NOT RECOMMENDED FOR PUBLICATION

File Name: 22a0501n.06

No. 22-5068

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JULIAN WILSON,

Defendant-Appellant.

)

)

)

)

)

)

)

)

)

)

ON APPEAL FROM THE

UNITED STATES DISTRICT 

COURT FOR THE WESTERN 

DISTRICT OF TENNESSEE

OPINION

Before: MOORE, CLAY, and NALBANDIAN, Circuit Judges.

MOORE, J., delivered the opinion of the court in which CLAY, J., joined. 

NALBANDIAN, J. (pp. 12–22), delivered a separate dissenting opinion.

KAREN NELSON MOORE, Circuit Judge. Julian Wilson pleaded guilty to possessing 

methamphetamine with intent to distribute. At sentencing, the district court applied a two-level

enhancement for possession of a firearm during the offense. In applying this enhancement, the 

district court clearly erred. Accordingly, we REVERSE and REMAND for further proceedings 

consistent with this opinion.

I. BACKGROUND

In the months leading up to Julian Wilson’s arrest, he was involved in a number of drugrelated incidents. On December 20, 2018, the police pulled over a Ford Fusion that had an 

improperly displayed registration and illegal window tinting. R. 50 (Presentence Investigation 

Report (PSR) ¶ 6) (Page ID #88). The driver—later identified as Wilson—fled on foot. Id. The 

police found in the Ford Fusion two bags collectively containing 7.3 ounces of methamphetamine, 
No. 22-5068, United States v. Wilson

2

a bottle containing approximately 1,010 pills, a ledger, a cellphone, a handgun, and various drug 

paraphernalia. Id. ¶ 6 (Page ID #88–89). On February 19, 2019, a confidential source purchased 

eight ounces of meth from Wilson. Id. ¶ 8 (Page ID #89). The source again purchased the same 

amount of meth from Wilson on March 11, 2019. Id. ¶ 9 (Page ID #89).

On April 5, 2019, officers responding to a shoplifting call saw three individuals matching 

the suspects’ description exiting a Ford F-150 truck. Id. ¶ 10 (Page ID #89). Austin Williams, 

who owned the Ford F-150, had been in the driver’s seat. Id. Carrie Stephens exited the backseat 

of the vehicle on the passenger’s side, and Wilson left from the backseat on the driver’s side. Id. 

The police searched Wilson and found on his person 92.23 grams of meth, two Xanax bars, 

assorted pills, a digital scale, and $649. Id. ¶ 11 (Page ID #90). Various drugs were also found in 

the car and on Williams. Id. ¶¶ 10, 12 (Page ID #89–90).

The police found three loaded firearms in the Ford F-150. A revolver was under the front 

passenger seat. Id. ¶ 12 (Page ID #90). A handgun was in the back pocket of the front passenger 

seat. Id. A rifle was underneath the rear seat, and Wilson had exited the vehicle from the rear seat 

on the driver’s side. Id. ¶¶ 10, 12 (Page ID #89–90). The rifle was not visible without first lifting 

the seat.

1

 R. 70 (Tr. at 43) (Page ID #212).

Wilson pleaded guilty to three counts of possessing during 2019 more than 50 grams of 

methamphetamine with intent to distribute. R. 65 (J. at 1) (Page ID #147). At sentencing, the 

1At the sentencing hearing, both the government and the defense agreed that the rifle was located underneath 

the rear seat of the Ford F-150. R. 70 (Tr. at 40, 43) (Page ID #209, 212). There was no testimony or argument at the 

sentencing hearing, nor is it stated in the PSR, regarding from which side under the rear seat the rifle was recovered. 

See id.; R. 50 (PSR ¶ 12) (Page ID #90). Wilson’s attorney stated that, “from the photographs we were provided in 

discovery,” the rifle “would not have been visible to anybody sitting in that seat” and that “[t]he seat had to be lifted 

to see [the rifle].” R. 70 (Tr. at 43) (Page ID #212). The defense further stated that it was “factually undisputed that 

none of [the firearms in the Ford F-150] were visible, none of them were in plain view.” Id. at 44 (Page ID #213). 

The government did not contest this point.
No. 22-5068, United States v. Wilson

3

parties disputed whether Wilson should receive a two-level sentencing enhancement pursuant to 

U.S.S.G. § 2D1.1(b)(1) for possessing a firearm during the offense. R. 70 (Tr. at 38–49) (Page ID 

#207–18). The district court found “that at least as it relates to the rifle, the .357, 38 special rifle, 

that Mr. Wilson was in constructive possession of that firearm, and that he has not been able to 

demonstrate that it’s clearly improbable that the firearm was connected in any way to the drug 

offense.” Id. at 48–49 (Page ID #217–18).

Thus, the district court applied the § 2D1.1(b)(1) enhancement. Id. at 49 (Page ID #218). 

This led to an offense level of 31. Id. Wilson had a criminal history category of VI, so the 

guideline range was 188 to 235 months. Id. at 49–50 (Page ID #218–19).2 After hearing from 

both Wilson and Wilson’s mother, the district court sentenced Wilson to 180 months of 

incarceration, just below the guideline range. Id. at 81 (Page ID #250). Wilson timely appealed. 

R. 68 (Notice of Appeal) (Page ID #166).

II. ANALYSIS

We review for clear error a district court’s factual finding that a defendant possessed a 

firearm during a drug crime. United States v. Miggins, 302 F.3d 384, 390 (6th Cir. 2002). Under 

this standard, we will affirm unless we are “left with the definite and firm conviction that a mistake 

has been committed.” United States v. West, 962 F.3d 183, 187 (6th Cir. 2020) (quoting United 

States v. Orlando, 363 F.3d 596, 603 (6th Cir. 2004)).

U.S.S.G. § 2D1.1(b)(1) provides a two-level enhancement if the defendant possessed a 

dangerous weapon, including a firearm, during the commission of a drug offense. “The 

2Without the enhancement, the guideline range would have been 151 to 188 months. See U.S.S.G. Sent’g 

Table (Offense Level 29, Criminal History Category VI).
No. 22-5068, United States v. Wilson

4

government must prove by a preponderance of the evidence ‘that (1) the defendant actually or 

constructively possessed the weapon, and (2) such possession was during the commission of the 

offense.’” United States v. Johnson, 344 F.3d 562, 565 (6th Cir. 2003) (quoting United States v. 

Pruitt, 156 F.3d 638, 649 (6th Cir. 1998)). Once the government meets its burden, the 

enhancement applies unless the defense shows that “it is clearly improbable that the weapon was 

connected with the offense.” U.S.S.G. § 2D1.1, cmt. (n.11).

“Constructive possession of an item is the ‘ownership, or dominion or control’ over the 

item itself, ‘or dominion over the premises’ where the item is located.” Id. (quoting Pruitt, 156 

F.3d at 649). This standard requires a showing of intent, and “[p]resence alone cannot show the 

requisite knowledge, power, or intention to exercise control.” United States v. Bailey, 553 F.3d 

940, 945 (6th Cir. 2009) (quoting United States v. Birmley, 529 F.2d 103, 107–08 (6th Cir. 1976)). 

Even “[w]here the defendant shares possession of the premises where contraband is found, 

additional incriminating evidence must show the defendant knew of and controlled the 

contraband.” United States v. Wren, 528 F. App’x 500, 506 (6th Cir. 2013) (citing Bailey, 553 

F.3d at 944 n.3). And, in Bailey, we explained that the mere fact that a firearm was underneath a 

driver’s seat does not establish that the driver constructively possessed the firearm. 553 F.3d at 

945–46. Because Bailey involved a sufficiency-of-the-evidence challenge, the government had 

been required to prove constructive possession beyond a reasonable doubt. But Bailey’s principles 

apply in the sentencing-enhancement context as well. See, e.g., United States v. Lanier, 850 F. 

App’x 419, 421 (6th Cir. 2021) (relying on Bailey in a challenge to the sentencing enhancement); 

United States v. Penaloza, 648 F. App’x 508, 516 (6th Cir. 2016) (same). Thus, something more 

than proximity is required to show constructive possession. Bailey, 553 F.3d at 947–48.
No. 22-5068, United States v. Wilson

5

A. April 2019 Arrest

There were not adequate facts to support the district court’s finding that Wilson 

constructively possessed one of the three firearms found in the Ford F-150 at the time of Wilson’s 

April 2019 arrest. See R. 70 (Tr. at 48–49) (Page ID #217–18).3 The prosecution did not present

evidence that the rifle was visible or that Wilson knew it was under the seat. See id. at 43 (Page 

ID #212). Passengers could not see the rifle unless the seat was lifted. Id. The only evidence that 

the prosecution offered to show constructive possession was the rifle’s location under the seat and 

the prosecutor’s assertion that Wilson “would have access” to the rifle in that location. Id. at 41 

(Page ID #210). This evidence showed “merely the location of a firearm near” Wilson, not 

constructive possession. See Bailey, 553 F.3d at 947–48. A “defendant’s mere presence in a car 

where a gun is found and proximity to a gun are insufficient proof of constructive possession.” 

United States v. Newsom, 452 F.3d 593, 609 (6th Cir. 2006).

The dissent’s analysis on this point misses the mark. The dissent insists that the rifle was 

in “reaching distance” to Wilson, but the rifle could not be viewed without lifting the seat, and 

3Earlier in the sentencing hearing, the district court suggested that Wilson may have constructively possessed 

the firearm in the back pocket of the front passenger’s seat as well. R. 70 (Tr. at 47) (Page ID #216). However, at the 

time that the district court made this statement, it was under the mistaken impression that Wilson was sitting on the 

same side of the vehicle as this firearm. Id. Despite the dissent’s suggestion to the contrary, after defense counsel 

corrected this misconception, the district court found that Wilson constructively possessed only the rifle that was 

underneath his seat. Id. at 48 (Page ID #217) (“So the Court would find that at least as it relates to the rifle, the .357, 

38 special rifle, that Mr. Wilson was in constructive possession of that firearm, and that he has not been able to 

demonstrate that it’s clearly improbable that the firearm was connected in any way to the drug offense.”). The district 

court reiterated this finding later in the hearing. Id. at 71 (Page ID #240) (“[T]he Court has found that Mr. Wilson 

was in constructive possession of at least one of the firearms that was located in that particular vehicle [on April 5, 

2019].”). We therefore do not address the firearm in the back pocket of the front passenger’s seat because it did not 

form the basis for the enhancement. The dissent improperly relies on that firearm in its analysis when even the 

government does not argue any basis for the enhancement beyond the rifle. Even if we were to consider that firearm, 

our analysis in this section would apply with even more force to that firearm, because it was concealed in the back 

pocket of the front passenger’s seat, on the opposite side of the car from Wilson, and in much closer proximity to one 

of the other occupants, who exited from the passenger’s side of the vehicle. Id. at 40, 43–44 (Page ID #209, 212–13); 

R. 50 (PSR ¶¶ 10, 12) (Page ID #89–90).
No. 22-5068, United States v. Wilson

6

thus it is illogical to assume that someone sitting in Wilson’s location could simply reach for the 

rifle without first exiting the vehicle to lift the seat. See R. 70 (Tr. at 43) (Page ID #212). The 

dissent’s emphasis on the size of the rifle is likewise irrelevant, because again, the rifle was not 

even visible without lifting the seat, and thus its size makes it no more or less likely that Wilson 

would be aware of its presence. And although the firearm was located near Wilson, we have 

repeatedly held that proximity alone is insufficient to show constructive possession. United States 

v. Arnold, 486 F.3d 177, 183 (6th Cir. 2008) (en banc); Bailey, 553 F.3d at 947–48; Newsom, 452 

F.3d at 609; United States v. Vichitvongsa, 819 F.3d 260, 275–76 (6th Cir. 2016). Instead, “[o]ther 

incriminating evidence” such as “a ‘connection with a gun, proof of motive, a gesture implying 

control, evasive conduct, or a statement indicating involvement in an enterprise” or a “statement 

of ownership” is needed in combination with proximity to show constructive possession. 

Vichitvongsa, 819 F.3d at 276 (quoting United States v. Campbell, 549 F.3d 364, 374 (6th Cir. 

2008)).

The dissent also repeatedly highlights the presence of drugs and drug paraphernalia in the 

Ford F-150, but the relevant legal question now before us in determining the application of the 

firearm enhancement is Wilson’s possession—actual or constructive—of the rifle. See Johnson, 

344 F.3d at 565 (quoting Pruitt, 156 F.3d at 649). The drugs and related paraphernalia were 

recovered from Wilson’s person, from Williams’s person, and from under the front passenger’s 

seat, on the opposite side of the vehicle from where Wilson was sitting. R. 50 (PSR ¶¶ 10–12) 

(Page ID #89–90). Wilson pleaded guilty to possession with intent to distribute in excess of fifty 

grams of methamphetamine, R. 65 (J. at 1–2) (Page ID #147–48), which related to the 

approximately ninety-two grams of methamphetamine recovered from his sock, R. 50 (PSR ¶ 11) 
No. 22-5068, United States v. Wilson

7

(Page ID #90); R. 3 (Indictment at 2) (Page ID #4). He did not plead guilty to possessing the other 

drugs recovered from the F-150. See R. 65 (J. at 1–2) (Page ID #147–48). Thus, the presence of

other drugs and drug paraphernalia not near him in the Ford F-150 provides no insight into whether 

Wilson possessed the rifle. And there were two other occupants of the Ford F-150, one of whom 

was both the driver and the owner of the vehicle, and thus was much more likely to be in possession 

of the contents of the vehicle than Wilson was.4 See id ¶ 10 (Page ID #89–90).

The dissent claims that the government could have proven Wilson’s possession of the rifle 

either through him or through the other occupants of the Ford F-150. But the government chose 

not to do so. And the dissent ignores the fact that proving possession through another individual 

still requires a showing that the defendant “exercise[s] dominion and control over” the firearm. 

Vichitvongsa, 819 F.3d at 275 (quoting Campbell, 549 F.3d at 374). More evidence is needed to 

demonstrate possession through another individual than exists here. For example, in Vichitvongsa,

a police officer observed a firearm sticking out from under the driver’s seat of a car that the 

defendant was driving (but that he did not own) and the defendant made an admission of ownership 

of the firearm on a jailhouse call. Id. at 275–76.

For these reasons, this case is therefore unlike others in which the police saw the defendant 

reach down to hide something under a seat, a firearm was near the seat in plain view of the 

passenger, the defendant indicated that they knew the firearm was in the car, or the defendant 

4Mystifyingly, the dissent suggests that the presence of the other occupants of the Ford F-150 somehow 

“bolsters” Wilson’s possession of the rifle, despite the fact that their presence raises the possibility that the firearms 

were possessed exclusively by them, and not by Wilson. This is a particularly strong possibility given that one of the 

other occupants was both the driver and the owner of the vehicle. Indeed, in discussing the December 2018 traffic 

stop, the dissent highlights the fact that Wilson was the sole occupant, driver, and possible owner of the vehicle as 

demonstrating why he had possession of the handgun. The dissent’s “heads I win, tails you lose” logic cannot stand. 

Either ownership and sole occupancy of a vehicle matters for constructive possession, or it does not.
No. 22-5068, United States v. Wilson

8

brandished the firearm minutes before being apprehended. See Bailey, 552 F.3d at 949 (collecting 

cases); United States v. Walker, 734 F.3d 451, 457 (6th Cir. 2013); Arnold, 486 F.3d at 183; United 

States v. Penaloza, 648 F. App’x 508, 516 (6th Cir. 2016); United States v. Montague, 438 F. 

App’x 478, 481 (6th Cir. 2011). In those cases, facts beyond mere proximity supported a finding 

of constructive possession of a firearm. In this case, no such facts were presented to the district 

court. Because no other facts support the constructive-possession element of the firearm

enhancement, we are left with the firm conviction that the district court erred.

B. December 2018 Traffic Stop

We take a moment to respond to a significant misconception in the dissent. The dissent 

suggests that the district court found that the enhancement alternatively applied based on the 

firearm recovered from the Ford Fusion following the December 2018 traffic stop, and that we 

could uphold the enhancement on that basis. But the district court plainly applied the firearm 

enhancement based on the rifle in the April 2019 incident alone. The dissent’s citations to the 

contrary are inapposite, because they reference the government’s arguments at sentencing, and not 

the district court’s findings. And even the government does not argue on appeal that we can affirm 

the application of the enhancement based on the December 2018 traffic stop.

At Wilson’s sentencing hearing, the district court emphasized that, because “there was no 

direct testimony about the visibility of that particular firearm [recovered in December 2018],” 

applying the enhancement on that basis would be “a closer call for the Court.” R. 70 (Tr. at 46) 

(Page ID #215). The district court instead found that, “[t]he April 5th [incident], is a little easier, 

as far as the Court is concerned, to make a conclusion that Mr. Wilson was, in fact, in constructive 
No. 22-5068, United States v. Wilson

9

possession” of a firearm. Id. The district court analyzed the facts of the April 2019 incident at 

length, before concluding that:

[T]he Court would find that at least as it relates to the rifle [recovered in April 

2019], the .357, 38 special rifle, that Mr. Wilson was in constructive possession of 

that firearm, and that he has not been able to demonstrate that it’s clearly 

improbable that the firearm was connected in any way to the drug offense. So I’m 

going to find that the enhancement at paragraph 20 would apply in this case for the 

reasons previously stated.5

Id. at 48–49 (Page ID #217–18) (emphasis added). Later in the hearing, the district court 

summarized its findings. While recounting the December 2018 traffic stop, the district court found

simply that “there was a handgun located in that vehicle.” Id. at 70 (Page ID #239). There was 

no mention of whether Wilson possessed the handgun, a necessary finding for the application of 

the enhancement on that basis. See Johnson, 344 F.3d at 565 (quoting Pruitt, 156 F.3d at 649). 

After summarizing the April 2019 incident, however, the district court explicitly stated that it 

“found that Mr. Wilson was in constructive possession of at least one of the firearms that was 

located in that particular vehicle.” R. 70 (Tr. at 71) (Page ID #240).

The dissent claims that, even if the district court did not apply the enhancement based on 

the December 2018 incident, we can still affirm on that ground. But the dissent forgets that we

give deference to a sentencing court’s factual findings on firearm possession. See West, 962 F.3d 

at 187. Here, the district court did not find that Wilson possessed a firearm related to the December 

2018 traffic stop. Instead, the district court clearly expressed that the lack of “direct testimony 

5The dissent claims that the district court’s finding that “the enhancement at paragraph 20 [of the PSR] would 

apply in this case” demonstrates that the district court found the enhancement applied based on both the April 2019 

and December 2018 incidents. But the dissent’s quotation omits a key portion of the district court’s finding: “that the 

enhancement at paragraph 20 would apply in this case for the reasons previously stated.” R. 70 (Tr. at 49) (Page ID 

#218) (emphasis added). Thus, the district court applied the enhancement for the reasons it had previously stated in 

the hearing—about the rifle from the April 2019 incident—not for the reasons provided in paragraph 20.
No. 22-5068, United States v. Wilson

10

about the visibility of that particular firearm” inside the Ford Fusion made it difficult to reach a 

finding that Wilson constructively possessed the handgun, which was required to apply the 

enhancement based on the December 2018 traffic stop. R. 70 (Tr. at 46) (Page ID #215).

Even if we were to reach the issue, we would conclude that the government did not show 

that Wilson possessed the handgun recovered from the Ford Fusion following the December 2018 

traffic stop. The government presented evidence that Wilson occupied the vehicle where the 

handgun was found, id. at 13 (Page ID #182), but presented no evidence regarding the visibility of 

the handgun in the vehicle, id. at 46 (Page ID #215). And mere presence of a firearm in the vehicle, 

without more, is insufficient to demonstrate constructive possession of the firearm. Bailey, 553 

F.3d at 945. Although there is some evidence that Wilson indicated in a police report filed some 

time before December 2018 that he possessed the Ford Fusion, it was in fact owned by his 

girlfriend. R. 70 (Tr. at 15–17) (Page ID #184–86). And, approximately one hour after the 

December 2018 traffic stop, Wilson’s girlfriend reported that her vehicle had been stolen and that 

she had not allowed anyone to borrow it, suggesting that Wilson did not have possession of the 

vehicle. Id. at 16 (Page ID #185). But even if Wilson did share possession of the vehicle, 

“additional incriminating evidence must show the defendant knew of and controlled the 

contraband.” Wren, 528 F. App’x at 506 (citing Bailey, 553 F.3d at 944 n.3). The government 

presented no such evidence. And, as the district court noted, the government also presented no 

evidence regarding the visibility of the handgun. R. 70 (Tr. at 46) (Page ID #215).

We therefore find no reason to disturb the district court’s determination on this point, 

especially given that it is uncontested by the parties on appeal. Thus the dissent’s entire analysis 

of the December 2018 firearm is not only inapposite but also inappropriate.
No. 22-5068, United States v. Wilson

11

III. CONCLUSION

For the foregoing reasons, we conclude that the district court clearly erred in applying the 

sentencing enhancement pursuant to § 2D1.1(b)(1). We therefore REVERSE and REMAND for 

resentencing consistent with this opinion.
No. 22-5068, United States v. Wilson

12

NALBANDIAN, Circuit Judge, dissenting. The district court did not err when it 

enhanced Wilson’s sentence. Two separate incidents―each involving drugs, guns, vehicles, and 

Wilson―led the court to reasonably conclude that Wilson had constructive possession of at least 

one gun while distributing methamphetamine. Finding no error, I respectfully dissent. 

I.

We afford great deference to a sentencing court’s factual findings on firearm possession. 

United States v. Bartholomew, 310 F.3d 912, 924 (6th Cir. 2002). So much so that we must uphold 

an enhancement if the court “has interpreted the evidence in a manner consistent with the record.” 

United States v. Darwich, 337 F.3d 645, 664 (6th Cir. 2003) (citing Anderson v. City of Bessemer, 

470 U.S. 564, 573–74 (1985)). And even if “two permissible views of the evidence” exist, we 

cannot hold that “the factfinder’s choice between them . . . [is] clearly erroneous.” Id. (quoting 

Anderson, 470 U.S. at 574).

Generally, constructive possession exists when a person “knowingly has the power and the 

intention at a given time to exercise dominion and control over an object, either directly or through 

others.” United States v. Bailey, 553 F.3d 940, 944 (6th Cir. 2009) (quotation and emphases 

omitted). And when a firearm is in “close proximity” to the defendant at the time of arrest, “the 

inference of dominion and control is particularly strong.” United States v. Grubbs, 506 F.3d 434, 

440 (6th Cir. 2007). So a court needs less “incriminating evidence . . . to corroborate the 

conviction[.]” Id.

That said, “presence alone” near a gun doesn’t “show the requisite knowledge, power, or 

intention to exercise control over the gun to prove constructive possession.” United States v. 

Arnold, 486 F.3d 177, 183 (6th Cir. 2007) (alteration in original) (quoting United States v. Birmley, 
No. 22-5068, United States v. Wilson

13

529 F.2d 103, 107–08 (6th Cir. 1976)). But “other incriminating evidence, coupled with presence” 

can “tip the scale in favor of sufficiency.” Id. (citation omitted).

Although a gun’s presence alone may not establish possession, a gun’s proximity to 

ongoing criminal activity may provide enough context to do so. See id. For example, if the “bulk” 

of drug activity took place in a basement, courts can find that the basement may be an “ideal 

location to stash a firearm . . . to protect those drugs.” United States v. Maliszewski, 161 F.3d 992, 

1018 (6th Cir. 1998); see United States v. Foster, 832 F. App’x 401, 405 (6th Cir. 2020) (finding 

a loaded gun’s location near a digital scale and meth to “sufficiently tie[] the gun to the drug 

offense to which [a] defendant pled guilty”). 

So courts can “infer[] from [] circumstantial evidence” that a defendant constructively 

possessed a weapon. Maliszewski, 161 F.3d at 1028. And possession can occur even if defendants 

claim ignorance about having a gun in the first place. See id. at 1026 (involving a defendant who 

“claimed to know ‘[n]othing at all’ about the firearm” (alteration in original)); United States v. 

Boyer, 536 F. App’x 539, 543–44 (6th Cir. 2013) (affirming an enhancement when a defendant 

claimed he didn’t know about a co-defendant’s gun in a home that the co-defendant used to own).1

Over and over, courts have looked at circumstantial evidence to find possession. Even if a 

defendant has no “physical control over the weapon,” courts can find constructive possession if a 

defendant “knowingly has the power and intention at a given time to exercise dominion” over the 

area where authorities found a gun. United States v. Gardner, 488 F.3d 700, 713 (6th Cir. 2007) 

(internal citation omitted). This dominion extends to owning a vehicle. Birmley, 529 F.2d at 107. 

1The majority identifies several cases involving direct evidence that a defendant physically possessed a gun 

or had actual knowledge of the gun. (See Majority Opinion, at 4.) That type of evidence no doubt suffices to apply 

the enhancement, but I don’t believe that it’s necessary under our caselaw. 
No. 22-5068, United States v. Wilson

14

It also extends to those who “occupy[] the driver’s seat of the seized vehicle.” Id. (affirming a 

driver’s possession of guns in a car’s trunk because he had a key to access the trunk). The bottom 

line is that district courts must look at the circumstances in a particular case to determine 

constructive possession. And we review that conclusion with great deference. 

II.

The Presentence Investigation Report recommended that the two-level enhancement apply 

based on either of two separate incidents. The district court agreed. And in reaching that 

conclusion, the court did not rely solely on the fact that Wilson “would have access” to a gun. (R. 

70, Sentencing Hearing Transcript, at 41.) The court cited ample other evidence to support its 

conclusion that Wilson constructively possessed firearms. 

A. Wilson’s December 2018 Constructive Possession

On December 20, 2018, a traffic stop prompted Wilson to flee from a Ford Fusion. He 

made a break for it from the driver’s seat, leaving the car he was driving behind. In the car, officers 

found a Smith & Wesson handgun near the driver’s seat, as well as drugs, drug paraphernalia, 

cigarette packs, and receipts in the trunk. 

Wilson’s dominion over the Ford Fusion supports the gun enhancement. The car was 

registered in his girlfriend’s name, but “Wilson had previously claimed ownership” of it in a police

report. (Id. at 46.) In an incident where someone vandalized the car, Wilson had “filed a vandalism 

claim indicating that [he owned] this particular vehicle[.]” (Id. at 35.) 

Other evidence suggested that Wilson owned the car or, at a minimum, treated the car as 

his own. To begin, an officer witnessed Wilson, the car’s sole occupant, flee from the driver’s 

seat. Then, thanks to a time-stamped receipt found inside the car, the prosecution identified Wilson 
No. 22-5068, United States v. Wilson

15

after reviewing video footage of Wilson purchasing items at a Dollar General store. Next, cigarette 

packs in the car had Wilson’s fingerprints on them. And his Facebook profile page showed him 

“with that vehicle in some of the pictures.” (Id. at 14.) 

Thus, the court reasonably found that Wilson exercised “dominion over” the car that 

contained a gun and the rest of his drug operation. Gardner, 488 F.3d at 713; see Foster, 832 F. 

App’x at 405 (affirming an enhancement when a defendant argued he didn’t know the trunk had a 

gun because the court “presume[d]” that the “defendant knew what was in his own car”). And 

even if the court didn’t find that Wilson claimed ownership of the stopped car, he still “occup[ied] 

the driver’s seat” and sat right next to the gun. Birmley, 529 F.2d at 107. 

At the very least, Wilson’s girlfriend owned the car. And we have acknowledged that 

relationships between a defendant and a significant other suggest that they share a gun. See United 

States v. Hardin, 248 F.3d 489, 498–501 (6th Cir. 2001) (affirming an enhancement even though 

the firearm was registered in the name of a defendant’s wife and purportedly used for her 

protection); United States v. Hill, 79 F.3d 1477, 1485–86 (6th Cir. 1996) (affirming an 

enhancement when a defendant’s girlfriend testified that someone else owned the gun and that she 

kept it for her protection); United States v. Richardson, 510 F.3d 622, 626–27 (6th Cir. 2007) 

(affirming a defendant’s enhancement even though authorities found the stolen gun in his 

girlfriend’s purse in a motel room). So using this “what’s mine is yours” reasoning, Wilson had 

constructive possession of the handgun. 

Moreover, in the Ford Fusion, officers found “a quantity of methamphetamine, . . . along 

with the firearm.” (R. 70, Sentencing Hearing Transcript, at 46.) And testimony at the hearing 

confirmed that the handgun sat “near the driver’s seat”—exactly where Wilson fled the car. (Id.
No. 22-5068, United States v. Wilson

16

at 10.) Officers also found in the car digital scales, a plastic spoon, a plastic bowl, a ledger pocket 

notebook, gallon-size plastic bags, Tracfone Wireless pamphlets, and a pill bottle containing about 

1,000 pills of various shapes. (R. 50, Presentence Investigation Report, PageID 88.) 

This “other incriminating evidence, coupled with presence” of a firearm “tip[s] the scale 

in favor of sufficiency.” Arnold, 486 F.3d at 183 (quoting Birmley, 529 F.2d at 107–08). Wilson’s 

“contact” with the car from which he managed a drug business suggests that he had the gun as part 

of his operation. Grubbs, 506 F.3d at 440. Indeed, his proximity to the gun, drugs, and evidence 

of drug distribution “indicate that [Wilson] had dominion and control over the whole [car].” 

Richardson, 510 F.3d at 627. 

In effect, the Presentence Investigation Report, testimony, photographs, receipts, and 

fingerprints showed that Wilson was conducting a drug business out of his or his girlfriend’s car 

with a gun next to both him and his drug paraphernalia. (R. 70, Sentencing Hearing Transcript, at 

35.) Given that the court “interpreted the evidence in a manner consistent with the record,” I would 

uphold the enhancement based on this first incident alone.2 Darwich, 337 F.3d at 664. 

2The majority states that the “district court plainly applied the firearm enhancement based on the rifle in the 

April 2019 incident alone.” (Majority Opinion, at 8.) I disagree. As the majority recognizes, the district court found 

“the enhancement at paragraph 20 [of the Presentence Investigation Report] would apply[.]” (Majority Opinion, at 9; 

see R. 70, Sentencing Hearing Transcript, at 69 (“I adopt the presentence report as the factual findings of the [c]ourt 

in this matter.”).) That paragraph recommends an enhancement because Wilson “possessed firearms on December 20, 

2018, and April 5, 2019.” (R. 50, Presentence Investigation Report, PageID 92.) So the court considered both dates. 

And even if it didn’t, we “can affirm the district court on alternate grounds supported by the record.” Sw. Williamson 

Cnty. Cmty. Ass’n v. Slater, 173 F.3d 1033, 1036 (6th Cir. 1999); see, e.g., United States v. Binford, 818 F.3d 261, 

267 (6th Cir. 2016). 

The majority focuses on one part of the district court’s analysis, (Majority Opinion, at 8–9), disregarding the 

other findings about the December 2018 and April 2019 incidents. Yes, the court found the December 2018 possession 

“a closer call.” (R. 70, Sentencing Hearing Transcript, at 46.) But it never said that Wilson didn’t possess the gun 

next to the driver seat. And the court found that Wilson had admitted to owning the Ford Fusion―his drug operation 

on wheels. (Id. (“Wilson had previously claimed ownership of this particular vehicle, and on that date when the 

vehicle was searched there was a quantity of methamphetamine and other items that were located in the vehicle, along 

with the firearm.”).) We can affirm based on that finding on clear error review. See supra Part II.A. That standard 

requires us to ask, “whether on the entire evidence [we are] left with the definite and firm conviction that a mistake 
No. 22-5068, United States v. Wilson

17

B. Wilson’s April 2019 Constructive Possession 

On April 5, 2019, officers detained Wilson in response to a shoplifting call. Wilson sat in 

the passenger seat directly behind the driver seat in the F-150 truck. To his right in the “pocket of 

the front seat” and “within reach” was a .25 caliber handgun with two rounds of ammunition. 

(R. 70, Sentencing Hearing Transcript, at 40.) Also “under the rear seat” lay a Rossi Lever Action 

357/38 Special rifle loaded with four rounds of ammunition. (Id.) The district court found that he 

had “constructive possession of one or both of those.”3 (Id. at 47.) 

Yes, the court cited the presence of these weapons, each in Wilson’s reaching distance, in 

support of the enhancement. (Id. at 40, 47–49.) But that’s not all the court relied on. Just like 

Wilson’s December 2018 possession, “other incriminating evidence, coupled with presence” of 

the firearms “tip[ped] the scale in favor of sufficiency.” Arnold, 486 F.3d at 183 (quoting Birmley, 

529 F.2d at 108). It is not as if the prosecution presented a record “devoid of any . . . evidence.” 

United States v. Cochran, 14 F.3d 1128, 1133 (6th Cir. 1994). 

has been committed.” United States v. Orlando, 363 F.3d 596, 603 (6th Cir. 2004) (quoting Easley v. Cromartie, 532 

U.S. 234, 242 (2001)). Looking at the “entire evidence” here, I am not left with the definite and firm conviction that 

the district court made a mistake in applying the enhancement. Id. 

3Despite the majority’s characterization of the record, (Majority Opinion, at 5 n.3), the district court found 

that Wilson constructively possessed possibly two guns on the April 2019 incident―the rifle under his seat and the 

pistol in the backseat pocket to his right. (R. 70, Sentencing Hearing Transcript, at 46 (“The April 5th, is a little easier, 

as far as the [c]ourt is concerned, to make a conclusion that Mr. Wilson was, in fact, in constructive possession of one 

or possibly two of the firearms.”); id. at 47 (“I think it has been demonstrated that he certainly was in constructive 

possession of one or both of those.”).) The majority correctly points out that the district court misspoke at one point 

about where the pistol was located. But the district court corrected itself, finding that the pistol was in the passenger 

backseat pocket. (Id. at 48 (“Okay. Well, I should have said passenger side.”).) And after that correction, the court 

didn’t retract its conclusion on Wilson’s possession of the pistol. It instead discussed Wilson’s possession of the rifle 

under his seat. (Id.) So we can consider the pistol too.
No. 22-5068, United States v. Wilson

18

Like the April incident, the court considered Wilson and the guns’ proximity to other 

items.4 Officers found Wilson and the guns near drugs, drug money, and drug paraphernalia when 

they arrested him for drug dealing. Under the front passenger seat immediately next to a third 

firearm laid a brown pouch that contained the fruits of Wilson’s labor. Officers found ecstasy 

pills, Xanax bars, oxycodone pills, a digital scale, a drug ledger, and a glass pipe spattered with 

drug residue. And a black zipper pouch located directly next to those things contained 

methamphetamine and marijuana. Officers also searched Wilson’s person and found $649.00, 

individually wrapped methamphetamine, Xanax bars, suspected ecstasy pills, suspected

oxycodone pills, and a black digital scale covered in marijuana residue. 

No one can deny that both Wilson and the guns sat in the vehicle where a “bulk” of his 

drug operation took place. Maliszewski, 161 F.3d at 1018. The district court correctly found that 

the F-150 served as another headquarters for Wilson’s drug dealing business. The guns’ hiding 

spots in the truck made it “more or less probable that [they were] possessed in connection with his 

drug offense.” Id. Wilson had more than “some contact” with the area where officers found the 

gun. Grubbs, 506 F.3d at 440.

The reality is that “it is not common for people to stash a large supply of drugs” where 

someone has a rifle and other “firearm[s] at the ready.” Hardin, 248 F.3d at 500. And all things 

considered, a factfinder could conclude that beneath his seat or in the backseat pocket to his right 

4The majority states that the “drugs and drug paraphernalia” were “not near [Wilson],” (Majority Opinion, 

at 7), even though he and the loaded rifle lay no more than a foot or two away from them. Again, I disagree. It’s not 

as if officers found the rifle in “a property down the block, where it could be of zero offensive or defensive use to 

[Wilson].” Cf. United States v. Jackson, 877 F.3d 231, 240 (6th Cir. 2017) (discussing proximity in the context of an 

enhancement under U.S.S.G. § 2K2.1). Indeed, the rifle and the other two guns in the F-150 sat next to Wilson’s 

drugs and equipment, all while within his mobile drug operation. 
No. 22-5068, United States v. Wilson

19

were “ideal location[s] to stash a firearm . . . to protect [] drugs.” Maliszewski, 161 F.3d at 1018; 

see Foster, 832 F. App’x at 405; see also United States v. Mojica, 429 F. App’x 592, 595 (6th Cir. 

2011) (concluding that a pistol “reasonably appeared to be used to protect the cocaine and had an 

emboldening role in [a defendant’s] intent to traffic the cocaine”). 

Lastly, the court looked at the guns. It noted that each was loaded. This, paired with the 

guns’ locations, provided a “sufficient nexus between the firearm[s] and the drug activity.” United 

States v. Stewart, 306 F.3d 295, 327 (6th Cir. 2002). What’s more, the size of a gun matters. The 

court analyzed the Rossi lever-action rifle’s size compared to the other guns in the truck. It 

reasoned that “we’re not talking about some small firearm.” And although the court did not say 

this explicitly, the rifle’s large size could have also provided “objective evidence that [Wilson] 

knew [about] the weapon” right beneath his seat. Cochran, 14 F.3d at 1133. Putting two and two 

together, the court believed the prosecution’s evidence that Wilson possessed the guns for his drug 

business, and he did not prove otherwise. 

The majority says that the rifle was inaccessible. But the district court never made that 

finding. True enough, Wilson’s attorney stated that the rifle wasn’t “visible” until the seat was 

“lifted.” (R. 70, Sentencing Hearing Transcript, at 43; see id. at 44 (attorney saying that the rifle 

lay “underneath the seat[.]”).) And he reiterated that the rifle was “not visible.” (Id. at 44–45.) 

That much the district court heard. And it agreed that the rifle was under the seat rather than in 

plain view. (Id. at 48.) But the rifle’s visibility is different from its accessibility. And nothing in 

the record refers to the rifle’s inaccessibility. 

Regardless, constructive possession doesn’t require a defendant to “keep[] [the rifle] in a 

place where it is immediately accessible[.]” United States v. Grubbs, 506 F.3d 434, 439 (6th Cir. 
No. 22-5068, United States v. Wilson

20

2007). To be sure, whether a gun is accessible, visible, or just close by are all relevant. But none 

alone are necessary to find constructive possession. That’s because courts look to the totality of 

the circumstances. For example, courts can find a defendant to constructively possess an 

inaccessible weapon even when it is in a “locked safe placed alongside contraband[.]” United 

States v. Volkman, 797 F.3d 377, 391 (6th Cir. 2015). And here, circumstantial evidence could 

make “it reasonably appear[] that the [loaded] firearms found” in the F-150 were “to be used to 

protect the drugs or otherwise facilitate a drug transaction[.]” Hardin, 248 F.3d at 500 (citation 

and quotation marks omitted). So even though the guns were out of sight, they were not necessarily 

out of mind. The evidence here reasonably provided enough context that Wilson “exercise[d] 

dominion and control over” at least one firearm in the F-150. Grubbs, 506 F.3d at 439 (citation 

omitted).5

What’s more, the prosecution could have proven Wilson’s possession “either directly 

[through him] or through others.” Id. (citation omitted). That’s why the majority’s mention of 

Wilson’s drug-dealing partners doesn’t negate his possession. If anything, it bolsters it. And in 

any event, that others also had access to or dominion over the F-150 doesn’t matter. “[T]he law 

recognizes joint possession” of a gun. United States v. Wheaton, 517 F.3d 350, 367 (6th Cir. 

5To be clear, a defendant’s proximity near a gun doesn’t alone prove possession. See Arnold, 486 F.3d at 

183. But “other incriminating evidence, coupled with presence” can “tip the scale in favor of sufficiency.” Id. (citation 

omitted). And “other incriminating evidence” could include a lot of different things. Id.; see also Grubbs, 506 F.3d 

at 440 (“When the defendant is found in close proximity to a firearm at the time of the arrest, the inference of dominion 

and control is particularly strong, and thus the incriminating evidence needed to corroborate the conviction is less.”). 

So while a gun’s presence alone might not be enough to prove possession, a gun’s proximity to ongoing criminal 

activity can be. See id. And here, guns were found where a “bulk” of Wilson’s drug activity took place. Maliszewski, 

161 F.3d at 1018. 
No. 22-5068, United States v. Wilson

21

2008); see, e.g., Hardin, 248 F.3d at 498–501; Hill, 79 F.3d at 1485–86; Richardson, 510 F.3d at 

626–27. So Wilson and his drug partners could possess the same guns.6 

Moreover, Wilson pleaded guilty to possession with intent to distribute more than 50 grams 

of methamphetamine. And those drugs were located inside the F-150.7 That’s what this case is 

about. In pleading guilty, he admitted to possessing those drugs. All in all, three drug dealers sat 

next to the three loaded guns in a mobile drug operation. As the court said, “I don’t think there is 

any dispute about what we’re talking about.” (R. 70, Sentencing Hearing Transcript, at 47.) 

In sum, the court didn’t just consider the mere presence of Wilson and loaded guns in a 

truck. It looked at their presence near drugs. It looked at their presence near drug equipment. It 

looked at their presence within a mobile drug operation. Weighing the totality of the 

circumstances, the court reasonably found that Wilson possessed at least one gun while drug 

dealing. And after the court found constructive possession, Wilson did not prove it “clearly 

improbable” that the firearms were connected in any way to his drug offenses. 

* * * * *

“It’s just one event after the other of drugs and guns, drug[s] and guns, drugs and guns.” 

(See id. at 77.) That’s what the district court said in this case. And that’s right. Reviewing the 

record, I do not have a “definite and firm conviction” that the court made a mistake in finding that 

Wilson possessed at least one gun in connection with his drug activity. United States v. Orlando, 

363 F.3d 596, 603 (6th Cir. 2004) (citation omitted). The high deference we afford the district 

6

Just like Wilson in his December 2018 incident, a court could reasonably find that the F-150’s owner also 

possessed the firearms in the truck. See supra Part II.A. But that doesn’t negate Wilson’s simultaneous possession.

7The district court found that a search of Wilson and the F-150 uncovered a “quantity of methamphetamine.” 

(R. 70, Sentencing Hearing Transcript, at 71.) Of that quantity, 92.23 grams were inside Wilson’s left sock and 17.3 

grams lay on the truck floor. And those drugs were next to loaded firearms in Wilson’s mobile drug operation. 
No. 22-5068, United States v. Wilson

22

court in applying sentencing enhancements requires that we affirm the § 2D1.1(b)(1) 

enhancement. 

III.

Thus, I respectfully dissent.