US v. Tomas Scott

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:11-cr-00038-RAJ-TEM-1. Copies to all parties and the district court/agency. [998920605]. [11-5131]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-5131

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TOMAS CHARLES SCOTT,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News.
Raymond A. Jackson,
District Judge. (4:11-cr-00038-RAJ-TEM-1)

Submitted:

July 30, 2012

Decided:

August 21, 2012

Before SHEDD, AGEE, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael S. Nachmanoff, Federal Public Defender, Keith Loren
Kimball, Assistant Federal Public Defender, Patrick L. Bryant,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Norfolk, Virginia, for
Appellant.
Neil H. MacBride, United States Attorney, Kealin
Marcel Culbreath, Special Assistant United States Attorney,
Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Tomas Charles Scott pled guilty to possession of a
firearm

and

ammunition

by

a

convicted

felon,

see

18

U.S.C.

§ 922(g)(1) (2006), and was sentenced below the Guidelines range
to a term of seventy-two months’ imprisonment.
his

sentence,

contending

incorrect

legal

standard

possessed

firearms

in

that
to

the

indictment,

and

that

the

enhancements

for

possession

district

determine

addition

to

that

the

clearly

of

least

court

he

one

court
at

Scott appeals
used

constructively

charged
erred

three

an

in

in

the

making

firearms

and

possession of a firearm with a large capacity magazine under
U.S.

Sentencing

(2010).

Guidelines

Manual

§ 2K2.1(a)(3),

(b)(1)(A)

We affirm.
Late in the evening on December 31, 2010, in Newport

News, Virginia, officers at a police station heard shots being
fired and ran outside to see two men running toward an apartment
complex.

One of the men, later determined to be Tomas Charles

Scott, was wearing all black; the other had on a white shirt.
Soon after losing sight of the men, the officers saw four people
getting

out

of

a

car,

including

the

two

men

they

had

seen

running away.
The passenger in the front of the car was Scott.
had a loaded eight-round magazine in his pocket.

He

In the front

passenger area of the car where Scott had been sitting, the
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police found:

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(1) a 9mm Taurus model Luger pistol on the side

floorboard; (2) an empty but warm to the touch .40 caliber S&W
pistol between the seat and the door; and (3) a stolen, loaded
.45 caliber H&K pistol on the front passenger side floorboard
leaning against a bottle of alcohol.

Also recovered from the

front passenger side floorboard was a 9mm magazine with a 17round

capacity,

magazines.

seventeen

9mm

cartridges,

and

two

empty

In the trunk of the car was a stolen sawed-off

shotgun, as well as boxes of buckshot, .45 caliber cartridges,
and .40 caliber cartridges.

Ten .40 caliber shell casings and a

black glove were found on the sidewalk in the area where the
gunshots were heard.
After Scott was arrested, he admitted possessing the
H&K pistol and stated that he knew the other guns were in the
car and that his DNA would probably be found on them.

Scott’s

cell phone contained pictures, taken in December 2010, of both
firearms and Scott holding firearms, including some of the guns
recovered from the car.

A picture dated December 31, 2010,

showed the stolen firearms and bottles of alcohol that were in
the car.

Scott made the following statement:

whenever I see one, I hold it.
see.”

“I like guns,

I take pictures of every gun I

In addition, one of the other persons in the car with

Scott reported seeing him with the H&K firearm and seeing him

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shoot the .40 caliber firearm, a shotgun, and another gun not
found in the car.
Scott had a prior felony conviction for distributing
cocaine.
the

H&K

pocket.

He was later charged in federal court with possessing
pistol

and

the

eight-round

magazine

he

had

in

his

In July 2011, Scott pled guilty and acknowledged most

of the above facts in a Stipulated Statement of Facts.
In

sentencing

Scott,

the

district

court

determined,

over Scott’s objection, that his offense involved the Taurus
Luger, a semiautomatic firearm with a large capacity (more than
15 rounds) and that he had constructively possessed three or
more firearms, that is, all three firearms found in the front
passenger

area

of

the

car.

USSG

§ 2K2.1(a)(3),

(b)(1)(A).

Scott maintained that he had possessed only the H&K pistol he
pled guilty to possessing.
On appeal, Scott argues that the district court found,
at most, that he had knowledge of the other weapons and was
within reach of them, but that such evidence was insufficient to
prove constructive possession, even by a preponderance of the
evidence.
We

review

a

sentence

under

a

deferential

abuse

of

discretion standard, which includes consideration of both the
procedural and substantive reasonableness of the sentence.
v.

United

States,

552

U.S.

38,
4

41,

51

(2007).

Gall

Improper

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calculation of the advisory Guidelines range is a significant
procedural error.

Id.

The sentencing court’s interpretation of

a Guideline is reviewed de novo.

United States v. Montgomery,

262 F.3d 233, 250 (4th Cir. 2001).
“[A] person may have constructive possession over [an
item] if he has ownership, dominion, or control over [the item]
or

the

premises

concealed.”
Cir.),

or

vehicle

in

which

the

contraband

was

United States v. Herder, 594 F.3d 352, 358 (4th

cert.

denied,

“[c]onstructive

130

possession

S.

Ct.

may

be

3440

(2010).

established

Moreover,
by

either

circumstantial or direct evidence[,]” and “a fact finder may
properly consider the totality of the circumstances[.]”

(Id.)

(internal citations omitted).
Contrary to Scott’s contention, the district court did
not find that mere proximity and knowledge were enough to prove
constructive possession.

The court found that a person in the

car would have constructive possession of any weapon he could
reach and control.
to

control

the

The court found that Scott had the ability

weapons

in

the

front

passenger

area,

thus

implicitly finding that he had dominion or control over them, as
well

as

noting

that

he

had

previously

held

them,

i.e.,

controlled them, as proved by the pictures on his cell phone.
Thus, Scott’s claim that the district court applied the wrong
legal standard is without merit.
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Because the district court applied the correct legal
standard and the evidence before the court was sufficient to
establish

by

a

preponderance

of

the

evidence

that

Scott

had

dominion or control over all three guns in the front passenger
area of the car, we conclude that the district court did not
clearly err in applying the enhanced base offense level of 22
under

§ 2K2.1(a)(3)

and

the

2-level

increase

under

§ 2K2.1(b)(1)(A).
We therefore affirm the district court’s judgment.
dispense

with

oral

argument

because

the

facts

and

We

legal

contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.

AFFIRMED

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