                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 19-3219
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                                Timothy Earl Caudle

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Little Rock
                                  ____________

                             Submitted: April 14, 2020
                              Filed: August 7, 2020
                                  ____________

Before LOKEN, SHEPHERD, and ERICKSON, Circuit Judges.
                          ____________

LOKEN, Circuit Judge.

       Timothy Caudle pleaded guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). At sentencing, he objected to a recommended
two-level enhancement because the offense “involved” three to seven firearms.
USSG § 2K2.1(b)(1)(A). Caudle admitted he possessed an assault rifle found in the
home he shared with his wife but denied he possessed a nine-millimeter handgun also
found in the home or a Springfield XD .40 caliber pistol (the “Springfield”) found in
his wife’s vehicle parked in front of the home. The district court1 found Caudle
possessed the three firearms and imposed a within-range sentence of 55 months
imprisonment. Caudle appeals, arguing the district court clearly erred in finding he
constructively possessed the Springfield pistol. He does not appeal the finding he
possessed the handgun found in his home. He also argues the court plainly erred by
accepting his guilty plea without establishing he knew his prohibited status as a felon,
as required by the Supreme Court’s post-plea decision in Rehaif v. United States, 139
S. Ct. 2191 (2019). Finding no clear error or plain error, we affirm.

                       I. The Constructive Possession Issue.

       Caudle’s felon-in-possession conviction arose when a 911 call from his wife,
Candace, led Deputy Sheriff Douglas Bjork to Caudle’s home in Jacksonville,
Arkansas. At sentencing, Bjork testified that he found a distraught Candace sitting
outside the home on the bumper of her vehicle. She told Bjork that Caudle was
“cussing at her and threatening to beat her and threatening to kill her,” pointed a
pistol at her face, and fired one round from an assault rifle into a stuffed animal.
Caudle, who was pacing back and forth on the front porch, yelled at Bjork he was
“not going to go to jail, no matter what.” Bjork told Caudle to wait on the porch.
When he instead entered the home, Candace warned Bjork that Caudle had a gun.
Caudle returned outside without a firearm and belligerently approached Bjork and
Candace in a threatening manner. Bjork attempted to handcuff Caudle, who
attempted to flee. Bjork drew his taser and called for backup. Caudle stopped but
resisted handcuffing. Bjork wrestled Caudle into handcuffs and placed him in the
back of Bjork’s car.




      1
       The Honorable Billy Roy Wilson, United States District Judge for the Eastern
District of Arkansas.

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       Candace provided written consent to search the Caudle home. Bjork saw a
stuffed animal with a hole through its middle and a hole in the floor beneath it.
Deputies found a loaded assault rifle on the bed next to a magazine capable of
holding 30 bullets, a nine-millimeter handgun under the living room couch, an empty
.40 caliber magazine sitting on the couch, and spent .40 caliber shell casings on the
bedroom dresser. Candace told the deputies a .40 caliber handgun was in the house
or in her vehicle. They found the Springfield in the passenger side of the vehicle.
Candace owned all three firearms and the vehicle.

       In addition to Bjork’s testimony, BATF Special Agent Timothy Boles testified
Candace told the grand jury that indicted Caudle that she kept the three firearms “on
top of the bedroom closet,” and that Caudle had driven her vehicle “maybe once [or]
twice,” including around the time of his arrest when he “[p]robably took it to the gas
station and put gas in it for [her].”

       Based on this testimony, the government argued there was sufficient evidence
to find that Caudle possessed the Springfield .40 caliber firearm:

      [The Caudles] are a married couple. They have one vehicle. There’s
      two people. They both can drive the vehicle. She has indicated through
      grand jury testimony that he has driven that vehicle before. There’s the
      .40 caliber ammunition that is located inside their bedroom. There’s the
      .40 caliber magazine that is located on the couch.

      So all of those taken together, Your Honor, [Caudle] has constructively
      possessed [the Springfield].

The district court, stating “I consider it close,” overruled Caudle’s objection and
found that he constructively possessed the Springfield.




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        In applying a § 2K2.1(b)(1) enhancement, the court counts only those firearms
that the defendant obtained, possessed, or distributed. USSG § 2K2.1, comment.
(n.5). “A defendant’s possession of firearms may be actual or constructive, sole or
joint.” United States v. Vega, 720 F.3d 1002, 1003 (8th Cir. 2013). The government
had the burden to prove Caudle constructively possessed the Springfield by a
preponderance of the evidence. United States v. Sacus, 784 F.3d 1214, 1219 (8th
Cir.), cert. denied, 136 S. Ct. 348 (2015). Constructive possession “is established if
the person has dominion over the premises where the firearm is located, or control,
ownership, or dominion over the firearm itself.” United States v. Cross, 888 F.3d
985, 990 (8th Cir.) (quotation omitted), cert. denied, 139 S. Ct. 351 (2018). The
circumstances “must show a sufficient nexus between the defendant and the firearm.”
Id. at 991. “Stated differently, constructive possession requires knowledge of an
object, the ability to control it, and the intent to do so.” United States v. Kelley, 594
F.3d 1010, 1014 (8th Cir. 2010) (quotation omitted). “[T]he factfinder may infer
defendant had control of the firearm based on all the circumstances.” United States
v. Byas, 581 F.3d 723, 726 (8th Cir. 2009).

       Caudle argues “the facts do not support a finding that Mr. Caudle had
knowledge of, access to, and intended to control the firearm in his wife’s car.” We
disagree. Caudle lived on the property where all three guns were found. Though
Candace testified to the grand jury that she owned the guns, “ownership is irrelevant
to the issue of possession.” United States v. Boykin, 986 F.2d 270, 274 (8th Cir.),
cert. denied, 510 U.S. 888 (1993). Candace testified she kept all three guns in the
bedroom closet, where Caudle obviously had access and the ability to control. The
day the guns were found, Candace told Bjork that Caudle had pointed a handgun at
her face and shot a stuffed animal with the assault rifle. Deputies found the assault
rifle and a magazine in plain view on the bed the couple shared and a handgun under
the living room couch. Candace told Bjork there was another pistol somewhere in
their home or her car. Another deputy found the .40 caliber Springfield in a vehicle



                                          -4-
Candace testified Caudle had recently driven. In addition, a .40 caliber magazine was
found on the couch and spent .40 caliber casings on the bedroom dresser.

       On appeal, Caudle relies primarily on the Fifth Circuit’s decision in United
States v. Houston, 364 F.3d 243 (5th Cir. 2004). In that case, the defendant told law
enforcement officers he believed there were two guns in the couple’s hotel room,
which were in plain view. His wife disclosed a pistol -- the third firearm -- in her
purse. The district court found the defendant constructively possessed the third gun
and imposed a two-level § 2K2.1(b)(1)(A) enhancement. The Fifth Circuit reversed,
concluding that these circumstances did not support a finding that the defendant
constructively possessed the pistol in his wife’s purse. 364 F.3d at 249. Caudle
contends the circumstances in this case mirror Houston because the Springfield was
not in plain view, and Candace told the deputies a third gun might be in her vehicle.
He argues that the fact he drove the vehicle once or twice did not establish
knowledge, access, and intent to control the firearm.

       Although Caudle’s constructive possession of the Springfield was not as
obvious as in many of our constructive possession cases, such as Byas, 581 F.3d at
726, we conclude the district court’s finding on this “close” issue was not clearly
erroneous. The three guns were kept in Caudle’s home, where he had unrestricted
access. On the day in question, when Caudle had assaulted his wife with two of the
guns, all three were found scattered around the couple’s home and their sole vehicle.
Candace testified Caudle had used the vehicle at about that time. The .40 caliber
magazine and spent .40 caliber casings found in the home strengthen the nexus
between Caudle and the .40 caliber Springfield as Caudle actually or constructively
possessed this ammunition. See Cross, 888 F.3d at 991. Unlike the facts in Houston,
the couple’s joint occupancy of the home and joint possession of the three firearms
“support an inference that [Caudle] had knowledge of, and access to” the Springfield
pistol found in his wife’s vehicle. 364 F.3d at 248. The undisputed facts taken



                                         -5-
together establish a nexus between Caudle and the Springfield sufficient to support
the district court’s finding of constructive possession. There was no clear error.

                                II. The Rehaif Issue.

       The district court accepted Caudle’s guilty plea to unlawful possession of the
assault rifle on May 16, 2019. On June 21, the Supreme Court held in Rehaif that, to
convict a defendant of violating 18 U.S.C. § 922(g), the government “must show that
the defendant knew he possessed a firearm and also that he knew he had the relevant
status when he possessed it.” 139 S. Ct. at 2194. Caudle argues the district court
committed plain error by accepting his guilty plea without informing him of the
nature of the charge to which he was pleading and determining that there was a
factual basis for the plea, thereby violating Rules 11(b)(3) and 11(b)(1)(G) of the
Federal Rules of Criminal Procedure. See United States v. Coleman, 961 F.3d 1024,
1027-28 (8th Cir. 2020).2

        Though the district court accepted Caudle’s plea before the Supreme Court’s
decision in Rehaif, “we measure whether an error is plain based on the law at the time
of appeal.” Coleman, 961 F.3d at 1028. Accordingly, we held in Jawher that this
Rule 11(b) violation is “(1) an error, (2) that is plain.” 950 F.3d at 579. These are the
first two elements of the plain error standard established in United States v. Olano,
507 U.S. 725 (1993). However, to obtain plain error relief, Caudle must also
establish that the error affected his substantial rights. To make this showing, he must
“demonstrate a reasonable probability that, but for the error, he would not have



      2
        Caudle also argues it was error to accept his guilty plea because the indictment
failed to allege the element of the offense established in Rehaif. This contention is
without merit. “An indictment is normally sufficient if its language tracks the
statutory language.” United States v. Jawher, 950 F.3d 576, 579 n.2 (8th Cir. 2020)
(quotation omitted). There was no error, much less plain error.

                                          -6-
entered the plea.” Coleman, 961 F.3d at 1030 (quotation omitted); see United States
v. Dominguez Benitez, 542 U.S. 74, 83 (2004).

       The relevant status for Caudle’s felon-in-possession offense is that he “has
been convicted in any court of, a crime punishable by imprisonment for a term
exceeding one year.” 18 U.S.C. § 922(g)(1). Caudle argues that, because he had
never been sentenced to prison for more than one year when he was indicted, he
would not have pleaded guilty had he understood the government’s burden to prove
the Rehaif element. This contention will not withstand close scrutiny. Paragraph 28
of his Presentence Investigation Report (PSR) recited that, while Caudle’s initial
sentence for a 1992 California grand theft offense was one year imprisonment and
sixty days probation, his probation was revoked in 1994 and he was sentenced to
three years imprisonment. Paragraph 35 recited that, in 2005, he was convicted of the
Arkansas offense of possession of a firearm by a felon. This criminal history would
undoubtedly have provided sufficient evidence to prove that Caudle knew his status
as a § 922(g)(1) felon at the time he committed this offense. See United States v.
Welch, 951 F.3d 901, 907 (8th Cir. 2020); United States v. Hollingshed, 940 F.3d
410, 415-16 (8th Cir. 2019).

       The “lack of a plausible ignorance defense means that any § 922(g) defendant
who served more than a year in prison on a single count of conviction will face an
uphill battle to show that a Rehaif error in a guilty plea affected his substantial
rights.” United States v. Williams, 946 F.3d 968, 974 (7th Cir. 2020). Here, unlike
the defendants in Coleman and Williams, Caudle does assert on appeal that he would
not have pleaded guilty if he had known of Rehaif. But the conclusory assertion is
not plausible. At the start of the sentencing hearing -- more than three months after
the Rehaif decision -- the district court asked Caudle, “Do you think there’s any
reason you should be permitted [to] withdraw the plea of guilty that you entered back
in May?” Caudle replied, “No, sir.” The PSR criminal history paragraphs, to which
Caudle did not object, recited that he had twelve adult criminal convictions spanning

                                         -7-
more than thirty years. As in Coleman, given these circumstances, Caudle “has not
shown a reasonable probability that he would not have pleaded guilty had he known
of Rehaif. 961 F.3d at 1030. Thus, there was no plain Rehaif error that warrants
giving Caudle another opportunity to withdraw the guilty plea that he did not seek to
withdraw at sentencing.

      The judgment of the district court is affirmed.
                     ______________________________




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