United States v. Charlie Highsmith, 268 F.3d 1141 (9th Cir. 2001). · Go Syfert
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United States v. Charlie Highsmith, 268 F.3d 1141 (9th Cir. 2001). Cases Citing This Book View Copy Cite
14 citation events (14 in the last 25 years) across 3 distinct courts.
Strongest positive: United States v. Lecharles Baldon (ca9, 2020-04-21)
Top citers, strongest first. 12 distinct citers. How cited ↗
discussed Cited as authority (rule) United States v. Lecharles Baldon
9th Cir. · 2020 · confidence medium
In United States v. Highsmith, we found that evidence that defendant had access to and sold drugs from his cohort’s bedroom did not impute knowledge to him about a firearm in the bedroom. 268 F.3d 1141, 1142 (9th Cir. 2001).
discussed Cited as authority (rule) United States v. Jesus Medina-Castro
9th Cir. · 2014 · confidence medium
The district court’s finding during sentencing that Medina-Castro knowingly smuggled 17.88 kilograms of methamphetamine was not “supported by a preponderance of the evidence — ‘a showing that the relevant fact is more likely true than not.’ ” United States v. Highsmith, 268 F.3d 1141, 1142 (9th Cir.2001) (quoting United States v. Collins, 109 F.3d 1413, 1420 (9th Cir.1997)).
cited Cited as authority (rule) United States v. Idowu, Alowonle
7th Cir. · 2008 · confidence medium
In one of those, United States v. Highsmith, 268 F.3d 1141, 1142 (9th Cir. 2001), the Ninth Circuit acknowledged that its holding conflicted with applica- tion note 3 to section 2D1.1.
cited Cited as authority (rule) United States v. Idowu
7th Cir. · 2008 · confidence medium
In one of those, United States v. Highsmith, 268 F.3d 1141, 1142 (9th Cir.2001), the Ninth *795 Circuit acknowledged that its holding conflicted with application note 3 to section 2D1.1.
cited Cited as authority (rule) United States v. Zambada
unknown court · 2003 · confidence medium
Thus, Zambada’s reliance on United States v. Kelso, 942 F.2d 680, 682 (9th Cir.1991), and United States v. Highsmith, 268 F.3d 1141, 1142 (9th Cir.2001), is misplaced.
discussed Cited as authority (rule) United States v. Browne
9th Cir. · 2003 · confidence medium
See United States v. Kelso, 942 F.2d 680, 682 (9th Cir.1991) (holding that the presence of a gun in a bag with drugs found behind the driver’s seat of a car was insufficient to establish possession by passenger); United States v. Highsmith, 268 F.3d 1141, 1142 (9th Cir. 2001) (vacating enhancement where there was no evidence that defendant knew of the gun in a cohort’s bedroom, to which defendant had access).
cited Cited as authority (rule) Philip Ducato v. United States
7th Cir. · 2002 · confidence medium
United States v. Highsmith, 268 F.3d 1141, 1142 (9th Cir.2001); United States v. Myers, 150 F.3d 459, 465 (5th Cir.1998).
cited Cited as authority (rule) Ducato, Philip v. United States
7th Cir. · 2002 · confidence medium
United States v. Highsmith, 268 F.3d 1141, 1142 (9th Cir. 2001); United States v. Myers, 150 F.3d 459, 465 (5th Cir. 1998).
discussed Cited "see" United States v. Ulises Lopez
8th Cir. · 2004 · signal: see · confidence high
See United States v. Highsmith, 268 F.3d 1141, 1142 (9th Cir 2001) (holding that the firearm enhancement was not applicable where the defendant had access to the co- conspirator’s weapon but did not know that the weapon existed).
discussed Cited "see" United States v. Ulises Ariel Lopez, United States of America v. Israel Gonzales-Lara (2×)
8th Cir. · 2004 · signal: see · confidence high
See United States v. Highsmith, 268 F.3d 1141, 1142 (9th Cir.2001) (holding that the firearm enhancement was not applicable where the defendant had access to the co-conspirator's weapon but did not know that the weapon existed).
discussed Cited "see, e.g." United States v. Sanchez-Cruz
9th Cir. · 2024 · signal: see also · confidence medium
In United States v. Kelso, the Ninth Circuit held that “proximity” of a firearm to drugs and ammunition is insufficient to establish constructive possession when there is no evidence the defendant “owned it, or even was aware of its presence[.]” 942 F.2d 680 , 681–82 (9th Cir. 1991) (finding the district court clearly erred when it found defendant constructively possessed the loaded weapon found behind the seat in a car driven by defendant and in close proximity to drugs and assorted ammunition); see also United States v. Highsmith, 268 F.3d 1141, 1142 (9th Cir. 2001) (acknowledging …
discussed Cited "see, e.g." United States v. Tommy Leonard
9th Cir. · 2016 · signal: see, e.g. · confidence medium
See, e.g., United States v. Highsmith, 268 F.3d 1141, 1142 (9th Cir. 2001) (holding that a defendant’s access to a firearm found in a cohort’s bedroom did not establish knowledge,' and therefore did not prove possession); Cazares, 121 F.3d at 1245 (‘“Where, as here, a residence is jointly occupied, the mere fact that contraband is discovered at the residence will not, without more, provide evidence sufficient to support a conviction based on constructive possession against any of the occupants.’ ”) (quoting United States v. Reese, 775 F.2d 1066, 1073 (9th Cir. 1985)).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Charlie HIGHSMITH, Defendant-Appellant
00-30182.
Court of Appeals for the Ninth Circuit.
Oct 23, 2001.
268 F.3d 1141
William A. D’Alton, Brown Law Firm, P.C., Billings, Montana, for the defendant-appellant., James E. Seykora, Assistant United States Attorney, Billings, Montana, for the plaintiff-appellee.
Browning, Wallace, Nelson.
Cited by 13 opinions  |  Published
T.G. NELSON, Circuit Judge:

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[*1142] clear error. [1] In this instance, in which the fact in question did not increase the penalty for the crime beyond the statutory maximum, [2] 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.” [3]

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 possession to support the enhancement. We agree.

The firearm in question was found on the day of Highsmith’s arrest in a cohort’s bedroom, along with a quantity of drugs. The evidence clearly established that Hi-ghsmith had access to the bedroom and that he dealt drugs from the bedroom. Thus, the district court did not err when it inferred that Highsmith had access to the weapon. However, the evidence did not establish that Highsmith knew of the firearm.

In United States v. Kelso, [4] we held that a defendant’s access to a gun is necessary but insufficient to establish constructive possession. We concluded that although the defendant in that case “may have had access to the gun, there [wa]s no evidence he owned it, or even was aware of its presence” and thus held that the enhancement did not apply. [5] Similarly, in this case there was no evidence that Hi-ghsmith knew of the firearm. Accordingly, applying Kelso, it is clear that there was insufficient evidence to support a finding of constructive possession and to apply the enhancement.

The Government cites application note 3 of the sentencing guidelines for the proposition that the enhancement applies “unless it is clearly improbable that the weapon was connected with the offense.” [6] The Government ignores Kelso, failing even to cite the case in its briefing. Yet in Kelso, we reversed the district court’s decision — a decision that clearly rested on the language from application note 3 that the Government quotes to us now — to apply the same enhancement. [7] We publish this decision to make it even clearer that Kelso, to the extent that it conflicts with application note 3, controls. Applying it here, we vacate the sentence.

The conviction is AFFIRMED. However, the sentence is VACATED and the case is REMANDED FOR RESEN-TENCING.

1

. See United States v. Maldonado, 215 F.3d 1046, 1051 (9th Cir.2000).

2

. See Apprendi v. Mew Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

3

. United States v. Collins, 109 F.3d 1413, 1420 (9th Cir.1997).

4

. 942 F.2d 680 (9th Cir.1991).

5

. Id. at 682. We also noted that, if the district court had found that the co-conspirator's possession of the gun in that case "had been reasonably foreseeable to Kelso,” the enhancement would have been appropriate. Id. at n. 3. In this case, as in Kelso, the district court made no such finding.

6

. U.S.S.G. § 2D1.1, comment, (n.3).

7

. Kelso, 942 F.2d at 682 and n. 2 (describing the district court’s holding "that it was not improbable ... that he was aware of the weapon,” quoting the similar language in application note 3, and reversing).