference
that the defendant had knowledge of, and access to, the item.” United States v.
Houston, 364 F.3d 243, 248 (5th Cir. 2004).
      For the purposes of this appeal, I will assume this caselaw means that if
there were evidence to support an inference that Ewing knew of the weapons
and could have accessed them, that is enough.           We are not requiring a
reasonable inference that Ewing is the one who acquired the two weapons, or
even that he ever touched them. Whose weapons they were, and whoever used
or took possession of them, would not matter under that conception of the
prohibition.   Thus, the relatively undisputed facts are irrelevant that the
residence was his parents; that it had previously been owned by Ewing’s great-

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                                  No. 12-50242

grandmother; that Ewing resided there from 1995 to 2000, was imprisoned, then
returned to live there from November 2010 until his arrest in February 2011;
and that the weapons were acquired and placed in the closet by other family
members during Ewing’s initial time in the house.
      Perhaps Ewing himself acquired those two handguns and was the one who
put them in the bag in the closet, or regardless of their origins, perhaps Ewing
at some time took the two weapons from the closet to examine or use. We are
not requiring any of those actions, for which there is no evidence. Residing with
knowledge and access are all that we require.
      As the basis for recommending six-level enhancements, the Presentence
Report (“PSR”) stated: “Officers discovered in the living room closet two pistols,”
and then described the weapons. In the section computing the offense level, in
which the “Specific Offense Characteristics” were described, the PSR stated:
“Three (3) firearms were discovered in the defendant’s possession.”
      It is evident from the PSR that two of the weapons were in Ewing’s
“possession” only if being found in a house in which he resided with other people
was enough. Joint occupancy is not enough. Mergerson, 4 F.3d at 349. I do not
interpret the majority to say that evidence that would be insufficient otherwise
becomes sufficient merely by being stated in a PSR. Such an interpretation
clashes with the principle that “[g]enerally, a PSR bears sufficient indicia of
reliability to permit the sentencing court to rely on it at sentencing.” United
States v. Ollison, 555 F.3d 152, 164 (5th Cir. 2009). Elaborating on what that
means, we also have held that a “district court may adopt facts contained in a
PSR without inquiry, so long as the facts have an adequate evidentiary basis and
the defendant does not present rebuttal evidence.” United States v. Caldwell,
448 F.3d 287, 290 (5th Cir. 2006). There is no adequate evidentiary basis, even
if assigning all three weapons to Ewing should even be considered a “fact” in this
PSR, other than their being found in a house with a joint occupancy. Joint

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                                  No. 12-50242

occupancy is an insufficient fact. The government has the burden to prove a
sentencing enhancement. Rodriguez, 630 F.3d at 380. It failed.
      Perhaps, though, instead of being a fact-finding without an evidentiary
basis, the PSR’s assignment of all three firearms to Ewing should be considered
a legal conclusion. If so, there is not a mirror proposition in the precedents that
a PSR’s legal conclusions as to the applicability of a sentencing enhancement are
presumed reliable and must be rebutted by a defendant. A legal conclusion in
a PSR, unsupported by factual findings with an evidentiary basis, does not shift
this burden to a defendant.
      The majority writes: “The only evidence presented to contest Ewing’s
knowledge was the testimony of his family members.” I see the opposite
problem. No evidence was introduced to show Ewing’s knowledge, which makes
the strength of contesting evidence unimportant. Although the standard of proof
for sentencing enhancement is only a preponderance of the evidence, it is the
government that bears this burden. Id. The government might have sustained
this burden through DNA or fingerprint evidence, but tests for that kind of
evidence failed. So too the government might have sustained this burden by
showing that the firearms were in plain view. See Mudd, 685 F.3d at 479. The
police officer who discovered the firearms testified that the firearms were found
in a living room closet “pretty well full of items,” and located in a camera bag
that was itself “up underneath some stuff” including “a bunch of clothes, bunch
of DVDs in a bag” with “stuff stacked all around it” such that a person “would
not have easy access to it.”
      In 2011, when the two handguns were found, the closet was unlocked and
Ewing could have accessed the weapons. Therefore, I agree Ewing had access.
The issue that divides me from the majority is whether there is evidence Ewing
knew of the handguns. The majority relies on circumstantial evidence that I



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                                  No. 12-50242

find insubstantial. Among the items of circumstantial evidence were supposedly
doubtful explanations about the weapons by some of Ewing’s family.
      “Inconsistent statements and implausible explanations are among the
behaviors previously recognized in this circuit as circumstantial evidence of
guilty knowledge.” Mudd, 685 F.3d at 478. To connect Ewing to those weapons,
the majority identifies inconsistencies in the testimony of three other occupants
of the residence. Ewing’s father, mother, and grandmother testified at the guilt
phase of his trial. These three witnesses agreed that a former resident of the
house – Ewing’s great-grandfather – was the one who initially possessed these
firearms. The witnesses all agreed that Ewing’s great-grandmother took the
weapons from him and placed them in the living-room closet. One inconsistency
noted by the majority is that the witnesses varied on what words they used to
identify the initial owner’s familial relationship. Ewing’s father referred to the
man as his “wife’s grandpa,” “the grandpa,” and the grandmother’s “husband.”
Ewing’s mother referred to him as her “grandfather,” before clarifying that he
was her “step grandfather.” Ewing’s grandmother called him a live-in “friend.”
All I perceive from these different labels is that the proper relationship label for
someone several generations removed, when more than one marriage may have
been involved, may not have been clear to some in the family.
      A second inconsistency was that Ewing’s mother and grandmother said
Ewing’s great-grandmother took each of the two guns from the great-grandfather
on separate occasions, while the majority interprets Ewing’s father to have
testified that both guns were taken at the same time. I do not interpret the
father’s testimony that way. The father was asked to “describe to the jury how
those guns ended up in the closet.” He replied:
      My wife’s grandmother who we were living with, her --her husband,
      the grandpa -- my wife’s grandpa used to go out and drink like every
      other weekend when he was off and they have these fields in our
      area that they used to go -- they have couches and chairs and stuff

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                                   No. 12-50242

      where they all -- all their friends meet together and they drink.
      They had trees and stuff where they couldn’t be seen and he would
      find them and bring them home. And my wife’s grandmother took
      them away from him because he be drunk and she placed them in
      there in this bag and put them in there to get them away from him.
      The father was asked to clarify: “So you were there at the time and saw
her do that?” He responded: “Yes.” He was asked whether Ewing was home
“observing that.” He responded: “No, sir. He wasn’t.” On cross examination,
Ewing’s father responded that he “happened to be present in the year 2000 when
[his] wife’s grandmother put them there” and that he “physically saw her do it.”
The father was unclear as to whether one or two seizures occurred.
      A third supposed problem was that Ewing’s father and mother testified
that the great-grandmother took the guns from Ewing’s great-grandfather when
he was drunk. Ewing’s grandmother testified alcohol was not a factor. This is
the only direct inconsistency. It was certainly for the district court to determine
what to make of that difference – a telling inconsistency or different perceptions
or knowledge or willingness to acknowledge an uncomfortable detail.
      Finally, there was not complete agreement about the year that the
weapons were placed in the closet. Ewing’s father testified that the guns were
placed in the closet “around 2000”; Ewing’s grandmother testified “around 2000"
and in “2000.” Ewing’s mother first stated: “I can’t remember the exact dates.”
Asked again whether she could remember the year, she testified: “It would have
been like in ‘97, ‘96. It was in 2000 -- I think it was in 2000. I’m not for sure.” To
the extent there are clear differences in dates, and I am not sure there are, no
one was seeking to protect Ewing by saying the weapons were taken at a time
when he was incarcerated and not living in the home.
      I see in these allegedly condemning inconsistencies nothing more than the
usual minor differences in testimony about events. The general thrust of
everyone’s story was the same, and the stories are plausible. True, the district


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                                  No. 12-50242

court makes credibility determinations and draws reasonable inferences, but I
do not find it reasonable to conclude that someone who testifies in 2012 about
events in about 2000 must be precise about these minor matters in order to keep
that testimony from being incriminating.
      Even if these possible discrepancies could reasonably be considered by a
district judge as serious in some respects, the potential dissembling of witnesses
other than the accused about actions of individuals other than the accused
should not matter. When this court has recognized suspicious behaviors as
evidence of guilty knowledge, we have usually done so when the defendant so
behaves, typically at the scene and time of discovery of contraband. See, e.g.,
United States v. Mendoza, 522 F.3d 482, 489-90 (5th Cir. 2008) (defendant’s
statements to border patrol agents); United States v. Villarreal, 324 F.3d 319,
325 (5th Cir. 2003) (defendant’s statements to police at the time of arrest and in
a post-arrest interview); United States v. Cano-Guel, 167 F.3d 900, 905 (5th Cir.
1999) (defendant’s statements to customs officials).
      The criminal activity in which we often consider these behaviors is drug
possession. After an officer finds drugs hidden in a defendant’s vehicle, these
behaviors are relevant in determining whether the defendant knew of the drugs
or rather was the unwitting conduit of a third party. See United States v.
Resio-Trejo, 45 F.3d 907, 911 (5th Cir. 1995). The majority arguably extends this
line of cases by holding that the guilty knowledge of a defendant can be
evidenced solely by third-party statements, made during trial testimony, that
are at the very least internally consistent.
      To the extent that the holding rests on implausibility, this court further
permits witnesses’ lack of credibility on one subject – why and when firearms
were stored by someone else – to be evidence the defendant knew the guns were
in the closet. I recognize the logical inference here, namely, that these family
members concocted tales to protect Ewing, but their stories did not quite hold

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                                  No. 12-50242

together. The contradictions, though, were on such minor points, and nothing
was implausible, that I find no support for any relevant inference.
      Any possible inconsistencies in the testimony of other witnesses have no
bearing on knowledge Ewing would have had about the guns. The testimony
given by Ewing’s father, mother, and grandmother is consistent that the guns
came from Ewing’s great-grandfather (though the relationship label varied), and
were placed in the closet by Ewing’s great-grandmother in 2000 without Ewing’s
contemporary or later knowledge. The family members arguably became more
implausible when they testified that even though one or more of them
disapproved of firearms, these two weapons remained in the closet for years.
      There is one statement made by Ewing that the majority discusses. At the
sentencing hearing, he said that “had I known the guns was in the house I would
have got rid of them.” The majority views this as not credible because Ewing’s
DNA was found on the firearm in the bedroom, possession of which Ewing does
not challenge on appeal. He clearly did not get rid of that one. Ewing made this
statement after the district court had determined that he was responsible for all
the firearms.   Therefore, the district court could not have relied on this
statement to support the attribution of the two contested firearms. Further, the
statement followed an exchange among both attorneys and the court about the
two disputed firearms, not the one found in a bin beside Ewing’s bed. Ewing’s
statement that he would have gotten rid of any firearms he knew about is
implausible in light of the weapon he kept in his bedroom. Ewing did protest too
much, but I see this implausibility as having little to do with whether he actually
knew about the two firearms in the living-room closet.
      Not only did the district court not consider this one statement by Ewing
before making the sentencing decision, the court did not refer to the credibility
of Ewing’s family members or the inconsistency or implausibility of their
statements. The district court simply ruled that the PSR “properly attributed”

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                                  No. 12-50242

the firearms to Ewing. The views of inconsistency and implausibility originate
with this court’s assessment of what is “plausible in light of the record as a
whole.” United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
Although it may be logical to speculate that the family members concocted tales
to hide Ewing’s knowledge, I find no support for deriving this inference given
that the contradictions were on such minor points and the stories were plausible.
      The question, again, is whether these statements amount to evidence
demonstrating that Ewing had guilty knowledge of the firearms. Mudd, 685
F.3d at 477. We have held that certain circumstantial evidence did not permit
the “reasonable inference of guilty knowledge” when the “evidence invited only
speculation and conjecture.” United States v. Beckner, 134 F.3d 714, 719 (5th
Cir. 1998). We have found plain error in applying a sentencing enhancement
when the government speculated, but did not provide evidence, that the
defendant’s false statements caused a bank to issue a loan. United States v.
Sandlin, 589 F.3d 749, 757 (5th Cir. 2009).
      The testimony of Ewing’s family members was consistent that Ewing did
not observe the two firearms being hidden and Ewing did not subsequently learn
of the firearms’ existence.    As my review of the majority’s reasoning has
attempted to show, there is no evidence to create a plausible or reasonable
inference – as opposed to speculation or conjecture – that Ewing had guilty
knowledge of the existence of the two firearms. There must be “some evidence
supporting at least a plausible inference that the defendant had knowledge.”
Mudd, 685 F.3d at 477. In the absence of this evidence, I would hold that the
two sentencing enhancements based on the two firearms in the living-room
closet are unsupported by any evidence. Therefore, I would vacate and remand
to the district court for re-sentencing.




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