Skip to main content

Posts

Showing posts from 2012

The First Paragraph of 18 U.S.C. § 1546(a) Prohibits the Possession or Use of Authentic Immigration Documents Obtained Fraudulently

In United States v. Kouevi, No. 10-3529 (October 24, 2012), the Third Circuit addressed the issue of whether the defendant’s conduct was criminalized by the first paragraph of the visa fraud statute, 18 U.S.C. § 1546(a). This appeal raises a question of statutory construction that is an issue of first impression in our Circuit.

Kouevi was born in Lome, Togo. The Government contends that he conspired with others to use fraudulent means to obtain authentic visas for at least 34 people through the American Embassy in Togo, and that those persons then used those visas to enter the United States.

The schedule involved “diversity visas”, which are made available to citizens of countries who send relatively low number of immigrants to the United States each year. The visas are a means of promoting diversity within the annual pool of immigrants entering the United States.

According to the evidence at trial, Kouevi and his co-conspirator worked with individuals in Togo who were actually eligib…

Government may object to timeliness of appeal at any point up to and including its merits brief

In United States v. Muhammud, 10-3138 (Decided: Sept. 28, 2012; Published Nov. 5, 2012), the Third Circuit joined several of its sister circuits in holding that the government may object to the timeliness of an appeal, under Fed.R.App.P. 4(b), at any point up to and including in its merits brief.

Appellant Muhammad's guilty plea contained an appellate waiver and a collateral attack waiver. He did not directly appeal his conviction, but did file a 28 U.S.C. § 2255 petition nearly one year after his conviction became final, arguing that his guilty plea had been entered under duress. The district court enforced the waiver, dismissed the petition and denied a Certificate of Appealability (COA). The Third Circuit also denied Mr. Muhammad's request for a COA.

One year after the denial of his request for a COA and two years after his conviction became final, Mr. Muhammad filed a notice of appeal from his judgment of conviction. The government, believing the notice of appeal was cha…

Successive § 3582 Motions Not Jurisdictionally Barred; Defendant Whose C Plea Not Explicitly Based on Guidelines Is Not Eligible for Relief

United States v. Weatherspoon, --- F.3d ----, 2012 WL 4800974 (3d Cir. Oct. 10, 2012). After the Sentencing Commission made retroactive the amended crack offense levels in 2008, Weatherspoon sought a sentence reduction, which was rejected because he was sentenced pursuant to a binding plea agreement. Following the Supreme Court's decision in Freeman v. United States, 131 S.Ct. 2685 (2011), holding that a defendant sentenced pursuant to a C plea agreement that recommends a sentence "based on" the Sentencing Guidelines is eligible for relief, Weatherspoon filed a second motion for sentence reduction.

The Circuit first addressed jurisdiction. The government argued for the first time on appeal first that § 3582(c)(2) only permits one motion for a sentence reduction and that the district court lacked jurisdiction to consider the second motion, and second, that the Law of the Case Doctrine precluded review. The Circuit found it had an independent duty to determine its o…

Sentence Procedurally Unreasonable Where Court Failed to Address Variance Argument

United States v. Begin, --- F.3d ---, 2012 WL 4784362 (3d Cir. Oct. 9, 2012).   Begin appealed from his 240-month sentence for using the internet and a cellular phone to "attempt to persuade a minor to engage in any sexual activity for which a person can be charged" - in this case statutory rape.

Begin argued that the sentence was unreasonable because the district court failed to consider his argument that a variance was warranted based on the disparity between a sentence for attempting to induce statutory rape and the lower maximum sentences for actually committing statutory rape under state and federal law.   Although at sentencing the district court acknowledged and heard argument on Begin’s request, the court did not ask any questions and did not discuss or actually rule on the variance request.  In its final review of the sentencing factors the court simply stated:  "This sentence also takes into account the need to avoid unwarranted disparities in sentencing amo…

Maximum Term on Revocation of Supervised Release Is Based on Class of Underlying Felony at the Time of the Offense

United States v. Turlington, --- F.3d ----, 2012 WL 4237611 (3d Cir. Sept. 21, 2012) (published Oct. 16, 2012). In this case defendant’s conviction for conspiring to distribute more than 50 grams of cocaine base was a class A felony, permitting up to five years of imprisonment on revocation of supervised release pursuant to 18 U.S.C.A. § 3583(e)(3). The Fair Sentencing Act amendments reduced the maximum term of imprisonment for Turlington’s offense, such that it is now a class B felony, which would now permit only three years of imprisonment of revocation of supervised release.

The Circuit held that where an underlying offense was a class A felony at the time of conviction, but has since been reduced to a class B felony, the maximum term of imprisonment upon violation of supervised release, pursuant to 18 U.S.C.A. § 3583(e)(3), is still determined based on the classification of the offense at the time of conviction. The Court cited Johnson v. United States, 529 U.S. 694 (2000), …

No Crack Reduction for Career Offenders Even if Sentence is Based On the Crack Range

United States v. Ware, --- F.3d ----, 2012 WL 4216831 (3d Cir. Sept. 21, 2012).
Defendants, each designated career offenders, were ultimately sentenced based on the crack guidelines through a variance and a departure. Each moved for sentence reductions under 18 U.S.C. § 3582(c)(2), based on the amended crack cocaine guidelines implementing the Fair Sentencing Act of 2010. In the first case, Ware, the district court granted the motion for sentence reduction, reasoning that the sentence was "based on" the crack guideline (as required in 18 U.S.C. § 3582) as that term was defined by the plurality and Justice Sotomayor in Freeman v. United States, 131 S.Ct. 2685, 2695 (2011) (holding that "if a [plea agreement pursuant to Rule 11(c)(1)(C) ] expressly uses a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment, and that range is subsequently lowered by the United States Sentencing Commission, the term of imprisonment is ‘base…

Court Reverses in CP Case where Court did not View Challenged CP Evidence / Finds Unfair Prejudice

United States v. Cunningham, --- F.3d ----, 2012 WL 4075875 (3d Cir. Sept. 18, 2012).  Cunningham was charged in a three count indictment with receiving, possessing, and  distributing child pornography. Prior to trial, Cunningham filed a motion to preclude the government from showing the jury any of the child pornography videos recovered from his computer. He asserted that because he was stipulating that the government exhibits constituted child pornography the probative value of the evidence was diminished. The district court denied the motion, permitting the government to present "representative samples"and file names. The Court also directed the parties to meet and attempt to reach a stipulation and a joint cautionary jury instruction. The parties agreed to a stipulation advising the jury that the video files obtained from Cunningham’s IP address and physical address depicted real children under the age of 18 engaging in sexually explicit content.

After the governm…

Discovery for Organizational Defendants / Invited Error / Inconsistent Verdicts

United States v. Maury, --- F.3d ----, 2012 WL 4074565 (3d Cir. Sept. 17, 2012).  In a lengthy decision affirming convictions for organization and multiple individual defendants under the Clean Water Act, the Court addresses multiple issues and, in short, held: (1) Rule governing discovery rights of organizational defendants mandated disclosure only of the binding statements (Fed. R. Crim. P. 16(a)(1)(C)(i), (ii)), that related to alleged misconduct and not of all statements made by employees; (2) "invited error" doctrine applied and prevented defendants from objecting to district court's actions in giving the lesser-included offense and simple negligence instructions which they had requested; and (3) fact that the jury convicted defendants only of lesser-included offense of negligently violating the Clean Water Act, rather than any willful violation, and at same time found them guilty of knowingly participating in conspiracy to violate the CWA, was not necessarily inco…

Court articulates factors for egregious and widespread violations of Fourth Amendment and whether consent is voluntary

In Oliva-Ramos v. Attorney General of the U.S., --- F.3d ----, 2012 WL 4017478 (3d Cir. Sept 13, 2012), an appeal from an order of removal and denial of the petitioner’s motion to reopen the proceedings, the Third Circuit remanded for proceedings to determine whether a 4:30 a.m. ICE raid into an apartment, with five or six armed officers, violated the Fourth Amendment and similar regulatory provisions. The officers presented an administrative arrest warrant for one person at the apartment of her sister. The subject of the warrant was not home, but the officers, with questionable consent by the sister, entered the apartment, woke everyone inside, questioned them, blocked their exit, kept them sitting down, and eventually arrested anyone who could not document he was legally present in the United States. The arrestees were handcuffed, placed in a van, and driven to other locations, while agents conducted more raids and filled the van with more people. An immigration judge ordered …

When Considering a Request By the Government to Modify the Terms of Supervised Release, a Court May Not Impose Any New Terms That Would Create a Greater Deprivation of Liberty Than Necessary to Achieve The Sentencing Goals Established in 18 U.S.C. §3553(a).

In United States v. Murray, Nos. 11-3196, 11-3197 (3d Cir. September 5, 2012), the Third Circuit considered the question of when it is appropriate for a district court to modify the conditions of supervised release.  District courts have the authority under 18 U.S.C. §3583(e)(2) to change the terms of supervised release after proper consideration of the factors listed in 18 U.S.C. §3553(a).  Federal Rule of Criminal Procedure §32.1(c) requires that a hearing be held before any change in supervision conditions.  Also, the defendant has a right to attend the hearing with his attorney and present mitigating arguments.  The Third Circuit held, in this case, that a district court may only grant a request to modify the terms of supervised release when the changes will not result in a greater deprivation of liberty than is necessary to achieve the purposes of sentencing set forth in §3553(a). When approving new terms and conditions, the district court must explain how the changes are co…

Weapons suppressed: random male observed in a conversation being shown a gun did not give reasonable suspicion to detain him, and subsequent flight did not elevate encounter to probable cause to arrest.

In United States v. Navedo, No. 11-3413 (3d Cir. Sept. 12, 2012), http://www.ca3.uscourts.gov/opinarch/113413p.pdf, undercover officers were parked on a block in Newark, which was not found to be a high crime area, but in which there were two, recent unrelated incidents involving guns: two months before a shooting occurred, and one month before there was a domestic violence report of a man threatening a woman with a gun. The officers observed the defendant, whom they did not know, come out of a multi-unit building and stand on the porch. Two men approached, and the defendant walked down from the porch to speak with them. The conversation appeared ordinary and then one of the approaching men took from his backpack and showed to the defendant what appeared to be a gun. The officers approached and the men ran. The defendant ran into the building, up two flights of stairs, and attempted to enter his apartment. Officers tackled him in the doorway to the apartment and there were weapo…

The Prohibition Against General Sentences Does Not Apply to Non-Guideline Sentences.

United States v. Martorano, No. 11-2864 (3d Cir. September 5, 2012)

    George Martorano was charged with nineteen counts in relation to the wholesale distribution of drugs, including conspiring to distribute drugs and supervising a Continuing Criminal Enterprise (CCE). He pled guilty to all nineteen counts.   In 1998, he was sentenced to life in prison. The district court did not issue a sentence for each individual count, but rather imposed a general sentence of life imprisonment. Notably, life imprisonment exceeded the statutory maximum on 18 of the 19 counts; only the CCE count allowed for a life term.

     Mr. Martorano filed numerous appeals and post-conviction motions over the years. In this appeal, Mr. Martorano argued that under the Third Circuit’s holding in United States v. Ward, 626 F.3d 179 (3d Cir. 2010), his general sentence was illegal. In Ward, the Court reversed the 25-year general sentence, which exceeded the statutory maximum on 3 of the 5 counts, becaus…

Crack reduction cases: Court upholds denial of proportional reductions below amended guideline range to account for variance in original sentence

In United States v. Berberena (Sept. 11, 2012), , the Court affirmed denials of sentence reductions below the amended Guideline range in two crack reduction cases. When Amendment 750 to the Sentencing Guidelines implemented the Fair Sentencing Act by reducing the crack-powder disparity, the defendants moved for sentence reductions under 18 U.S.C. § 3582(c)(2). Both defendants had received below Guideline sentences. In making Amendment 750 retroactive, the Sentencing Commission also adopted a new version of U.S.S.G. § 1B1.10, the policy statement governing “Reduction in Term of Imprisonment as a Result of Amended Guideline Range.” As amended, §1B1.10 provides that “the court shall not reduce the defendant’s term of imprisonment . . . to a term that is less than the minimum of the amended guideline range.” § 1B1.10(b)(2)(A) (Nov. 2011). The one exception is for defendants who provided substantial assistance to the government. § 1B1.10(b)(2)(B) (Nov. 2011). Before the 2011 amend…

More from Court on Hobbs Act Sufficiency

In US v. Powell, No. 11-2432 (Aug. 30, 2012), the Court looks again at sufficiency of the evidence to prove interstate commerce in a Hobbs Act prosecution. Powell and his co-defendant followed merchants from their businesses to their homes to rob them. The Court characterized the question on appeal as: whether a robbery of an individual in her home requires proof of a more substantial connection to interstate commerce than a robbery committed at a place of business. Here, because Powell specifically targeted his victims because they were business owners and he believed they would be in possessions of business proceeds, his crimes satisfied the Hobbs Act’s jurisdictional nexus. The natural consequence of this would be an actual or potential effect on interstate commerce. The Court also noted that the convictions could have been sustained under a "depletion of assets" theory.

Giving the Third Circuit model instruction in this case was appropriate (the defense had wanted …

Court Rejects Third-Party Appeal; No Implied Right to Victim Appeal Under MVRA

In U.S. v. Stoerr, No. 11-2787 (Aug. 28, 2012), Stoerr’s employer, Sevenson Environmental Services, appealed the restitution order in his case, arguing that because it had voluntarily repaid Stoerr’s victim, the restitution order should have been to Sevenson, instead of the victim. The Court dismissed the appeal, finding that Sevenson, as a non-party, lacked standing to appeal.

Stoerr solicited and accepted kickbacks in his work overseeing a Superfund cleanup, and he passed the cost of the kickbacks on to victim Tierra, a company not receiving kickbacks, and to the EPA. When Sevenson learned of this, it compensated Tierra, and both brought a civil action against Stoerr and sought restitution in this proceeding. The district court denied restitution, holding that Tierra was the victim, and that Sevenson could pursue the civil remedy. The government moved to dismiss Sevenson’s appeal.

Sevenson acknowledged the presumptive rule that, as a non-party, it could not appeal; however, it a…

Court Rejects Challenge to USVI Gun Statute

In U.S. v. Fontaine, No. 11-2602 (August 28, 2012), a Virgin Islands case, the Circuit held that the local statute criminalizing unauthorized possession of an "imitation" firearm during a crime of violence was not void for vagueness. It also held that the government had proved its case against Fontaine.

The statute reads: Whoever, unless otherwise authorized by law, has, possesses, bears, transports or carries either, actually or constructively, openly or concealed any firearm . . . loaded or unloaded . . . shall be sentenced to imprisonment of not less than one year nor more than five years except that if such person shall have been convicted of a felony in any state, territory, or federal court of the United States, or if such firearm or an imitation thereof was had, possessed, borne, transported or carried by or under the proximate control of such person during the commission or attempted commission of a crime of violence, as defined in subsection (d) hereof, then such p…

Court Finds Proof of Witness Tampering Insufficient

In U.S. v. Shavers, No. 10-2790 (Aug. 27, 2012), the Court considered the defendants’ Hobbs Act and witness tampering convictions, arising out of the robbery of a "speak-easy" in Philadelphia.

On the Hobbs Act counts, the defendants had argued that the government failed to show a "substantial effect" on interstate commerce. The Court held that only a minimal or potential effect was necessary, and found that the evidence – which showed the speakeasy had operated for years, the proprietress bought alcohol at retail and resold it to friends, and made enough money to help pay her bills, but that she shut down the business after the robbery – met that threshold, particularly if robberies like this were considered in the aggregate. (This opinion, and Powell, from a few days later, contain good discussions of the case law in this area, thanks to the strong challenges made by the defendants. Check them out for your next ISC case.)

The Court found the evidence on the wit…

Implied bias doctrine disqualifies jurors who are close relatives of the parties involved in a trial, but does not categorically impute bias to coworkers of key trial witnesses.

In U.S. v. Ricardo Mitchell, No. 11-2420 (3d Cir. Aug. 7, 2012), Defendant Mitchell was convicted on charges relating to his possession of a firearm with an obliterated serial number. During the judge’s voir dire, Juror No. 28 said that she was a "close cousin" of the prosecutor, and Juror No. 97 said that he was an employee of the police department who worked with Government witnesses. Neither party posed additional questions to the jurors, challenged them for cause, or used a peremptory strike, and both were seated as members of the jury.

Later that day, Mitchell filed a motion to strike Juror 97 for cause. The District Court denied the motion. The jury found Mitchell guilty, and he was sentenced to 15-years’ imprisonment. Mitchell appealed to challenge the presence of both Juror 28 and Juror 97 on the jury.

Addressing the doctrine of implied juror bias — a legal question focusing on whether an average person in the juror’s position would be prejudiced, regardless of actual…

Evidence seized in warrantless search of house admissible where police had mistaken but reasonable belief that the house was abandoned, based on totality of circumstances.

In U.S. v. Harrison, No. 11-2566 (3d Cir. Aug. 7, 2012), Defendant Khayree Harrison was charged with possessing crack cocaine with intent to distribute. The physical evidence against him — a gun, scales, pills, and crack cocaine on a table next to the recliner in which he was sitting — was obtained when police surprised Harrison in his rented house, having walked through the open front door without a warrant. Harrison moved to suppress the evidence seized during arrest without a warrant as violating the Fourth Amendment right against unreasonable search and seizure. The District Court denied Harrison’s motion to suppress, finding that although Harrison had a reasonable expectation of privacy in his rented house, the police acted under the reasonable (but mistaken) belief that the house was abandoned. Harrison was convicted at trial and sentenced to 62 months’ imprisonment. On appeal, the Third Circuit affirmed the conviction, holding that the District Court properly denied the suppres…

Phrase in federal assault statute, 18 U.S.C. § 113(a)(3), stating "without just cause or excuse," is an affirmative defense, rather than an element of the offense

In United States v. Taylor, No. 11-2875 (3d Cir. July 25, 2012), the Third Circuit was presented with the question of whether, by including the phrase "without just cause or excuse," in provision of the federal assault statute covering assault with a dangerous weapon, 18 U.S.C. § 113(a)(3), Congress intended to convert justification from an affirmative defense into an element of the offense for purposes of the statute. The Court ultimately held that the existence of just cause or excuse is an affirmative defense to a § 113(a)(3) violation which the defendant must prove by a preponderance of the evidence.

18 U.S.C. § 113(a)(3) provides, in pertinent part:

Whoever, within the special maritime and territorial jurisdiction of the United States, is guilty of an assault shall be punished as follows ... Assault with a dangerous weapon, with intent to do bodily harm, and without just cause or excuse, by a fine under this title or imprisonment for not more than ten years, or both.

Unlicensed Distribution of Prescription Drugs Not an 'Aggravated Felony'

In Borrome v. Attorney General, No. 11-1975 (July 18, 2012), the Circuit applies the "categorical" approach used to assess the nature of prior convictions to hold that a federal conviction for the unlicensed wholesale distribution of prescription drugs is not an "aggravated felony."

The case reaches the Circuit by way of a removal proceeding instituted against a citizen of the Dominican Republic following his conviction under a federal indictment alleging the distribution of prescription drugs including Oxycontin. The term "aggravated felony" is defined by the Immigration and Nationality Act to include "illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18)." 8 U.S.C. § 1101(a)(43)(B). Under the categorical approach, "we must look only to the statutory definitions of the prior offenses, and may not consider other evidence concern…

Grant of Rule 29 Motion Based on Sufficiency Grounds and Issued After Jury’s Guilty Verdict Reversed

In United States v. Claxton, No. 11-2552 (July 9, 2012), the Third Circuit addressed an interesting issue of whether a rational fact-finder could conclude beyond a reasonable doubt that the Defendant knowingly participated in a drug trafficking organization.

Claxton was indicted with other individuals for participating in a drug-trafficking conspiracy, in violation of 21 U.S.C. § 846. The indictment alleged that the conspirators, including Claxton, sought to possess large quantities of cocaine in order to distribute that cocaine for “significant financial gain and profit”.

At the jury trial, after the Government rested its case, Claxton moved for a judgment of acquittal under Rule 29. The district court expressed concern about the sufficiency of the evidence introduced by the Government, but reserved judgment on the motion and submitted the case to the jury. The jury found Claxton guilty. Claxton then renewed his motion for judgment of acquittal, which was ultimately granted. The Gove…

Circuit Invalidates Waiver of Counsel at Trial Because Court Misinformed Defendant re Maximum Penalty

In United States v. Booker (3d Cir. 7/2/12), http://www.ca3.uscourts.gov/opinarch/072835p.pdf, the defendant represented himself at trial following an on-record colloquy in which the judge made a mistake on the sentencing range as to one count, telling the defendant he faced a minimum of five years instead of twenty-five. He also failed to advise the defendant that the maximum was life and that it must run consecutively with other counts. The panel (Greenaway for majority) finds that the waiver was structural error and requires reversal on all counts.

       Using language that may be of some use in attacking other uninformed waivers, the court holds that the waiver was invalid regardless of what effect the misinformation might have actually had on the defendant:


It is the District Court that bears the burden of ensuring that a defendant is acting voluntarily and with the appropriate knowledge before relinquishing his rights. Peppers, 302 F.3d at 130-31. Because we have be…

Plain Error Rule Applies to Review of Honest Fraud Jury Instructions Administered Before Skilling; Extraordinary Circumstances Required Review of Waived Sentencing Claim

In United States v. Ashley Andrews, No 11-1239 (Third Circuit, June 4, 2012), The Defendant, Ashley Andrews, was a contractor whose company, GRM, could not get a government contract to repair Virgin Islands sewers without a Virgin Islands business license, which in turn required a “tax clearance” letter.  To get the tax clearance letter, Andrews listed one Ohanio Harris, a Special Assistant to the Governor of the Virgin Islands, as the president of GRM on the February, 2002 application for the license. Andrews had been president of GRM until January, 2002— he resumed that office in March, 2002.  In March, 2002, Harris and Andrews went to neighboring Tortola, where Harris introduced himself to an American engineering firm as the Governor’s special assistant, vouched for Andrews to the firm’s president, and told the firm he could get a meeting with the Governor of the VI to discuss awarding sewer construction work. Harris later testified that later that day Andrews gave him $2500 in ca…

Definition of “Sexual Contact” under U.S.S.G. § 2G1.3(b)(4)(A) Does Not Require Contact with Minor Victim

In United States v. Pawlowski, No. 10–4105 (3d Cir., June 19, 2012), the defendant challenged his conviction for attempted enticement of a minor under 18 U.S.C. § 2422(b). The defendant initiated an online communication on the social networking site "My Yearbook" with an individual portrayed as a 15 year old girl named "Ashley". Ashley was in fact a detective from the Allegheny County District Attorney's Office. During their online correspondence, the defendant inquired several times about Ashley's age. Initially, Ashley listed her age as 98, then later responded that she was 15 years old. Ashley also provided pictures of herself, which were in fact pictures of a female police officer during her teenage years. The court ruled that this evidence was sufficient to prove that the defendant believed he was communicating with a minor, as required under § 2422(b).

The Third Circuit also found that the sentencing court properly applied the two-level enhancement u…

Mixed Motives Jury Instruction Proper in Prosecution under Fair Housing Act, 42 U.S.C. § 3631

In United States v. Piekarsky, Nos. 11–1567, 11–1568 (3d Cir., June 18, 2012), two of several defendants charged in the brutal beating death of a Latino American, and subsequent cover up, in Shenandoah, Schuylkill County, Pennsylvania, appealed their convictions under the federal Fair Housing Act, 42 U.S.C. § 3631. The statute criminalizes conduct which interferes with, intimidates or injures an individual because of his race or ethnicity and his decision to reside in a certain area. The defendants claimed that the trial court erred by giving the jury a “mixed motives” instruction. The defendants maintained that such an instruction was legally insufficient to support a conviction under § 3631 because it allowed the jury to find them guilty based upon evidence of other motives in addition to racial animus. The Third Circuit cited other circuits to conclude that the statute’s use of the term “because” did not “connote exclusivity or predominance.” Therefore, the defendants’ possession o…

Double Jeopardy and Due Process did not preclude trial on a bifurcated 922(g) count after the district court declared a mistrial on a 924(c) count.

The defendant in United States v. Figueroa, No. 11-2597 was charged with two counts of drug distribution, carrying a firearm during a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1), possession of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Figueroa admitted selling narcotics twice to an undercover officer. During the second sale, the officer testified that he saw a few inches of what he thought was a gun in Figueroa’s waistband. He could not be sure what the object was because it was dark outside. After that same sale, the police pulled over Figueroa’s girlfriend’s car, in which he was the passenger. During the stop, the police recovered a handgun from the glove compartment.  Both Figueroa and his girlfriend denied that they owned or even knew about the gun. At trial, the government prosecuted the 924(c) charge under the theory that Figueroa had a gun in his waistband during the controlled buy. They planned to prosecute the felon-in…