United States v. Charlie Highsmith

We have jurisdiction pursuant to 28 U.S.C. § 1291 . In a separate memorandum disposition we affirmed on all issues raised in this appeal but one. As to that issue, we conclude that the district court erred when it found that the defendant was in constructive possession of a weapon and applied a sentencing enhancement. Accordingly, we vacate the sentence and remand for resentencing.

We review the district court’s factual findings in the sentencing phase for clear error. In this instance, in which the fact in question did not increase the penalty for the crime beyond the statutory maximum, the factual findings of the district court must be supported by a preponderance of the evidence — “a showing that the relevant fact is more likely true than not.”

Charlie Highsmith was convicted on drug-related charges after a four-day trial. At sentencing, the district court found that Highsmith was in constructive possession of a firearm during the commission of his crime and gave him a two-point sentence enhancement pursuant to the United States Sentencing Commission, Guidelines Manual, § 2D1.1(b)(1) (Nov. 1998). Highsmith appeals, arguing that there was insufficient evidence of constructive…