     Case: 16-11010      Document: 00513970893         Page: 1    Date Filed: 04/27/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 16-11010                                   FILED
                                  Summary Calendar                             April 27, 2017
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

THOMAS EARL WRIGHT,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:14-CR-350-1


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
       Thomas Earl Wright appeals his conviction following a jury trial on
charges of possessing with the intent to distribute five kilograms or more of
cocaine and aiding and abetting (Count One); possessing a firearm in
furtherance of a drug trafficking crime, namely, possession with the intent to
distribute five kilograms or more of cocaine (Count Two); aiding and abetting
another in possessing with the intent to distribute marijuana (Count Three);


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 16-11010

and being a felon in possession of a firearm (Count Four). Wright challenges
the sufficiency of the evidence to support his convictions.
      As Wright acknowledges, he did not move for a judgment of acquittal in
the district court, and we thus review challenge to the sufficiency of the
evidence for plain error. See United States v. Davis, 690 F.3d 330, 336 n.6 (5th
Cir. 2012). On plain error review, an unpreserved insufficiency claim “will be
rejected unless the record is devoid of evidence pointing to guilt or if the
evidence is so tenuous that a conviction is shocking.” United States v. Delgado,
672 F.3d 320, 330–31 (5th Cir. 2012) (en banc) (internal quotation marks and
emphasis omitted) (quoting United States v. Phillips, 477 F.3d 215, 219 (5th
Cir. 2007)).   A reversal is warranted only if the evidence was “obviously
insufficient” and there was a “manifest miscarriage of justice.” Id. (internal
quotation marks and emphasis omitted) (quoting United States v. Pierre, 958
F.2d 1304, 1311 (5th Cir. 1992)). We consider the evidence in the light most
favorable to the Government, giving the Government the benefit of all
reasonable inferences and credibility choices. United States v. McDowell, 498
F.3d 308, 312 (5th Cir. 2007).
      Wright’s sole argument on appeal is that there was insufficient evidence
that he actually or constructively possessed the controlled substances or the
firearm in question. “Actual possession is defined as knowingly having direct
physical control over a thing at a given time, while constructive possession
includes ownership, dominion or control over the contraband, or over the place
in which it is contained.” United States v. Burton, 226 F.3d 643, at *9 (5th Cir.
2000) (unpublished) (internal quotation marks omitted) (quoting United States
v. Ivy, 973 F.2d 1184, 1188 (5th Cir. 1992), and United States v. Shabazz, 993
F .2d 431, 441 (5th Cir. 1993)). Constructive possession “need not be exclusive”
and “may be joint with others.” United States v. McKnight, 953 F.2d 898, 901
(5th Cir. 1992).

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                                  No. 16-11010

      After pleading guilty to Count One, Wright’s co-defendant, Eric Tyrone
Harris, testified against him at trial. Harris provided details about his and
Wright’s drug operations and stated, “Everything in the house was me and his.
Everything illegal in the house was me and his. . . . [T]he illegal activity that
occurred at [the house], the contents that were inside the house belonged to me
and Thomas Earl Wright. We are responsible for it. We get it from the
[supplier], we sell it, we split the profit.” Harris also testified that two of the
three firearms discovered at the house belonged to Wright, and stated that he
had seen Wright carry the handguns when they went to a strip club the night
before their arrest.
      Although Wright challenges Harris’s testimony as uncorroborated and
biased, this court has held that sufficient evidence may consist solely of the
uncorroborated testimony of an accomplice who, like Harris, is cooperating
with the Government in hopes of receiving leniency, as long as the testimony
is not “factually insubstantial or incredible.” United States v. Westbrook, 119
F.3d 1176, 1190 (5th Cir. 1997). We cannot say that Harris’s testimony is
incredible.   Nor is it wholly uncorroborated.       The government presented
testimony from several police officers, who testified Wright was detained after
attempting to leave through the back door of the house after officers responded
to a 911 call about drug activity there.       The government also presented
testimony from a United States Secret Service Special Agent who had been
assigned to the Drug Enforcement Agency, where he conducted surveillance of
Wright after identifying him as the supplier to a Dallas-area crack dealer. The
agent testified that Wright discussed having a pistol with him during some
surveilled phone calls.
      When considered in the light most favorable to the Government,
McDowell, 498 F.3d at 312, the record evidence as a whole was not obviously



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                                No. 16-11010

insufficient to support Wright’s convictions, see Delgado, 672 F.3d at 330–31.
The judgment of the district court is therefore AFFIRMED.




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