                                                                                    FILED
                                                                        United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                            Tenth Circuit

                             FOR THE TENTH CIRCUIT                             April 25, 2017
                         _________________________________
                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                           No. 16-5126
                                                   (D.C. No. 4:15-CR-00165-JHP-1)
GABRIELA RODRIGUEZ DE RANGEL,                                (N.D. Okla.)
a/k/a Gabriela Rangel, a/k/a Gabriela
Rodriguez,

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, HOLMES, and PHILLIPS, Circuit Judges.
                  _________________________________

       Gabriela Rodriguez De Rangel appeals her conviction for possessing

methamphetamine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(C) . She argues that the jury was incorrectly instructed regarding constructive

possession. Exercising jurisdiction under 28 U.S.C. §1291, we affirm.




       *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,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.
                                       BACKGROUND

       On October 4, 2015, Oklahoma Highway Patrol (OHP) troopers stopped

De Rangel’s SUV because of a non-functioning brake light and an improperly displayed

tag. A drug dog subsequently alerted near the rear bumper. When the troopers told

De Rangel they intended to search the SUV, she “panicked” and said “No, but my

boyfriend - - the car - - how do you say - - llanta[?].” R., Vol. II at 126. “Llanta” is the

Spanish word for “tire.” Troopers cut into the SUV’s spare tire and found 875.2 grams of

methamphetamine.

       After being arrested, De Rangel told DEA agents that she was traveling to Tulsa

from Phoenix, where she had met “with some guys” who loaded drugs into her tire.

Id. at 119. She expected to be compensated for her trip.

       With De Rangel’s consent, Tulsa Police Officers searched her Tulsa home. In her

bedroom, they found digital scales and a baggie containing 25.8 grams of

methamphetamine. She was charged with possessing methamphetamine with intent to

distribute.

       At trial, De Rangel provided a different story. She testified that in late September

she drove to Phoenix to shop and to deliver $25,000 (that had been stashed in her SUV’s

spare tire) to her stepdaughter’s boyfriend. According to De Rangel, the boyfriend

planned to use the money to invest in a car dealership and he promised to pay her $5,000.

After De Rangel arrived in Phoenix, some “guys” took the tire, id., Vol. II at 183, and

returned it several days later without paying her. She then drove back to Tulsa, allegedly

unaware that methamphetamine had been placed inside the tire.

                                              2
          De Rangel further claimed that after being stopped by troopers, they mistranslated

her statements “[b]ecause [she] would tell [the Spanish-speaking trooper] one thing about

the money and he would [translate] that [into] ‘you went to get drugs.’” Id. at 190. She

also said that many other people lived in her house and that she would not have consented

to the search if she had known drugs were there.

          The jury convicted De Rangel as charged, and the court sentenced her to

51 months’ imprisonment.

                                            DISCUSSION

          De Rangel contends that her conviction for possession with intent to distribute

must be reversed because of instructional error. She asserts that the jury instruction given

enabled the jury to find that she constructively possessed the methamphetamine in the tire

and in her bedroom simply by “knowingly ha[ving] the power at a given time to exercise

dominion or control over [it].” R., Vol. I at 42.1




          1
              In larger part, the jury instruction defining actual or constructive possession
stated:

                 The law recognizes two kinds of possession: actual possession and
          constructive possession. A person who knowingly has direct physical
          control over an object or thing, at a given time, is then in actual possession
          of it.
                 A person who, although not in actual possession, knowingly has the
          power at a given time to exercise dominion or control over an object, either
          directly or through another person or persons, is then in constructive
          possession of it.

R., Vol. I at 42 (emphasis added).
                                                 3
       Ordinarily, “[w]e review de novo the jury instructions as a whole and view them

in the context of the entire trial to determine if they accurately state the governing law

and provide the jury with an accurate understanding of the relevant legal standards and

factual issues in the case.” United States v. Vernon, 814 F.3d 1091, 1103 (10th Cir.)

(internal quotation marks omitted), cert. denied, 137 S. Ct. 58 (2016). But since De

Rangel did not object to the constructive-possession instruction, we review only for plain

error. See United States v. LaVallee, 439 F.3d 670, 684 (10th Cir. 2006). Under plain

error review, De Rangel must show that “there is (1) error, (2) that is plain, which (3)

affects substantial rights, and which (4) seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” United States v. Gonzalez–Huerta, 403 F.3d 727,

732 (10th Cir. 2005) (en banc).

       The government concedes that the instruction was erroneous, as it failed to require

an intention to exercise dominion or control, not just the power to do so. See United

States v. Little, 829 F.3d 1177, 1182 (10th Cir. 2016) (observing that the Supreme Court

in Henderson v. United States, 135 S. Ct. 1780 (2015), “held that constructive possession

requires both power to control an object and intent to exercise that control”). The

government also acknowledges that the error alleged here is plain error, as the issue had

been settled by the time De Rangel filed her direct appeal. See United States v. Cordery,

656 F.3d 1103, 1106 (10th Cir. 2011) (noting that an error is plain “where the Supreme

Court or this court has addressed the issue or where the district court’s interpretation was

clearly erroneous,” and that “plain error is measured at the time of appeal” (brackets and

internal quotation marks omitted)).

                                               4
       The government’s concessions end, however, after conceding the first and second

prongs of plain error. The government argues that De Rangel fails to establish the third

prong, where she “must show a reasonable probability that, but for the error claimed, the

result of the proceeding would have been different,” id. at 1108 (internal quotation marks

omitted). De Rangel argues that if the jury had been properly instructed she likely would

have been acquitted based on her testimony that “the trip [to Phoenix] was about

transporting money,” and that “she had not been home for seven days prior to the search

[of her house] and did not know about the drugs.” Aplt. Opening Br. at 11. We disagree.

Despite her testimony, the jury found that she had intended to distribute

methamphetamine. As this court recently noted in United States v. Simpson, 845 F.3d

1039, 1060 (10th Cir. 2017), a defendant “could intend to distribute [drugs] only if [s]he

intended to possess [those drugs], for [s]he could not distribute something that [s]he

didn’t have.” In other words, it is nonsensical “to assert that the same jury that found that

[De Rangel] intended to distribute the [drugs] could have simultaneously found that [s]he

did not intend to possess [them].” Id. (brackets and internal quotation marks omitted).

Thus, the erroneous instruction had no effect on the jury’s deliberative process, as the

jury nevertheless determined, in light of the instruction given describing the elements for




                                             5
possession with intent to distribute,2 that De Rangel intended to exercise dominion and

control over the methamphetamine found in her tire and bedroom.

                                      CONCLUSION

      We affirm De Rangel’s conviction.
                                             Entered for the Court


                                             Mary Beck Briscoe
                                             Circuit Judge




      2
         The jury instruction for possessing a controlled substance with intent to
distribute provided:

              To find the defendant guilty of this crime you must be convinced
      that the government has proved each of the following beyond a reasonable
      doubt:

             First: the defendant knowingly or intentionally possessed a
             controlled substance as charged;
             Second: the substance was in fact methamphetamine;
             Third: the defendant possessed the substance with the intent to
             distribute it.

             To “possess with intent to distribute” means to possess with intent to
      deliver or transfer possession of a controlled substance to another person,
      with or without any financial interest in the transaction.
      R., Vol. I at 37.

                                            6
