                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                 UNITED STATES COURT OF APPEALS May 17, 2007

                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
                                                        No. 06-5056
 v.                                              (D.C. No. 04-CR-214-HDC)
                                                       (N . Dist. Okla.)
 VAUDA VIRGLE SHIPP, JR.,

          Defendant-Appellant.



                          ORDER AND JUDGMENT *


Before TA CH A, Chief Judge, SEYM OUR, Circuit Judge, and R OBIN SO N, **
District Judge.




      Vauda Virgle Shipp, Jr. was convicted of being a felon in possession of a

firearm and sentenced to 188 months imprisonment. He appeals his conviction,

the district court’s denial of his motion for a new trial, and his sentence. W e

affirm.

      Cheryl Ann Shipp filed a protective order against her husband, M r. Shipp.


      *
       This order and judgment is not binding precedent, except under the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.
      **
        Honorable Julie A. Robinson, United States District Judge, United States
District Court for the District of Kansas, sitting by designation.
She also informed the police that firearms were stored in a gun cabinet in the

bedroom of their shared home and provided them with consent to enter the house

and retrieve the firearms. The next day, Deputy James Yeager of the M ayes

County Sheriff’s office arrived at the Shipp house and encountered M r. Shipp.

He informed M r. Shipp of the protective order and his intent to search the home

for weapons. M r. Shipp led the deputy to the firearms in the bedroom. He was

arrested and charged with one count of being a felon in possession of a firearm.

      At trial, M s. Shipp testified she bought the guns for her husband and

recounted M r. Shipp’s testimony from a state civil proceeding acknowledging he

used the guns for hunting. M r. Shipp’s son-in-law testified M r. Shipp handed him

one of the firearms when he was visiting the Shipp home in 2003. M r. Shipp

subsequently objected to the inclusion of a jury instruction entitled

“OW NERSH IP IM M ATERIAL.” See Rec., vol. I, doc. 62 at 18 (“The ownership

of any firearm alleged to have been possessed by defendant is not to be

considered by you. The ownership of such a firearm is immaterial.”). The court

overruled this objection, the instruction was given, and the jury returned a guilty

verdict.

      The presentence report (PSR ) initially assigned M r. Shipp an offense level

of 14. Under the Armed Career Criminal provision, however, the offense level

was enhanced to 33. See U.S.S.G. § 4B1.4(b)(3)(B). To support this

enhancement, the PSR cited three prior felony convictions, including a 1987

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escape conviction for failing to return to a detention facility after overstaying an

official pass. W ith a criminal history category of IV, the suggested sentencing

range w as 188 to 235 months.

      M r. Shipp then filed a motion alleging his attorney was ineffective for

failing to adequately investigate, and requesting a new trial on the basis of new

evidence. M r. Shipp’s trial attorneys withdrew and new counsel was appointed.

At sentencing, M r. Shipp’s new attorney disputed the PSR’s classification of his

escape conviction as a violent felony, and requested a new trial, based on newly

discovered evidence and ineffective assistance of trial counsel. The district court

denied these requests and sentenced M r. Shipp to 188 months imprisonment. On

appeal, M r. Shipp contends the search of his home was unlawful; the evidence

presented was insufficient to support his conviction; and the court erred by

instructing the jury that ownership of the firearms w as immaterial, by denying his

motion for new trial, and in sentencing him as an Armed Career Criminal. W e

address each argument in turn.

      M r. Shipp argues for the first time on appeal that the search of his home

was unlaw ful because he was present and did not consent. “W here no objection is

made at trial to the admission of evidence, the alleged error is not preserved for

appellate review unless its admission constitutes plain error.” United States v.

Brown, 540 F.2d 1048, 1056 (10th Cir. 1976). M r. Shipp relies on Georgia v.

Randolph, 547 U.S. 103 (2006), where the Court held “a warrantless search of a

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shared dwelling for evidence over the express refusal of consent by a physically

present resident cannot be justified as reasonable as to him on the basis of consent

given to the police by another resident.” Id. at 1526. Here, Deputy Yeager

briefly described his encounter with M r. Shipp prior to entering the house. His

limited testimony indicates that M r. Shipp did in fact consent to the search. ***

Neither party produced evidence at trial that would have led the district court to

question the provision of consent, see United States v. Baker, 638 F.2d 198, 203

(10th Cir. 1980), and we therefore cannot conclude the court committed plain

error. See United States v. M itchell, 783 F.2d 971, 977 (10th Cir. 1986).

      “W e review de novo whether the prosecution presented sufficient evidence

to support a conviction.” United States v. Avery, 295 F.3d 1158, 1177 (10th Cir.

2002). W e examine evidence and the reasonable inferences to be drawn

therefrom in the light most favorable to the government. United States v. Serrata,

425 F.3d 886, 895 (10th Cir. 2005). “W e will not re-weigh the evidence or assess

the credibility of witnesses,” id., and will not overturn a conviction “unless no

rational trier of fact could have reached the disputed verdict.” United States v.

Wilson, 182 F.3d 737, 742 (10th Cir. 1999). To establish a violation of 18 U.S.C.

§ 922(g)(1), the government must prove “(1) that the defendant was previously



      ***
         See Rec., vol. VI at 44 (“[Government]: Did you ask Mr. Shipp where the
guns were located? [Deputy Yeager]: Yes, I did. [Government]: And did he show you
where they were located? [Deputy Yeager]: Yes, sir.”); id. at 49 (“[Deputy Yeager]:
Mr. Shipp, he took me to [the firearms] and pointed to them.”).

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convicted of a felony; (2) that the defendant thereafter knowingly possessed a

firearm or ammunition; and (3) that the possession was in or affecting interstate

comm erce.” United States v. Ledford, 443 F.3d 702, 713 (10th Cir. 2005).

      The first and third elements are not disputed here. Instead, M r. Shipp

impugns the motives of his wife and the credibility of his son-in-law’s testimony

in an effort to undermine the knowing possession element of the crime. It is not

within our province to assess the credibility of witnesses. M oreover, Officer

Yeager’s testimony that M r. Shipp directed him to the location of the firearms

also supports the knowing possession element. See Ledford, 443 F.3d at 714 (“To

sustain a conviction for constructive possession, the government must present

evidence supporting at least a plausible inference that the defendant had

knowledge of and access to the weapon.”). Consequently, we conclude there was

sufficient evidence to support the conviction.

      M r. Shipp also contends the district court erred in instructing the jury not to

consider ownership of the firearms. “This court reviews a district court's decision

to give a particular jury instruction for an abuse of discretion and considers the

instructions as a whole de novo to determine whether they accurately informed the

jury of the governing law.” United States v. Cota-M eza, 367 F.3d 1218, 1221

(10th Cir. 2004).   In United States v. Al-Rekabi, 454 F.3d 1113, 1120 (10th Cir.

2006), we held that “[a] knowing ability to control is all constructive possession

requires, even in a joint occupancy situation.” M s. Shipp’s alleged ownership of

                                         -5-
the firearms does not influence this crucial inquiry into whether M r. Shipp had

the knowing ability to control the firearms in his home. See United States v.

M ains, 33 F.3d 1222, 1228 (10th Cir. 1994) (“Section 922(g)(1) requires

possession, not ownership of the gun.”); United States v. Johnson, 683 F.2d

1187,1188 (8th Cir. 1982) (The felon in possession “statute . . . prohibits the

knowing possession of firearms. Ownership is immaterial.”). Thus, the

instruction accurately informed the jury of the governing law.

      M r. Shipp’s motion for a new trial alleged newly discovered evidence,

namely police documents he alleges reflect inconsistencies with provided

testimony. W e review a district court’s denial of a motion for a new trial for

abuse of discretion. United States v. LaVallee, 439 F.3d 670, 700 (10th Cir.

2006). Our five part test to determine whether newly discovered evidence

warrants a new trial begins with the requirement that “the evidence was

discovered after trial.” Id. Here, the district court recognized that the evidence

“w[as] mentioned at the trial.” Rec., vol. VII at 6. Accordingly, the district court

did not abuse its discretion by denying the new trial request on this ground.

      M r. Shipp also sought a new trial on the grounds that his counsel was

ineffective for failing to investigate, subpoena, and present relevant witnesses and

records. A “motion for a new trial grounded on any reason other than newly

discovered evidence must be filed within 7 days after the verdict . . . .”

F ED .R.C RIM .P. 33(b)(2). The jury returned its verdict on September 14, 2005,

                                          -6-
and M r. Shipp submitted his motion on December 1. To be timely, therefore, M r.

Shipp’s ineffectiveness claim must instead be couched as newly discovered

evidence, which has a longer filing period. See F ED . R. C RIM . P. 33(b)(1) (latest

filing date for newly discovered evidence is three years after verdict).

“Ineffective assistance of counsel may not serve as the basis for a motion for a

new trial on the ground of newly discovered evidence under Rule 33 where the

facts alleged in support of the motion were within the defendant's knowledge at

the time of trial.” United States v. M iller, 869 F.2d 1418, 1421 (10th Cir. 1989).

M r. Shipp was aware at the time of trial that his attorneys were not investigating

and preparing to call witnesses. Consequently, the district court did not err in

denying his motion for a new trial on ineffectiveness grounds.

      Finally, M r. Shipp objected to the application of the Armed Career

Criminal provision. He contends the district court erred by classifying his escape

charge as a violent felony and by failing to submit to the jury the question of

whether his escape crime w as a “violent” offense. W e need not linger on M r.

Shipp’s claim that the jury, not the district court, was the proper arbiter of

whether his escape conviction was a crime of violence. In United States v.

M oore, 401 F.3d 1220, 1226 (10th Cir. 2005), we clearly rejected this argument

and “conclude[d] that the government need not . . . prove to a jury that a

defendant’s prior conviction constitutes a ‘violent felony’ under § 924(e).”

      M r. Shipp also asserts his escape crime did not involve actual or potential

                                          -7-
violence, stating he “simply failed to return to the Lexington Assessment Center

after being permitted to leave on an official pass.” Aplt. Br. at 19. W e review

the district court’s application of the 18 U.S.C. § 924(e) enhancement de novo.

M oore, 401 F.3d at 1226. A violent offense in this context “involves conduct that

presents a serious risk of physical injury to another.” 18 U.S.C. §

924(e)(2)(B)(ii); U.S.S.G. § 4B1.2(a)(2). In United States v. M oudy, 132 F.3d

618, 620 (10th Cir. 1998), we said the “reasons . . . for holding escape to be a

crime of violence apply to all escapes, whether or not violence was actually

involved.” See United States v. Gosling, 39 F.3d 1140, 1142 (10th Cir. 1994)

(“[E]ven in a case where a defendant escapes from a jail by stealth and injures no

one in the process, there is still a serious potential risk that injury will result

when officers find the defendant and attempt to place him in custody.”). Even

assuming M r. Shipp’s escape was non-violent, we attribute a potential for

violence to all escapes as outlined in Gosling. The district court did not err in

determining M r. Shipp’s escape conviction was a crime of violence.

       W e A FFIR M .


                                                  ENTERED FOR THE COURT




                                                  Stephanie K. Seymour
                                                  Circuit Judge




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