United States v. Stepp.
No. 23-2029. 12/26/2023. D.N.M. Judge McHugh. Felon in Possession of a Firearm and Ammunition—Constructive Possession of Firearm or Ammunition—Sufficiency of Evidence—US Sentencing Guidelines—Lookback Period for Prior Crime of Violence.
December 26, 2023
In 2021, police officers and paramedics responded to a call regarding an apparent gunshot victim. They found Stepp with a wounded leg in the passenger seat of a car driven by his girlfriend, Ratliff. Officers found a small, holstered firearm in the car’s open center console and ammunition under the passenger seat. Further investigation of the incident led officers to Stepp’s house. Officers knocked on the door, but no one answered. Officers observed blood on the home’s front door jam and on the outside of a truck parked in the driveway, so deputies obtained a search warrant and searched the home. As relevant here, the home search uncovered multiple rounds of ammunition. Stepp was charged with one count of being a felon in possession of a firearm and ammunition in violation of 18 USC §§ 922(g)(1) and 924. At the close of evidence at his trial, Stepp moved for judgment of acquittal under Fed. R. Crim. P. 29, arguing that based on the joint occupancy of the car and home by Stepp and Ratliff, the government had failed to present any evidence to establish Stepp’s constructive possession of the firearm or ammunition. The district court denied the motion. A jury found Stepp guilty as charged. Stepp’s presentence investigation report (PSR) calculated his base offense level by including Stepp’s prior voluntary manslaughter conviction, for which he was sentenced on July 12, 2002, to five years’ incarceration. Stepp argued that the PSR miscalculated his base offense level because his previous manslaughter conviction should not be counted as a crime of violence under US Sentencing Guidelines (USSG) § 2K2.1 because it fell outside the applicable lookback period. The court calculated Stepp’s base offense level as 20, accounting for his prior sentence for a crime of violence in 2002, and Stepp was sentenced to 72 months’ incarceration.
On appeal, Stepp argued there was insufficient evidence to find that he constructively possessed a firearm or ammunition. To convict Stepp under § 922(g)(1), the government had to prove, among other things, that he knowingly possessed either a firearm or ammunition. Accordingly, the jury could have convicted Stepp based on a finding that he possessed either the firearm found in the car, or the ammunition found in his home, or both. Here, the evidence showed that the ammunition found in Stepp’s home was organized in cabinets in an actively used home office and scattered on the living room floor intermixed with Stepp’s personal belongings. Stepp’s knowledge, access, and intent to control the ammunition may be inferred from its location. Therefore, the evidence was sufficient for a reasonable trier of fact to find, beyond a reasonable doubt, that Stepp had constructive possession of the ammunition found in his home. Because possession of the ammunition is independently sufficient to sustain Stepp’s conviction, the Tenth Circuit did not address the sufficiency of the evidence regarding his possession of the firearm found in the car.
Stepp also argued that the district court clearly erred by including his 2002 conviction in his base offense level calculation. He challenged only the district court’s factual finding that he completed his term of incarceration for his 2002 conviction on February 16, 2006, contending that, instead, his term of incarceration ended on December 27, 2005, more than 15 years before he committed the instant offense, and his base offense level should be 14 rather than 20. Under the USSG, sentences exceeding 13 months count only if they resulted in the defendant being incarcerated within the 15 years preceding the instant offense. However, there was sufficient foundation in the record from the New Mexico Corrections Department for the district court to reasonably find that, more likely than not, Stepp’s term of confinement for his 2002 conviction ended on February 16, 2006. Therefore, the district court’s factual finding pertaining to its calculation of Stepp’s base offense level was not clearly erroneous.
The conviction and sentence were affirmed.