Before KING, SMITH, and HAYNES, Circuit Judges. HAYNES, Circuit Judge: While at a friend’s house, Tredon Smith touched a Smith & Wesson caliber revolver. He later pleaded guilty to being a felon in possession of that firearm in violation of 18 U.S.C. § 922(g)(1). In connection with his guilty plea, he signed a factual basis document indicating the only interaction he had with the firearm was that he had “touched” it. The district court accepted that factual basis as sufficient to sustain Smith’s § 922(g)(1) conviction. For the following reasons, we VACATE Smith’s guilty plea, conviction, and sentence and REMAND for entry of a new plea and necessary proceedings thereafter. Background Midland, Texas police officers arrested Smith after they recovered three stolen firearms on April 6, 2019. Following his arrest, Smith was shown a picture of one of the firearms—a Smith & Wesson .38 caliber revolver— which he admitted to having seen and touched at a friend’s house. He stated that he did not remember touching the other firearms.[1] Smith was later arrested and charged with being a felon in possession of the .38 revolver on or about April 29, 2019[2] in violation of 18 U.S.C. § 922(g)(1). Smith pleaded guilty to the charge. In connection with that plea, Smith signed a factual basis indicating that he had “touched” the firearm, which the district court accepted as a sufficient basis for his conviction. The district court then sentenced Smith to 57 months of imprisonment, with three years of supervised release to follow. Smith timely appealed.[3] Jurisdiction The district court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction to review Smith’s conviction under 28 U.S.C. § 1291. Discussion Smith challenges his plea colloquy, primarily contending that the district court incorrectly concluded that his admission to having “touched” the .38 revolver constituted a sufficient basis for possession as required to sustain a conviction under 18 U.S.C. § 922(g)(1).[4] Smith did not raise this argument in the district court, so our review is for plain error. To demonstrate plain error, Smith must show (1) an error (2) that is “clear or obvious” and (3) that affects his “substantial rights.” Puckett v. United States, 556 U.S. 129, 135 (2009); see also United States v. Vonn, 535 U.S. 55, 58–59 (2002) (noting that plain error review applies to alleged deficiencies in plea colloquies); United States v. Marek, 238 F.3d 310, 315 & n.16 (5th Cir. 2001) (en banc) (same). If we conclude there was a plain error, we have the discretion to correct it if it “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Puckett, 556 U.S. at 135 (cleaned up). Clear or Obvious Error Among other requirements, Federal Rule of Criminal Procedure 11 requires a federal district court taking a guilty plea to independently evaluate whether the defendant’s admitted-to conduct actually constitutes a violation of the statute under which he is charged. Marek, 238 F.3d at 314. Typically, our review centers on the facts the defendant admitted to at the time of his plea colloquy—including information from any factual basis document submitted to the district court. Id. But where, as here, review is for plain error, we may also “scan the entire record” for any other facts supporting the conviction. United States v. Trejo, 610 F.3d 308, 313 (5th Cir. 2010). Smith pleaded guilty to possessing the .38 revolver in violation of 18 U.S.C. § 922(g)(1). That statute prohibits a felon like Smith from “knowingly possess[ing] a firearm,” either actually or constructively. United States v. Huntsberry, 956 F.3d 270, 279 (5th Cir. 2020); United States v. Meza, 701 F.3d 411, 418–19 (5th Cir. 2012). A defendant has actual possession over a firearm when he has “direct physical control”—such as when he has the firearm “on his person,” is seen “carrying the firearm,” or is tied to the firearm with “forensic evidence.” United States v. Hagman, 740 F.3d 1044, 1048, 1049 & n.2 (5th Cir. 2014) (collecting cases). Constructive possession is broader: a defendant has constructive possession when he has “ownership, dominion, or control” over either the firearm itself or over the premises in which the firearm is found. Id. at 1049. The common denominator between the two is control; absent some indication that the defendant controlled the firearm, conviction is improper under either theory of possession.[5] Id. There is no evidence in the record that Smith had either actual or constructive possession of the .38 revolver (indeed, the Government all but abandoned the notion of constructive possession). At the outset, it is undisputed that Smith did not control the relevant premises (his friend’s residence), and there is no evidence in the record that Smith owned the .38 revolver or otherwise controlled it or its location. Turning to direct possession, the only evidence in the entire record regarding Smith’s interaction with the .38 revolver is his admission to “touching” the firearm.[6] The Government’s argument that we should also consider the “fact” that Smith’s fingerprints were on the .38 revolver is unavailing for the simple reason that it is not a fact at all.[7] We see no evidence that Smith’s fingerprints were actually on the firearm. The factual basis does not say that they were. It merely indicates that officers asked Smith “why his fingerprints would be” there. A detective’s question is not evidence of a fact: it could just as easily be an interrogation tactic to get Smith to confess; indeed, the officers posed the same question with respect to two other firearms that Smith maintains he never touched at all. In fact, we see no actual evidence of any fingerprints whatsoever (and the Government points to nothing else), let alone the sort of fingerprint evidence that would suggest Smith controlled the firearm. If the Government had that evidence, presumably, it could easily have included it in the record since possession of other firearms was a question in the sentencing process. The Government also seems to suggest that possession can be inferred from the fact that Smith knew the caliber of the .38 revolver without officers mentioning it to him. But even if we made the questionable assumption that an individual’s knowledge of an object’s features can imply prior control over the object,[8] the officers here showed Smith the picture of the .38 revolver before he told them its caliber. So, there is no evidence that Smith had private knowledge indicating prior control; he could have simply determined the caliber by looking at the picture. Dominion or control over this particular firearm was not necessary to know that fact. There is no other evidence in the record suggesting more than simple touching; Smith made no further admissions suggesting any sort of deeper involvement with the firearm at any point, and the affidavit submitted in connection with the criminal complaint and arrest warrant just contains the same information as the factual basis. At bottom, then, the only fact that could conceivably support possession is Smith’s admission to merely “touching” the .38 revolver. The plain text of § 922(g), logic, and an analysis of our precedents all reveal that mere touching is insufficient to establish possession. First, the text. The statute, § 922(g), proscribes only “possess[ing] . . . [a] firearm.” 18 U.S.C. § 922(g). A look at the dictionary confirms the common-sense intuition that possession does not encompass mere touching; to possess something is to control it—it is “to be master of” the thing or “to have and hold [it] as property.” WEBSTER’S NEW INTERNATIONAL DICTIONARY 1926 (2d ed. 1934) (“WEBSTER’S SECOND”).[9] By contrast, to touch something is merely “[t]o lay the hands, fingers, etc., upon so as to feel” it or “to perceive [it] by means of the tactile sense.” Id. at 2676.[10] No one would confuse the simple act of laying a hand or finger on an item, on its own, as making someone the “master” over the item. Every day, humans touch countless things we don’t “possess,” such as countertops at the grocery store. (Why else would there be sanitizer dispensers everywhere during a pandemic?). To say all of those interactions are possession wildly expands the logical definition of that word. The dissenting opinion argues that we reach that conclusion only after having selectively chosen to rely on the Webster’s Second dictionary,[11] which, the dissenting opinion asserts, is too old to provide an accurate definition for the use of the word “possess” in 1986 (the year the term was added to § 922(g)).[12] Why the dissenting opinion takes issue with the definitions we have cited is unclear. After all, the “master of” connotation we have discussed also appears in the dissenting opinion’s preferred source, Webster’s Third—as does the synonymous “control” connotation, which appears in all the dictionaries cited in both opinions. See WEBSTER’S NEW INTERNATIONAL DICTIONARY 1770 (3rd ed. 1961) (“WEBSTER’S THIRD”). What’s more, these connotations (in Webster’s Second and elsewhere) are plainly applicable to both constructive and actual possession— it is, for example, no innovation to say that one can be “master of” something by exercising “direct physical control” over it. Hagman, 740 F.3d at 1048. Whatever the cause for concern with respect to Webster’s Second, we are unpersuaded. The Supreme Court has used that dictionary to interpret authorities from 1986.[13] It has also used it in interpreting provisions of the United States Code related to § 922.[14] Our court, too, has used it in interpreting a range of modern statutes.[15] The dictionary is, after all, widely considered to be “exhaustive on traditional legal and literary terms.” Jeffrey L. Kirchmeier & Samuel A. Thumma, Scaling the Lexicon Fortress: The United States Supreme Court’s Use of Dictionaries in the Twenty-First Century, 94 MARQ. L. REV. 77, 96 (2010) (quoting ANTONIN SCALIA & BRYAN GARNER, MAKING YOUR CASE: THE ART OF PERSUADING JUDGES 213 (2008)). Webster’s Second is, in short, perfectly well-suited to the task at hand. Why, then, the dissenting opinion’s difficulty with it? The only reason we can see is that Webster’s Second forecloses the dissenting opinion’s proposed “seize” concept (which it lifts out of a Webster’s Third definition that also includes “control” language) by describing “seize” as an “[a]rchaic” usage of “possess.” WEBSTER’S SECOND 1926; see generally Kirchmeier & Thumma, Scaling the Lexicon Fortress, 94 MARQ. L. REV. at 96 (describing Webster’s Third—the exclusive basis for the dissenting opinion’s definition—as “infamously permissive in neglecting to include accurate usage tags” (quoting SCALIA & GARNER, MAKING YOUR CASE at 213)). To treat “seize” as the definitive touchstone of possession for the purposes of § 922(g), then, would disregard the ordinary meaning of the statute’s express language without any justification for doing so.[16] Unsurprisingly, our case law avoids that result by sticking with the plain meaning of the text “possess.” Consistent with our discussion of the common sense of the word, we have repeatedly emphasized that possession requires something more than touching.[17] See generally Huntsberry, 956 F.3d at 279–80; Meza, 701 F.3d at 419; Hagman, 740 F.3d at 1048–49, 1049 n.2. Moreover, we have endorsed jury instructions that prevent a jury from convicting on a possession charge for mere touching alone. Specifically, in United States v. De Leon, we concluded that a specific touching-is-not-possession instruction was “unnecessary” because the given instruction “already required proof that [the defendant] exercised ‘dominion and control’ over the [contraband].” 170 F.3d 494, 498 (5th Cir. 1999). That “dominion and control” language, we said, “implicitly instruct[s]” the jury that “ simply touch[ing]” is insufficient to establish possession.[18] Id. The bottom line: our case law, like the plain text itself, confirms that merely touching an item is not enough to possess it. Indeed, every other circuit to address the subject has reached the same conclusion: it is error to convict on mere touching alone. United States v. Teemer, 394 F.3d 59, 65 (1st Cir. 2005) (noting with approval that the instruction in the case “did not say that merely to touch the [firearm] constituted a crime”); United States v. Beverly, 750 F.2d 34, 37 (6th Cir. 1984) (per curiam) (concluding that “touch[ing]” a firearm is insufficient to establish constructive possession); United States v. Wilson, 922 F.2d 1336, 1339 (7th Cir. 1991) (“Merely touching would not be possessing [a firearm].”); United States v. Williams, 29 F. App’x 486, 488–89 (9th Cir. 2002) (per curiam) (noting that “[c]ase law supports the theory that briefly sampling or handling contraband does not constitute constructive possession” and concluding that the district court reversibly erred in not giving a jury instruction that “momentarily touch[ing] or hold[ing]” is not possession (citing United States v. Kearns, 61 F.3d 1422, 1425 (9th Cir. 1995) (holding that the defendant did not possess marijuana by “briefly touch[ing] and smell[ing] it”))). At bottom, the dissenting opinion’s primary argument to the contrary boils down to the relatively uncontroversial proposition that the length of possession is irrelevant under § 922(g). We agree, but the problem is not whether Smith possessed the firearm for a long enough period of time, it is whether Smith possessed the firearm at all. See Huntsberry, 956 F.3d at 279. That distinction also puts to rest the dissenting opinion’s assertion that our analysis examines affirmative defenses on a factual basis problem; our analysis is not about any species of justified possession defense—we only address what it takes to show the possession element itself. On that score, mere touching, standing alone, is not enough. Thus, given § 922(g)’s plain text and the overwhelming weight of case law on the subject, we conclude that the district court committed a clear and obvious error in treating Smith’s admission to touching the .38 revolver as a sufficient factual basis for his guilty plea on that charge. See United States v. Aderholt, 87 F.3d 740, 744 (5th Cir. 1996) (“The error is evident from a plain reading of the statute and thus, is obvious.”); United States v. Maturin, 488 F.3d 657, 663 (5th Cir. 2007) (concluding that an error was clear and obvious when it conflicted with “plain statutory language” even though we “ha[d] never expressly determined” the issue). Affecting Substantial Rights That error also affected Smith’s substantial rights because, but for the error, he would not have entered the plea. United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004). According to Smith, the deficiency in the factual basis reflects his own (mistaken) belief that mere touching was equivalent to possession. That mistaken belief led him to plead guilty; per Smith, all he did was touch the .38 revolver and he would not have pleaded guilty had he known that was insufficient to establish possession. The error therefore affected his substantial rights. Serious Effect on Fairness, Integrity, or Public Reputation of Proceedings Finally, the error also had a serious effect on the fairness and integrity of the proceedings. The fact that Smith is or could be innocent of possessing the .38 revolver is reason alone for us to correct the district court’s error. United States v. Olano, 507 U.S. 725, 736 (1993) (“The court of appeals should no doubt correct a plain forfeited error that causes the conviction or sentencing of an actually innocent defendant.”). Certainly, Smith could seek post-conviction remedies—including by pursuing potentially viable ineffective assistance of counsel claims relating to the deficiencies in the factual basis—if we were to decline to use our discretion in this case. But remedying this issue on direct appeal serves as a stronger safeguard of the fairness and integrity of the criminal proceedings here, appropriately providing Smith the relief he is due without any further delay. * * * In sum, we hold that the district court plainly erred in accepting Smith’s guilty plea to possessing the .38 revolver on the sole basis that he had touched the firearm. As that error affected the fairness and integrity of Smith’s conviction, we VACATE Smith’s guilty plea, conviction, and sentence and REMAND for entry of a new plea and necessary proceedings thereafter. JERRY E. SMITH, Circuit Judge, dissenting: Based on inapposite precedent and dictionary definitions, the majority precludes prosecutors from proving possession of a firearm solely through physical touch. Now, the government must show that the defendant is the “master of” the firearm—whatever that means. The majority thus engrafts a requirement reminiscent of constructive possession onto our law about actual possession and splices part of an affirmative defense onto § 922(g)’s possession requirement. Worse, it manufactures this newfangled approach on plain-error review. I respectfully dissent. I. Because our review is for plain error, “we may look beyond those facts admitted by the defendant during the plea colloquy and scan the entire record for facts supporting his conviction.” United States v. Trejo, 610 F.3d 308, 313 (5th Cir. 2010). The majority omits some relevant facts: Smith, by his own admission, is the leader of a street gang that burgles vehicles, sells narcotics, and steals, possesses, and sells firearms. Two criminal activities give rise to this case, although the majority notes only one. First, consistently with Smith’s characterization of his gang, officers found Smith fleeing the scene of a vehicle burglary. He had a glass-breaking tool in his pocket, and his hands were bleeding. The officers like-wise observed blood in the vehicle. According to the vehicle’s owner, the burglars moved two firearms during the burglary, taking them from under the backseat of the vehicle. Second, as the majority notes, Smith—a felon— admitted to touching a firearm at his friend’s house. The government charged Smith with possessing (1) the two guns in the burgled vehicle and (2) the firearm he touched at his friend’s house. Smith agreed to plead guilty of possessing the firearm he touched at his friend’s house. In exchange, the government dropped the charges concerning possession of the two guns in the burgled vehicle. Smith now seeks to unwind his guilty plea as to the gun he touched in his friend’s house. II. Three problems plague the majority’s conclusion that mere touching doesn’t constitute possession: It (A) relies on precedent about constructive— not actual—possession, (B) relies on dictionary definitions that resemble the definition of constructive—not actual—possession, and (C) engrafts part of an affirmative defense onto the definition of “possess.” A. Possession can be actual or constructive.[19] The majority starts off on the right foot by noting that the government doesn’t contend that Smith constructively possessed the firearm. And that makes sense. The government typically reserves constructive possession for situations in which officers find a weapon in the defendant’s residence or some other place he frequented.[20] And, here, we don’t have many facts about the premises where the gun was located. Thus, the government prudently doesn’t pursue constructive possession and relies instead on actual possession.[21] It’s strange, then, that, in deciding a case about actual possession, the majority relies almost entirely on precedent about constructive possession. Take, for instance, the crux of its analysis: The majority distills from Huntsberry, 956 F.3d at 279–80, and Meza, 701 F.3d at 419, the proposition that “possession requires something more than touching.” But neither opinion said that.[22] Neither involved a defendant’s touching contraband.[23] Neither is even about actual possession.[24] Those were constructive-possession cases. See Huntsberry, 956 F.3d at 279; Meza, 701 F.3d at 419. Next, the majority cites United States v. De Leon, 170 F.3d 494, 498 (5th Cir. 1999), another case about constructive—not actual—possession.[25] According to the majority, De Leon shows that “merely touching an item is not enough to possess it.” But De Leon, 170 F.3d at 497, actually said that a “thumbprint on [a] box of ammunition would . . . lead a jury to reasonably infer that De Leon . . . possessed control over [the box].” The majority distills a contradictory point from De Leon only by obfuscating the object being touched. According to the majority, under De Leon, “‘simply touching’ is insufficient to establish possession.” “Touching what?” the reader might ask. The majority’s gloss over the object omits a crucial detail: De Leon’s thumbprint was on a box of ammunition. De Leon, 170 F.3d at 497. He thus asked for a jury instruction that a mere touch of the box didn’t establish constructive possession of the contents.[26] We upheld the district court’s rejection of that instruction, concluding that it was “unnecessary because the instructions already required proof that De Leon exercised ‘dominion and control’ over the box of ammunition,” which sufficed to keep the jury from finding constructive possession of the ammunition based on a mere touch of the box.[27] In short, De Leon was about whether a touch of a container establishes constructive possession of the items in that container; it had nothing to say about whether a touch of contraband establishes actual possession of that contraband. Thus, in deciding a case about actual possession where the defendant touched contraband, the majority hangs it hat on cases about constructive possession where the defendant didn’t touch contraband.[28] In reality, two lines of precedent control this case. First, courts continually reject the notion that “the brevity of . . . possession render[s] it short of what is required.” United States v. Ortiz, 927 F.3d 868, 874 (5th Cir. 2019). “Neither the language of the felon-in-possession statute, nor its evident purpose, encourage [sic] the court to develop defenses that leave much room for benign transitory possession.”[29] In fact, Congress drafted § 922 to “enlarge[] and extend[]” a previous act that was already “ designed to prevent [certain criminals] from being able to purchase or in any way come in contact with firearms.” Barrett v. United States, 423 U.S. 212, 220 (1976) (cleaned up). Thus, the brevity of physical contact doesn’t negate possession. Second, “the government successfully proved actual possession” where “the defendant’s . . . fingerprints were found on the firearm.”[30] Although the majority gleans from that statement the rule that the defendant must be “tied to the firearm with forensic evidence,” that’s wrong. Forensic evidence harbors no talismanic significance. Fingerprints would prove only that the defendant touched the gun.[31] Thus, the majority fails to explain why a fingerprint—which proves that a defendant touched a gun—can establish possession, but a defendant’s admission of the same fact will not.[32] B. After it finishes tilting at precedential windmills, the majority begins cherry-picking dictionary definitions. Specifically, it selects a 1934 dictionary. The rationale for that selection is mysterious.[33] In any event, the majority’s main definition suffers from the same malady as the majority’s precedent: It defines constructive—not actual—possession. For instance, the majority tells us that “possess” means “to have and hold [contraband] as property.” (Cleaned up). And Webster synonymizes its “to have and hold” language with the word “own.”[34] But constructive—not actual—possession connotes ownership.[35] Similarly, the majority’s “master of” definition mirrors constructive possession’s modern definition, namely “dominion . . . over the item.”[36] In short, the majority becomes ensnared in a common pitfall of misguided dictionary usage: It fails to recognize that “common words typically have more than one meaning.” SCALIA & GARNER, supra, at 418. In reality, dictionary definitions show that a mere touch constitutes actual possession. Actual possession refers to “[p]hysical occupancy or control over property.”[37] A better dictionary definition, therefore, is to “seize or gain control of.”[38] And if “seize” is the relevant concept, “a mere touch can be enough for a seizure.” Torres v. Madrid, 141 S. Ct. 989, 998 (2021). In sum, by relying on inapposite precedent and definitions about constructive possession, the majority effectively layers the requirements of constructive possession over the requirements of actual possession. Now the government must show not only that a felon touched a firearm, but that he did so with sufficient vigor to render him “‘master’ over” it. C. The majority’s result is well-intentioned. Situations might arise in which a felon’s physical contact with a gun is so minimal and otherwise justified that it’d be absurd to convict him of possession. But we already make exceptions to § 922(g) for such situations. And we didn’t have to stretch our definition of “actual possession” to get there. In general, a felon is not guilty of possessing a firearm if that possession is (1) brief and (2) justified.[39] But that doesn’t help Smith, because those exceptions “do[] not negate any element of the offense.”[40] They’re affirmative defenses. And, where—as here—a defendant chooses to plead guilty, a district court doesn’t “err[] in accepting a guilty plea when the factual basis contains an affirmative defense that does not negate any offense element.” Ortiz, 927 F.3d at 877. Thus, the district court did not err by failing to consider Smith’s possible affirmative defenses. The majority’s holding otherwise engrafts part of an affirmative defense onto the prima facie case for possession. III. Even supposing that the majority’s newfangled interpretation of “possess” were correct, we should nonetheless affirm, because our review is for plain error only. The majority concocts its approach by layering our constructive-possession precedent onto an actual-possession case. But that’s a problem for Smith, because, as the majority acknowledges, our review is for plain error. And plain error review requires Smith to show an error that was “clear and obvious under existing law.”[41] Under existing law, (1) brevity didn’t negate actual possession, and (2) a fingerprint sufficed to show actual possession. See Ortiz, 927 F.3d at 874; Hagman, 740 F.3d at 1049. Under those precedents, it’s clear that a mere touch establishes actual possession. Consequently, the district court’s failure to anticipate the majority’s novel rule—that a felon must handle a firearm with sufficient vigor to render him “‘master’ over” it—isn’t plain error. That rule wasn’t clear or obvious under our precedents. The majority contrives it today. The majority tacitly concedes the pandora’s box it has opened, by punting on the grounds that we “need not decide every interaction with an item that could qualify as possession.” Going forward, however, this court and our district judges will have to answer myriad bizarre questions in light of the majority’s opinion: What must a felon do to become the “master of” a firearm? Must he grip it?[42] Brandish it?[43] Hold it for an extended period?[44] Our precedent forecloses each option. Because the majority reaches that odd result, on plain-error review, only by reliance on inapposite authorities and definitions, I respectfully dissent.
