     Case: 11-10391     Document: 00511748846         Page: 1     Date Filed: 02/06/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         February 6, 2012
                                     No. 11-10391
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RODNEY DALE WHITLEY,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 7:04-CR-7-1


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Rodney Dale Whitley was convicted by a jury of possession of
methamphetamine and marijuana with intent to distribute, possession of a
firearm in furtherance of a drug trafficking crime, and being a felon in
possession of a firearm. The charges were based on evidence discovered during
a traffic stop. The firearm and 2.49 pounds of marijuana were found in a closed
ice chest which was on the rear floorboard, directly behind Whitley, who was in
the front passenger’s seat.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-10391

      Whitley argues that the district court constructively amended the
indictment by permitting the jury to convict him of Counts Three and Four
absent proof that the firearm found in the ice chest was the same firearm
specified in the indictment. He notes that the firearm found in the ice chest was
not introduced at trial and that there was no evidence to show that the firearm
in question had the same serial number or that it was the same make or model
as the firearm identified in the indictment.
      We review Whitley’s constructive amendment challenge for plain error
because he failed to raise the issue in the district court. See United States v.
Bohuchot, 625 F.3d 892, 897 (5th Cir. 2010). To show plain error, the appellant
must show a forfeited error that is clear or obvious and that affects his
substantial rights. Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If the
appellant makes such a showing, this court has the discretion to correct the error
but only if it seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Id.
      “[N]o constructive amendment arises where the evidence proves facts
different from those alleged in the indictment, but does not modify an essential
element of the charged offense.” United States v. Munoz, 150 F.3d 401, 417 (5th
Cir. 1998) (internal quotation marks and citation omitted). Whitley’s firearms
convictions require nothing more than that he be in possession of a firearm. See
id.; 18 U.S.C. §§ 922(g)(1), 924(c)(1)(A). Whitley has failed to satisfy the plain
error standard. See Puckett, 129 S. Ct. at 1429.
      Whitley contends that the evidence was insufficient to support his
firearms convictions. He argues that there was not sufficient proof to show that
he possessed the firearm found in the ice chest. “When reviewing challenges to
the sufficiency of evidence supporting a conviction, we view the evidence and the
inferences that may be drawn from it in the light most favorable to the verdict,
and determine whether a reasonable jury could have found the essential



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                                 No. 11-10391

elements beyond a reasonable doubt.” United States v. Rains, 615 F.3d 589, 592
(5th Cir. 2010).
      Possession of a firearm may be “actual” or “constructive” and may be
proven by circumstantial evidence. United States v. De Leon, 170 F.3d 494, 496
(5th Cir. 1999). Where there is joint occupancy or control, the Government must,
in addition to showing control over the place where the item was found, present
evidence to support at least a plausible inference that the defendant knew of the
item itself. See De Leon, 170 F.3d at 497. This court applies “a common sense,
fact-specific approach” to a determination whether constructive possession
exists. United States v. Wright, 24 F.3d 732, 735 (5th Cir. 1994).
      We have no difficulty concluding that the Government presented sufficient
evidence to establish Whitley’s constructive possession. Testimony showed that,
approximately three weeks prior to the traffic stop, a rifle was present in
Whitley’s residence, as were quantities of marijuana and methamphetamine.
The jury was permitted to consider evidence of Whitley’s knowledge and intent
in determining whether Whitley constructively possessed the firearm in the ice
chest. See United States v. Williams, 620 F.3d 483, 491 (5th Cir. 2010); United
States v. Jones, 484 F.3d 783, 788 (5th Cir. 2007). There was also testimony to
the effect that Whitley told an implausible story to the trooper who stopped the
vehicle; this may be regarded as evidence of his guilty knowledge of contraband
within the vehicle. See United States v. Ortega Reyna, 148 F.3d 540, 544 (5th
Cir. 1998). Further, the evidence showed that the trooper detected an odor of
marijuana as he approached the passenger’s side of the vehicle, where Whitley
was seated; the jury therefore could have reasonably inferred that Whitley was
aware of the contents of the ice chest, which included the firearm found on top
of the marijuana. See United States v. Lopez, 74 F.3d 575, 578 (5th Cir. 1996).
      Whitley challenges the district court’s admission of testimony by the
trooper who stopped the vehicle, arguing that there are several instances of
improper opinion testimony.     He also contends that the testimony of the

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                                  No. 11-10391

Government’s expert witness was improper because it constituted drug courier
profile testimony and expert opinion testimony on the ultimate issues for the
jury. The above challenges are subject to plain error review given Whitley’s
failure to raise the issues in the district court. See United States v. Morin, 627
F.3d at 998 (5th Cir. 2010); United States v. Green, 324 F.3d 375, 381 (5th Cir.
2003). In view of the substantial evidence of his guilt, Whitley has failed to meet
his burden to demonstrate an entitlement to relief under the plain error
standard. See Puckett, 129 S. Ct. at 1429.
      Finally, for the first time on appeal, Whitley challenges the imposition of
a four-level enhancement under U.S.S.G. § 2K2.1(b), which applies where a
defendant possessed any firearm in connection with another felony offense. His
contentions regarding the enhancement attack the determination that he
possessed the firearm in the ice chest and are virtually indistinguishable from
his arguments concerning the sufficiency of the evidence to show that he
possessed that firearm. In view of our determination that the evidence was
sufficient to support the jury’s determination that Whitley was in constructive
possession of the firearm found in the ice chest, Whitley’s challenge to the
enhancement for possession of a firearm in connection with another felony
offense fails to satisfy the applicable plain error standard.        See Puckett,
129 S. Ct. at 1429.
      AFFIRMED.




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