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Click here for the full text of this decision FACTS:In 2002, a New Orleans police officer saw Nyron Jones remove a handgun from his front waistband and place it under a house. Police arrested Jones, who had an earlier felony conviction for robbery, and subsequently charged him with unlawful possession of a firearm by a convicted felon under 18 U.S.C. �922(g)(1). He pleaded guilty and was sentenced to 33 months of imprisonment and three years of supervised release. Only four months into his supervised release following his completion of that term of imprisonment, authorities arrested Jones and again charged him with being a felon in possession of a firearm under 18 U.S.C. �922(g)(1). At Jones’ trial on this second firearms charge, New Orleans Police Detective Brian Pollard testified that while in a police car on a night patrol, he saw Jones adjust an object in his front waistband. Suspecting that object to be a firearm, Pollard got out of the patrol car and approached Jones, who according to Pollard fled into an alley between two houses. Pollard testified that he followed Jones into the alley and saw him remove an object from his waistband and toss it under one of the houses. Shortly thereafter, Pollard recovered a handgun from underneath that house. Keva Peters, Jones’ cousin, was present when authorities arrested Jones for that offense. At Jones’ trial, Peters contradicted Pollard’s testimony, stating that he and Jones were standing on the porch of a house when Pollard approached and that Jones was questioned and detained in that area but never went into the alley between the two houses. Peters also testified that he saw Pollard go into the alley after Jones had been placed in police custody and return with a firearm. Even though Jones stipulated to his convicted felon status, the government filed a motion to introduce the factual basis from Jones’ prior firearm offense. After hearing opening statements and some of the testimony, the district court granted the government’s motion. At the conclusion of a two-day jury trial, the jury convicted Jones of the charge. At sentencing, the court imposed a term of 78 months of imprisonment, expressing several reasons for its decision to sentence Jones above the advisory Sentencing Guidelines range of 33 to 41 months. The court specifically noted that Jones had been convicted of precisely the same offense just a few years earlier and had been out on supervised release for only four months when he was arrested for this repetition of the same crime. In a separate proceeding after Jones was sentenced, a different district judge, the one who was continuing to oversee Jones’ earlier felon-in-possession case, revoked his supervised release and imposed the statutory maximum revocation sentence of two years of imprisonment, to be served consecutively to his new sentence for firearm possession. This revocation sentence of 24 months represented an upward variance from the guidelines range of 6 to 12 months for such a supervised release violation. Jones appealed both convictions. HOLDING:Vacated and remanded. Character evidence under Texas Rule of Evidence 404(b) must be strictly relevant to the particular offense charged, the court stated. Evidence of prior crimes, the court further stated, is not admissible in criminal cases unless it is relevant to an issue other than the defendant’s character or his propensity to act in accordance therewith; and its incremental probative value is not substantially outweighed by the danger of unfair prejudice to the defendant. Jones contends that evidence of his prior firearms crime was inadmissible, because its only relevance was to prove his propensity to possess firearms illegally, an impermissible purpose under Rule 404(b), and because its probative value was less than its unfairly prejudicial impact. The district court concluded that because Pollard’s testimony was arguably suspect, the government might have to offer evidence in support of the alternative theory that Jones constructively possessed the firearm found under the house. This finding formed the basis of the district court’s ruling that evidence of Jones’ prior crime was admissible to show the knowledge and intent elements of constructive possession. Specifically, the court stated, the government can prove possession by showing that a defendant exercised either direct physical control over a thing (actual possession) or dominion or control over the thing itself or the area in which it was found (constructive possession). Some character evidence could be used to show constructive possession, but not actual possession, the court stated. The court concluded that because Pollard testified that he saw Jones throw the gun under the house, the case was exclusively an actual possession case, albeit one based on circumstantial evidence. Thus, the court found that evidence of Jones’ prior crime was not relevant in proving actual possession. Accordingly, the court vacated Jones’ sentence and conviction and remanded the matter to district court. As for the additional sentence revoking Jones’ probation, the court held that it was not plainly erroneous. Nonetheless, the court remanded the matter back to the district court to be reconsidered in light of the vacating of the conviction and sentence. OPINION:Wiener, J.; Garwood, Wiener and Clement, J.J.

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