                                                                                    FILED
                                                                      United States Court of Appeals
                                                                              Tenth Circuit

                       UNITED STATES COURT OF APPEALS                        October 19, 2010
                                                                           Elisabeth A. Shumaker
                                        TENTH CIRCUIT                          Clerk of Court



 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

 v.                                                             No. 09-5173
                                                     (D.C. No. 4:09-CR-00093-GKF-2)
 JOLENE ELIZABETH PEARCE,                                       (N.D. Okla.)

                Defendant - Appellant.


                               ORDER AND JUDGMENT*


Before TACHA, O’BRIEN, and HOLMES, Circuit Judges.


       After examining the briefs and the appellate record, this three-judge panel has

determined unanimously that oral argument would not be of material assistance in the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The

case is therefore ordered submitted without oral argument.

       Jolene Elizabeth Pearce pleaded guilty to one count of possession with intent to

distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). On

appeal, Ms. Pearce argues that the district court failed to elicit a sufficient factual basis to

support her guilty plea. We take jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM


       *
        This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Ms. Pearce’s conviction.

                                   I. BACKGROUND

       On March 12, 2009, Tulsa police officers received a call from the Rest Inn Motel

reporting a suspected methamphetamine lab in one of its rooms. Upon arrival, they were

directed to the room in question where they encountered Ms. Pearce’s twelve-year-old

son, who informed them that Ms. Pearce and Roy Brown, Jr. had left about forty-five

minutes before. The officers exited the hotel and observed Ms. Pearce and Mr. Brown

standing near a pickup truck.

       As they approached Ms. Pearce and Mr. Brown, the officers saw Mr. Brown place

a gun in the front seat of the truck. They immediately arrested Mr. Brown and searched

him. During the search of Mr. Brown, officers found plastic baggies containing Ecstasy,

Xanax, marijuana, methamphetamine, and cocaine base, as well as $1,156.00 in cash.

The officers also searched Ms. Pearce, finding $153.00 in cash. After Mr. Brown and

Ms. Pearce were advised of their Miranda rights, they both stated that all the drugs,

except for the marijuana, belonged to Ms. Pearce.

       On June 2, 2009, a federal grand jury indicted Ms. Pearce for possessing

methamphetamine with the intent to distribute. On August 10, 2009, Ms. Pearce sought

to enter a plea of guilty. After completing the Rule 11 colloquy and concluding that each

element of the offense was “supported by an independent basis in fact,” the district court

accepted Ms. Pearce’s plea. The district court ultimately sentenced her to twenty-four

months’ imprisonment. Ms. Pearce now appeals the district court’s acceptance of her

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guilty plea, asking that we vacate her conviction so that she may stand trial.

                                     II. DISCUSSION

       Ms. Pearce’s sole contention on appeal is that the district court erred in accepting

her guilty plea because there was an insufficient factual basis to support it. In support of

her challenge, Ms. Pearce contends that the district court failed to question her “in a

manner that would require her to provide a sufficient factual basis in her own words” and

that such questioning was required due to her “coached responses” and the obvious

incredulousness of her self-incriminating statements. She further maintains that there was

insufficient evidence that she possessed the drugs in question, and that the prosecutor

misrepresented the record evidence during the plea hearing.

       Because Ms. Pearce failed to object on Rule 11 grounds at sentencing, we review

the district court’s acceptance of her plea for plain error. United States v. Edgar, 348

F.3d 867, 871 (10th Cir. 2003). “Plain error occurs when there is (1) error, (2) that is

plain, which (3) affects the defendant’s substantial rights, and which (4) seriously affects

the fairness, integrity, or public reputation of judicial proceedings.” United States v.

Taylor, 514 F.3d 1092, 1100 (10th Cir. 2008).

       “Before entering judgment on a guilty plea, the court must determine that there is a

factual basis for the plea.” Fed. R. Crim. P. 11(b)(3). The court may consider “anything

that appears in the record” when making its determination. United States v. Keiswetter,

860 F.2d 992, 996 (10th Cir. 1988) (internal quotations and emphasis omitted). “‘An

inquiry might be made of the defendant, of the attorneys for the government and the

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defense, of the presentence report when one is available, or by whatever means is

appropriate in a specific case.’” Id. (quoting Notes of Advisory Committee on Rules,

1974 Amendment to Rule 11).

       Thus, Rule 11 does not require the district judge to question the defendant as to the

factual basis for a guilty plea; rather, the rule simply imposes an obligation on the judge

to “determine that there is a factual basis for the plea.” Fed. R. Crim. P. 11(b)(3)

(emphasis added). Questioning the defendant is merely one method, albeit a laudable and

effective one, of ascertaining that such a factual basis exists. See Notes of Advisory

Committee on Rules, 1974 Amendment to Rule 11 (“An inquiry might be made . . . by

whatever means is appropriate in a specific case.”) (emphasis added). Nevertheless,

whatever the chosen method, it is “‘incumbent upon the judge to produce a record on the

basis of which we can determine that his discretion was not abused.’” Keiswetter, 860

F.2d at 996 (quoting United States v. Dayton, 604 F.2d 931, 938 (5th Cir. 1979)).

       Taken as a whole, the record evidence is sufficient to support each element of the

charge to which Ms. Pearce pleaded guilty. Specifically, Ms. Pearce argues that there

was insufficient evidence that she possessed the drugs because they were found in Mr.

Brown’s actual possession. Possession, however, can be actual or constructive. United

States v. Avery, 295 F.3d 1158, 1177 (10th Cir. 2002). Constructive possession “exists

when a person knowingly has ownership, dominion, or control over the particular object.”

Id. (quotations omitted). There is ample evidence in the record showing that Ms. Pearce

knowingly had ownership or control over the drugs.

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       First, the record contains Ms. Pearce’s post-Miranda statement that the

methamphetamine belonged to her, a statement corroborated by Mr. Brown. Second,

before it accepted Ms. Pearce’s plea, the district court considered her Petition to Enter

Plea of Guilty, which described the facts supporting the charge against her. In the

Petition, she stated:

       I was in possession of Methamphetamine a schedule II controlled
       substance. I was planning on distributing the methamphetamine to other
       persons. Roy Brown, Jr. was holding the drugs at my request. All of these
       events occurred in Tulsa, Oklahoma which is part of the Northern District
       of Oklahoma. This occurred on March 12, 2009.

Petition to Enter Plea of Guilty, at 2. Third, at the plea hearing, the district judge asked

Ms. Pearce to explain in her own words her conduct which would make her guilty of the

charged crime. She stated that she “was in possession of methamphetamines [sic] and []

intended to distribute them [sic] to other persons.” Finally, the judge asked the

government to make a proffer of the facts it intended to prove at trial. The Assistant

United States Attorney stated:

       The government’s evidence would be that on March 12th of this year Tulsa
       Police Department responded to a possibly [sic] methamphetamine
       laboratory call at the Rest Inn located at 7475 East Admiral Place, Tulsa,
       Oklahoma, Northern District of Oklahoma. While there the police came
       into contact with Roy Brown and the defendant here, Jolene Pearce. During
       the search of defendants Brown and Pearce several individual baggies of
       methamphetamine were discovered. After being mirandized [sic], Pearce
       told police the methamphetamine was hers. Tulsa police would state that
       based upon the packaging of the drugs, the large amount of money found,
       and the evidence of a methamphetamine laboratory in the motel room of
       Pearce and Brown, the methamphetamine possessed found [sic] was for




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       distribution.1

This evidence supports the district court’s determination that Ms. Pearce had possession

of the drugs.

       Thus, after reviewing the record, we agree with the district court that there is an

adequate factual basis in the record for Ms. Pearce’s guilty plea. Accordingly, we

conclude that the district court did not err in accepting her plea.

                                    III. CONCLUSION

       For the foregoing reasons, we AFFIRM Ms. Pearce’s conviction.

                                           ENTERED FOR THE COURT,



                                           Deanell Reece Tacha
                                           Circuit Judge




       1
         Ms. Pearce contends that the prosecutor misrepresented that there was “evidence
of a methamphetamine laboratory in the motel room” because the responding officer did
not initially consider the room to be a methamphetamine lab. The officer’s subjective
belief, however, is irrelevant to whether the evidence supports the existence of a
methamphetamine lab as a matter of law. Moreover, even without the prosecutor’s
proffer of evidence, Ms. Pearce’s representations to the court alone provide a sufficient
factual basis for the plea.

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