     Case: 16-60586      Document: 00514101528         Page: 1    Date Filed: 08/03/2017




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

                                    No. 16-60586
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                         August 3, 2017
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff-Appellee

v.

AARON CHARLES HARRIS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:15-CR-57-1


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Aaron Charles Harris appeals his conviction for being a felon in
possession of a firearm and his sentence of 115 months of imprisonment and
three years of supervised release. He contends that the district court erred in
refusing to give a jury instruction concerning transitory possession of a
firearm, which he argues was supported by the evidence. He relies on United
States v. Williams, 403 F.3d 1188, 1196 (10th Cir. 2005).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-60586

      The district court did not abuse its discretion in denying Harris’s request
for a transitory possession jury instruction. See United States v. Bowen, 818
F.3d 179, 188 (5th Cir.), cert. denied, 136 S. Ct. 2477 (2016). The court did not
err in holding that the jury instruction was not consistent with this court’s
jurisprudence. The district court also correctly found that even if this court
had recognized such a defense as in Williams, the evidence presented at trial
did not support the requested jury instruction.
      Agents observed Harris throw the firearm from the vehicle, and Harris
told the agents that he threw the firearm because the agents scared him. He
also told agents that there was another firearm in his Suburban and consented
to a search of the vehicle. The agents found another firearm on the front
passenger seat and a spent .45 caliber shell casing that matched the first
firearm. Harris told the agents that he purchased the first firearm at a gun
show and stated that the firearms were legal and that he had papers for them.
He also gave agents false names, dates of birth, and Social Security numbers,
indicating that he had the intent to mislead the agents. The evidence does not
support a finding that Harris only momentarily possessed the first firearm,
and that he did not knowingly possess the firearms or have the criminal intent
to possess them. See Williams, 403 F.3d at 1196. Further, the district court
gave a jury instruction that adequately defined what constitutes knowing
possession of a firearm.     Even if this court had recognized a transitory
possession defense, the district court did not abuse its discretion in refusing to
give the requested jury instruction because the evidence did not support such
an instruction. See Bowen, 818 F.3d at 188.
      Harris also argues that the district court erred in imposing a two-level
enhancement under U.S.S.G. § 2K2.1(b)(1)(A) based on its finding that the
offense involved three to seven firearms. He asserts that the evidence supports



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                                  No. 16-60586

the conclusion that he did not have knowledge of or access to the two firearms
found in the air vent of the residence in which he was arrested.
      The evidence indicated that Harris sometimes lived at the residence with
his girlfriend, Francess Porter, that he kept clothes there, and that he kept a
firearm under the mattress in the bedroom.         When Harris was arrested,
officers found ammunition in the bedroom, along with Harris’s clothing and his
identification card. Porter testified at the sentencing hearing that she saw
Harris’s brother, Garrin Harris, with the firearms at issue in the front room of
the residence, that two other people were present, and that Harris joined
Garrin and the other people in the front room. Based on Porter’s testimony,
the district court could reasonably infer that Harris knew the firearms were in
the residence.    The district court’s finding that Harris had constructive
possession of the two firearms found in the air vent of the residence is plausible
in view of the record as a whole. See United States v. Meza, 701 F.3d 411, 419
(5th Cir. 2012). Therefore, the district court did not clearly err in imposing the
two-level enhancement under § 2K2.1(b)(1)(A) based on its finding that
Harris’s offense involved three to seven firearms, including firearms found in
an air vent in the residence where Harris was arrested. See United States v.
Davis, 754 F.3d 278, 284 (5th Cir. 2014).
      AFFIRMED.




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