UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

VICTOR ADRIAN TRUJILLO, 

 Defendant - Appellant. 

No. 21-1323 

(D.C. No. 1:19-CR-00380-DDD-1) 

(D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before MORITZ, SEYMOUR, and EBEL, Circuit Judges. 

_________________________________ 

Victor Trujillo pleaded guilty to illegally possessing ammunition. He 

challenges his sentence, arguing that the district court legally erred in imposing a 

four-level enhancement under the United States Sentencing Guidelines (U.S.S.G. or 

the Guidelines) for possessing a firearm with a defaced serial number. In particular, 

he contends that the district court applied an outdated and incorrect legal test for 

constructive possession and therefore failed to make the requisite finding that he 

intended to possess the firearm. Because we conclude that the district court applied 

the correct standard and implicitly made the requisite intent finding, we affirm. 

* This order and judgment is not binding precedent, except under the doctrines 

of law of the case, res judicata, and collateral estoppel. But it may be cited for its 

persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). 

FILED 

United States Court of Appeals 

Tenth Circuit 

December 14, 2022

Christopher M. Wolpert 

Clerk of Court

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Background 

Authorities were seeking Trujillo because he had absconded from parole and 

had an active warrant out for his arrest. Trujillo’s parole officer was among those 

searching for Trujillo, and he surveilled a place where Trujillo may have been 

residing. The parole officer observed Trujillo and a woman get into a vehicle that 

officers later learned belonged to the woman’s incarcerated spouse. Trujillo drove, 

and the woman sat in the passenger seat. Officers attempted a traffic stop, turning on 

their lights and sirens. Trujillo initially pulled over, but he swerved back onto the 

road and attempted to evade the officers. After a short chase, Trujillo ran a stop sign 

and lost control of the vehicle, colliding with a curb and coming to a stop against a 

chain-link fence. 

As law enforcement removed Trujillo from the vehicle, one officer observed a 

black handgun in plain view on the driver’s side floorboard between Trujillo’s feet. 

That same officer also noticed Trujillo staring at the gun. The passenger (who had 

exited the vehicle at the officers’ commands) later told officers that Trujillo had the 

gun in his lap when the officers initiated the traffic stop.1

 The gun was loaded with 

ammunition and had a defaced serial number. Officers then searched Trujillo incident 

to arrest and found five rounds of ammunition in his front left pocket.2

 

1

 The passenger also told officers that Trujillo owned two or three guns and 

usually had at least one gun with him. 

2

 The ammunition in Trujillo’s pocket did not match the gun found on the 

floor. Nor did it match a second loaded gun that officers recovered from the vehicle’s 

glovebox. 

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Trujillo pleaded guilty to being a felon in possession of ammunition in 

violation of 18 U.S.C. § 922(g)(1).3

 Based on the gun that officers found at Trujillo’s 

feet, the presentence investigation report included a four-level enhancement for 

possessing a firearm with a defaced serial number. See U.S.S.G. § 2K2.1(b)(4)(B). 

Trujillo objected to this firearm enhancement, arguing that the evidence did not 

establish his possession of the gun. The district court overruled Trujillo’s objection, 

determining that a preponderance of the evidence showed Trujillo constructively 

possessed the gun. 

With a total offense level of 23 and a criminal-history category of VI, 

Trujillo’s Guidelines sentencing range was 92 to 115 months. The district court 

sentenced Trujillo to 100 months in prison and three years of supervised release.4

Trujillo appeals.5

Analysis 

Trujillo challenges the district court’s legal application of the Guidelines, 

arguing that the district court erroneously imposed the four-level firearm 

enhancement in § 2K2.1(b)(4)(B) because it used an incorrect legal standard for 

3

 The government initially indicted Trujillo for being a felon in possession of a 

firearm, but it later dismissed that indictment after Trujillo pleaded guilty to the 

possession-of-ammunition count in an information. 

4

 The district court also entered, with no objection from Trujillo, the 

government’s preliminary forfeiture order for the two guns and the ammunition, 

finding “a factual basis connecting the firearms and ammunition to this case” and “a 

nexus between them and” the offense of conviction. R. vol. 3, 50. 

5

 Trujillo’s plea agreement includes an appeal waiver, but the government 

concedes that this appeal falls within an exception to that waiver. 

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constructive possession. This is an issue we review de novo.6 United States v. 

Farrow, 277 F.3d 1260, 1262 (10th Cir. 2002). 

To prove constructive possession for purposes of this sentencing enhancement, 

the government needed to show by a preponderance of the evidence that Trujillo had 

“both the power to control [the gun] and intent to exercise that control.” United 

States v. Samora, 954 F.3d 1286, 1290 (10th Cir. 2020) (quoting United States v.

Benford, 875 F.3d 1007, 1016 (10th Cir. 2017)); see also United States v. GambinoZavala, 539 F.3d 1221, 1229 (10th Cir. 2008) (noting burden of proof for sentencing 

enhancements). But this understanding of constructive possession is relatively new in 

this circuit, dating to United States v. Little, 829 F.3d 1177 (10th Cir. 2016). Before 

Little, constructive possession in this circuit had no intent requirement, and instead 

could result from only “knowledge of and access to the contraband.” GambinoZavala, 539 F.3d at 1229. 

Trujillo argues that the district court erred by applying the pre-Little version of 

6

 The government suggested at oral argument that plain-error review should 

apply because Trujillo failed to preserve his Guidelines challenge below. But the 

government’s brief did not raise this preservation problem and did not advocate for 

plain-error review of Trujillo’s entire appeal; instead, the government’s brief argued 

only that Trujillo waived any underlying argument that the district court must make 

an express finding of intent on the record. See infra note 7. We therefore decline to 

consider the government’s late-blooming invocation of plain error. See United States 

v. De Vaughn, 694 F.3d 1141, 1154–55 & 1154 n.9 (10th Cir. 2012) (“It is wellsettled that arguments inadequately briefed in the opening brief are waived.” (quoting 

United States v. Cooper, 654 F.3d 1104, 1128 (10th Cir. 2011))); Murphy v. City of 

Tulsa, 950 F.3d 641, 645 n.4 (10th Cir. 2019) (“[A]rguments made for the first time 

at oral argument are waived.” (quoting Ross v. Univ. of Tulsa, 859 F.3d 1280, 1294 

(10th Cir. 2017))). 

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the test for constructive possession and failing to find the required intent, and the 

government responds to the contrary. Because this dispute turns in large part on a 

close reading of what occurred at the sentencing hearing, we begin by describing that 

hearing in some detail. 

Explaining the objection to the firearm enhancement, defense counsel argued 

that the evidence failed to show Trujillo possessed the gun. In support, defense 

counsel asserted (1) that the passenger’s statement about the gun being in Trujillo’s 

lap was not credible and (2) that Trujillo only stared at the gun between his feet 

because he was surprised to see it there, suggesting that it was dislodged from 

elsewhere in the vehicle during the crash. The district court then asked the prosecutor 

to respond, noting that it “agree[d] at least in part” with Trujillo’s credibility point 

and requesting that the prosecutor “lay out . . . the proper standard . . . for 

possession.” R. vol. 3, 54. The prosecutor said that the standard for possession was 

“dominion and control, knowing it’s there, having the ability to control that 

weapon”—omitting the intent aspect of the test. Id. at 55–56. The district court then 

asked if it had “to find that [Trujillo] knew that the serial number was defaced,” and 

the prosecutor replied in the negative. Id. at 56. Apparently confirming this point, the 

district court then asked if it was “enough that [Trujillo] knowingly had dominion or 

control of the weapon and that it had a defaced serial number,” and the prosecutor 

replied affirmatively. Id. Next, in rebuttal, defense counsel corrected the prosecutor’s 

omission and emphasized that the standard for constructive possession requires both 

“the ability and intent to exercise control over the firearm,” noting that “the intent 

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part of this [standard] ha[d] been missing from this conversation thus far.” Id. at 57 

(emphasis added). 

The district court then decided to apply the enhancement, concluding that “the 

preponderance of the evidence show[ed] that [Trujillo] knew that the gun was there 

and was in at least constructive possession of that weapon.” Id. at 57–58. It noted that 

Trujillo did not need to know anything about the status of the serial number and then 

reiterated that although the gun “may or may not have actually belonged to him,” 

there was enough evidence “to show that he knew it was in the car, had constructive 

possession, control over that weapon while he was driving the vehicle.” Id. at 58. 

Trujillo contends that the district court failed to find the required intent, 

highlighting that the prosecutor and the district court discussed only the control 

portion of the constructive-possession test and did not expressly mention intent. The 

government agrees that there was no express mention of intent. But it persuasively 

argues that the district court implicitly found the intent requirement satisfied.7

 In 

support, the government notes that defense counsel specifically raised the intent 

requirement at the sentencing hearing, telling the district court that “the intent part of 

this ha[d] been missing from this conversation thus far.” Id. at 57. And the district 

court did not take issue with that portion of defense counsel’s argument, instead 

moving straight from that argument to its conclusion that Trujillo constructively 

7

 As the government points out, Trujillo does not argue that the district court 

was required to make an express intent finding on the record. He limits his appellate 

argument to the position that the district court failed to find intent at all, whether 

implicitly or explicitly. 

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possessed the gun. As the government asserts, this “chain of events” suggests that the 

district “court found the necessary intent, although [it] did not explicitly express such 

a finding.” Aplee. Br. 12. 

Resisting this conclusion, Trujillo asserts that defense counsel was forced to 

bring up the intent element “because the judge had already asked the prosecutor if it 

was ‘enough that [Trujillo] knowingly had dominion or control of the weapon and 

that it had a defaced serial number.’” Rep. Br. 1–2 (quoting R. vol. 3, 56). He argues 

that this question shows the district court’s “pre[]disposition to rely on a no-intent 

standard,” which the prosecutor confirmed by answering the question affirmatively. 

Id. at 2. He therefore concludes that this court should not assume that defense 

counsel’s correction had any impact. 

But the context of the district court’s question shows that the district court was 

seeking information about the extent of the knowledge requirement, not 

demonstrating any kind of predisposition about the overall standard for constructive 

possession. The question immediately followed the district court’s previous question 

about whether it had “to find that [Trujillo] knew that the serial number was 

defaced.” R. vol. 3, 56 (emphasis added). After the prosecutor answered in the 

negative, the district court essentially posed the same question in another way, asking 

whether it was “enough that [Trujillo] knowingly had dominion or control of the 

weapon and that it had a defaced serial number.” Id. Rather than showing a 

predisposition to apply an incorrect standard, this context demonstrates that the 

district court focused its questioning on the distinction between knowing about the 

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gun and knowing that the serial number was defaced. This colloquy therefore doesn’t 

support Trujillo’s position that the district court’s failure to expressly discuss the 

intent requirement means that it applied an incorrect legal test. 

Indeed, although Trujillo urges us not to “equate[] the [district] court’s silence 

with acceptance” of defense counsel’s rebuttal argument about the intent 

requirement, Rep. Br. 1, we generally presume that the district court “know[s] the 

law and appl[ies] it in making [its] decisions,” United States v. Chavez-Meza, 854 

F.3d 655, 659 (10th Cir. 2017) (quoting United States v. Ruiz-Terrazas, 477 F.3d 

1196, 1201 (10th Cir. 2007)), aff’d, 138 S. Ct. 1959 (2018). This presumption 

supports concluding that the district court heard and accepted defense counsel’s 

correction of the prosecutor’s incorrect statement of the test for constructive 

possession. It further supports declining to interpret the district court’s silence about 

the intent requirement as indication of legal error. We accordingly conclude that the 

district court applied the correct standard and implicitly found the required intent.8

 

Conclusion 

Because the district court was provided with the correct standard at the 

sentencing hearing and because we presume that district courts know and apply the 

8

 We reach this conclusion without relying on the government’s position that 

the district court’s forfeiture order—which includes an underlying finding of a nexus 

between the gun and Trujillo’s offense—indicates that the district court implicitly 

found the intent required for constructive possession. Additionally, because Trujillo 

does not argue that any intent finding is clearly erroneous, we do not address the 

government’s arguments about the various pieces of evidence that support the intent 

finding. Likewise, having found no error, we do not address the government’s 

position that any error was harmless. 

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correct law, we conclude that the district court implicitly found the required intent for 

constructive possession. We therefore affirm. 

Entered for the Court 

Nancy L. Moritz 

Circuit Judge 

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