UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 93-1479

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ERICK EARL WRIGHT,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Texas

(June 20, 1994)

Before JOHNSON, BARKSDALE, and D E MOSS, Circuit Judges.

D E MOSS, Circuit Judge:

Erick Earl Wright pled guilty to possession of a weapon. At

sentencing, the district court made several factual findings and,

based on those findings, made an up ward departure from the

sentencing guidelines by sentencing Wright to 60 months in prison.

Because we find that one of the sentencing court's factual findings

was clear error, we vacate Wright's sentence and remand the case

for re-sentencing.

I.

In January 1993, Wright pled guilty to possession of a weapon

in violation of 18 U.S.C. § 922(g)(1). Wright's pre-sentence2

investigation report (PSIR) concluded that Wright should be

assessed an offense level of 17 and a criminal history category of

III, which would result in a sentencing range of 30 to 37 months.

The PSIR also recommended that Wright's sentence should depart

upward from the applicable sentencing guideline range.

At sentencing in May 1993, two officers who had arrested

Wright on separate occasions testified. First, in March 1990,

Wright was arrested near a high school for possession of a handgun.

The arresting officer testified at sentencing that, on the day

prior to Wright's arrest, two individuals rep ortedly exchanged

gunfire near the same school. The officer obtained a description

of a vehicle involved in the shooting. The officer returned the

following day and found the vehicle, which was occupied by Wright

and a friend, in front of the school. The officer searched the

vehicle, found various weapons, and arrested Wrig ht for unlawful

possession of a handgun.

Second, in November 1991, Wright was arrested for attempting

to elude a police officer by vehicle. At sentencing, the arresting

officer testified that he attempted to stop a vehicle for a faulty

inspection st icker and driving erratically. The officer stated

that he p ursued Wright, who was driving, for six blocks with his

lights and siren engaged. The officer further testified that,

while in purs uit, he noticed Wright and his passenger making

furtive movements in the area of the glove box. Once Wright and

his passenger had been arrested, the officer searched the vehicle

and found that the glove box was locked. The key was found in the3

back seat of the police cruiser where the passenger had been

sequestered by himself after his arrest. The officer eventually

found a handgun in the glove box and charged the passenger -- and

not Wright -- for possession of the weapon.

The district court then adopted the PSIR's findings. The

court also departed upward and imposed a 60-month sentence. In

making its upward departure, the court stated that it "had spent a

lot of time thinking about this" and "concluded that there is

reliable information that indi c ates that the Criminal History

Category in this case does not adequately reflect the seriousness

of the defendant's past criminal conduct and, more importa ntly,

does not adequately reflect the likelihood that the defendant will

commit other crimes."

The court based its upward departure on thr ee separate

ins tances of prior similar conduct by Wright that were not

considered in calculating his criminal history category.

Specifically, the court first noted that, in July 1989, Wright was

arrested for delivery of a controlled substance and possession of

a weapon. The charge for possession of the weapon was dropped

after Wright was sentenced in state court for delivery of the

controlled substance. The court then pointed to the March 1990

incident where Wright was arrested for possession of a weapon near

a local high school. Finally, the court relied on the November

1991 incident where, even though Wright was charged only with

attempti ng to evade arrest, the court found that Wright

constructively possessed the weapon found in the glove box. The4

court also noted that the November 1991 incident occurred when

Wright was a convicted felon.

The cou rt then summarized: "Taking the overall picture into

account, the court has concluded that an upward departure should be

made and has concluded the upward departure should be for a total

of

. . . 60 month s." Given Wright's offense level was 17, the

court's upward de parture of 23 months meant his criminal history

category jumped from Category III to Category VI. Wright's counsel

objected to the court's upward departure, whereupon the court

informed Wright that he could appeal his sentence. Wright now

appeals his sentence.

II.

Wright first argues the sentencing court's factual finding

that he constructively possessed the handgun in the November 1991

incident was clea rly erroneous and, therefore, we should remand

this case for re-sentencing. At sentencing, the government's

burden of proof is not as heavy; it must prove its case by only a

preponderance of the evidence

. U nited States v. Buckhalter

, 986

F.2d 875, 879 (5th Cir. 1993). On appeal, we then review those

factual findings for clear error. I d

. Thus, the issue here is

whether the sentencing court clearly erred when it concluded that

the government had demonstrated by a preponderance of the evidence

that Wright const ructively possessed the handgun in the November

1991 incident.

The elements of § 922(g)(1) are that (1) the defendant had a

previous felony conviction, (2) t hat the defendant possessed a1 Wright maintains that the rear view mirror of the passenger's

vehicle was missing, thereby precluding him from observing whether

he was being pursued. The arresting officer corroborated Wright's

claim that the mirror was missing.

5 firear m, and (3) the firearm had travelled in or affected

interstate commerce. U nited States v. Garrett

, 903 F.2d 1105, 1110

(7th Cir. 1990). We have established that the second element,

i.e., possession of a firearm, may be actual or constructive, the

latter be ing defined as ownership, dominion, or control over the

contraband itself or dominion or co ntrol over the premises or

vehicle in which the contraband is concealed. U nited States v.

Smith

, 930 F.2d 1081, 1085 (5th Cir. 1991); United States v. Ferg

,

504 F.2d 914, 916-17 (5th Cir. 1974). The determination of whether

constructive possession exists is not a scientific inquiry.

Instead, we employ a common sense, fact-specific approach. U nited

States v. Mergerson , 4 F.3d 337, 349 (5th Cir. 1993).

The facts of this case compel us to conclude that the district

court clearly erred in concluding that Wright constructively

possessed the gun. The only evidence the government proffered to

support its theory was that Wright operated the vehicle, eluded the

police, 1 and made furtive movements near the glove box. The

government failed to adduce any additional evidence linking Wright

to the gun, such as fingerprints or continual, long-term use of the

vehicle. More importantly, the facts establish, if anything, that

the passenger

-- and not Wright

-- exercised complete dominion and

control over the gun: (1) the key which unlocked the glove box was

found in the cruiser where the passenger had been detained, (2) the2 We note with some interest that, while the arresting officer

believed he did not have probable cause to charge Wright with

possession, the senten cing court nonetheless found that Wright,

more likely than not, possessed the weapon. We further note that

the officer's acts and omissions were contemp oraneous with the

arrest, whereas the sentencing court's inferences were drawn nearly

two years later.

6 passenger alone was charged with possession of the gun, 2 and (3)

the passenger owned the car.

We recognize that in other cases we have indicated that mere

dominion over a vehicle in which a firearm is found can lead to an

inference of constructive possession. See e.g.

, United States v.

Prudhome

, 13 F.3d 147, 149 (5th Cir. 1994); United States v.

Knezek

, 964 F.2d 394, 400 (5th Cir. 1992). But in those cases, we

were not confronted with such overwhelming countervailing evidence.

In Prudhome

, for example, the government demonstrated not only that

the defendant was dri ving the vehicle but also that the gun was

found directl y beneath him and that three rounds of matching

ammun ition were found in his waist pocket. P rudhome

, 13 F.3d at

149. Likewise, in K nezek

, the gove rnment demonstrated the

defendant not only was driving the vehicle but also admitted

ownership of the weapons. Thus, while dominion over the vehicle

certainly will help the government's case, it alone cannot

establish constructive possession of a weapon found in the vehicle,

particularly in the face of e vidence that strongly suggests that

somebody else exercised dominion and control over the weapon.

We stress that our holding is cond itioned upon this

countervailing evidence because a sentencing court's factual

findings typically are entitled to great deference. U nited States7

v. Perez , 897 F.2d 751, 752-53 (5th Cir. 1990). The sentencing

court probably would not have erred i n finding that Wright

constructively possessed the weapon if such countervailing evidence

did not exist. S ee e.g., United Stat es v. Flenoid , 718 F.2d 867

(8th Cir. 1983) (weapon f ound beneath defendant's/driver's seat

after officer noticed defendant bend over); see also

, United States

v. Garrett , 903 F.2d 1105 (7th Cir. 1990) (loaded weapon found on

the floor beneath the steering wheel); United States v. Whitfield

,

629 F.2d 136 (D.C. Cir. 1980) (two loaded weapons found within

three inches of defendant, who owned vehicle). B ut see United

States v. Blue

, 957 F.2d 106 (4th Cir. 1992) (weapon found beneath

defendant's/passenger's seat after officer noticed defendant bend

over).

The extent of this countervailing evidence in this case is too

large to ignore. Nearly fifty years ago, the Supreme Court defined

the clearly erroneous standard to mean: "A finding is 'clearly

erroneous' when although there is evi dence to support it, the

reviewing court on the entire evidence is left with the definite

and firm conviction that a mistake has been committed." U nited

States v. United States Gypsum Co.

, 333 U.S. 364, 395 (1948)

(emphasis added). Given all the evidence here, we find such a

mistake has been made. The district court clearly erred in

concluding that the governm e nt demonstrated that Wright, more

likely than not, constructively pos sessed the weapon during the

November 1991 incident.8

In stating its reasons for departing upward , the sentencing

court noted that, at the time of the November 1991 incident, Wright

was a convicted felon. The court's comment indicates to us that it

relied more on this incident than either the July 1 989 or March

1990 incidents in deciding to depart upward. We have concluded,

however, that the court's finding that Wright constru ctively

possessed the gun in the November 1991 incident was erroneous.

Subtracting that incident from the quantum of facts the court used

in deciding to depart upward, we cannot conclude whet her the

sentencing court still would have decided to depart upward and, if

so, by how much. In other words, we cannot conclude that the

court's error was harmless. We therefore must vacate Wright's

sen tence at this point and remand the case for re-sentencing.

United States v. Wilder , 15 F.3d 1292, 1298 (5th Cir. 1994).

II.

Wright alternatively claimed that the sentencing court failed

to adequately explain its reasons for departing upward. Because

Wright's requested relief (i. e., that we vacate his sentence and

remand the case for re-sentencing) has been granted, this issue is

moot. We would note, however, that Wright's claim is a valid one

given our recent opinion in United States v. Lambert

, 984 F.2d 658

(5th Cir. 1993) (en banc). Specifically, the court increased

Wright's criminal history category from Category III to Category

VI, which translates into a 23-month upward departure. In so

doing, the court, contrary to Lambert

, failed to explain why it

rejected any intermediate categories. At re-sentencing, the courtwjl\opin\93-1479.opn

jwl 9 must comply with the directions we issued in Lambert and, more

recently, in United States v. Ashburn

,

___ F.3d

___ (5th Cir.

1994).

III.

We find that the sentencing court clearly erred in concluding

that Wright constructively possessed the weapon during the November

1991 incident. Because this erroneous finding was a major reason

in the court' s decision to depart upward, we VACATE Wright's

sentence and REMAND the case for re-sentencing.