United States v. Smith

• Decision Date: 05 May 2021
• Docket Number: No. 20-50304,20-50304
• Citation: 997 F.3d 215
• Parties: UNITED STATES of America, Plaintiff—Appellee, v. Tredon SMITH, Defendant—Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

997 F.3d 215

UNITED STATES of America, Plaintiff—Appellee,

v.Tredon SMITH, Defendant—Appellant.

No. 20-50304

United States Court of Appeals, Fifth Circuit.

FILED May 5, 2021

Joseph H. Gay, Jr., Margaret Mary Embry, Assistant U.S. Attorneys, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff—Appellee.

Jodi Callaway Cole, Law Office of Jodi Cole, Austin, TX, for Defendant—Appellant.

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.

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, 2019² 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

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, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) ; see also United States v. Vonn , 535 U.S. 55, 58–59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (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, 129 S.Ct. 1423 (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 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 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 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 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 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 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...