United States v. Smith ( 2021 )

Case: 20-50304 Document: 00515850470 Page: 1 Date Filed: 05/05/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
May 5, 2021
No. 20-50304
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Tredon Smith,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:19-CR-168-1
Before King, Smith, and Haynes, Circuit Judges.
Haynes, Circuit Judge:
While at a friend’s house, Tredon Smith touched a Smith & Wesson
.38 caliber revolver. He later pleaded guilty to being a felon in possession of
that firearm in violation of 18 U.S.C. § 922(g)(1). In connection with his
guilty plea, he signed a factual basis document indicating the only interaction
he had with the firearm was that he had “touched” it. The district court
accepted that factual basis as sufficient to sustain Smith’s § 922(g)(1)
conviction. For the following reasons, we VACATE Smith’s guilty plea,
conviction, and sentence and REMAND for entry of a new plea and
necessary proceedings thereafter.
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I. Background
Midland, Texas police officers arrested Smith after they recovered
three stolen firearms on April 6, 2019. Following his arrest, Smith was shown
a picture of one of the firearms—a Smith & Wesson .38 caliber revolver—
which he admitted to having seen and touched at a friend’s house. He stated
that he did not remember touching the other firearms. 1
Smith was later arrested and charged with being a felon in possession
of the .38 revolver on or about April 29, 2019 2 in violation of 18 U.S.C.
§ 922(g)(1). Smith pleaded guilty to the charge. In connection with that plea,
Smith signed a factual basis indicating that he had “touched” the firearm,
which the district court accepted as a sufficient basis for his conviction. The
district court then sentenced Smith to 57 months of imprisonment, with three
years of supervised release to follow. Smith timely appealed. 3
1
The dissenting opinion focuses on Smith’s other “criminal activities”—stating
that Smith “is a leader of a street gang” and that Smith was found “fleeing the scene of a
vehicle burglary” two months after his touching of the .38 revolver as “relevant,” but they
are not.
The dispositive question in this appeal is whether there was a sufficient factual
basis to convict Smith for possessing the .38 revolver. That he may have been involved in
other misconduct—even misconduct involving other firearms—says nothing at all about
whether he possessed this firearm.
2
As noted above, Smith’s alleged possession of the .38 revolver could not have
occurred later than April 6, the date officers recovered the firearms. The date charged was
“on or about” April 29, but Smith did not argue in his briefs that the discrepancy in dates
impermissibly stretches the “on or about” language used in the indictment, so we do not
comment further on the issue.
3
Smith raises several issues but because of our ruling on the plea, we do not reach
any others.
2
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II. Jurisdiction
The district court had jurisdiction under 18 U.S.C. § 3231. We have
jurisdiction to review Smith’s conviction under 28 U.S.C. § 1291.
III. Discussion
Smith challenges his plea colloquy, primarily contending that the
district court incorrectly concluded that his admission to having “touched”
the .38 revolver constituted a sufficient basis for possession as required to
sustain a conviction under 18 U.S.C. § 922(g)(1). 4 Smith did not raise this
argument in the district court, so our review is for plain error. To
demonstrate plain error, Smith must show (1) an error (2) that is “clear or
obvious” and (3) that affects his “substantial rights.” Puckett v. United
States, 556 U.S. 129, 135 (2009); see also United States v. Vonn, 535 U.S. 55,
58–59 (2002) (noting that plain error review applies to alleged deficiencies in
plea colloquies); United States v. Marek, 238 F.3d 310, 315 & n.16 (5th Cir.
2001) (en banc) (same). If we conclude there was a plain error, we have the
discretion to correct it if it “seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Puckett, 556 U.S. at 135 (cleaned up).
1. Clear or Obvious Error
Among other requirements, Federal Rule of Criminal Procedure 11
requires a federal district court taking a guilty plea to independently evaluate
whether the defendant’s admitted-to conduct actually constitutes a violation
of the statute under which he is charged. Marek, 238 F.3d at 314. Typically,
our review centers on the facts the defendant admitted to at the time of his
4
Although Smith sometimes characterizes his argument as challenging his
understanding of the charge against him or the voluntariness of his plea, we address only
the crux of his argument: that his touching of the .38 revolver was insufficient to establish
possession.
3
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plea colloquy—including information from any factual basis document
submitted to the district court. Id. But where, as here, review is for plain
error, we may also “scan the entire record” for any other facts supporting
the conviction. United States v. Trejo, 610 F.3d 308, 313 (5th Cir. 2010).
Smith pleaded guilty to possessing the .38 revolver in violation of 18
U.S.C. § 922(g)(1). That statute prohibits a felon like Smith from
“knowingly possess[ing] a firearm,” either actually or constructively. United
States v. Huntsberry, 956 F.3d 270, 279 (5th Cir. 2020); United States v. Meza,
701 F.3d 411, 418–19 (5th Cir. 2012). A defendant has actual possession over
a firearm when he has “direct physical control”—such as when he has the
firearm “on his person,” is seen “carrying the firearm,” or is tied to the
firearm with “forensic evidence.” United States v. Hagman, 740 F.3d 1044,
1048, 1049 & n.2 (5th Cir. 2014) (collecting cases). Constructive possession
is broader: a defendant has constructive possession when he has “ownership,
dominion, or control” over either the firearm itself or over the premises in
which the firearm is found. Id. at 1049. The common denominator between
the two is control; absent some indication that the defendant controlled the
firearm, conviction is improper under either theory of possession. 5 Id.There is no evidence in the record that Smith had either actual or
constructive possession of the .38 revolver (indeed, the Government all but
abandoned the notion of constructive possession). At the outset, it is
undisputed that Smith did not control the relevant premises (his friend’s
5
The dissenting opinion takes issue with our citations to constructive possession
cases because it views this case as turning entirely on actual possession, which the
dissenting opinion seems to think is entirely divorced from the concepts underlying
possession generally. Our consideration of constructive possession cases in this context is
not novel; it is a straightforward recognition that both kinds of possession—actual and
constructive—require the Government to demonstrate control over an item. Hagman, 740
F.3d at 1048–49.
4
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residence), and there is no evidence in the record that Smith owned the .38
revolver or otherwise controlled it or its location.
Turning to direct possession, the only evidence in the entire record
regarding Smith’s interaction with the .38 revolver is his admission to
“touching” the firearm. 6 The Government’s argument that we should also
consider the “fact” that Smith’s fingerprints were on the .38 revolver is
unavailing for the simple reason that it is not a fact at all.7 We see no evidence
6
The relevant portion of the factual basis states:
While speaking with SMITH, Detective Sedillo showed SMITH a
photograph of a firearm that he had previously recovered. SMITH stated
that he had seen and touched the firearm at a friend’s house prior to
Detective Sedillo recovering the firearms. SMITH during the interview
knew the caliber of the firearm in the picture that was shown to him
without Detectives mentioning it. When SMITH was confronted again
about the three firearms and why his fingerprints would be on them,
SMITH stated, “I don’t remember touching the rest of those guns, but I
know for a fact that I touched the .38.”
7
We note that the presence of a defendant’s fingerprints on contraband can
support the conclusion that the defendant possessed the item if the prints suggest some
degree of control. United States v. De Leon, 170 F.3d 494, 497 (5th Cir. 1999) (reasoning
that the presence of a defendant’s thumbprint on a box of ammunition stored in a house
the defendant frequented allowed the jury to infer that the defendant “knew that the box
was there and that he possessed control over it”); United States v. Geiger, No. 92-8579, 1993
WL 309940, at *3 (5th Cir. May 13, 1993) (per curiam) (noting that a fingerprint on an
ammunition magazine—“a component that may be removed from the firearm”—
supported a constructive possession finding). But see United States v. Beverly, 750 F.2d 34,
37 (6th Cir. 1984) (per curiam) (reversing a possession conviction because the evidence at
trial showed only that the defendant’s fingerprint was on one firearm and that he had stood
close to a waste basket containing two firearms in another person’s house); United States v.
Wilson, 922 F.2d 1336, 1338–39 (7th Cir. 1991) (noting that although the presence of a
fingerprint was “fully consistent with innocence,” a jury could nonetheless find that fact
supported possession).
We need not resolve whether fingerprints are sufficient on their own to sustain a
possession conviction because, as we discuss, there is no evidence here that Smith’s
fingerprints were actually on the .38 revolver. Contrary to the dissenting opinion’s
suggestion, that would be something in need of resolution from scratch; none of the cases
5
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that Smith’s fingerprints were actually on the firearm. The factual basis does
not say that they were. It merely indicates that officers asked Smith “why
his fingerprints would be” there. A detective’s question is not evidence of a
fact: it could just as easily be an interrogation tactic to get Smith to confess;
indeed, the officers posed the same question with respect to two other
firearms that Smith maintains he never touched at all. In fact, we see no
actual evidence of any fingerprints whatsoever (and the Government points
to nothing else), let alone the sort of fingerprint evidence that would suggest
Smith controlled the firearm. If the Government had that evidence,
presumably, it could easily have included it in the record since possession of
other firearms was a question in the sentencing process.
The Government also seems to suggest that possession can be inferred
from the fact that Smith knew the caliber of the .38 revolver without officers
mentioning it to him. But even if we made the questionable assumption that
an individual’s knowledge of an object’s features can imply prior control over
the object, 8 the officers here showed Smith the picture of the .38 revolver
the dissenting opinion cites answers the question for us. Cf. Hagman, 740 F.3d at 1049
(concluding that there was insufficient evidence of actual possession in part because “no
forensic evidence link[ed] [the defendant] to the . . . firearms”); De Leon, 170 F.3d at 497(noting that the evidence “taken as a whole”—including both the presence of a fingerprint
on an ammunition box and the defendant’s frequenting of the house where the box was
kept—supported an inference of constructive possession but that the same evidence was
not sufficient to find actual possession); United States v. Tyler, 474 F.2d 1079, 1081 (5th Cir.
1973) (per curiam) (reasoning that a fingerprint on a check can create an inference of actual
possession (citing Stoppelli v. United States, 183 F.2d 391 (9th Cir. 1950), abrogation
recognized by United States v. Nevils, 598 F.3d 1158, 1165–66 (9th Cir. 2010))).
8
Our cases suggest that knowledge of an object’s location can support at least a
constructive possession finding—but we do not appear to have reached the same
conclusion with respect to knowledge of an object’s features. See, e.g., United States v.
Mudd, 685 F.3d 473, 478 (5th Cir. 2012) (concluding that there was sufficient evidence of
constructive possession where, in part, the defendant identified that the firearm in question
had been in a black bag). To be sure, knowledge of some features—such as those that only
6
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before he told them its caliber. So, there is no evidence that Smith had private
knowledge indicating prior control; he could have simply determined the
caliber by looking at the picture. Dominion or control over this particular
firearm was not necessary to know that fact.
There is no other evidence in the record suggesting more than simple
touching; Smith made no further admissions suggesting any sort of deeper
involvement with the firearm at any point, and the affidavit submitted in
connection with the criminal complaint and arrest warrant just contains the
same information as the factual basis. At bottom, then, the only fact that
could conceivably support possession is Smith’s admission to merely
“touching” the .38 revolver.
The plain text of § 922(g), logic, and an analysis of our precedents all
reveal that mere touching is insufficient to establish possession. First, the
text. The statute, § 922(g), proscribes only “possess[ing] . . . [a] firearm.”
18 U.S.C. § 922(g). A look at the dictionary confirms the common-sense
intuition that possession does not encompass mere touching; to possess
something is to control it—it is “to be master of” the thing or “to have and
hold [it] as property.” Webster’s New International
Dictionary 1926 (2d ed. 1934) (“Webster’s Second”). 9 By
contrast, to touch something is merely “[t]o lay the hands, fingers, etc., upon
become evident on physical interaction or prolonged exposure—could plausibly support a
possession finding. But we strain to think of how knowledge of an object’s general features
(for example, a firearm’s caliber, as here) could meaningfully suggest prior possession,
especially where those features could be discerned from briefly seeing the object.
9
The lack of touching as a sufficient stand-alone basis for possession is consistent
across dictionaries. See Possess, Black’s Law Dictionary (11th ed. 2019) (“To have
in one’s actual control[.]”); Webster’s New International Dictionary 1770
(3rd ed. 1961) (“[T]o have and hold as property”; “[to] be master of”; or to “seize or gain
control of”); American Heritage Dictionary 1375 (5th ed. 2011) (“To have
under one’s power or control[.]”).
7
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so as to feel” it or “to perceive [it] by means of the tactile sense.” Id. at
2676. 10
No one would confuse the simple act of laying a hand or finger on an
item, on its own, as making someone the “master” over the item. Every day,
humans touch countless things we don’t “possess,” such as countertops at
the grocery store. (Why else would there be sanitizer dispensers everywhere
during a pandemic?). To say all of those interactions are possession wildly
expands the logical definition of that word.
The dissenting opinion argues that we reach that conclusion only after
having selectively chosen to rely on the Webster’s Second dictionary, 11
which, the dissenting opinion asserts, is too old to provide an accurate
definition for the use of the word “possess” in 1986 (the year the term was
added to § 922(g)). 12 Why the dissenting opinion takes issue with the
definitions we have cited is unclear. After all, the “master of” connotation
we have discussed also appears in the dissenting opinion’s preferred source,
Webster’s Third—as does the synonymous “control” connotation, which
10
See also Webster’s New International Dictionary 2415 (3rd ed.
1961) (“[T]o bring a bodily part briefly into contact with so as to feel” or “to perceive or
experience [it] by means of the tactile sense”); American Heritage Dictionary
1836 (5th ed. 2011) (“To cause or permit a part of the body, especially the hand or fingers,
to come in contact with so as to feel[.]”).
11
In reality, far from “cherry-picking” only one source, we have identified a range
of other dictionaries—including ones the dissenting opinion cites—that support our
position. See supra note 9.
12
We note that, as initially enacted in 1968, § 922 had other references to
“possession”—and so it is conceivable that § 922(g) was merely importing the 1968-era
connotations of that word when it added the particular term “possess.” See Gun Control
Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213, 1220 (1968). Even assuming arguendo that
the specific addition of “possess” to § 922(g) resets the appropriate interpretive lens to
the year 1986, however, we are still confident that Webster’s Second supports our
understanding of the statute.
8
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appears in all the dictionaries cited in both opinions. See Webster’s New
International Dictionary 1770 (3rd ed. 1961) (“Webster’s
Third”). What’s more, these connotations (in Webster’s Second and
elsewhere) are plainly applicable to both constructive and actual possession—
it is, for example, no innovation to say that one can be “master of” something
by exercising “direct physical control” over it. Hagman, 740 F.3d at 1048.
Whatever the cause for concern with respect to Webster’s Second, we
are unpersuaded. The Supreme Court has used that dictionary to interpret
authorities from 1986. 13 It has also used it in interpreting provisions of the
United States Code related to § 922. 14 Our court, too, has used it in
interpreting a range of modern statutes. 15 The dictionary is, after all, widely
considered to be “exhaustive on traditional legal and literary terms.” Jeffrey
13
See United States v. Santos, 553 U.S. 507, 511 (2008) (citing Webster’s Second
and two other dictionaries in interpreting 18 U.S.C. § 1956(a)(1)(A)(i), enacted 1986);
Alabama v. North Carolina, 560 U.S. 330, 340 (2010) (citing Webster’s Second in
interpreting an interstate compact that took effect in 1986); see also, e.g., Jennings v.
Rodriguez, 138 S. Ct. 830, 848 (2018) (citing Webster’s Second, Webster’s Third, Black’s
Law Dictionary, and other dictionaries, in interpreting 8 U.S.C. § 1225(b)(1)(B)(ii),
enacted 1996).
14
See Johnson v. United States, 559 U.S. 133, 140 (2010) (citing Webster’s Second
in interpreting 18 U.S.C. § 924(e)(2)(B)); Smith v. United States, 508 U.S. 223, 228–29
(1993) (citing Webster’s Second in interpreting 18 U.S.C. § 924(c)(1)).
15
See Univ. of Tex. M.D. Anderson Cancer Ctr. v. U.S. Dep’t of Health & Human
Servs., 985 F.3d 472, 479 (5th Cir. 2021) (citing Webster’s Second in interpreting 45 C.F.R.
§ 160.103, as modified in 2013); In re Ran, 607 F.3d 1017, 1028 (5th Cir. 2010) (citing
Webster’s Second in interpreting 11 U.S.C. § 1502(2), enacted 2005); IntegraNet Physician
Res., Inc. v. Tex. Indep. Providers, L.L.C., 945 F.3d 232, 239 & n.21 (5th Cir. 2019) (citing
Webster’s Second in interpreting 28 U.S.C. § 1442(a)(1), as amended 1996), overruled on
other grounds by Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286 (5th Cir. 2020) (en banc);
see also United States v. Bailey, 115 F.3d 1222, 1236 (5th Cir. 1997) (Smith, J., dissenting)
(citing Webster’s Second and Black’s Law Dictionary for the proposition that “[i]t is
axiomatic that the word ‘commerce’ is, and has always been, tantamount to ‘trade,’ the
exchange of goods and services by purchase and sale”).
9
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L. Kirchmeier & Samuel A. Thumma, Scaling the Lexicon Fortress: The United
States Supreme Court’s Use of Dictionaries in the Twenty-First Century, 94
Marq. L. Rev. 77, 96 (2010) (quoting Antonin Scalia & Bryan
Garner, Making Your Case: The Art of Persuading
Judges 213 (2008)). Webster’s Second is, in short, perfectly well-suited to
the task at hand.
Why, then, the dissenting opinion’s difficulty with it? The only
reason we can see is that Webster’s Second forecloses the dissenting
opinion’s proposed “seize” concept (which it lifts out of a Webster’s Third
definition that also includes “control” language) by describing “seize” as an
“[a]rchaic” usage of “possess.” Webster’s Second 1926; see generally
Kirchmeier & Thumma, Scaling the Lexicon Fortress, 94 Marq. L. Rev. at
96 (describing Webster’s Third—the exclusive basis for the dissenting
opinion’s definition—as “infamously permissive in neglecting to include
accurate usage tags” (quoting Scalia & Garner, Making Your
Case at 213)). To treat “seize” as the definitive touchstone of possession
for the purposes of § 922(g), then, would disregard the ordinary meaning of
the statute’s express language without any justification for doing so. 16
16
There are, of course, other problems with the dissenting opinion’s “seize”
definition. Most significantly, it is unclear why the dissenting opinion thinks that the
answer to whether something is “seize[d]” for the purposes of its take on § 922(g)
possession should be governed by Torres v. Madrid, a case concerning how much force is
necessary to constitute a law enforcement seizure for Fourth Amendment purposes. 141
S. Ct. 989, 998 (2021); cf. Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts 418 (2012) (“Because common words
typically have more than one meaning, [one] must [rely on] the context in which a given
word appears.”). Simply put, the focus of the Fourth Amendment analysis in Torres is that
the law enforcement seizure of a person turns on the historical understanding of arrests
(which, Torres informs us, could at common law be accomplished by mere touching—as
with a mace in a 1605 Star Chamber case). Id. at 998–1002. That focus undermines any
attempt to transplant its definition to the possession context; indeed, Torres affirmatively
disclaims that “seizure” in the Fourth Amendment context “always entail[s] a taking of
10
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Unsurprisingly, our case law avoids that result by sticking with the
plain meaning of the text “possess.” Consistent with our discussion of the
common sense of the word, we have repeatedly emphasized that possession
requires something more than touching. 17 See generally Huntsberry, 956 F.3d
at 279–80; Meza, 701 F.3d at 419; Hagman, 740 F.3d at 1048–49, 1049 n.2.
Moreover, we have endorsed jury instructions that prevent a jury from
convicting on a possession charge for mere touching alone. Specifically, in
United States v. De Leon, we concluded that a specific touching-is-not-
possession instruction was “unnecessary” because the given instruction
“already required proof that [the defendant] exercised ‘dominion and
control’ over the [contraband].” 170 F.3d 494, 498 (5th Cir. 1999). That
“dominion and control” language, we said, “implicitly instruct[s]” the jury
that “simply touch[ing]” is insufficient to establish possession. 18 Id. The
possession.” Id. at 1002. To interpret Torres as standing for the proposition that touching
equals seizure equals possession for § 922(g) purposes (as the dissenting opinion does) thus
dramatically misreads the case.
17
We therefore need not decide every interaction with an item that could qualify
as possession. We simply conclude that the level of interaction here (which, as we have
discussed, begins and ends with “touching”), without more, is not enough. The dissenting
opinion’s various questions—“grip it? Brandish it? Hold it[?]”—are not at issue in this
case.
18
The dissenting opinion is incorrect to claim that De Leon is actually about
whether touching a container establishes control over the container’s contents. The
distinction between container and contents was not at play in that case; the relevant issue
in De Leon was whether the mere touching of an item sufficed to establish possession over
the item—we addressed whether a “thumbprint on [a] box . . . [is] insufficient to establish
. . . possession of the box,” within which a central question was whether “mere touching is
insufficient to establish constructive possession of an item.” De Leon, 170 F.3d at 496(emphasis added). Accordingly, contrary to the dissenting opinion’s reading, our
statement that the jury could not convict “if they found that the defendant had simply
touched the ammunition on one occasion” was neither clerical error nor dicta. Id. at 498.
11
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bottom line: our case law, like the plain text itself, confirms that merely
touching an item is not enough to possess it.
Indeed, every other circuit to address the subject has reached the same
conclusion: it is error to convict on mere touching alone. United States v.
Teemer, 394 F.3d 59, 65 (1st Cir. 2005) (noting with approval that the
instruction in the case “did not say that merely to touch the [firearm]
constituted a crime”); United States v. Beverly, 750 F.2d 34, 37 (6th Cir. 1984)
(per curiam) (concluding that “touch[ing]” a firearm is insufficient to
establish constructive possession); United States v. Wilson, 922 F.2d 1336,
1339 (7th Cir. 1991) (“Merely touching would not be possessing [a
firearm].”); United States v. Williams, 29 F. App’x 486, 488–89 (9th Cir.
2002) (per curiam) (noting that “[c]ase law supports the theory that briefly
sampling or handling contraband does not constitute constructive
possession” and concluding that the district court reversibly erred in not
giving a jury instruction that “momentarily touch[ing] or hold[ing]” is not
possession (citing United States v. Kearns, 61 F.3d 1422, 1425 (9th Cir. 1995)
(holding that the defendant did not possess marijuana by “briefly touch[ing]
and smell[ing] it”))).
At bottom, the dissenting opinion’s primary argument to the contrary
boils down to the relatively uncontroversial proposition that the length of
possession is irrelevant under § 922(g). We agree, but the problem is not
whether Smith possessed the firearm for a long enough period of time, it is
whether Smith possessed the firearm at all. See Huntsberry, 956 F.3d at 279.
That distinction also puts to rest the dissenting opinion’s assertion that our
analysis examines affirmative defenses on a factual basis problem; our
analysis is not about any species of justified possession defense—we only
address what it takes to show the possession element itself. On that score,
mere touching, standing alone, is not enough.
12
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Thus, given § 922(g)’s plain text and the overwhelming weight of case
law on the subject, we conclude that the district court committed a clear and
obvious error in treating Smith’s admission to touching the .38 revolver as a
sufficient factual basis for his guilty plea on that charge. See United States v.
Aderholt, 87 F.3d 740, 744 (5th Cir. 1996) (“The error is evident from a plain
reading of the statute and thus, is obvious.”); United States v. Maturin, 488
F.3d 657, 663 (5th Cir. 2007) (concluding that an error was clear and obvious
when it conflicted with “plain statutory language” even though we “ha[d]
never expressly determined” the issue).
2. Affecting Substantial Rights
That error also affected Smith’s substantial rights because, but for the
error, he would not have entered the plea. United States v. Dominguez
Benitez, 542 U.S. 74, 83 (2004). According to Smith, the deficiency in the
factual basis reflects his own (mistaken) belief that mere touching was
equivalent to possession. That mistaken belief led him to plead guilty; per
Smith, all he did was touch the .38 revolver and he would not have pleaded
guilty had he known that was insufficient to establish possession. The error
therefore affected his substantial rights.
3. Serious Effect on Fairness, Integrity, or Public Reputation
of Proceedings
Finally, the error also had a serious effect on the fairness and integrity
of the proceedings. The fact that Smith is or could be innocent of possessing
the .38 revolver is reason alone for us to correct the district court’s error.
United States v. Olano, 507 U.S. 725, 736 (1993) (“The court of appeals
should no doubt correct a plain forfeited error that causes the conviction or
sentencing of an actually innocent defendant.”). Certainly, Smith could seek
post-conviction remedies—including by pursuing potentially viable
ineffective assistance of counsel claims relating to the deficiencies in the
13
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factual basis—if we were to decline to use our discretion in this case. But
remedying this issue on direct appeal serves as a stronger safeguard of the
fairness and integrity of the criminal proceedings here, appropriately
providing Smith the relief he is due without any further delay.
* * *
In sum, we hold that the district court plainly erred in accepting
Smith’s guilty plea to possessing the .38 revolver on the sole basis that he had
touched the firearm. As that error affected the fairness and integrity of
Smith’s conviction, we VACATE Smith’s guilty plea, conviction, and
sentence and REMAND for entry of a new plea and necessary proceedings
thereafter.
14
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Jerry E. Smith, Circuit Judge, dissenting:
Based on inapposite precedent and dictionary definitions, the majority
precludes prosecutors from proving possession of a firearm solely through
physical touch. Now, the government must show that the defendant is the
“master of” the firearm—whatever that means. The majority thus engrafts
a requirement reminiscent of constructive possession onto our law about
actual possession and splices part of an affirmative defense onto § 922(g)’s
possession requirement. Worse, it manufactures this newfangled approach
on plain-error review. I respectfully dissent.
I.
Because our review is for plain error, “we may look beyond those facts
admitted by the defendant during the plea colloquy and scan the entire record
for facts supporting his conviction.” United States v. Trejo, 610 F.3d 308, 313
(5th Cir. 2010). The majority omits some relevant facts: Smith, by his own
admission, is the leader of a street gang that burgles vehicles, sells narcotics,
and steals, possesses, and sells firearms.
Two criminal activities give rise to this case, although the majority
notes only one. First, consistently with Smith’s characterization of his gang,
officers found Smith fleeing the scene of a vehicle burglary. He had a glass-
breaking tool in his pocket, and his hands were bleeding. The officers like-
wise observed blood in the vehicle. According to the vehicle’s owner, the
burglars moved two firearms during the burglary, taking them from under the
backseat of the vehicle. Second, as the majority notes, Smith—a felon—
admitted to touching a firearm at his friend’s house.
The government charged Smith with possessing (1) the two guns in
the burgled vehicle and (2) the firearm he touched at his friend’s house.
Smith agreed to plead guilty of possessing the firearm he touched at his
friend’s house. In exchange, the government dropped the charges concern-
15
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ing possession of the two guns in the burgled vehicle. Smith now seeks to
unwind his guilty plea as to the gun he touched in his friend’s house.
II.
Three problems plague the majority’s conclusion that mere touching
doesn’t constitute possession: It (A) relies on precedent about constructive—
not actual—possession, (B) relies on dictionary definitions that resemble the
definition of constructive—not actual—possession, and (C) engrafts part of an
affirmative defense onto the definition of “possess.”
A.
Possession can be actual or constructive. 1 The majority starts off on
the right foot by noting that the government doesn’t contend that Smith con-
structively possessed the firearm. And that makes sense. The government
typically reserves constructive possession for situations in which officers find
a weapon in the defendant’s residence or some other place he frequented. 2
And, here, we don’t have many facts about the premises where the gun was
located. Thus, the government prudently doesn’t pursue constructive posses-
sion and relies instead on actual possession. 3
It’s strange, then, that, in deciding a case about actual possession, the
majority relies almost entirely on precedent about constructive possession.
Take, for instance, the crux of its analysis: The majority distills from Hunts-
1
See United States v. Jones, 484 F.3d 783, 787 (5th Cir. 2007) (“The government
can prove possession by showing that a defendant exercised either direct physical control
over a thing (actual possession) or ‘dominion or control’ over the thing itself or the area in
which it was found (constructive possession).”).
2
See, e.g., United States v. Huntsberry, 956 F.3d 270, 279 (5th Cir. 2020); United
States v. Meza, 701 F.3d 411, 419 (5th Cir. 2012).
3
For instance, the government said, at oral argument, that it “pretty much st[u]ck
with . . . actual possession.”
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berry, 956 F.3d at 279–80, and Meza, 701 F.3d at 419, the proposition that
“possession requires something more than touching.” But neither opinion
said that. 4 Neither involved a defendant’s touching contraband. 5 Neither is
even about actual possession. 6 Those were constructive-possession cases. See
Huntsberry, 956 F.3d at 279; Meza, 701 F.3d at 419.
Next, the majority cites United States v. De Leon, 170 F.3d 494, 498
(5th Cir. 1999), another case about constructive—not actual—possession. 7
According to the majority, De Leon shows that “merely touching an item is
not enough to possess it.” But De Leon, 170 F.3d at 497, actually said that a
“thumbprint on [a] box of ammunition would . . . lead a jury to reasonably
infer that De Leon . . . possessed control over [the box].”
The majority distills a contradictory point from De Leon only by obfus-
cating the object being touched. According to the majority, under De Leon,
“‘simply touching’ is insufficient to establish possession.” “Touching
what?” the reader might ask. The majority’s gloss over the object omits a
crucial detail: De Leon’s thumbprint was on a box of ammunition. De Leon,
4
See generally Huntsberry, 956 F.3d 270; Meza, 701 F.3d 411.
5
In Huntsberry, 956 F.3d at 280, the guns “were discovered in what appeared to be
the master bedroom closet in the trailer Huntsberry occupied for many years.” Moreover,
there was evidence that the guns “had been left near Huntsberry’s residence four years
earlier at a New Year’s Eve party Huntsberry attended.” Id. Similarly, in Meza, 701 F.3d
at 419, there was no allegation that the defendant touched the gun; instead, “the shotgun
and ammunition were found on his property.”
6
In Huntsberry, 956 F.3d at 279, there’s a solitary reference to actual possession in
describing the framework, before moving on to analyze constructive possession in depth. In
Meza, 701 F.3d at 419, “[t]he government proceeded against Meza on a constructive (not
actual) possession theory.”
7
In fact, we eliminated, right off the bat, the notion that that case was about actual
possession. De Leon, 170 F.3d at 497 (“We hold that a reasonable jury could not find that
De Leon actually possessed the ammunition, but could infer that he constructively pos-
sessed the ammunition.”).
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170 F.3d at 497. He thus asked for a jury instruction that a mere touch of the
box didn’t establish constructive possession of the contents. 8 We upheld the
district court’s rejection of that instruction, concluding that it was “unneces-
sary because the instructions already required proof that De Leon exercised
‘dominion and control’ over the box of ammunition,” which sufficed to keep
the jury from finding constructive possession of the ammunition based on a
mere touch of the box. 9 In short, De Leon was about whether a touch of a
container establishes constructive possession of the items in that container;
it had nothing to say about whether a touch of contraband establishes actual
possession of that contraband.
Thus, in deciding a case about actual possession where the defendant
touched contraband, the majority hangs it hat on cases about constructive
possession where the defendant didn’t touch contraband. 10 In reality, two
8
Specifically, De Leon requested the following instruction:
If you find that Mr. De Leon merely touched the box, but did not
have constructive possession, that is that he did not knowingly
have the power or intention to exercise dominion or control over
the cartridges, I instruct you that you must return a verdict of “Not
Guilty” as to count two of the indictment.
De Leon, 170 F.3d at 498 (emphases added).
9
Id. We did state that the jury couldn’t convict “if they found that the defendant
had simply touched the ammunition on one occasion.” Id. (emphasis added). Our refer-
ence to a touch of the ammunition appears to be inaccurate, because the defense had asked
for an instruction about the defendant’s touch of the box. There’s no indication that
De Leon actually touched the ammunition. Thus, to the extent that phrase wasn’t a clerical
mistake, it was dictum, because that factual situation—a defendant’s touching
ammunition—wasn’t before us. See United States v. Lam, 803 F. App’x 796, 797 (5th Cir.)
(per curiam) (concluding that “a ruling on an issue not raised” constitutes dictum (cleaned
up)), cert. denied, 141 S. Ct. 425 (2020); accord United States v. Castillo, 179 F.3d 321, 327
(5th Cir. 1999), rev’d on other grounds, 530 U.S. 120 (2000).
10
The majority’s out-of-circuit citations don’t fare much better. For instance, the
majority acknowledges that United States v. Beverly, 750 F.2d 34, 37 (6th Cir. 1984) (per
curiam), and United States v. Williams, 29 F. App’x 486, 488–89 (9th Cir. 2002) (per
18
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lines of precedent control this case.
First, courts continually reject the notion that “the brevity of . . . pos-
session render[s] it short of what is required.” United States v. Ortiz,
927 F.3d 868, 874 (5th Cir. 2019). “Neither the language of the felon-in-
possession statute, nor its evident purpose, encourage [sic] the court to
develop defenses that leave much room for benign transitory possession.” 11
In fact, Congress drafted § 922 to “enlarge[] and extend[]” a previous act
that was already “designed to prevent [certain criminals] from being able to
purchase or in any way come in contact with firearms.” Barrett v. United
States, 423 U.S. 212, 220 (1976) (cleaned up). Thus, the brevity of physical
contact doesn’t negate possession.
Second, “the government successfully proved actual possession”
where “the defendant’s . . . fingerprints were found on the firearm.” 12
Although the majority gleans from that statement the rule that the defendant
must be “tied to the firearm with forensic evidence,” that’s wrong. Forensic
evidence harbors no talismanic significance. Fingerprints would prove only
that the defendant touched the gun. 13 Thus, the majority fails to explain why a
curiam), are both about constructive possession.
11
United States v. Teemer, 394 F.3d 59, 64 (1st Cir. 2005) (cleaned up). Contrary
to the majority’s suggestion, Teemer, id., does not support the majority’s rule. In fact,
Teemer had no occasion to rule on that issue, because the jury “instruction did not say that
merely to touch the AK–47 constituted a crime.” Id. at 65 (emphasis added).
12
United States v. Hagman, 740 F.3d 1044, 1049 (5th Cir. 2014); see also United
States v. Tyler, 474 F.2d 1079, 1081 (5th Cir. 1973) (per curiam) (concluding, in the context
of a different statute, that “[t]he jury was free to . . . draw an inference of actual possession
from the presence of Tyler’s fingerprint on the check”); De Leon, 170 F.3d at 497 (“The
thumbprint on the box of ammunition would also lead a jury to reasonably infer that
De Leon . . . possessed control over [the box].”).
13
See De Leon, 170 F.3d at 495, 498 (suggesting that a “partial fingerprint” could
show that a defendant “merely touched the box”).
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fingerprint—which proves that a defendant touched a gun—can establish
possession, but a defendant’s admission of the same fact will not. 14
B.
After it finishes tilting at precedential windmills, the majority begins
cherry-picking dictionary definitions. Specifically, it selects a 1934 diction-
ary. The rationale for that selection is mysterious. 15 In any event, the major-
ity’s main definition suffers from the same malady as the majority’s prece-
dent: It defines constructive—not actual—possession.
For instance, the majority tells us that “possess” means “to have and
hold [contraband] as property.” (Cleaned up). And Webster synonymizes
its “to have and hold” language with the word “own.” 16 But constructive—
14
The majority suggests that we haven’t “resolve[d] whether fingerprints are suf-
ficient on their own to sustain a possession conviction.” That ignores our precedents saying
that a fingerprint is sufficient to establish actual possession. See cases cited supra note 12.
15
After all, to the extent that the majority seeks to divine the original public
meaning of 18 U.S.C. § 922(g), that statute wasn’t law until 1968 and didn’t criminalize
possession until 1986. See Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213, 1220
(adding § 922(g)); Firearms Owners’ Protection Act, Pub. L. No. 99-308, 100 Stat. 449,
452 (1986) (amending § 922(g) to criminalize possession).
Thus, if the majority seeks to divine a relevant interpretive community to ascertain
the original public meaning of “possess,” at a minimum, it’d need to look to a definition
from around 1986. See Frank H. Easterbrook, Abstraction and Authority, 59 U. Chi. L.
Rev. 349, 359–60 (1992) (noting that “the meaning of a text lies in its interpretation by an
interpretive community”); id. at 364 (noting that “the traditional view . . . looks to the
interpretive community at the time of enactment”). And picking the right dictionary defi-
nition is important, because “an uncritical approach to dictionaries can mislead judges.”
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpreta-
tion of Legal Texts 415 (2012).
16
Possess, Webster’s New International Dictionary 1770 (3d ed.
1961); see also Possess, MERRIAM-WEBSTER DICTIONARY, https://www.merriam-
webster.com/dictionary/possess (last visited Apr. 22, 2021) (providing one definition of
“possess” as “to have and hold as property : OWN”).
20
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not actual—possession connotes ownership. 17 Similarly, the majority’s
“master of” definition mirrors constructive possession’s modern definition,
namely “dominion . . . over the item.” 18 In short, the majority becomes en-
snared in a common pitfall of misguided dictionary usage: It fails to recognize
that “common words typically have more than one meaning.” SCALIA &
GARNER, supra, at 418.
In reality, dictionary definitions show that a mere touch constitutes
actual possession. Actual possession refers to “[p]hysical occupancy or con-
trol over property.” 19 A better dictionary definition, therefore, is to “seize
or gain control of.” 20 And if “seize” is the relevant concept, “a mere touch
can be enough for a seizure.” Torres v. Madrid, 141 S. Ct. 989, 998 (2021).
In sum, by relying on inapposite precedent and definitions about con-
structive possession, the majority effectively layers the requirements of con-
structive possession over the requirements of actual possession. Now the gov-
ernment must show not only that a felon touched a firearm, but that he did
so with sufficient vigor to render him “‘master’ over” it.
C.
The majority’s result is well-intentioned. Situations might arise in
17
See Meza, 701 F.3d at 419 (“‘Constructive possession’ may be found if the defen-
dant had . . . ownership . . . over the item . . . .”).
18
Meza, 701 F.3d at 419; see also Possession, BLACK’S LAW DICTIONARY (11th
ed. 2019) (defining “construction possession” as “dominion over a property”).
19
Possession, BLACK’S LAW DICTIONARY (11th ed. 2019); see also Jones,
484 F.3d at 787 (defining “actual possession” as “direct physical control over a thing”).
20
Possess, Webster’s New International Dictionary 1770 (3d ed.
1961); see also Possess, MERRIAM-WEBSTER DICTIONARY, https://www.merriam-
webster.com/dictionary/possess (last visited April 22, 2021) (defining “possess” as “to
seize and take control of”).
21
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No. 20-50304
which a felon’s physical contact with a gun is so minimal and otherwise jus-
tified that it’d be absurd to convict him of possession. But we already make
exceptions to § 922(g) for such situations. And we didn’t have to stretch our
definition of “actual possession” to get there. In general, a felon is not guilty
of possessing a firearm if that possession is (1) brief and (2) justified. 21
But that doesn’t help Smith, because those exceptions “do[] not
negate any element of the offense.” 22 They’re affirmative defenses. And,
where—as here—a defendant chooses to plead guilty, a district court doesn’t
“err[] in accepting a guilty plea when the factual basis contains an affirmative
defense that does not negate any offense element.” Ortiz, 927 F.3d at 877.
Thus, the district court did not err by failing to consider Smith’s pos-
sible affirmative defenses. The majority’s holding otherwise engrafts part of
an affirmative defense onto the prima facie case for possession.
21
See United States v. Panter, 688 F.2d 268, 272 (5th Cir. 1982) (holding “that
where a convicted felon, reacting out of a reasonable fear for the life or safety of himself, in
the actual, physical course of a conflict that he did not provoke, takes temporary possession
of a firearm for the purpose or in the course of defending himself, he is not guilty of
violating” the predecessor to § 922(g)); United States v. Penn, 969 F.3d 450, 456 (5th Cir.
2020) (“A defendant must act promptly to rid himself of the firearm once the circum-
stances giving rise to the justification subside.”), cert. denied, No. 20-6791, 2021 WL
1520864 (U.S. Apr. 19, 2021); United States v. Fisher, 777 F. App’x 749, 750–51 (5th Cir.
2019) (per curiam) (“The record evidence supports the finding that Fisher’s possession of
a firearm was not wholly temporary and in the course of defending himself.”), cert. denied,
140 S. Ct. 978 (2020); United States v. Lee, 208 F. App’x 352, 353 (5th Cir. 2006) (per
curiam) (“On sufficient facts, the common-law defenses of duress and necessity can justify
a violation of a firearms possession statute.”); United States v. Gant, 691 F.2d 1159, 1161
(5th Cir. 1982) (noting that we have “recognize[d] the general availability of common-law
defenses to such a charge”).
22
Ortiz, 927 F.3d at 877 (“Even if the factual basis here revealed that Ortiz’s pos-
session were justified, it nonetheless established that his conduct satisfied every element of
the offense.”).
22
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III.
Even supposing that the majority’s newfangled interpretation of
“possess” were correct, we should nonetheless affirm, because our review is
for plain error only. The majority concocts its approach by layering our
constructive-possession precedent onto an actual-possession case. But that’s
a problem for Smith, because, as the majority acknowledges, our review is for
plain error. And plain error review requires Smith to show an error that was
“clear and obvious under existing law.” 23
Under existing law, (1) brevity didn’t negate actual possession, and
(2) a fingerprint sufficed to show actual possession. See Ortiz, 927 F.3d
at 874; Hagman, 740 F.3d at 1049. Under those precedents, it’s clear that a
mere touch establishes actual possession. Consequently, the district court’s
failure to anticipate the majority’s novel rule—that a felon must handle a
firearm with sufficient vigor to render him “‘master’ over” it—isn’t plain
error. That rule wasn’t clear or obvious under our precedents. The majority
contrives it today.
IV.
The majority tacitly concedes the pandora’s box it has opened, by
punting on the grounds that we “need not decide every interaction with an
item that could qualify as possession.” Going forward, however, this court
and our district judges will have to answer myriad bizarre questions in light
of the majority’s opinion: What must a felon do to become the “master of”
23
Stevens v. United States, 470 F. App’x 303, 304 (5th Cir. 2012) (per curiam)
(emphasis added); see also United States v. Olano, 507 U.S. 725, 734 (1993) (concluding that
a “court of appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear
under current law” (emphasis added)); United States v. Vega, 332 F.3d 849, 852 n.3 (5th Cir.
2003) (“We conclude that any error by the district court in this regard was not plain or
obvious, as we have not previously addressed this issue.”).
23
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No. 20-50304
a firearm? Must he grip it? 24 Brandish it? 25 Hold it for an extended period? 26
Our precedent forecloses each option.
Because the majority reaches that odd result, on plain-error review,
only by reliance on inapposite authorities and definitions, I respectfully
dissent.
24
That can’t be right, because we’ve said that a defendant’s having a firearm “on
his person” would show actual possession. Hagman, 740 F.3d at 1049.
25
That can’t be right, because the fact that a “defendant’s DNA or fingerprints
were found on the firearm” would show actual possession. Hagman, 740 F.3d at 1049. And
that evidence wouldn’t necessarily show that a defendant brandished a gun.
26
That can’t be right, because we’ve rejected arguments that “brief dominion
over” contraband is insufficient to show actual possession. United States v. Toro, 840 F.2d
1221, 1237–38 (5th Cir. 1988); see also Ortiz, 927 F.3d at 874 (“Ortiz hints that the brevity
of his possession rendered it short of what is required under the first element. The caselaw
is against him.”); United States v. Parker, 566 F.2d 1304, 1306 (5th Cir. 1978) (“That
possession is momentary is immaterial.”). Likewise, other circuits reject “any minimum
temporal prerequisite for showing direct physical control of a gun.” United States v. Pratt,
704 F. App’x 420, 425 (6th Cir. 2017); see also United States v. Matthews, 520 F.3d 806,
811 (7th Cir. 2008) (“[M]erely holding a firearm for a brief period of time is sufficient to
constitute possession within the meaning of section 922.”); United States v. Jackson,
598 F.3d 340, 351 (7th Cir. 2010) (“[T]he legislative history of 18 U.S.C. § 922 indicates
that Congress sought to prohibit even a felon’s brief possession of a firearm.”).
24