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 di strict 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 seri al number. In particular, he contends that the district court applie d an outdated and inco rrect legal test for constructive possession and th erefore failed to make the requisite finding that he intended to possess the firearm. Because we conclude that the di strict court applied the correct standard and imp licitly made the requisite in tent finding, we affirm.

* This order and judgment is not bi nding precedent, except under the doctrines of law of the case, res judi cata, 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 Appellate Case: 21-1323 Document: 010110782971 Date Filed: 12/14/2022 Page: 12 Background Authorities were seeking Tr ujillo 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 surveille d a place where Trujillo may have been residing. The parole officer observed Tru jillo and a woman get into a vehicle that officers later learned belonge d to the woman’s incarcerat ed spouse. Trujillo drove, and the woman sat in the pass enger seat. Officers attempte d a traffic stop, turning on their lights and sirens. Tru jillo initially pulled over, but he swerved back onto the road and attempted to evade the officers. After a short ch ase, Trujillo ran a stop sign and lost control of the vehicle, colliding w ith a curb and coming to a stop against a chain-link fence. As law enforcement removed Trujillo fro m 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 noti ced Trujillo staring at the gun. The passenger (who had exited the vehicle at the offi cers’ commands) later told o fficers that Trujillo had the gun in his lap when the offi cers initiated the traffic stop. 1 The gun was loaded with ammunition and had a defaced se rial 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 ow ned 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. Appellate Case: 21-1323 Document: 010110782971 Date Filed: 12/14/2022 Page: 23 Trujillo pleaded guilty to being a fe lon in possession of ammunition in violation of 18 U.S.C. § 922(g)(1). 3 Based on the gun that o fficers found at Trujillo’s feet, the presentence investigation repor t 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 enhan cement, arguing that the evidence did not establish his possession of the gun. The di strict court overruled Trujillo’s objection, determining that a preponderance of th e 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 wa s 92 to 115 months. The district court sentenced Trujillo to 100 mo nths in prison and three y ears 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 Tru jillo for being a felon in possession of a firearm, but it later dismissed that indi ctment 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 orde r for the two guns and the ammunition, finding “a factual basis connecting the firear ms and ammunition to this case” and “a nexus between them and” the offens e of conviction. R. vol. 3, 50. 5 Trujillo’s plea agreement includes an appeal waiver, but the government concedes that this app eal falls within an exception to that waiver. Appellate Case: 21-1323 Document: 010110782971 Date Filed: 12/14/2022 Page: 34 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 purpo ses of this sentencing enhancement, the government needed to show by a prepo nderance 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 c onstructive 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 circui t had no intent requi rement, 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 ar gument 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 prob lem and did not advocate for plain-error review of Trujillo’s entire a ppeal; instead, the govern ment’s brief argued only that Trujillo waived any underlying argum ent 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-bl ooming 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 briefe d 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]rgumen ts made for the first time at oral argument are waived.” (quoting Ross v. Univ. of Tulsa , 859 F.3d 1280, 1294 (10th Cir. 2017))). Appellate Case: 21-1323 Document: 010110782971 Date Filed: 12/14/2022 Page: 45 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 occurre d at the sentencing hearing, we begin by describing that hearing in some detail. Explaining the objection to the firearm enhancement, defe nse counsel argued that the evidence failed to show Trujillo possessed th e 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 duri ng the crash. The district c ourt then asked the prosecutor to respond, noting that it “agr ee[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 sa id that the standard for possession was “dominion and control, knowing it’s ther e, 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 seri al number was defaced,” and the prosecutor replied in the negative. Id. at 56. Apparently c onfirming 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 co unsel corrected the prosecutor’s omission and emphasized that the standa rd for constructive possession requires both “the ability and intent to exercise control over the fi rearm,” noting that “the intent Appellate Case: 21-1323 Document: 010110782971 Date Filed: 12/14/2022 Page: 56 part of this [standard] ha[d] been miss ing from this conversation thus far.” Id. at 57 (emphasis added). The district court then decided to appl y the enhancement, concluding that “the preponderance of the evidence show[ed] th at [Trujillo] knew th at the gun was there and was in at least constructiv e 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 actuall y belonged to him,” there was enough evidence “t o 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 c ourt failed to find the required intent, highlighting that the prosecutor and the di strict court discussed only the control portion of the constructive-possession test a nd did not expressly mention intent. The government agrees that there was no expres s mention of intent. But it persuasively argues that the district c ourt implicitly found the inte nt requirement satisfied. 7 In support, the government notes that defens e counsel specifically raised the intent requirement at the sentencing hear ing, telling the district cour t that “the intent part of this ha[d] been missing from th is conversation thus far.” Id. at 57. And the district court did not take issue with that porti on of defense counsel’s argument, instead moving straight from that argument to it s 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 fi nding on the record. He limits his appellate argument to the position that th e district court failed to find intent at all, whether implicitly or explicitly. Appellate Case: 21-1323 Document: 010110782971 Date Filed: 12/14/2022 Page: 67 possessed the gun. As the government asserts, this “chain of even ts” suggests that the district “court found the necessa ry intent, although [it] did not explicitly express such a finding.” Aplee. Br. 12. Resisting this conclusion, Trujillo assert s 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 domin ion or control of the weapon and that it had a defaced serial number.’” Rep. Br. 1–2 (quoti ng R. vol. 3, 56). He argues that this question shows the district cour t’s “pre[]disposition to rely on a no-intent standard,” which the prosecu tor confirmed by answering th e question affirmatively. Id. at 2. He therefore concludes that th is court should not assume that defense counsel’s correction had any impact. But the context of the district court’s que stion 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 followe d 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 prosecuto r answered in the negative, the district court essentially posed the same que stion in another way, asking whether it was “enough that [Trujillo] knowi ngly had dominion or control of the weapon and that it had a defaced serial number.” Id. Rather than showing a predisposition to apply an in correct standard, this cont ext demonstrates that the district court focused its questioning on the distinction between knowing about the Appellate Case: 21-1323 Document: 010110782971 Date Filed: 12/14/2022 Page: 78 gun and knowing that the serial number was defaced. This colloquy therefore doesn’t support Trujillo’s position that the district court’s failur e to expressly discuss the intent requirement means that it applied an incorrect legal test. Indeed, although Trujillo urges us not to “equate[] the [distric t] court’s silence with acceptance” of defense counsel’s rebuttal argument about the intent requirement, Rep. Br. 1, we generally pres ume 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 (10t h Cir. 2007)), aff’d , 138 S. Ct. 1959 (2018). This presumption supports concluding that the district court heard a nd accepted defense counsel’s correction of the prosecutor’s incorrect statement of the test for constructive possession. It further supports declining to interpret the di strict court’s silence about the intent requirement as i ndication of legal error. We accordingly conclude that the district court applied the co rrect standard and implicitly found the required intent. 8
Conclusion Because the district court was provide d with the correct standard at the sentencing hearing and because we presume th at district courts know and apply the

8 We reach this conclusion without re lying on the government’s position that the district court’s forfeiture order—whic h includes an underlying finding of a nexus between the gun and Trujillo’s offense—indicat es that the district court implicitly found the intent required for constructive possession. A dditionally, 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 eviden ce that support the intent finding. Likewise, having found no error, we do not addre ss the government’s position that any error was harmless. Appellate Case: 21-1323 Document: 010110782971 Date Filed: 12/14/2022 Page: 89 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 Appellate Case: 21-1323 Document: 010110782971 Date Filed: 12/14/2022 Page: 9