United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED May 5, 2021 No. 20-50304 Lyle W. Cayce Clerk United States of America,

Plaintiff—Appellee,

versus

Tredon Smith,

Defendant—Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. 7:19-CR-168-1

Before King, Smith, and Haynes, Circuit Judges. Haynes, Circuit Judge: While at a friend’s house, Tredon Smith touched a Smith & Wesson .38 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. Case: 20-50304 Document: 00515850470 Page: 2 Date Filed: 05/05/2021

No. 20-50304

I. 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

1 The dissenting opinion focuses on Smith’s other “criminal activities”—stating that Smith “is a leader of a street gang” and that Smith was found “fleeing the scene of a vehicle burglary” two months after his touching of the .38 revolver as “relevant,” but they are not. The dispositive question in this appeal is whether there was a sufficient factual basis to convict Smith for possessing the .38 revolver. That he may have been involved in other misconduct—even misconduct involving other firearms—says nothing at all about whether he possessed this firearm. 2 As noted above, Smith’s alleged possession of the .38 revolver could not have occurred later than April 6, the date officers recovered the firearms. The date charged was “on or about” April 29, but Smith did not argue in his briefs that the discrepancy in dates impermissibly stretches the “on or about” language used in the indictment, so we do not comment further on the issue. 3 Smith raises several issues but because of our