United States of America v. Malando Bates

Beaumont, Texas criminal defense lawyer represented the Defendant constructive possession of a firearm by a convicted felon.



Although post-Booker, the Sentencing Guidelines are advisory only,

the district court must avoid significant procedural error, such as improperly

calculating the Guidelines sentencing range. Gall v. United States, 552 U.S.

38, 46, 51 (2007). If no such procedural error exists, a properly preserved

objection to an ultimate sentence is reviewed for substantive reasonableness

under an abuse-of-discretion standard. Id. at 51; United States v. Delgado-

Martinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues

preserved in district court, its application of the Guidelines is reviewed de

novo; its factual findings, only for clear error. E.g., United States v. Cisneros-

Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).



Bates challenges the district court's finding that he constructively and

jointly possessed the automatic firearm in the possession of another

passenger riding in the same vehicle. The Guidelines provide for a base

offense level of 22 if the offense involved a "semiautomatic firearm that is

capable of accepting a large capacity magazine”. U.S.S.G. § 2K2.1(a)(3).

To prove constructive possession, the Government must show

defendant had ownership, dominion, or control over the firearm or the area

in which it was discovered. United States v. Meza, 701 F.3d 411, 419 (5th Cir.

2012). In joint-occupancy cases, however, our court "will find constructive

possession only when there is some evidence supporting at least a plausible

inference that the defendant had knowledge of and access to the illegal item”.

Id. (citation omitted). Possession "need not be exclusive”. United States v.

McKnight, 953 F.2d 898, 901 (5th Cir. 1992).



Given that Bates admitted purchasing three automatic pistols and

referenced a Glock switch conversion device, which was found attached to

one of the pistols in the vehicle, the record contains sufficie Document: 44-1 Page: 2 Date Filed: 01/10/2025No. 24-40393

not offer any evidence to rebut the proposed facts in the PSR or otherwise

show they were unreliable, the court was entitled to adopt the PSR and rely

on its proposed facts without further inquiry. E.g., United States v. Harris,

702 F.3d 226, 230 (5th Cir. 2012); United States v. Rodriguez, 602 F.3d 346,

363 (5th Cir. 2010).

Affirmed