United States v. Smith, 997 F.3d 215

Officers recovered three stolen firearms on April 6, 2019; Smith admitted he had seen and “touched” a Smith & Wesson .38 revolver at a friend’s house after being shown a photograph.
Smith, a felon, was indicted for being a felon in possession under 18 U.S.C. § 922(g)(1) (charged “on or about” April 29, 2019), pleaded guilty, and signed a factual-basis statement repeating that he had “touched” the .38 and knew its caliber.
The district court accepted the factual basis, convicted Smith, and sentenced him to 57 months’ imprisonment (plus 3 years supervised release).
On appeal (plain-error review because Smith did not raise the issue below), the Fifth Circuit examined whether an admission of merely “touching” a firearm can satisfy the possession element of § 922(g)(1).
The majority concluded the record contained no evidence of actual or constructive possession (no control of premises, no ownership, no forensic evidence such as fingerprints tied to the gun) and held that mere touching is insufficient to establish possession; it vacated the plea, conviction, and sentence and remanded for further proceedings.
Judge Jerry E. Smith dissented, arguing the majority misapplied precedent and dictionaries, that touching (or brief contact) can establish actual possession under existing law, and that reversal on plain-error review was inappropriate.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an admission of having "touched" a firearm provides a sufficient factual basis to sustain a § 922(g)(1) conviction	The admission plus Smith’s knowledge of the gun’s caliber and surrounding facts support an inference of possession	Touching alone is only contact; without control, ownership, being on person, or forensic linkage, touching is insufficient	Majority: Mere touching, without additional evidence of control or dominion, is insufficient to establish possession; plea/fact basis inadequate — vacated and remanded
Whether plain-error review warrants vacatur (error clear/obvious, affects substantial rights, and seriously affects fairness/integrity)	Any error was not plain or, if plain, did not justify reversal	The district court plainly erred and the error affected Smith’s substantial rights because he would not have pled if he knew touching was insufficient; correcting the error preserves integrity	Majority: Error was clear and obvious, affected substantial rights, and seriously affected fairness/integrity — exercise discretion to correct; vacatur warranted

Puckett v. United States, 556 U.S. 129 (plain-error standard for forfeited errors in criminal cases)
Vonn v. United States, 535 U.S. 55 (Rule 11 plea-colloquy review principles)
Dominguez Benitez v. United States, 542 U.S. 74 (defendant must show plea would not have been entered but for the error)
Olano v. United States, 507 U.S. 725 (standard for correcting forfeited error under Rule 52(b))
Marek v. United States, 238 F.3d 310 (5th Cir.) (district court must ensure factual basis supports the charged offense)
Trejo v. United States, 610 F.3d 308 (5th Cir.) (on plain-error review, court may scan entire record for supporting facts)
Hagman v. United States, 740 F.3d 1044 (5th Cir.) (actual vs. constructive possession requires control; fingerprints or firearm on person can support actual possession)
De Leon v. United States, 170 F.3d 494 (5th Cir.) (constructive-possession analysis; touching a container vs. contents)
Huntsberry v. United States, 956 F.3d 270 (5th Cir.) (constructive-possession context emphasizing dominion/control)
Meza v. United States, 701 F.3d 411 (5th Cir.) (constructive-possession principles and ownership/control analysis)