United States of America v. Rodney Ashe

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 24-1027
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UNITED STATES OF AMERICA
v.
RODNEY ASHE;
Appellant
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 3:23-cr-00388-001)
District Judge: Honorable Zahid N. Quraishi
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Argued: November 12, 2024
Before: RESTREPO, MONTGOMERY-REEVES and
AMBRO, Circuit Judges.
(Filed: February 27, 2025)
Candace Hom
Rahul K. Sharma [ARGUED]
O FFICE OF FEDERAL PUBLIC D EFENDER
1002 Broad Street

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Newark, NJ 07102
Counsel for Appellant
Mark E. Coyne
O FFICE OF U NITED STATES A TTORNEY
970 Broad Street, Room 700
Newark, NJ 07102
Norman Gross [ARGUED]
O FFICE OF U NITED STATES A TTORNEY
Camden Federal Building & Courthouse
401 Market Street
Camden, NJ 08101
Counsel for Appellee
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OPINION OF THE COURT
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RESTREPO, Circuit Judge
On December 21, 2023, the District Court held a
sentencing hearing for Appellant Rodney Ashe, who pleaded
guilty to being a felon in possession of a firearm after officers
observed a handgun in his sweatshirt pocket during a traffic
stop. At the hearing, both the Government and the defense
argued that Ashe’s sentence should be calculated using a total
offense level of 12. The District Court, however, disagreed and
found a total offense level of 17, applying an enhancement
arising from Ashe’s possession of an AK-style pistol (the “AK
Pistol”) found in the trunk of Ashe’s car more than six months
after Ashe was incarcerated and his car was impounded.

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The District Court found that a preponderance of the
evidence supported Ashe’s constructive possession of the AK
Pistol, finding compelling that it was found in Ashe’s trunk and
that Ashe had a history of felon-in-possession charges. Having
found that Ashe possessed the AK Pistol, the District Court
applied an enhancement for possession of a semiautomatic
firearm capable of accepting a large capacity magazine and
sentenced him to 37 months of imprisonment. Because the
District Court applied this enhancement without sufficient
evidence that Ashe possessed the AK Pistol, we will vacate his
sentence and remand this case for resentencing absent the
enhanced base offense level.
I. BACKGROUND
On October 3, 2022, Ashe was pulled over by police for
failing to maintain his lane of travel while driving. While
speaking with Ashe, officers observed a handgun protruding
from the front pocket of his sweatshirt. Ashe was arrested and
his car was impounded at Sisbarro Towing. The officers
involved in the arrest reported that they only searched the
immediate area of the driver’s seat and made no search of
Ashe’s trunk.
This was not Ashe’s first firearm-related arrest. On
November 16, 2014, he was arrested for, among other things,
unlawful possession of a handgun after police noticed a
revolver in his waistband while questioning him about littering.
Ashe was convicted of this charge and on October 26, 2015,
was sentenced to five years imprisonment, 42 months parole
ineligibility, $1,455 in fees and costs, and 6 months of license
suspension.

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On April 25, 2023, while Ashe’s car was being
repossessed and towed from Sisbarro, a Sisbarro employee
found a duffle bag in its trunk containing ammunition and the
AK Pistol. It was a semiautomatic firearm capable of
accepting a large capacity magazine.1 On October 31, 2023,
Ashe endorsed an abandonment and waiver of rights in which
he forfeited all rights to the AK Pistol and ammunition and
disavowed ever having possessed them.
On May 23, 2023, Ashe pleaded guilty to a felon in
possession charge arising from the handgun found on his
person during the October 3 traffic stop. He and the
Government entered into a plea agreement stipulating a total
offense level of 12.
On October 16, 2023, after Ashe pleaded guilty, the
U.S. Probation Department submitted a draft PSR calculating
a total offense level of 17. The Probation Department reached
this base offense level pursuant to U.S.S.G. § 2K2.1(a)(4)(B),
which applies a base offense level of 20 if the offense involves
a “semiautomatic firearm that is capable of accepting a large
capacity magazine.”
On October 30, 2023, Ashe objected to the draft PSR,
arguing that the months-delayed discovery of the AK Pistol in
1 Ashe contends on appeal that “the enhanced base
offense level for having a ‘large capacity magazine’ should
only apply if the firearm in question was capable of accepting
a magazine larger than the standard magazine for the particular
firearm model.” Appellant’s Br. at 37. This argument is
foreclosed by our Court’s recent decision in United States v.
McIntosh, 124 F.4th 199, 211 (3d Cir. 2024).

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Ashe’s trunk was insufficient to establish that he had
possession or control of the AK Pistol. The Government
lodged an identical objection, noting the six-month lapse
between Ashe’s arrest and the AK Pistol’s discovery and
arguing that the Government was “unaware of any evidence
that suggests Ashe possessed the AK-47 either at the time of
his October 3, 2022 arrest or anytime thereafter.” JA66.
On November 7, 2023, the Probation Department
submitted its final PSR, which maintained its previously
calculated base offense level of 20. The final PSR contained
an addendum detailing additional information the Probation
Office had learned from contacting Sisbarro Towing. Per this
addendum, Sisbarro Towing advised that its lot is secured with
a locked gate, that stored vehicles can only be accessed by
employees or authorized third parties, and that employees are
only permitted to access stored vehicles when moving them.
The District Court held Ashe’s sentencing hearing on
December 21, 2023. At the hearing, the District Court
referenced several pieces of evidence it found relevant in
determining possession of the AK Pistol: (1) “Ashe is in his
own vehicle, and he’s arrested illegally possessing a firearm,”
JA12; (2) Ashe “has a prior history of committing this very
same crime,” id.; (3) at the time of the arrest, officers search
“only in the front area of the driver’s seat” and “don’t search
the trunk,” id. at 12–13; (4) “the car is taken to a towing
company” “[a]t the time that he’s arrested,” id. at 13; and (5)
the “towing company finds” the AK Pistol “in the trunk of the
car that was not opened by law enforcement at the time of the
arrest,” id.
Having summarized this evidence, the District Court
then stated that “the standard for sentencing is preponderance

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of the evidence.” Id. The District Court summarized this
inquiry as follows:
So the question that I have before the Court is, is
it more likely than not that Mr. Ashe possessed
that AK-47 at the time of his arrest than a
stranger who walked by his car in the tow lot and
just happened to fall upon his car and throw an
AK-47 in a duffel bag in there, or an employee
of the towing company who just happened to
work there who said, you know what, I have this
AK-47 in a duffel bag, I think I’m going to dump
it in this car, and then coincidentally Mr. Ashe is
the unluckiest man in the world.
Or is it more likely than not that Mr. Ashe, who
just continues to defy laws on firearms,
continues to illegally possess firearms, is
arrested with an illegal firearm on his person on
the date that he’s arrested, also had the AK-47 in
the trunk, and the only reason it wasn’t found that
day is because the police officers did not inspect
his trunk?
Id. at 13–14. Shortly thereafter, after chiding the Government
for making “an argument that the defense attorneys make” by
opposing a finding of constructive possession, the District
Court rearticulated the preponderance-of-the-evidence-
standard: “Or is it more likely than not, even though you might
not believe you can prove it beyond a reasonable doubt, but
isn’t it more likely than not that it’s his and that he knew it was
there based on the facts that we have before us?” Id. at 16–17.

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Throughout its analysis, the District Court at times
compared the likelihood of Ashe possessing the AK Pistol
against the likelihood that a “random third party” was able to
“sneak an AK-47 into his trunk” during the time Ashe’s car
was located at Sisbarro. See, e.g., id. at 20. A reference to this
comparison is made in the District Court’s ultimate finding:
I’m making the conclusion, by a preponderance
of the evidence, that it’s more likely than not that
he possessed the AK-47 that was found in his car.
That’s the finding.
And by the way, let me be clear. That is the
finding I am making right now. I find that Mr.
Ashe, by a preponderance of the evidence, . . .
more likely than not . . . possessed that AK-47
and that it wasn’t some random third party
individual who, over the six or six-and-a-half-
month period post his arrest, happened to
coincidentally drop it into his trunk at the tow lot
when it was secured over there or unsecured over
there since his arrest.
[…] [I]t’s more likely than not, based on the facts
that are before me in this record, that Mr. Ashe
possessed that firearm at the time of his arrest.
Id. at 30–31. Having made this finding, the Court sentenced
Ashe to 37 months of imprisonment—the upper end of the
guidelines range calculated using U.S.S.G. § 2K2.1(a)(4)(B)’s
base offense level of 20. Id. at 51. Ashe appealed.

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II. D ISCUSSION2
“Constructive possession exists if an individual
‘knowingly has both the power and the intention at a given time
to exercise dominion or control over a thing, either directly or
through another person or persons.’” United States v. Iafelice,
978 F.2d 92, 96 (3d Cir. 1992) (quoting United States v.
Blackston, 940 F.2d 877, 883 (3d Cir. 1991)). To
constructively possess an object, an individual must have
“dominion and control” over it and must have “knowledge of
that object’s existence.” Id.
When assessing the propriety of a sentencing
enhancement, this constructive possession inquiry is controlled
by a preponderance-of-the-evidence-standard. See United
States v. Irvin, 369 F.3d 284, 287 (3d Cir. 2004) (“The
government had the burden to prove, by a preponderance of the
evidence, that Irvin knew of the guns’ presence and had control
or the power and intention to exercise control over them.”
(internal citation omitted)). Accordingly, to apply a base
offense level of 20 pursuant to U.S.S.G. § 2K2.1(a)(4)(B), the
District Court was required to find by a preponderance of the
evidence that Ashe possessed the AK Pistol. In so finding, the
Court was permitted to turn to circumstantial evidence. United
States v. Iglesias, 535 F.3d 150, 156 (3d Cir. 2008)
2 We review the District Court’s constructive possession
ruling for clear error. United States v. Caraballo, 88 F.4th 239,
243 (3d Cir. 2023) (“[W]hen the legal issue involves ‘a
“strictly factual test,” such that once the test is stated no legal
reasoning is necessary to the resolution of the issue,’ the
determination should be reviewed for clear error.”). The
parties are in agreement that this standard applies.

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(“Constructive possession may be proved by circumstantial
evidence.”).
Ashe contends that the District Court improperly relied
on proximity alone in finding that a preponderance of the
evidence supported his possession of the AK Pistol. He also
argues that the District Court erred to whatever extent it relied
upon the PSR’s addendum, which stated that the Sisbarro lot
had been locked and no one had been authorized to access
Ashe’s car prior to the AK Pistol’s discovery. This addendum,
Ashe argues, was “insufficiently reliable to support the district
court’s” conclusion. Appellant’s Br. at 29.
In response, the Government now argues that the
District Court correctly relied upon circumstantial evidence in
finding constructive possession—the opposite of the
Government’s position before the District Court. According to
the Government, “the District Court afforded substantial
weight to Ashe’s prior convictions and his superior access to
the trunk of his own car.” Appellee’s Br. at 22. The
Government argues that the Court’s consideration of Ashe’s
prior convictions was relevant both for propensity, which the
Government argues is not barred from consideration at the
sentencing stage, and for proving Ashe’s ability to obtain
illegal guns. Id. at 21–23. It also argues that the District Court
was entitled to “consider the absence of any evidence that
anyone else had placed the gun in the trunk.” Id. at 24. As for
the PSR’s addendum, the Government contends that Ashe
never objected to the PSR’s relevant factual statements,
making them uncontested factual averments that the District
Court was entitled to rely upon.
In reviewing the District Court’s constructive-
possession finding for clear error, we must “accept the ultimate

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factual determination of the fact-finder unless that
determination either (1) is completely devoid of minimum
evidentiary support displaying some hue of credibility, or (2)
bears no rational relationship to the supportive evidentiary
data.” DiFederico v. Rolm Co., 201 F.3d 200, 208 (3d Cir.
2000) (quoting Coalition to Save Our Children v. Bd. of Educ.,
90 F.3d 752, 759 (3d Cir. 1996)). “A [factual] finding is clearly
erroneous when although there is evidence to support it, the
reviewing body on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.”
United States v. Montalvo-Flores, 81 F.4th 339, 342 (3d Cir.
2023) (quoting Concrete Pipe & Prods. of Cal., Inc. v. Constr.
Laborers Pension Trust for S. Cal., 508 U.S. 602, 622 (1993)).
Even under this relatively relaxed standard, the District
Court’s finding is clearly erroneous and we are left, “on the
entire evidence[,] … with the definite and firm conviction that
a mistake has been committed.” Id. Considering the entire
evidence, Ashe’s constructive possession of the AK Pistol has
not been proven by a preponderance of the evidence.
The location of the AK Pistol in Ashe’s trunk is not
enough alone to establish constructive possession. United
States v. Brown, 3 F.3d 673, 683 (3d Cir. 1993) (“[S]imple
ownership or control of a vehicle is not enough on its own to
establish constructive possession of [items] found therein, but
rather, additional evidence must link the defendant to the
[items].”). This Court has held that “[c]ommon sense counsels
that an owner and operator of a vehicle usually has dominion
and control over the objects in his or her vehicle of which he
or she is aware, and usually knows what is in that vehicle.”
Iafelice, 978 F.2d at 97. But “[o]wnership and operation … do
not exist in a vacuum; they must be considered in the context
of the surrounding circumstances, which may either reinforce

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or undercut, the significance of ownership and operation of the
vehicle.” Id.
The surrounding circumstances of the AK Pistol’s
discovery do a great deal to undercut the significance of Ashe’s
ownership of the vehicle. Ashe was not operating it at the time
the AK Pistol was found—to the contrary, he was incarcerated
at the time. Nor had Ashe been in recent contact with his
vehicle: due to his incarceration, he had not accessed it for
more than six months before the AK Pistol’s discovery.
Moreover, the precise location of the AK Pistol within the
vehicle fails to support a finding of constructive possession, as
the AK Pistol was found in a bag in the trunk and was not
within reach of the driver’s seat. Cf. United States v. Lopez,
271 F.3d 472, 487 (3d Cir. 2001) (a gun’s “location underneath
the car’s front seat and therefore within [defendant’s] reach”
“could easily justify the inference” that defendant
constructively possessed it).
The District Court found support for a finding of
constructive possession from the fact that Ashe’s vehicle had
been stored in a tow lot during the months between Ashe’s
arrest and the AK Pistol’s discovery. Though the District
Court was entitled to rely on the PSR addendum that provided
details about the tow lot’s security,3 these details do not
provide adequate evidentiary support for a finding of
3 In failing to object to the PSR addendum’s factual
allegations, Ashe admitted them and cannot now object to their
reliability. See United States v. Siegel, 477 F.3d 87, 93 (3d Cir.
2007) (“[B]y not objecting to the PSR’s factual allegations, the
defendant has admitted them.” (cleaned up)).

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constructive possession.
As detailed in the PSR addendum, Ashe’s vehicle was
stored behind a locked gate at a lot where company policy only
allowed access to vehicles by employees tasked with moving
them or third parties with proper payment or paperwork to take
possession of them. These bare-minimum security
representations do not make up for the risk of outside
tampering imposed by the multi-month period during which
Ashe did not have possession of his car. The lot’s stated rules
regarding proper access to vehicles give little comfort that
unauthorized access does not happen, particularly where the
only security feature described is a locked gate.
The District Court also relied upon Ashe’s history of
felon-in-possession charges to buttress its finding of
constructive possession. However, his 2015 firearm
conviction and the 2022 firearm arrest that initiated this action
are insufficient to establish his constructive possession of the
AK Pistol. Whatever evidentiary value these priors held is
undercut by the significant difference between the firearms
Ashe had been arrested for possessing in the past and the AK
Pistol that gives rise to this appeal.
Both firearms in Ashe’s prior firearm convictions were
common handguns: in 2014, a Titan Tiger 38 Special Revolver
loaded with six live rounds of ammunition, and in his latest
conviction a FN 509 Tactical, 9mm semiautomatic handgun
loaded with a fifteen-round magazine. In contrast, the AK
Pistol here was a Pioneer Arms Hellpup AK-style pistol with a
thirty-round magazine attached.
There is a substantial difference between a standard
handgun and a more unusual 7.62-caliber AK Pistol with a

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thirty-round magazine. As the Government acknowledges,
standard semiautomatic pistol magazines are “substantially
smaller than the 30-round magazine in this case.” Appellee’s
Br. at 34 n.9. Ashe’s history of possessing more run-of-the-
mill handguns has less probative value here in assessing
constructive possession of the AK Pistol than it would if a more
typical handgun was at issue.
Considering the circumstances as a whole, the
purported evidentiary bases for the District Court’s
constructive possession finding crumble. The AK Pistol was
found in Ashe’s car, which he was the last known driver of—
but the gun was found in a bag in the trunk, and Ashe had not
accessed the car in over six months prior to the AK Pistol’s
discovery. The car was kept in an impound lot between the
time of Ashe’s arrest and the gun’s discovery—but employees
or others could have gained access to the car during that period
given the paltry security representations contained in the PSR.
Ashe possessed another illegal firearm at the time of his arrest
and had a prior firearms conviction—but the small-caliber
handguns Ashe possessed in the past bear little resemblance to
the AK Pistol at issue here.
As we have made clear, “simple ownership or control
of a vehicle is not enough on its own to establish constructive
possession of [items] found therein.” Brown, 3 F.3d at 683.
Here, the significance of Ashe’s ownership and operation of
his vehicle is sizably undercut when “considered in the context
of the surrounding circumstances,” which offer little if any
support for the District Court’s constructive possession
finding. Iafelice, 978 F.2d at 97. More is required, even under
the preponderance-of-the-evidence standard, to establish
constructive possession. Accordingly, we are “left with the
definite and firm conviction that a mistake has been

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committed” in the District Court’s constructive possession
finding and therefore hold that the District Court’s finding was
clear error.4 Montalvo-Flores, 81 F.4th at 342.
The sole remaining dispute between the parties to this
appeal is whether this Court should remand this case for
additional proceedings regarding constructive possession or
remand this case for resentencing absent the enhanced base
offense level. The Government contends that “[a]lthough the
Government is precluded by the plea agreement from
presenting evidence at an evidentiary hearing and arguing that
the District Court should apply the enhancement, nothing
would prevent the Court from directing the Government to
make witnesses and other evidence available for its
consideration on remand.” Appellee’s Br. at 30. In the
interests of judicial economy, and having considered the facts
of this case, we elect to not send the District Court on this
cumbersome and procedurally unusual undertaking.
Accordingly, we will remand this case for resentencing absent
the enhanced base-offense level.
III. C ONCLUSION
For the reasons set forth above, we will vacate Ashe’s
sentence and remand this case for resentencing.
4 Because we hold that the District Court’s constructive
possession finding was clear error, we need not reach
Appellant’s remaining arguments.

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