UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________

No. 24-1027 _______________

UNITED STATES OF AMERICA

v.

RODNEY ASHE; Appellant ________________

On Appeal from the United States District Court for the District of New Jersey (D.C. Criminal No. 3:23-cr-00388-001) District Judge: Honorable Zahid N. Quraishi ________________

Argued: November 12, 2024

Before: RESTREPO, MONTGOMERY-REEVES and AMBRO, Circuit Judges.

(Filed: February 27, 2025) Candace Hom Rahul K. Sharma [ARGUED] OFFICE OF FEDERAL PUBLIC DEFENDER 1002 Broad Street Newark, NJ 07102 Counsel for Appellant Mark E. Coyne OFFICE OF UNITED STATES ATTORNEY 970 Broad Street, Room 700 Newark, NJ 07102 Norman Gross [ARGUED] OFFICE OF UNITED STATES ATTORNEY Camden Federal Building & Courthouse 401 Market Street Camden, NJ 08101 Counsel for Appellee

_________________

OPINION OF THE COURT _________________ RESTREPO, Circuit Judge

On December 21, 2023, the District Court held a sentencing hearing for Appellant Rodney Ashe, who pleaded guilty to being a felon in possession of a firearm after officers observed a handgun in his sweatshirt pocket during a traffic stop. At the hearing, both the Government and the defense argued that Ashe’s sentence should be calculated using a total offense level of 12. The District Court, however, disagreed and found a total offense level of 17, applying an enhancement arising from Ashe’s possession of an AK-style pistol (the “AK Pistol”) found in the trunk of Ashe’s car more than six months after Ashe was incarcerated and his car was impounded.

2 The District Court found that a preponderance of the evidence supported Ashe’s constructive possession of the AK Pistol, finding compelling that it was found in Ashe’s trunk and that Ashe had a history of felon-in-possession charges. Having found that Ashe possessed the AK Pistol, the District Court applied an enhancement for possession of a semiautomatic firearm capable of accepting a large capacity magazine and sentenced him to 37 months of imprisonment. Because the District Court applied this enhancement without sufficient evidence that Ashe possessed the AK Pistol, we will vacate his sentence and remand this case for resentencing absent the enhanced base offense level.

I. BACKGROUND

On October 3, 2022, Ashe was pulled over by police for failing to maintain his lane of travel while driving. While speaking with Ashe, officers observed a handgun protruding from the front pocket of his sweatshirt. Ashe was arrested and his car was impounded at Sisbarro Towing. The officers involved in the arrest reported that they only searched the immediate area of the driver’s seat and made no search of Ashe’s trunk.

This was not Ashe’s first firearm-related arrest. On November 16, 2014, he was arrested for, among other things, unlawful possession of a handgun after police noticed a revolver in his waistband while questioning him about littering. Ashe was convicted of this charge and on October 26, 2015, was sentenced to five years imprisonment, 42 months parole ineligibility, $1,455 in fees and costs, and 6 months of license suspension.

3 On April 25, 2023, while Ashe’s car was being repossessed and towed from Sisbarro, a Sisbarro employee found a duffle bag in its trunk containing ammunition and the AK Pistol. It was a semiautomatic firearm capable of accepting a large capacity magazine. 1 On October 31, 2023, Ashe endorsed an abandonment and waiver of rights in which he forfeited all rights to the AK Pistol and ammunition and disavowed e