USCA4 Appeal: 24-4069 Doc: 29 Filed: 12/09/2024 Pg: 1 of 5

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 24-4069

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MARSAWN DAGGINS,

Defendant - Appellant.

Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. Thomas S. Kleeh, Chief District Judge. (1:22-cr-00028-TSK-MJA-1)

Submitted: December 5, 2024 Decided: December 9, 2024

Before GREGORY and RICHARDSON, Circuit Judges, and FLOYD, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Lance E. Rollo, Morgantown, West Virginia, for Appellant. William Ihlenfeld, United States Attorney, Wheeling, West Virginia, Zelda E. Wesley, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Clarksburg, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 24-4069 Doc: 29 Filed: 12/09/2024 Pg: 2 of 5

PER CURIAM:

Marsawn Daggins pled guilty, pursuant to a written plea agreement, to possession

of a firearm by a convicted felon, in violation of

(g)(1), 924(a)(2) (2018). 1

The district court sentenced Daggins to 57 months’ imprisonment. On appeal, Daggins

argues that the district court erred in calculating her advisory Sentencing Guidelines range

by applying a two-level enhancement pursuant to U.S. Sentencing Guidelines Manual

§ 2K2.1(b)(1)(A) (2021), based on the court’s finding that Daggins possessed three

firearms, rather than one. 2 Finding no reversible error, we affirm.

We review a defendant’s sentence for both procedural and substantive

reasonableness “under a deferential abuse-of-discretion standard.” United States v. Lewis,

(4th Cir. 2021) (internal quotation marks omitted). In considering a

challenge to the calculation of the Sentencing Guidelines, we review the district court’s

legal determinations de novo and its factual findings for clear error.

“A [factual]

finding is clearly erroneous when although there is evidence to support it, the reviewing

court on the entire evidence is left with the definite and firm conviction that a mistake has

1 Section 924(a)(2) was amended and no longer provides the penalty for § 922(g) convictions. See Bipartisan Safer Communities Act,

(c),

, 1329 (2022). The new penalty provision does not apply in this case, however, because Daggins committed her offense before the June 25, 2022, amendment to the statute. 2 Daggins has not properly raised any other issues for our consideration in her opening brief. See Grayson O Co. v. Agadir Int’l LLC,

(4th Cir. 2017) (“A party waives an argument by failing to present it in its opening brief or by failing to develop its argument—even if its brief takes a passing shot at the issue.” (cleaned up)).

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been committed.” United States v. Wooden,

(4th Cir. 2018) (internal

quotation marks omitted). “If the district court’s account of the evidence is plausible in

light of the record viewed in its entirety, the court of appeals may not reverse it even though

convinced that had it been sitting as the trier of fact, it would have weighed the evidence

differently.” United States v. Ferebee,

(4th Cir. 2020) (internal

quotation marks omitted).

The Government is required to prove disputed Guidelines enhancements by a

preponderance of the evidence. United States v. Kobito,

(4th Cir. 2021).

“This burden simply requires the trier of fact to believe that the existence of a fact is more

probable than its nonexistence.” United States v. Patterson,

(4th Cir.

2020) (internal quotation marks omitted). Unlawful possession of a firearm may be actual

or constructive and it may be exclusive or joint. United States v. Lawing,

(4th Cir. 2012). “A defendant may have constructive possession of contraband even

if it is not in h[er] immediate possession or control.” United States v. Shorter,

(4th Cir. 2003). Constructive possession can be shown where the defendant “had

the power and the intention to exercise dominion and control over the firearm,” and may

be established by either direct or circumstantial evidence. United States v. Al Sabahi,

(4th Cir. 2013) (internal quotation marks omitted). “[M]ere proximity to the

contraband, . . . mere presence on the property where the contraband is found, or . . . mere

association with the person who does control the contraband” is insufficient to establish

dominion and control over the contraband. United States v. Blue,

(4th

Cir. 2015).

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In January 2021, law enforcement officers executed a search warrant on an

apartment where several undercover controlled drug purchases had occurred in connection

with a police investigation into a drug distribution conspiracy. Upon executing the warrant,

officers found Daggins, the only person in the residence at the time, in a bedroom with a

pistol, a digital scale, and her cell phone next to her. Two other firearms were found

unsecured in common areas of the apartment, along with drugs, several cell phones, and

prescription pads from two different doctors. Police obtained a warrant to search Daggins’s

cell phone, which contained text messages setting up the acquisition and sale of narcotics

and arranging to obtain firearms. At sentencing, the court found that because Daggins was

alone in the apartment, the two additional firearms were easily accessible to her, there were

drugs and drug paraphernalia present, and her text messages contained evidence of drug

and gun activity, it was reasonable to infer under the preponderance of the evidence

standard that she had the ability and intent to exercise dominion and control over the other

two firearms in connection with drug activity, and was therefore in constructive possession

of them.

On appeal, Daggins contends that there was insufficient evidence to support the

sentencing enhancement, because the Government failed to show anything more than mere

proximity to the two firearms located outside of the bedroom where she was found.

However, viewing the evidence in light of the standards articulated above, we discern no

clear error in the district court’s finding that Daggins constructively possessed the two

firearms underlying the enhancement. Accordingly, we affirm the district court’s

judgment. We dispense with oral argument because the facts and legal contentions are

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adequately presented in the materials before this court and argument would not aid the

decisional process.

AFFIRMED

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