What is the current state of the law in cases where prior similar misconduct was taken into account?

1 We have used a different approach where prior similar misconduct, rather than a prior offense, was under consideration. See United States v. Leake, 908 F.2d 550, 554 (9th Cir.1990); United States v. Cota-Guerrero, 907 F.2d 87, 89 n. 4 (9th Cir.1990).

2 We agree that under the facts of this case, where the gun was in a jacket pocket and there was no evidence of ownership or possession, any such finding would be very problematic. See United States v. Kelso, 942 F.2d 680, 682 (9th Cir.1991); see also Delgado v. United States, 327 F.2d 641, 642 (9th Cir.1964) (evidence of possession of marijuana found in a nightstand at the foot of co-defendants' bed was insufficient to convict either co-defendant because it was "pure speculation" as to which defendant had possession).