United States v. Bay Wilson
In United States v. Wilson, —- F.4th —-, No. 23-50509 (5th Cir. Aug. 1, 2024), the Fifth Circuit affirmed the defendant’s conviction for possessing a firearm after a felony conviction and affirmed his 97-month prison sentence for that crime.
Conviction: Wilson argued that his conviction violated his Second Amendment rights, citing New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022). But he never raised that argument in the district court, so the Fifth Circuit continued its now well-established pattern of rejecting these arguments when raised under the plain-error standard.
First Sentencing Holding: The district court did not err by applying a four-level enhancement under USSG § 2K2.1(b)(6)(B), which applies when the defendant “used or possessed any firearm or ammunition in connection with another felony offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense.” When drugs and a firearm are “found in close proximity,” a court may presume a connection between the two.
Here, Wilson was in the back seat of a vehicle, in which officers found 160 grams of cocaine and three guns. Wilson argued that he should not receive the enhancement because he did not know a drug deal would occur. But according to the Fifth Circuit, “Wilson would probably not have driven with Barraza-Urias to the location of a drug deal in a vehicle containing drugs and firearms if he were not also involved,” and guns are “tools of the trade of drug trafficking.” Therefore, the district court did not clearly err in applying this enhancement.
Second Sentencing Holding: Wilson was properly held responsible, under USSG § 2K2.1(b)(1)(A) & (b)(4)(B), for a pistol that wasn’t his. — another passenger in the vehicle had admitted possessing that gun — although Wilson admitted possessing two other guns in the vehicle.
According to the majority, Wilson had “constructive possession” over the third firearm, or at least the district court did not clearly err in reaching that conclusion. Constructive possession can be joint with others, and here “there are sufficient ‘circumstantial indicia’ that Wilson constructively possessed the pistol.” This section of the majority opinion is worth quoting in full:
That Wilson was riding with [the third gun’s owner] to the drug deal—together with drugs they were jointly distributing—suggests that Wilson was more than a mere passenger. That, coupled with his admission that he possessed two of the three firearms found in the vehicle, plausibly indicates that he exercised control over the vehicle and its contents. Given Wilson’s role in the drug deal and the reasonable inference that all of the firearms were intended “to protect the drugs” that Wilson was helping distribute, the district court could conclude that he knew of and could access all three firearms. Wilson already admitted to possessing two of the three, and “[t]here is nothing in the record that suggests [the third firearm (the Ruger pistol)] w[as] inaccessible to him” or that it was “deliberately hidden from view.” The district court could therefore plausibly infer that Wilson exercised control of the car and had access to and knowledge of its contents, including the Ruger pistol.”
Dissent: Judge Haynes dissented from that final holding because “[s]imply being a passenger in a car, even with people you know, is not sufficient to make you a constructive possessor of everything in the car.” Here, there was “absolutely no evidence of where the Ruger pistol was—no evidence that Wilson could see it or knew about it. Nor was there evidence that Wilson owned the car.” But “just because you own one gun does not mean you own every gun ever near you. Just because you own something in the car doesn’t mean you own everything in the car, particularly when it isn’t your car.”