Defendant Constructively Possessed Firearms That He Sold to Undercover Officer

United States v. Rungaray 2012 WL 4748708 (9th Cir. 2012) Defendant constructively possessed firearms he sold to an undercover officer.

After a confidential informant told the FBI that the defendant wanted to sell several guns, the defendant called the informant and offered to sell five firearms for $1,200. The informant introduced the defendant to an undercover agent and a price of $900 was negotiated for four guns. When the parties met at a local fast food restaurant, the defendant got in the officer’s car and told him to pop the trunk. After the defendant made a phone call, a woman walked up to the car and placed a bag containing the four guns in the trunk while the defendant remained in the passenger seat. The defendant was arrested after the sale was made and pled guilty to one count of unlawful possession of a firearm. At sentencing, the district court held that the defendant constructively possessed the four guns that he sold, pursuant to §2K2.1(b)(1)(A), which added an additional two points to the offense level. In response, the defendant argued that he was simply acting as a go-between and that he sold the guns on behalf of his elderly, disabled friend who needed money; thus, he did not possess the firearms. He testified that he gave all the money to his friend and did not keep any of it. The district court found a sufficient nexus between the defendant and the guns and imposed a sentence of 92 months. On appeal, the defendant claimed that he did not constructively possess the guns he sold, but merely brokered the sale and lacked the knowledge, power, and intent to exercise the required control; thus, the enhancement was improper. The Ninth Circuit disagreed, concluding “that the district court did not err in finding constructive possession by a preponderance of the evidence when [the defendant] initiated contact with the buyer, negotiated the gun price, minutely directed the gun delivery and sale location, was present at the sale, and took payment from the buyer after he inspected the delivered guns. The district court did not abuse its discretion by imposing the two-level enhancement for gun possession.”

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