{"content":[{"text":"under indictment.","bbox":{"left":0.117647,"top":0.091195,"width":0.140785,"height":0.016779000000000002}},{"text":"The firearm listed in the indictment is the Springfield Armory XD firearm","bbox":{"left":0.274118,"top":0.091195,"width":0.6079950000000001,"height":0.016779000000000002}},{"text":"discussed above.","bbox":{"left":0.117647,"top":0.126044,"width":0.131569,"height":0.01677899999999999}},{"text":"II.","bbox":{"left":0.147059,"top":0.161195,"width":0.020195999999999992,"height":0.01677899999999999}},{"text":"First Objection","bbox":{"left":0.205882,"top":0.161195,"width":0.127768,"height":0.01677899999999999}},{"text":"The defense objects to paragraphs 25 and 26 of the Pre-Sentence Report, on the grounds that","bbox":{"left":0.147059,"top":0.195741,"width":0.735055,"height":0.01677899999999999}},{"text":"it improperly enhances Mr. Gibbon’s guideline range by holding him responsible for firearms that","bbox":{"left":0.117647,"top":0.230589,"width":0.7646629999999999,"height":0.01677899999999999}},{"text":"were never in his actual or constructive possession.","bbox":{"left":0.117647,"top":0.265438,"width":0.40196100000000007,"height":0.01677899999999999}},{"text":"The PSR raises Mr. Gibbon’s offense level by 2 levels by asserting that the offense involved","bbox":{"left":0.147059,"top":0.300286,"width":0.735098,"height":0.01677899999999999}},{"text":"between 3 and 7 firearms.","bbox":{"left":0.117647,"top":0.335135,"width":0.20411600000000002,"height":0.01677899999999999}},{"text":"See PSR ¶ 25.","bbox":{"left":0.337451,"top":0.335135,"width":0.11196099999999998,"height":0.01677899999999999}},{"text":"The PSR also raises Mr. Gibbons offense level by an","bbox":{"left":0.465098,"top":0.335135,"width":0.417057,"height":0.01677899999999999}},{"text":"additional 2 levels because one of the three firearms was stolen.","bbox":{"left":0.117647,"top":0.369983,"width":0.512351,"height":0.01677899999999999}},{"text":"To do this the PSR holds Mr.","bbox":{"left":0.645686,"top":0.369983,"width":0.23686200000000002,"height":0.01677899999999999}},{"text":"Gibbons responsible not just for the Springfield Armory firearm that was found near him and forms","bbox":{"left":0.117647,"top":0.404832,"width":0.7644930000000001,"height":0.01677899999999999}},{"text":"the basis for the charge, but also the additional two firearms recovered from the house.","bbox":{"left":0.117647,"top":0.43968,"width":0.679411,"height":0.01677899999999999}},{"text":"However, there is no evidence that Mr. Gibbons actually or constructively possessed either the","bbox":{"left":0.147059,"top":0.474529,"width":0.7353670000000001,"height":0.01677899999999999}},{"text":"Smith and Wesson or the Taurus firearms.","bbox":{"left":0.117647,"top":0.509377,"width":0.346667,"height":0.01677899999999999}},{"text":"The 5th Circuit defines constructive possession as","bbox":{"left":0.480196,"top":0.508075,"width":0.40214,"height":0.018081000000000014}},{"text":"“ownership, dominion,","bbox":{"left":0.117647,"top":0.544226,"width":0.18392199999999997,"height":0.01677899999999999}},{"text":"or","bbox":{"left":0.310392,"top":0.544226,"width":0.016332999999999986,"height":0.01677899999999999}},{"text":"control over","bbox":{"left":0.335294,"top":0.544226,"width":0.09907900000000003,"height":0.01677899999999999}},{"text":"the","bbox":{"left":0.442941,"top":0.544226,"width":0.02399699999999999,"height":0.01677899999999999}},{"text":"contraband itself or dominion","bbox":{"left":0.475686,"top":0.544226,"width":0.241373,"height":0.01677899999999999}},{"text":"or","bbox":{"left":0.725686,"top":0.544226,"width":0.016333000000000042,"height":0.01677899999999999}},{"text":"control over","bbox":{"left":0.750588,"top":0.544226,"width":0.09907900000000003,"height":0.01677899999999999}},{"text":"the","bbox":{"left":0.858235,"top":0.544226,"width":0.02419300000000002,"height":0.01677899999999999}},{"text":"premises in which the contraband is concealed.”","bbox":{"left":0.117647,"top":0.579074,"width":0.374389,"height":0.01677899999999999}},{"text":"United States v. Mergerson, 4 F.3d 337, 349 (5th","bbox":{"left":0.507843,"top":0.577772,"width":0.374613,"height":0.018081000000000014}},{"text":"Cir. 1993) (quoting United States v. Smith, 930 F.2d 1081, 1085 (5th Cir. 1991) (emphasis in","bbox":{"left":0.117647,"top":0.61262,"width":0.764902,"height":0.01808199999999993}},{"text":"original).","bbox":{"left":0.117647,"top":0.648771,"width":0.072157,"height":0.01677899999999999}},{"text":"The 5th Circuit has clarified that even where a residence is jointly occupied constructive","bbox":{"left":0.205686,"top":0.647469,"width":0.676744,"height":0.018081000000000014}},{"text":"possession is established “only when there was some evidence supporting at least a plausible","bbox":{"left":0.117647,"top":0.683619,"width":0.7647790000000001,"height":0.01677899999999999}},{"text":"inference that the defendant had knowledge of and access to the weapon or contraband.” See id.","bbox":{"left":0.117647,"top":0.718468,"width":0.76451,"height":0.01677899999999999}},{"text":"(holding that a weapon not found in plain view was not constructively possessed without other","bbox":{"left":0.117647,"top":0.753316,"width":0.764569,"height":0.01677899999999999}},{"text":"evidence that the defendant knew of the weapon).","bbox":{"left":0.117647,"top":0.788165,"width":0.389608,"height":0.01677899999999999}},{"text":"In the instant case neither of the additional two firearms were found in plain view.","bbox":{"left":0.147059,"top":0.823013,"width":0.6305879999999999,"height":0.01677899999999999}},{"text":"The Taurus","bbox":{"left":0.793333,"top":0.823013,"width":0.08880700000000008,"height":0.01677899999999999}},{"text":"2","bbox":{"left":0.495098,"top":0.874832,"width":0.00980399999999998,"height":0.01677899999999999}}],"images_bbox":[],"images_bbox_not_text_overlap":[]}