            Case: 17-11025    Date Filed: 12/12/2017   Page: 1 of 5




                                                           [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-11025
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 3:16-cr-00027-MCR-1



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

versus

KENWIN DARELL MCMILLIAN,

                                          Defendant - Appellant.
                       ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      ________________________

                             (December 12, 2017)

Before HULL, WILSON, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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       Kenwin McMillian appeals his conviction for possession of a firearm by a

convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). McMillian

argues that the district court erred when it refused to charge the jury with his

proposed constructive possession instruction. Because McMillian’s proposed

instruction was an incorrect statement of the law of our circuit, the district court

correctly declined to deliver it to the jury. Accordingly, we affirm.

                                              I.

       McMillian was driving his sister-in-law’s car when the gun at issue was

discovered behind the driver’s seat. At McMillian’s trial, the government put on

DNA evidence linking him to the weapon, but McMillian disputed the reliability of

that evidence. He claimed that the gun belonged to his sister-in-law and was in the

car without his knowledge. At the conclusion of his trial, McMillian requested that

the district court deliver the following constructive possession instruction, based on

Tenth Circuit law at the time: 1

       In cases involving joint occupancy of a place where a thing is found, mere
       control or dominion over the place in which the items are found is not
       enough to establish constructive possession. Rather, the government is
       required to present direct or circumstantial evidence to show some
       connection or nexus individually linking the defendant to the item.

The district court refused, and McMillian was subsequently convicted.



1
 See United States v. Jameson, 478 F.3d 1204 (10th Cir. 2007) (abrogated by United States v.
Little, 829 F.3d 1177 (10th Cir. 2016)).
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      On appeal, McMillian argues that because he did not own the car he was

driving when the officers found the gun, the government needed to establish a

nexus between him and the gun beyond the fact that he had control over the

vehicle. The failure to deliver his requested instruction, he claims, allowed the

jury to “infer knowledge [of the gun] from other circumstances,” without having to

evaluate the reliability of the government’s DNA evidence linking him to the

weapon.

                                          II.

      We review a district court’s decision to refuse a requested jury instruction

for abuse of discretion. United States v. Palma, 511 F.3d 1311, 1314–15 (11th Cir.

2008) (per curiam). We will reverse that decision only if “(1) the requested

instruction correctly stated the law; (2) the actual charge to the jury did not

substantially cover the proposed instruction; and (3) the failure to give the

instruction substantially impaired the defendant’s ability to present an effective

defense.” Id. at 1315 (internal quotation marks omitted). We review de novo

whether a requested jury instruction correctly stated the law. United States v.

Takhalov, 827 F.3d 1307, 1312 (11th Cir. 2016).

      In order to establish constructive possession of a firearm, the government

must show, through direct or circumstantial evidence, that the defendant “(1) was

aware or knew of the firearm’s presence and (2) had the ability and intent to later


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exercise dominion and control over that firearm.” United States v. Perez, 661 F.3d

568, 576 (11th Cir. 2011) (per curiam). “[T]he essence of constructive possession

is the power to control the contraband,” and control of the premises where the

contraband is located permits an inference of that power. United States v.

Cochran, 683 F.3d 1314, 1320 (11th Cir. 2012).

                                          III.

      McMillian’s proposed jury instruction did not correctly state Eleventh

Circuit law and, therefore, was appropriately refused. While, as the district court’s

jury instructions properly cautioned, “[m]ere physical proximity” to contraband is

insufficient to establish constructive possession, United States v. Rackley, 742 F.2d

1266, 1272 (11th Cir. 1984), we have repeatedly held that dominion and control

over the premises where the contraband is located can be. See, e.g., United States

v. Mieres-Borges, 919 F.2d 652, 657 (11th Cir. 1990) (“Even constructive

possession need not be exclusive, but may be shown circumstantially through

evidence of ownership, dominion, or control over the premises on which the

substance is located.”); Cochran, 683 F.3d at 1320. The district court’s charge

accurately captured this balance when it stressed that “[a] defendant’s knowledge

of the item . . . may be inferred, but does not have to be inferred, by other

circumstances, such as control over the place where the item is located.”




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       Thus, while McMillian is right to claim that there must exist “some nexus

between the accused and the contraband,” Rackley, 742 F.2d at 1272, he was

wrong to suggest in his proposed instruction that “control or dominion over the

place in which the items are found is not enough to establish” such a nexus.

Because McMillian’s proposed jury instruction did not correctly state the law of

this circuit, the district court did not abuse its discretion in refusing it.

       AFFIRMED.




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