United States of America v. Ronald Kenner, a/k/a Ronald Revere, a/k/a Derick Watford, Ronald Kenner

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-1153, 08-1154
UNITED STATES OF AMERICA
v.
RONALD KENNER,
a/k/a Ronald Revere,
a/k/a Derick Watford,
Ronald Kenner,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action No. 99-cr-00529-1, 00-cr-00345-1)
District Judge: Honorable John R. Padova
Submitted Under Third Circuit LAR 34.1(a)
March 12, 2010
Before: BARRY, JORDAN, and VAN ANTWERPEN, Circuit Judges
Filed: March 16, 2010
OPINION OF THE COURT

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VAN ANTWERPEN, Circuit Judge.
Appellant-Defendant Ronald Kenner (“Kenner”) appeals the District Court’s
finding that he violated the terms of his supervised release by committing a controlled
substance crime; he claims the evidence is insufficient to support the court’s finding. He
also appeals his sentence of thirty-six months’ incarceration as unreasonable. The
Government asserts that the District Court did not err in finding, by a preponderance of
the evidence, that Kenner committed the charged crime or in imposing the sentence. We
agree with the Government.
I.
Because we write solely for the parties, we will address only those facts necessary
to our opinion.
A grand jury indicted Kenner for possessing a firearm as a convicted felon on
September 2, 1999, and Kenner was charged in a separate case with conspiracy and bank
robbery on June 16, 2000. Kenner pled guilty to both crimes, and the judge presiding
over his gun case granted Kenner’s motion to consolidate the cases for sentencing. Judge
John R. Padova presided over the consolidated sentencing hearing. On June 21, 2001,
Judge Padova sentenced Kenner to thirty-eight months’ imprisonment on each of the
three counts, all terms to run concurrently. The court also imposed a sentence of five
years’ supervised release on the bank robbery count and a sentence of three years’

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Judge Padova imposed the general terms of supervised release on Kenner, which1
include, among others, that Kenner is prohibited from committing a subsequent crime in
violation of federal, state, or local law for the duration of the sentence. 18 U.S.C. §
3583(d). He also imposed the following special conditions:
“1) The defendant shall provide the probation officer with access to any
requested financial information; 2) The defendant shall not incur new credit
charges or open additional lines of credit without the approval of the probation
officer; 3) The defendant shall participate in a drug aftercare treatment
program which may include urine testing at the direction and discretion of the
probation officer; and, 4) The defendant shall pay restitution in the amount of
$7,480, at the rate of $50 per month.”
(App. 8.)
The Sentencing Guidelines set forth three grades of probation and supervised release2
violations:
“ (1) Grade A Violations -- conduct constituting (A) a federal, state, or local
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supervised release on both the conspiracy and gun possession counts, also to run
concurrently. The court ordered Kenner to pay restitution in the amount of $7,840.00 and
a special assessment of $300.00.
Kenner was released from custody and placed on supervised release on May 17,
2004. On November 28, 2006, Judge Padova found Kenner in violation of several terms1
of his supervised release sentence. The Judge modified the terms of Kenner’s supervised
release to increase the monthly payments toward Kenner’s restitution obligation from fifty
dollars a month to one hundred dollars a month.
On January 12, 2007, Kenner’s probation officer filed a petition alleging that
Kenner violated the terms of his supervised release by committing several Grade C
violations, including: (1) being arrested and charged for speeding and driving under the2

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offense punishable by a term of imprisonment exceeding one year that (i) is a
crime of violence, (ii) is a controlled substance offense, or (iii) involves
possession of a firearm or destructive device of a type described in 26 U.S.C.
§ 5845(a); or (B) any other federal, state, or local offense punishable by a term
of imprisonment exceeding twenty years;
(2) Grade B Violations -- conduct constituting any other federal, state, or local
offense punishable by a term of imprisonment exceeding one year;
(3) Grade C Violations -- conduct constituting (A) a federal, state, or local
offense punishable by a term of imprisonment of one year or less; or (B) a
violation of any other condition of supervision.”
U.S. SENTENCING GUIDELINES MANUAL §7B1.1(a) (2006).
Kenner’s first name is Ronald.3
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influence (“DUI”); (2) failing to report an arrest for DUI; (3) leaving the judicial district
without permission from his probation officer; (4) failing to report for random drug
testing; and (5) failing to notify his probation officer within ten days that he changed his
residence. On July 12, the probation officer filed an amended violation notice, adding
Kenner’s arrest for criminal conspiracy, drug possession, and possession with intent to
manufacture, all Grade A violations.
At his initial violation hearing in December 2007, Kenner admitted to committing
all of the Grade C violations except the DUI. Kenner also contested the drug arrests. At
the revocation of supervised release hearing on January 8, 2008, Kenner opted not to
contest the DUI arrest, but continued to contest the drug arrests.
The government offered the testimony of two officers as evidence that Kenner had
violated the terms of his supervised release by possessing a controlled substance. Officer
Planita testified that on May 29, 2007, he met with a confidential informant (“CI”) who
told him that a black male named “Ron” lived in the 2500 block of West Gordon Street3

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Officer Planita testified that he ran a check on the 2537 West Gordon Street property4
but cannot remember who held title to the property. (App. 64.)
Record checks confirmed that the black Chrysler identified by the CI was registered5
to Kenner, but at a different address. (App. 70.)
Officer Planita testified that he was present when the CI allegedly called Kenner, but6
he could not hear the conversation.
5
and was selling large quantities of drugs. The CI identified a black Chrysler parked near4
2537 West Gordon Street as belonging to Ron. The CI also claimed, incorrectly, that5
Ron owned a garage at 2421 West Gordon Street. Based on this information, Officer
Planita arranged for the CI to purchase a quarter pound of marijuana from Kenner the
next day. On May 30, 2007, law enforcement searched the CI for any contraband and
gave him prerecorded money for the buy.
Officer Morales testified that he surveyed 2537 West Gordon Street on May 30,
2007, beginning at 2:00 p.m. Just after he arrived, he saw Kenner leave the residence, get
into the black Chrysler identified by the CI, and take the car to the gas station. A few
minutes later, Kenner returned to the residence and entered by using a key. Officer
Morales received information, sometime after 2:00 p.m., that the CI called to Kenner
requesting to purchase marijuana. Shortly thereafter, he saw Kenner leave the residence6
again and walk a few blocks to a garage at 2441 West Gordon Street. Kenner met the CI
on the street in front of the garage. Officer Morales saw them talking, but could not hear
what they said. Then he saw them enter the garage.
Officer Morales left the area because he was concerned that he had been spotted.
Officer Planita, who was on mobile surveillance near the garage, took over surveillance at

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that point. Officer Planita arrived after Kenner and the CI had entered the garage. He
saw a gold sport utility vehicle pull up outside the garage. The driver, later identified as
George Mapp (“Mapp”), also entered the garage. Neither officer witnessed what
happened inside the garage, nor are they aware if other people were inside the garage.
Officer Morales testified that he returned to the area and witnessed the CI leave the
garage. At that point, the CI met with Officer Planita and gave the police the quarter
pound of marijuana he purchased inside the garage. Officer Planita could not remember
if the CI told him who sold him the marijuana.
On June 19, 2007, the officers executed three search warrants: (1) one at the
garage, (2) one at 2537 West Gordon Street, and (3) one at 1922 North 23rd Street.
Officer Planita testified that he helped search the 2537 West Gordon Street residence.
When law enforcement executed the warrant, Kenner and two other people were present
in the house. Kenner was sitting on a couch in the living room. During the search, law
enforcement officers recovered marijuana in the dining room and the second upstairs
bedroom. No one confirmed who used the upstairs bedroom. Officers also found one
four-ounce packet of cocaine base in the residence, but Officer Planita could not recall
where.
During the search, Kenner asked to speak to Officer Planita. Kenner asked if he
could help himself by offering information about a stash of a large quantity of drugs and
guns. Then, Kenner informed Officer Planita that there was a stash of drugs and guns at

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1922 North 23rd Street. Immediately officers were sent to that address and detained
Mapp, who was found at that location. Officer Morales testified that law enforcement
searched the 1922 North 23rd Street premises and recovered $3,750.00 dollars in cash,
five marijuana plants, a jar of marijuana, a jar of cocaine base, drug paraphernalia, and
several assault rifles.
During the testimony, the District Court noted that the officers did not have any
direct evidence that Kenner made any drug sales. Regardless, it found that “as a fact and .
. . as a matter of law, based on a preponderance of the evidence, even though there may
have been some doubt, that [Kenner] violated the terms of his supervised release by
illegally possessing controlled substances.” (Id. 78.)
The District Court acknowledged that the Sentencing Guidelines recommend a
sentence of twenty-four to thirty months’ incarceration for violating his supervised release
by possessing a controlled substance, but that the statutory maximum is thirty-six months
incarceration. The court stated “that [Kenner is] an intentional, habitual violator of [his]
terms of supervised release.” (Id. 83.) The court characterized Kenner’s violations as
“egregious,” and noted that the recommended sentence would be appropriate in “ordinary
circumstances.” (Id. 85, 86.) The court distinguished this case from ordinary
circumstances because of Kenner’s habitual violations and revoked Kenner’s supervised
release and reincarcerated him for the statutory maximum of thirty-six months. (Id. 85-
86.)

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II.
The District Court exercised jurisdiction under 18 U.S.C. § 3231 because Kenner
was convicted of violating federal law in 1999 and 2000. The District Court had
jurisdiction to decide whether Kenner violated the terms of his supervised release
pursuant to 18 U.S.C. § 3583(e). This Court exercises jurisdiction over this appeal under
28 U.S.C. § 1291 and to review the sentence imposed on Kenner pursuant to 18 U.S.C. §
3742(a).
This Court reviews a district court’s decision to revoke supervised release for
abuse of discretion. United States v. Maloney, 513 F.3d 350, 354 (3d Cir. 2008). This
Court reviews the District Court’s factual findings for clear error, but conducts de novo
review of its legal conclusions. Id. It reviews a district court’s sentence for violating
supervised release for reasonableness. United States v. Bungar, 478 F.3d 540, 542 (3d
Cir. 2007).
III.
Kenner asserts that the evidence presented at his violation hearing was too
specious to support the District Court’s finding, as a matter of fact and law, that the
preponderance of the evidence indicates Kenner illegally possessed a controlled
substance. The Government contends that the evidence was sufficient. We agree with
the Government.
A district court must find that a defendant violated a condition of supervised

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release based on a preponderance of the evidence. 18 U.S.C. § 3583(e)(3); Maloney, 513
F.3d at 354. When the condition at issue is whether the defendant committed a new
crime, there is no conviction or indictment requirement. United States v. Poellnitz, 372
F.3d 562, 566 (3d Cir. 2004). Rather, a court can revoke supervised release whenever it
is “reasonably satisfied” that the defendant violated a condition. Id. This Court affords a
district court “broad discretion” to find violations. Id. (quoting United States v. Gordon,
961 F.2d 426, 429 (3d Cir. 1992)).
Kenner’s principal argument is that the District Court erred by finding that he had
violated the terms of his supervised release because the evidence did not establish that he
actually or constructively possessed a controlled substance. This argument is a tough fit
because the concept of constructive possession is normally considered in the context of
convictions, though it also extends to proceedings involving the violations of supervised
release. See United States v. Blackston, 940 F.2d 877, 883 (3d Cir. 1991) (finding
circumstantial evidence of constructive possession is sufficient to prove possession in
violation of supervised release). We have held that evidence is sufficient to establish
constructive possession, beyond a reasonable doubt, if it proves
“an individual knowingly has both the power and the intention at a given time
to exercise dominion and control over a thing, either directly or through
another person or persons. Constructive possession necessarily requires both
dominion and control over an object and knowledge of that object’s
existence.”

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United States v. Cunningham, 517 F.3d 175, 178 (3d Cir. 2008) (citing United States v.
Iafelice, 978 F.2d 92, 96 (3d Cir. 1992)). Dominion and control are not established by
“mere proximity to the [contraband], or mere presence . . .where it is located.” United
States v. Garth, 188 F.3d 99, 112 (3d Cir. 1999) (quoting United States v. Brown, 3 F.3d
673, 680 (3d Cir. 1993)). The fact that others had access to the drugs, however, does not
diminish a finding of constructive possession. Id.
Kenner contends that the Government’s evidence merely established he was
proximate to, rather than had any dominion and control over, the drugs recovered in this
case by analogizing his circumstances to those in United States v. Jenkins and United
States v. Beverly. In Jenkins, this Court determined that evidence that a man was (1) in
someone else’s apartment, (2) sitting on the couch, in his boxers, and (3) in front of a
table where there were three bags of drugs was insufficient to support a finding that he
had dominion and control over those drugs. 90 F.3d 814, 816 (3d Cir. 1996). In Beverly,
the Sixth Circuit determined that, considering the evidence in the light most favorable to
the government, that a rational trier of fact could not conclude that a man had
constructively possessed a gun based on the facts that (1) that he was sitting in someone
else’s house, (2) two guns were found in the house, nearby him, in a wastebasket, and (3)
his fingerprint was on one of the guns. 750 F.2d 34, 35-36 (6th Cir. 1984). Kenner
suggests that the facts offered in his case, like in Jenkins and Beverly, merely established

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Kenner also argues that in Beverly the Sixth Circuit assessed the evidence under the7
preponderance of the evidence standard because it considered whether the District Court
erred by denying the defendant’s motion for acquittal. Beverly, 750 F.3d at 35. Kenner is
mistaken. A court considering a motion for acquittal reviews the record in the light most
favorable to the prosecution to determine whether any rational trier of fact could have
found proof of guilt beyond a reasonable doubt. United States v. Coleman, 811 F.2d 804,
807 (3d Cir. 1987). Although this standard may be lesser than the reasonable doubt
standard because a court is assessing whether a jury could find beyond a reasonable doubt
rather than whether the evidence demonstrates guilt beyond a reasonable doubt, the
standard is certainly higher than the preponderance standard which requires a trier of fact
only believe an “existence of a fact is more probable than its nonexistence.” In re
Winship, 397 U.S. 358, 371 (1970)(Harlan, J., concurring). As a result, the analogy to
Beverly is hard a fit because the court was assessing the evidence under a different
evidentiary standard than that at issue in this case.
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that he was present where the drugs were found. Therefore, the evidence fails to prove
constructive possession by a preponderance of the evidence. 7
Kenner’s circumstances are distinguishable from both Jenkins and Beverly. The
officer’s testimony establishes that, like the defendants in Jenkins and Beverly, Kenner
was present where drugs were recovered on two occasions: (1) Officer Morales saw
Kenner talk to the CI and accompany the CI into a garage where the CI purchased
marijuana, and (2) Kenner was inside the 2537 West Gordon Street residence where law
enforcement recovered marijuana and cocaine base. Both the Jenkins and Beverly Courts,
however, emphasized that evidence of presence was insufficient to prove constructive
possession because there was no other evidence tying the defendants to the objects in
question. Jenkins, 90 F.3d at 820-21 (emphasizing that there was no evidence except
Jenkins’ proximity suggesting he participated in drug distribution); Beverly, 750 F. 2d at
37 (noting the evidence “establishes only that Beverly was in the kitchen in Hatfield’s

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We determined that evidence that a person had a key to a residence where drugs were8
found, but is not on the lease, without more, is insufficient to establish that the person had
constructive possession over the any drugs found in the house. United States v. Brown, 3
F.3d 673, 681 (3d Cir. 1993). The Government offered additional evidence tying Kenner
to drug distribution beyond Kenner’s residence at 2537 West Gordon Street, thus,
Kenner’s case is distinguishable.
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residence, that Beverly was standing close to the waste basket which contained two guns,
and that Beverly had at some point touched one of the guns”).
In this case, the Government offered additional circumstantial evidence tying
Kenner to drug possession or distribution, including: (1) the fact that the CI identified
Kenner as someone who was selling drugs from 2537 West Gordon Street; (2) the
officers’ testimony that he saw Kenner meet the CI shortly after the CI placed a call to
him requesting drugs; and (3) the surveillance of Kenner entering 2537 West Gordon
Street with keys, which suggests he was a resident, and not merely present, at a premises8
where drugs were recovered. Because the circumstantial evidence in this case establishes
more than Kenner’s mere presence near the recovered drugs, Kenner’s argument to the
contrary fails.
Kenner also tries to analogize his case to another Sixth Circuit case, United States
v. Stephenson, 928 F.2d 728 (6th Cir. 1991). In Stephenson, the Sixth Circuit held that a
probation officer’s testimony that a defendant was arrested for assault, and the
defendant’s admission that “there was some pushing in there” was insufficient evidence,
together, to establish that he had committed the crime of assault. Id. at 731. Kenner
explains that by analogy, “the defendant’s presence at a scene where drugs were found,

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without anything else, was simply not enough to demonstrate that the defendant had
broken the law.” (Appellant’s Br. 9.) This analogy is not compelling, however, because
the Stephenson Court did not comment on the sufficiency of the evidence related to
constructive possession under the preponderance standard. In sum, the evidence
proffered against Kenner is more compelling than that in any of the cases to which
Kenner draws an analogy. Therefore, we are not persuaded by Kenner’s arguments.
Whether there is sufficient evidence to establish a violation is a factual question,
which we review for clear error. Maloney, 513 F.3d at 354; Poellnitz, 372 F.3d at 565 n.6.
In a violation hearing, the evidence need only establish the violation by a preponderance
of the evidence, i.e., whether the existence of a fact is more probable than non-existent.
18 U.S.C. § 3583(e)(3); Winship, 397 U.S at 371 (Harlan, J., concurring); Maloney, 513
F.3d at 354. We review, therefore, whether the District Court committed clear error by
finding that the evidence established it was more probable than not that Kenner possessed
a controlled substance. The District Court acknowledged that there was no direct
evidence that Kenner possessed any drugs. (App. 53.) Regardless, it found as a matter of
fact, “even though there may have been some doubt,” that the preponderance of the
evidence established that Kenner illegally possess controlled substances. (Id. 78). The
evidence establishes that a CI identified Kenner as a drug distributor, Kenner resided at a
house where drugs were found, that Kenner associated with a large drug distributor, and
he responded to a CI’s request for drugs. Because this evidence suggests that it is more

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probable than not that Kenner possessed a controlled substance, the District Court did not
clearly err by finding Kenner possessed drugs. Therefore, we will affirm the District
Court’s conclusion that Kenner violated his supervised release by possessing a controlled
substance.
IV.
Kenner asserts that his thirty-six month sentence of incarceration for violating the
terms of his supervised release is unreasonable. The Government contends that this
sentence is reasonable and should be affirmed. We agree with the Government.
We review sentences imposed for violating the terms of supervised release for
reasonableness. Bungar, 478 F.3d at 542 (noting that post-Booker, an appellate court
reviews a sentence for reasonableness regarding the § 3553 factors, and this same
standard should apply to revocation sentences). When imposing a sentence after revoking
a defendant’s supervised release, the District Court, in accordance with 18 U.S.C. §
3583(e), must give reasonable consideration to the factors set forth in 18 U.S.C. § 3553(a)
and must apply those factors to the factual circumstances of the case. It should also take
into account, “to a limited degree, the seriousness of the underlying violation and the
criminal history of the violator” and the policy statements under Chapter Seven of the
Sentencing Guidelines. United States v. Dees, 467 F.3d 847, 853 (3d Cir. 2006) (internal
quotation marks and citation omitted)

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To determine reasonableness, this Court considers whether the District Court gave
meaningful consideration to the § 3553(a) factors and applied those factors to the
circumstances of the case. Bungar, 478 F.3d at 543. Our review of the District Court’s
application of the § 3553 factors to the factual circumstances in the case is “highly
deferential”; we may not substitute our judgment for the District Court’s and must affirm
if the final sentence is within the permissible range and was premised on appropriate
judicious consideration. Bungar, 478 F.3d at 543.
Kenner argues that his sentence is unreasonable in light of the §3553(a) factors.
His main contention is that the District Court failed to adequately explain why imposing
the statutory maximum sentence, thirty-six months’ of incarceration, more appropriately
serves the goals of criminal law than a twenty-four to thirty month sentence of
incarceration, as suggested by the Sentencing Guidelines. He further asserts that a thirty-
six month sentence is greater than necessary to punish him.
The Sentencing Guideline ranges are merely advisory. United States v. Booker,
543 U.S. 220, 259 (2005). Moreover, the District Court explained that under “ordinary
circumstances” the guidelines range of twenty-four to thirty months would have been
sufficient. (App. 86.) The District Court distinguished this case from an ordinary case,
however, because Kenner is a “habitual offender, engaged in serious anti-social conduct .
. . [and had violated] the terms of his supervised release on multiple [occasions] over a
significant period of time.” (Id. 85.) Contrary to Kenner’s assertions, the District Court

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did not act unreasonably in imposing a thirty-six month sentence because it expressly
explained that under the § 3553(a) factors it was necessary to impose a greater sentence
because Kenner needed more deterrence than the ordinary violator contemplated by the
sentencing guidelines.
Kenner further challenges the District Court’s application of the § 3553(a) factors,
claiming that the Court did not consider Kenner’s proffer of mitigating evidence that he
had long-term employment. The District Court, however, heard evidence on this issue
and acknowledged that Kenner was an “able, talented guy.” (Id. 80). Therefore,
Kenner’s claim that the District Court did not consider this evidence is without merit.
Additionally, Kenner argued that the District Court erred because it improperly
relied on the fact that Kenner had not fully repaid his restitution obligation. But paying
restitution is a term of Kenner’s supervised release, which he admitted he violated. (See
App. 82 (noting he paid seventy-five dollars a month rather than one hundred dollars a
month and that he stopped paying when he absconded).) Because paying restitution was
one of Kenner’s terms of supervised release, it was within the Court’s discretion to
consider Kenner’s efforts in meeting this obligation.
Kenner did not challenge the District Court’s application of the other § 3553(a)
factors. It is clear that the District Court considered the applicable guidelines range, and
gave meaningful consideration to the relevant § 3553 factors before imposing Kenner’s

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sentence. Therefore, the court did not act unreasonably by imposing a thirty-six month
sentence and we will affirm.
V.
We will affirm the District Court’s judgment that Kenner violated the terms of his
supervised release by possession a controlled substance, and its sentence.

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