United States v. Tommy Leonard , 671 F. App'x 531 ( 2016 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
DEC 13 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 15-10144
Plaintiff-Appellee, D.C. No.
4:14-cr-00294-JST-1
v.
TOMMY LEONARD, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Jon S. Tigar, District Judge, Presiding
Argued and Submitted November 17, 2016
San Francisco, California
Before: SCHROEDER, WARDLAW, and OWENS, Circuit Judges.
Tommy Leonard appeals his sentence of incarceration following a guilty
plea to being a felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1). He challenges the calculation of his base offense level and the
sentencing enhancement based on the stolen AR-15 assault rifle that was found in
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
his girlfriend’s apartment. We have jurisdiction pursuant to 18 U.S.C. § 3742(a),
and we vacate the sentence and remand for resentencing.
1. The district court correctly applied a preponderance of the evidence
standard to the base level for an offense involving a semiautomatic firearm capable
of accepting a large capacity magazine pursuant to U.S.S.G. § 2K2.1. To
determine whether an enhancement had an “extremely disproportionate” effect on
the length of a sentence, we are guided by a six-factor test articulated in United
States v. Valensia, 222 F.3d 1173, 1182 (9th Cir. 2000). The district court did not
err when, properly considering the factors under the “totality of the
circumstances,” id., it found that the enhancement did not have an extremely
disproportionate effect.
2. However, the district court failed to apply the appropriate legal
standard in concluding that Leonard constructively possessed the stolen AR-15.
To demonstrate possession, the government must prove both access to and
knowledge of the item at issue. United States v. Kelso, 942 F.2d 680, 682 (9th Cir.
1991); see also United States v. Cazares, 121 F.3d 1241, 1245 (9th Cir. 1997) (“To
demonstrate constructive possession the government must prove a sufficient
connection between the defendant and the contraband to support the inference that
the defendant exercised dominion and control over the [contraband]”) (internal
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quotation marks omitted). Access alone cannot, without more, prove knowledge.
See, e.g., United States v. Highsmith, 268 F.3d 1141, 1142 (9th Cir. 2001) (holding
that a defendant’s access to a firearm found in a cohort’s bedroom did not establish
knowledge, and therefore did not prove possession); Cazares, 121 F.3d at 1245
(“‘Where, as here, a residence is jointly occupied, the mere fact that contraband is
discovered at the residence will not, without more, provide evidence sufficient to
support a conviction based on constructive possession against any of the
occupants.’”) (quoting United States v. Reese, 775 F.2d 1066, 1073 (9th Cir.
1985)).
We recognize that neither party cited the Kelso line of authority to the
district court, however. We therefore remand for resentencing so that the district
court may apply the Kelso line of authority to the evidentiary record in this case in
the first instance.
SENTENCE VACATED; REMANDED for resentencing.
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