     Case: 17-20397      Document: 00514441845         Page: 1    Date Filed: 04/23/2018




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

                                                                           FILED
                                      No. 17-20397                     April 23, 2018
                                                                      Lyle W. Cayce
                                                                           Clerk
UNITED STATES OF AMERICA,

              Plaintiff - Appellee

v.

ROBERTSON OMAR WILLIAMS,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                           USDC No. 4:16-CR-00367-1


Before HIGGINBOTHAM, SOUTHWICK, and COSTA, Circuit Judges.
PER CURIAM:*
       Robertson Omar Williams pleaded guilty to unlawful possession of a
firearm by a felon. In determining his sentence, the district court held him
responsible for two additional firearms. Williams argues that he did not know
about, and thus could not have constructively possessed, one of those guns.
That third firearm resulted in the application of two sentencing enhancements.
It was stolen, which results in a two-point enhancement to the offense level.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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U.S.S.G. § 2K2.1(b)(4)(A). As the third firearm attributed to Williams, it also
crossed the threshold for a two-point enhancement based on the number of
firearms possessed. Id. § 2K2.1(b)(1)(A). Concluding there is insufficient
evidence that Williams knew of the third firearm, we VACATE the sentence.
                                      I.
      Houston police officers responded to reports of gunfire near an
apartment building.     When the officers arrived, they observed Williams
standing on the balcony of an apartment holding a gun. Williams fled into the
apartment; the officers followed. Williams and several other individuals who
had been in the apartment tried to flee but were apprehended. Neither the
person who had leased the apartment nor the only resident of the apartment
were present when Williams was arrested. The apartment’s resident later told
investigators that Williams had permission to be there and was the only person
who should have been, though he knew that Williams would sometimes bring
over friends to “hang out.”
      Officers conducted a protective sweep of the apartment and found no one
else inside, but they did find three firearms: an Intratec, model Tec-9, 9mm
caliber semi-automatic pistol on the bedroom bed; a Strum, Ruger and Co.,
model Mark I, .22 caliber revolver under the bedroom dresser; and a Davis
Industries model p-830, .380 caliber pistol in the living room. Officers also
found various calibers of ammunition in unspecified locations around the
apartment.
      After officers advised Williams of his Miranda warnings, he admitted to
holding the Intratec while on the balcony. His possession of it and the Davis
are undisputed. Only the status of the Ruger, which police later determined
was stolen, is at issue. As discussed at the outset, the finding that Williams
possessed the Ruger resulted in two sentencing enhancements: two points are
added for possession of a stolen firearm and two more are added if the
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defendant   possesses    between    three    and   seven     firearms.    U.S.S.G.
§ 2K2.1(b)(1)(A), (b)(4)(A).   These enhancements resulted in an advisory
Guidelines range of 92 to 115 months in prison. If the district court had
sustained Williams’s objection to the third firearm, the range would be only 63
to 78 months. But the district court disagreed, held Williams responsible for
the third firearm, and sentenced him at the low end of the advisory range to
92 months in prison.
                                       II.
      To undo the district court’s factual finding that Williams possessed the
Ruger, he must show that its ruling was clearly erroneous. United States v.
Hagman, 740 F.3d 1044, 1047 (5th Cir. 2014). The district court did not discuss
the issue in detail during sentencing, so we look to the analysis of the
Presentence Report it adopted. In responding to Williams’s objection, the
probation officer noted that the Ruger was found in the apartment which
Williams had permission to use and where he often brought guests. It also
cited police officers’ seeing Williams holding the Intratec, which was left in the
same bedroom where the Ruger was found under the dresser.
      There is no evidence of Williams’s actual possession of the Ruger so the
government must rely on a theory of constructive possession.              To show
constructive possession, the government must prove that Williams, though
lacking physical custody, “still ha[d] the power and intent to exercise control
over the object.” Henderson v. United States, 135 S. Ct. 1780, 1784 (2015); see
also Hagman, 740 F.3d at 1048 (noting that to prove constructive possession
the government must “show that he exercised dominion or control over the
firearms or the area in which they were discovered”).           The court uses a
“common sense, fact-specific approach” to determine constructive possession in
these kinds of cases. United States v. Meza, 701 F.3d 411, 419 (5th Cir. 2012).


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      Williams neither leased nor lived in the apartment where the Ruger was
found. The apartment was leased by an individual who did not live there and
was occupied only by the lessee’s adoptive brother.        That resident was
contacted by Houston police and confirmed that Williams lived elsewhere but
had permission to use the apartment. Williams thus was not the exclusive
occupant of the residence, a status that alone may “establish his dominion and
control over an item found there.” United States v. Houston, 364 F.3d 243, 248
(5th Cir. 2004).     This instead is a joint occupancy case.    Because of the
possibility that the Ruger belonged to someone else who had control of the
apartment, such as the resident or the lessee, a joint occupancy case requires
some evidence beyond presence in the location to create “a plausible inference
that the defendant had knowledge of and access to the illegal item.” Meza, 701
F.3d at 419.
      So the application of the enhancements comes down to knowledge. The
government tries to establish that knowledge circumstantially by pointing to
the fact that Williams was already in the apartment with multiple firearms,
that the stolen Ruger was “plainly visible” in the bedroom, and that Williams
saw the other ammunition in the apartment. Even viewed together, this is not
enough to infer knowledge by a preponderance of the evidence.
      The government’s contention that the stolen Ruger was “plainly visible”
and that “from the photographer’s perspective, one can easily pick out the gun
lying next to a pair of tennis shoes” overstates the visibility of the gun. The




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photo below was taken from a low angle by a police-employed photographer
who knew the location of the Ruger.




      Is the gun “plainly visible?” Is it more likely than not that Williams
would have seen this gun and known that it was there despite not living in the
apartment? Without the benefit of a bright camera flash, the Ruger is tricky
to see even to someone who knows its location. We cannot assume Williams
saw this gun based on only the evidence here, just as it would be unreasonable
to expect him to know of one tucked away in a shoebox or hidden in a closet.
See, e.g., United States v. Sealy, 661 F. App’x 278, 281 n.4 (5th Cir. 2016)
(finding no constructive possession for purposes of sentencing under U.S.S.G.
§ 2K2.1 when there was no evidence to suggest that defendant knew two
firearms existed when they were hidden from view).
      The photo undermines another theory the government has to support
Williams’s knowledge: that the Ruger was being carried by Williams or his

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friends that afternoon but was hurriedly tossed under the dresser when the
police arrived and everyone fled. It is hard to imagine, however, that a gun
tossed quickly under the furniture would land in the upright position the photo
shows.
      The argument that Williams likely knew about the Ruger because of the
“massive amount of ammunition” also does not fit the record.               Of the
substantial amount of ammunition seized from the apartment, only one
magazine and 49 unfired bullets matched the Ruger’s caliber. The record does
not say where the .22 caliber ammunition was found or whether Williams
would have any reason to be aware of the .22 caliber bullets specifically.
Another photo shows some ammunition sitting on top of the dresser under
which the Ruger was found, but it is unidentified, and does not appear to be
the proper size for the Ruger. Williams has admitted to possession of the 9mm
and the .380 caliber pistol. So the presence of ammunition that matches those
two firearms does little to support Williams’s knowledge of a third firearm in
the apartment. Without any information indicating where in the apartment
the .22 caliber ammunition was found, there is no knowledge of .22 caliber
ammunition to impute to knowledge of the .22 caliber firearm. Contrast United
States v. Gambino-Zavala, 539 F.3d 1221, 1229 (10th Cir. 2008) (finding, for
purposes of U.S.S.G. § 2K2.1, a defendant “on notice” of other firearms in an
apartment when ammunition for those other firearms was in plain view in a
location the defendant admitted to storing his property).
      Lastly, Williams did not mention the Ruger during his post-arrest
interview with police despite openly admitting to knowing about and handling
the two other guns found at the scene of the arrest. This could suggest either
Williams was unaware of the third firearm found at the scene or that he knew
it was stolen and would substantially increase his sentence. See United States
v. Houston, 364 F.3d 243, 248 (5th Cir. 2004) (finding no constructive
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possession under U.S.S.G. § 2K2.1 when “[t]he gun was not in plain view,
[someone other than the defendant] disclosed the location of the gun, and [the
defendant] expressed to the officers his belief that the room contained two,
rather than three, firearms.”). His silence could cut either way and thus is not
strong enough evidence to infer knowledge.
      The limited visibility of the gun, the lack of information about where the
ammunition was found, and the fact that Williams was only a guest in the
apartment mean the evidence of knowledge is too thin to say the government
proved possession by a preponderance of evidence. See, e.g., Sealy, 661 F. App’x
at 282 (vacating a sentencing guideline determination of constructive
possession when nothing in the record suggested the defendant had carried,
handled, or even knew about the firearms found in the same apartment).
      The government does not argue that any error in finding these two
enhancements was harmless, nor is there a credible basis for doing so. The
gun quantity and stolen firearm enhancements resulting from tying the Ruger
to Williams increased his Guidelines range by roughly 30 months. That range
was a significant factor in his sentence as the district court sentenced him to
the low point of the enhanced range.    See United States v. Ibarra-Luna, 628
F.3d 712, 718 (5th Cir. 2010). As Williams preserved his objection to this error
that influenced his sentence, correction is warranted.
                                     ***
      The sentence is VACATED and the case is REMANDED for resentencing
based on the revised guideline range.




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