United States Court of Appeals 

for the Fifth Circuit 

No. 20-20042 

United States of America, 

Plaintiff—Appellee, 

versus

Terrence Spriggs, 

Defendant—Appellant. 

Appeal from the United States District Court 

for the Southern District of Texas 

USDC 4:19-CR-91-1 

Before Dennis and Engelhardt, Circuit Judges, and Hicks*, District 

Judge.

Per Curiam:*

Terrence Spriggs pleaded guilty to unlawful possession of a firearm by 

a felon in violation of 18 U.S.C. §§ 922(g)(1) & 924(e), without a plea 

agreement, and was sentenced to a 108-month prison term followed by a two-

*

 Chief Judge of the Western District of Louisiana, sitting by designation. 

*

 Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4. 

United States Court of Appeals 

Fifth Circuit 

FILED 

June 9, 2021 

Lyle W. Cayce 

Clerk 

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2 

year term of supervised release. In determining his sentence, the district 

court made a base offense level determination of 20 under U.S.S.G. 

§ 2K2.1(a)(4)(B), then applied a two-level enhancement based upon the 

involvement of three or more firearms under U.S.S.G. § 2K2.1(b)(1)(A) and 

a two-level enhancement based upon the involvement of a stolen firearm 

under U.S.S.G. § 2K2.1(b)(4). Spriggs argues that the district court erred in 

scoring the possession of additional firearms as relevant conduct, pursuant to 

U.S.S.G. § 2K2.1. We AFFIRM. 

I. 

 On January 7, 2018, police officers with the Houston Police 

Department (HPD) went to an apartment leased to Ashley Spriggs (Ashley), 

Defendant-Appellant’s sister, to execute an arrest warrant for her in 

connection with fraudulent documents. Once there, officers knocked on the 

door and Defendant Terrence Spriggs (Spriggs) answered. Officers 

conducted a sweep of the apartment looking for Ashley and saw cash in plain 

view throughout the apartment and “large ‘balls’ of marijuana sitting on 

a table.” 

 During the sweep, the police viewed a firearm under a couch cushion. 

Ashley was absent and, according to the officers, there was no evidence inside 

of the residence indicating a female resided in the apartment. There were, 

however, pictures of Spriggs and his children around the apartment, as well 

as men’s clothing, toiletries, and shoes. One of the bedrooms appeared to be 

furnished for a child. When asked for permission to search the apartment, 

Spriggs declined and advised the officers that the apartment belonged to 

his sister. 

 After officers saw drug paraphernalia (plastic bags, spoons, and 

baggies with white powder residue), they detained Spriggs while they 

obtained a search warrant for the apartment. The sweep and the warrant 

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search together resulted in the seizure of the following: a model SDP Sphinx 

9mm handgun; a 9mm magazine; a model DMPS AR-15 .223 caliber rifle; a 

Model RFS-15 Radical Firearms .223 caliber rifle; a magazine with 36 rounds 

of .223 caliber ammunition; a model LC9 Ruger 9mm caliber handgun; 18 

rounds of 9mm caliber ammunition; a 9mm Ruger magazine; a Glock 21 .45 

caliber handgun with mounted light; a 9mm Glock magazine; an extended 

9mm magazine; 71 rounds of .45 caliber ammunition; 9.91 grams of cocaine; 

scales; 5.39 grams of marijuana; 3.41 grams of acetaminophen and 

hydrocodone; 1.63 grams of Xanax; 2.36 grams of ciprofloxacin 

hydrochloride; 0.42 grams of heroin; $54,837.00 in cash; a necklace with a 

“2600” pendant; a ring; two Rolex watches; and eight cell phones. The 

police also “located a photograph of [Spriggs] holding a handgun similar to 

the [seized] 9mm Ruger.” 

 Officers believed that Spriggs sold narcotics, based upon amounts of 

drugs individually wrapped in small packages and cash in mixed 

denominations. Police found $2,600 in cash in Spriggs’s pocket, but the rest 

of the cash was in dresser drawers and in stacks throughout the apartment. 

To explain the cash, Spriggs told officers he worked as a stripper at a Houston 

club, which the officers later discovered was no longer in business at the time. 

Five firearms were recovered during the search, including one capable of 

holding a high-capacity magazine, and one firearm that was subsequently 

determined to be stolen. Spriggs was arrested that same day, and was later 

given a bond in Harris County, Texas. While still on bond, Spriggs beat his 

then-girlfriend and damaged her car, picking up two additional offenses: 

assault of a family member and criminal mischief. 

 On August 26, 2018, HPD officers executed another search warrant 

at a different apartment, based upon information that Spriggs and others 

were involved in a fraud scheme. The apartment was the home of Spriggs’s 

girlfriend, Tadyra Lewis, who was suspected of credit card fraud. When 

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officers arrived, they found Spriggs asleep in the master bedroom, three 

handguns inside the master bedroom closet on top of a small safe, and crack 

cocaine in plain view in the master bedroom. Spriggs was arrested again and 

taken to Harris County Jail, where he was uncooperative with law 

enforcement and threatened to kill one of the officers. 

 Prior to the January 2018 and August 2018 searches, Spriggs had been 

convicted of a felony crime punishable by imprisonment for more than one 

year, and was thus prohibited from possessing a firearm and knew he was 

prohibited from possessing a firearm as a felon. On February 6, 2019, a grand 

jury sitting in the Southern District of Texas returned a one-count 

indictment, charging Spriggs with the offense of Felon in Possession of a 

Firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The 

indictment alleged that on or about January 7, 2018, Spriggs possessed a 

“Ruger, model LC9, 9mm caliber Luger, semi-auto pistol.” 

 At the detention and arraignment hearing on February 19, 2019, the 

court heard testimony from HPD Detective Paul Lowry, who also serves as a 

Task Force Officer with U.S. Homeland Security. He confirmed that two of 

the firearms seized in the January 2018 raid had been determined to be stolen, 

and further opined on the August 26, 2018 raid. The court denied bail and 

ordered Spriggs detained pending trial, citing the threat to the community, 

specifically the threat against the officer’s life. 

 The presentence investigative report (PSR) established a base offense 

level of 20, pursuant to U.S.S.G. §2K2.1(a)(4)(B). The PSR recommended 

a four-level increase pursuant to U.S.S.G. § 2K2.1(b)(1) because the offense 

involved a total of eight firearms seized in the January 2018 and August 2018 

searches, under the principles of relevant conduct; a two-level increase 

pursuant to U.S.S.G. § 2K2.1(b)(4) because (at least) one of the firearms had 

been stolen; and a four-level increase pursuant to U.S.S.G. § 2K2.1(b)(6) for 

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using or possessing the firearm in connection with another felony. After 

three levels were deducted for acceptance of responsibility, Spriggs had a 

total offense level of 27. 

 The PSR placed Spriggs in criminal history category V, yielding a 

guideline sentencing range of 100 to 120 months. Spriggs filed objections to 

the four-level enhancement under U.S.S.G. § 2K2.1(b)(1)(B) for possession 

of 8 to 24 firearms, arguing he was not the sole occupant of his sister’s 

apartment that was searched on January 7, 2018. 

 On October 17, 2019, Spriggs entered a guilty plea, absent a plea 

agreement, to the charged offense. Spriggs agreed with the factual basis but 

declined to acknowledge that he had possessed any firearm other than the 

Ruger 9mm pistol charged in the indictment. The district court adopted the 

PSR in its entirety and sentenced Spriggs to a 108-month prison term and a 

two-year term of supervised release. Spriggs timely appealed. 

II. 

 Spriggs argues that the district court erred in scoring the possession 

of additional firearms as relevant conduct, pursuant to U.S.S.G. § 2K2.1, 

because the firearms were hidden inside an apartment, the apartment was 

leased to another person, and the Government failed to establish that he was 

the apartment’s sole occupant. Although framed as one issue, Spriggs’s 

appellate challenge concerns three matters, namely: (1) the base offense level 

determination of 20 under U.S.S.G. § 2K2.1(a)(4)(B), (2) the two-level 

enhancement based upon the involvement of three or more firearms under 

U.S.S.G. § 2K2.1(b)(1)(A), and (3) the two-level enhancement based upon 

the involvement of a stolen firearm under U.S.S.G. § 2K2.1(b)(4). 

 Spriggs’s claims that the district court erred in applying the 

Sentencing Guidelines are claims of procedural error. See Gall v. United 

States, 552 U.S. 38, 51 (2007). This court reviews the district court’s 

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application of the Guidelines de novo and reviews the district court’s factual 

findings for clear error. United States v. Hagman, 740 F.3d 1044, 1047-48 

(5th Cir. 2014). “A district court may consider non-adjudicated offenses 

(offenses for which the defendant has neither been charged nor convicted) . . 

. provided they constitute ‘relevant conduct’ under U.S.S.G. § 1B1.3.” 

United States v. Brummett, 355 F.3d 343, 344 (5th Cir. 2003). A district 

court’s determination of what constitutes relevant conduct is a factual 

finding. Id. at 1048. A factual finding plausible in light of the record as a 

whole is not clearly erroneous. Id. On the other hand, a factual finding is 

clearly erroneous when, after reviewing the entire record, the court is “left 

with the definite and firm conviction that a mistake has been committed.” 

Id. (internal quotation marks and citation omitted). “The Government must 

prove sentencing enhancements by a preponderance of the evidence.” Id. 

(internal quotation marks and citation omitted). 

III. 

 In order to convict a defendant as a felon in possession of a firearm in 

violation of 18 U.S.C. § 922(g)(1), the Government must prove beyond a 

reasonable doubt that the defendant: (1) has been convicted of a felony; (2) 

possessed a firearm in or affecting interstate commerce; and (3) knew that he 

was in possession of the firearm. United States v. Anderson, 559 F.3d 348, 353 

(5th Cir. 2009) (citing United States v. Ybarra, 70 F.3d 362, 365 (5th Cir. 

1995)). Possession can be established by: (1) actual, physical possession of 

the firearm, (2) sole control and occupancy of a place where a firearm is 

found, or (3) joint occupancy of a place where a firearm is found, combined 

with some evidence of the defendant’s access to and knowledge of the 

firearm. Anderson, 559 F.3d at 353. Spriggs argues none of the additional 

firearms, beyond the one firearm he accepted responsibility for in his guilty 

plea, were in his actual possession. 

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 i. Constructive Possession 

 Possession of a firearm may be actual or constructive, and may be 

proven by circumstantial evidence. United States v. Fields, 977 F.3d 358, 365 

(5th Cir. 2020) (citing United States v. Huntsberry, 956 F.3d 270, 279 (5th Cir. 

2020)). The district court did not specify a possessory basis—i.e., actual or 

constructive—for holding Spriggs to account for the additional firearms. 

There is no evidence of Spriggs’s actual possession of the firearms, so the 

Government must rely on a theory of constructive possession. “In general, 

a person has constructive possession if he knowingly has ownership, 

dominion, or control over the contraband itself or over the premises in which 

the contraband is located.” United States v. McKnight, 953 F.2d 898, 901 (5th 

Cir. 1992). Typically, “the issue of constructive possession is raised . . . 

where a defendant is found to be in the vicinity of a firearm but not in actual 

possession of it; a firearm is found in his residence . . . or . . . in some other 

place over which the defendant has dominion or control.” Hagman, 740 F.3d 

at 1049–50. 

 This court will affirm a finding of constructive possession in cases of 

joint occupancy “only when there is some evidence supporting at least a 

plausible inference that the defendant had knowledge of and access to the 

illegal item.” Huntsberry, 956 F.3d at 280. A defendant’s mere presence in 

the area of an object is not sufficient to establish possession. See United States 

v. Green, 873 F.3d 846, 852–53 (11th Cir. 2017) (analyzing whether the 

evidence was sufficient to establish that the defendant possessed a firearm as 

a convicted felon in violation of § 922(g)). A defendant’s connection to the 

location where a gun is found, however, may be relevant to whether he had 

knowledge of the gun or the ability and intent to exercise control or dominion 

over it. See id. at 853. “Constructive possession cannot be proven by 

proximity alone; there must be ‘other proof’ linking the defendant to the 

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prohibited item.” United States v. Foster, 891 F.3d 93, 111 (3rd Cir. 2018) 

(citations omitted). 

 Spriggs argues that the Government provided insufficient evidence to 

support constructive possession. In support, he cites United States v. 

Mergerson, 4 F.3d 337 (5th Cir. 1993), where this court held a defendant was 

not in possession of a firearm because there was no circumstantial evidence 

establishing that felon knew of the weapon. “Although a defendant’s 

exclusive occupancy of a place may establish his dominion and control over 

any item found there, his joint occupancy of a place cannot, by itself, support 

the same conclusion.” United States v. Houston, 364 F.3d 243, 248 (5th Cir. 

2004) (citing United States v. Hinojosa, 349 F.3d 200, 203-04 (5th Cir. 2003)). 

Some circumstantial proof of possession is required besides mere joint 

occupancy before constructive possession can be established. Fields, 977 

F.3d at 365. 

 In the present case, the Government has evidence to support 

Spriggs’s possession of the apartment. With the exception of the number of 

firearms, Spriggs agreed that the factual basis cited by the Government was 

correct. 

 As noted above, when HPD officers searched Spriggs and the 

apartment, they found cash, drugs, and guns. They found no evidence of a 

woman residing in the apartment. During sentencing, the district court stated 

the preponderance of the evidence standard of factual findings for purposes 

of sentencing. The district court declined to accept Spriggs’s “joint 

occupancy” argument, stating that the Government had “offered some 

evidence that [Spriggs] was a resident of the apartment. He may or may not 

have been on the lease. But based upon what the [G]overnment’s attorney 

has outlined, he was occupying the apartment with his children.” 

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 ii. Reliable Evidence 

 In addition to the drugs and money discovered with the guns, pictures 

of Spriggs and his children were displayed throughout the apartment. Law 

enforcement found a photograph of Spriggs holding a handgun similar to the 

Ruger 9mm, model LC9, that they seized during the January 2018 search and 

named in the indictment. Officers also seized Spriggs’s cell phones on 

January 7, 2018, and downloaded their contents under the authority of a 

search warrant. 

 Photographs downloaded from Spriggs’s cell phones were attached as 

exhibits to the United States’ Objections to the PSR, which was filed before 

the sentencing hearing. One of the photos came from a post to Spriggs’s 

Instagram account, where he carries a firearm that matched the Ruger 9mm 

model LC9 pistol named in the indictment. The Government contends the 

other photographs are of firearms “consistent with,” or that bear 

“similarity” to, the four additional seized firearms used for enhancement 

purposes and establish that Spriggs at some time handled firearms like or 

even identical to the other four. 

 Other photographs retrieved from his cell phones showed Spriggs and 

his children inside his sister’s apartment handling cash. The pictures match 

the interior of Ashley’s apartment and display the appearance of the cash that 

matched how officers found it during the search: in bags and stacks 

throughout the apartment, supporting the Government’s assertion that 

Spriggs was living at the apartment with his children. 

 iii. Knowledge 

 Spriggs correctly states that, in joint-occupancy cases, the 

Government must prove that a defendant had more than “mere control or 

dominion over the place” where contraband is found. Mergerson, 4 F.3d at 

349. Indeed, “something else (e.g., some circumstantial indicium of 

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possession) is required besides mere joint occupancy before constructive 

possession is established.” Id. Evidence of knowledge and intent is critical 

in constructive-possession cases, as “[a] defendant will often deny any 

knowledge of a thing found in an area that is placed under his control.” 

United States v. Williams, 620 F.3d 483, 489 (5th Cir. 2010). But no 

affirmative link between the defendant and the weapon has to be established. 

Mergerson, 4 F.3d at 349. 

 In joint-occupancy cases, this court takes “a commonsense, factspecific approach” to determining whether constructive possession has been 

established. United States v. Meza, 701 F.3d 411, 419 (5th Cir. 2012). In that 

regard, this court has held that “[d]ominion or control over the premises may 

be shown by the presence of the defendant’s personal belongings . . . or by 

evidence that the defendant [may] come and go as he please[s].” Id. at 419-

20. (internal quotation marks and citation omitted). 

 The Government contends that Spriggs had exclusive possession of 

the apartment and “consistently occup[ied] the space” in which the firearms 

were found. In support, it cites officers’ observations of men’s and 

children’s items, and pictures of Spriggs and his children. Spriggs argues the 

photos and clothing observed in the apartment was not unusual for family 

members. 

 Exclusive control over the premises allows the court to infer the 

knowledge and intent to control objects within those premises. United States 

v. Griffin, 684 F.3d 691, 695 (7th Cir. 2012); see also United States v. Little, 

829 F.3d 1177, 1183 (10th Cir. 2016) (“It would not be improper for the jury 

to infer that the defendant had both knowledge of the firearm and an intent 

to exercise dominion and control over it merely from its presence in the 

bedroom”); United States v. Finney, 28 F.3d 113 (10th Cir. 1994) (holding 

that there was sufficient evidence of defendant’s knowledge of the firearm in 

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jointly occupied bedroom because defendant “rented the house, occupied 

the bedroom, and used the house as a base of operations for drug 

trafficking”). Accordingly, the district court did not err in finding that the 

Government produced sufficient evidence that Spriggs had knowledge of and 

constructively possessed the firearms and ammunition seized in the January 

2018 search. 

IV. 

 In calculating Spriggs’s offense level under U.S.S.G. § 2K2.13, the 

district court included four additional firearms seized in the January 2018 

search in the total number of firearms involved in Spriggs’s possession 

offense, concluding that Spriggs had, at that location, possessed a total of five 

firearms. Spriggs argues that the district court improperly enhanced his 

sentence because he was only charged with and pleaded guilty to possession 

of one firearm. 

i. Base Offense Level Determination and Relevant Conduct 

 A base offense level of 14 is prescribed if the defendant “was a 

prohibited person at the time of the offense.” U.S.S.G. § 2K2.1(a)(6)(A). It 

is undisputed that Spriggs was a felon prohibited from possessing a firearm 

in January 2018. Guidelines section 2K2.1(a)(4)(B) recommends a base 

offense level of 20 if the offense involved certain dangerous weapons and the 

defendant has been convicted of certain felonies or is otherwise prohibited 

from possessing such weapons. This Guidelines section was originally 

adopted in 1995, and then was amended in 2006 to recommend a base level 

of 20 for offenses that involved a “semiautomatic firearm that is capable of 

accepting a large-capacity magazine” and the defendant “was a prohibited 

person at the time the defendant committed the instant offense.” See United 

States v. Price, 649 F.3d 857, 870 (8th Cir. 2011) (providing history of the 

Guidelines and its amendments). 

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 The Guidelines use relevant offense conduct, if there is any, to assess 

offense levels. See U.S.S.G. § 1B1.3(a)(1)(A) (noting that application of the 

Guidelines calls for consideration of “all acts and omissions committed, 

aided, abetted, counseled, commanded, induced, procured, or willfully 

caused by the defendant”); Brummett, 355 F.3d at 343 (a district court may 

consider non-adjudicated offenses as relevant conduct under § 1B1.3 of the 

Guidelines). Unless otherwise specified, a convicted defendant’s guideline 

range is determined based upon all relevant conduct. U.S.S.G. § 1B1.1, 

comment. (n.1(H)). 

 Guidelines commentary explains that under subsection (a)(1) “the 

focus is on the specific acts and omissions for which the defendant is to be 

held accountable in determining the applicable guideline range,” not “on 

whether the defendant is criminally liable for an offense.” U.S.S.G. § 1B1.3, 

comment. (n.1). Thus, in a firearms case, relevant conduct may include 

uncharged firearms if the Government establishes that the defendant 

possessed the additional firearms. See, e.g., Houston, 364 F.3d at 248. As 

examined above, the Government has demonstrated that Spriggs 

constructively possessed the four additional firearms seized in the January 

2018 raid. 

 Generally, a PSR and its addenda bear sufficient indicia of reliability 

to be considered as evidence by the sentencing judge in making factual 

determinations. United States v. Nava, 624 F.3d 226, 231 (5th Cir. 2010) 

(quotation and citation omitted). Here, the PSR shows that Spriggs occupied 

the apartment and had constructive possession of the Model RFS-15 Radical 

Firearms, LLC .223 caliber rifle, with a loaded 36-round magazine of .223 

caliber ammunition. When HPD executed the search warrant, Spriggs was 

in the apartment alone. 

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 Even without considering the photographs of Spriggs and the children 

found in the apartment, the record supports that Spriggs, at a minimum, had 

joint dominion and control over the apartment. See Meza, 701 F.3d at 419. 

The PSR stated that the apartment leased by Ashley was in fact “occupied 

by [Spriggs], as evidenced by . . . the pictures inside . . . of [Spriggs] and his 

children, men’s clothing and toiletries, and a bedroom that was furnished for 

a child.” In sum, the district court did not clearly err in concluding that 

Spriggs constructively possessed a firearm capable of accepting a largecapacity magazine. The district court properly assigned Spriggs a base 

offense level of 20 for possessing a firearm capable of accepting a largecapacity magazine. 

ii. Three or More Firearms 

 The Sentencing Guidelines advise, for a violation of 18 U.S.C. 

§§ 922(g)(1) and 924(a)(2), a two-level enhancement if the offense involved 

three to seven firearms. See U.S.S.G § 2K2.1(b)(1)(A). When determining 

how many firearms are involved in an offense, the district court should 

include all “firearms that were unlawfully sought to be obtained, unlawfully 

possessed, or unlawfully distributed[.]” U.S.S.G § 2K2.1, comment. (n.5). 

 In United States v. Brummett, 355 F.3d at 344-45, this court determined 

that the district court did not err in calculating a defendant’s offense level for 

the offense of being a felon in possession of a firearm where it had counted 

firearms the defendant had not been indicted for possessing. The district 

court included firearms that had been discovered in the nine months 

following the possession for which the defendant was indicted as relevant 

conduct in its calculation of his sentence. Id. at 344. This court held that, 

despite the amount of time that had elapsed between the offenses, they were 

part of the same ongoing series of offenses and thus were relevant conduct. 

Id. at 345. 

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 In the present case, the Ruger 9mm pistol discovered in the couch 

cushion shortly before the four other firearms during the January 2018 search 

was found to be relevant conduct by the district court. Specifically, the court 

determined that the additional firearms discovered in the January 2018 

search were relevant, but excluded the firearms discovered during the August 

2018 search, adjusting the calculation from a four-point enhancement to a 

two-point enhancement (reducing the total number of firearms seized in 

January and August 2018 from eight to five). The district court did not err 

applying a two-level enhancement under U.S.S.G § 2K2.1(b)(1)(A) because 

the offense involved five firearms: one specifically charged in the indictment 

and four others discovered in the January 2018 search. 

iii. Stolen Firearm 

 Spriggs’s third assignment of error is that the district court 

improperly enhanced his sentence two levels under § 2K2.1(b)(4) of the 

Guidelines based upon the involvement of a stolen firearm. Section 

2K2.1(b)(4) applies “whenever a stolen firearm is involved in the offense of 

conviction or in relevant conduct.” United States v. Cole, 525 F.3d 656, 660 

(8th Cir. 2008). The district court need only find facts relevant to its 

application of the Sentencing Guidelines by a preponderance of the evidence. 

United States v. Lewis, 476 F.3d 369, 389 (5th Cir. 2007). 

 An enhancement involving a stolen firearm applies “regardless of 

whether the defendant knew or had reason to believe that the firearm was 

stolen.” United States v. Perez, 585 F.3d 880, 883 (5th Cir. 2009). This court 

has continually enforced the clear and unambiguous language of 

§ 2K2.1(b)(4) and its strict liability standard. See United States v. Singleton, 

946 F.2d 23, 24 (5th Cir. 1991); United States v. Fry, 51 F.3d 543, 546 (5th 

Cir. 1995); United States v. Hodges, 190 F.3d 537 (5th Cir. 1999); United States 

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v. Leon–Gonzalez, 220 F.3d 586 (5th Cir. 2000); United States v. Williams, 

365 F.3d 399, 407–08 (5th Cir. 2004). 

 The record supports the finding that at least one firearm discovered 

in the January 2018 raid was stolen. According to the testimony of Detective 

Lowry at the detention and arraignment hearing on February 19, 2019, traces 

were performed on the firearms seized, which confirmed that two of the five 

guns were stolen. The PSR went into further detail about one of the firearms, 

specifically: “[d]uring the course of the investigation, officers confirmed that 

the Glock 21 handgun had been reported stolen out of League City, Texas.” 

The district court did not err applying a two-point enhancement during 

sentencing for the possession of a stolen firearm. 

V. 

 For the foregoing reasons, the judgment of the district court is 

AFFIRMED. 

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