     Case: 10-41320   Document: 00511893926      Page: 1   Date Filed: 06/20/2012




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

                                                                    FILED
                                                                   June 20, 2012

                                   No. 10-41320                    Lyle W. Cayce
                                                                        Clerk

UNITED STATES OF AMERICA,

                                              Plaintiff-Appellee
v.

RYAN JAMES MUDD,

                                              Defendant-Appellant



                  Appeal from the United States District Court
                       for the Southern District of Texas


Before STEWART, ELROD, and SOUTHWICK, Circuit Judges.
CARL E. STEWART, Circuit Judge:
        Defendant-Appellant Ryan James Mudd appeals his conviction and
sentence on a single count of possession of a firearm by a felon, in violation of 18
U.S.C. § 922(g)(1). Mudd argues that: (1) there was insufficient evidence to
support his conviction; and (2) a conflict exists between the district court’s oral
pronouncement at sentencing and written judgment. For the following reasons,
we AFFIRM Mudd’s conviction, VACATE his sentence in part, and REMAND
this case to the district court.
                                         I.
        On February 12, 2009, two Texas parole officers and a Corpus Christi
police officer performed a consensual home visit and search of the home Mudd
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                                    No. 10-41320

shared with his girlfriend, Ashley Higgs, an employee of Hobby Lobby. Mudd’s
mother, Debbie Mudd, owned and sometimes lived at the home. The house had
previously been owned by Mudd’s deceased father, a former police officer who
collected guns and stored them around the house. Prior to the home visit, Mudd
and Higgs had lived at the house for two and a half months. Sammy Pena, a
friend of Mudd’s, also lived at the house for about three weeks, until Mudd
acrimoniously kicked him out at the end of January 2009 because of Pena’s
threatening behavior. A number of other people had also been permitted to
occasionally reside in the house.
      The house was messy and cluttered. In the very cluttered bedroom shared
by Mudd and Higgs, officers found Mudd’s wallet and identification. At Mudd’s
trial, Police Officer Roger Parker described a storage compartment in the room
under a bay window. The lid was cracked open an inch or two, and did not close
completely. Officer Parker described that a person sitting on the bed could see
inside of the storage compartment, and that once he stooped down slightly, he
could see inside of it. At the top of the storage unit was a partially unzipped
black bag with the stock of a shotgun sticking out of it.
      Parole Officer Bronia Brown testified that the bay window storage
compartment was an older furniture piece that did not completely close. A black
bag was visible when looking at the compartment. Inside of the black bag was
a shotgun. Beneath the black bag was a Hobby Lobby shopping bag.
      The Government’s photographic exhibits corroborate the testimony of
Officer Parker and Officer Brown with respect to the appearance of the storage
compartment. They show the storage compartment partially opened, directly
next to the bed and beneath a large window. A black bag is visible within the
partially open storage compartment.
      The stock of the shotgun discovered in the storage compartment was
wrapped in black tape, and the serial number was obliterated. ATF Special

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                                  No. 10-41320

Agent Steven Waters testified that the tape did not appear to be old, worn, or in
poor condition. He further testified that old black electrical tape tends to crack
over time; however, the tape that was wrapped around the shotgun was new and
very flexible. It was ultimately determined that the shotgun had originally been
purchased by an elderly Michigan man, who had traded it several years earlier.
      When confronted about the weapon, Mudd denied all knowledge of it.
Mudd was arrested that evening. In an interview, Agent Waters told him that
a sawed-off shotgun had been found in the bedroom, but did not reveal the
specific location.
      Mudd made phone calls from jail to Higgs and his sister, Ronya Aigner,
which were recorded. Per Agent Waters’s request, an investigator with the
Nueces County Sheriff’s Office transferred a number of these conversations to
compact discs, parts of which were played at trial before the jury.
       In one call to Aigner, Mudd denied knowledge of the gun and where it was
found, and speculated that someone had planted it. In another conversation,
Mudd told Aigner that their mother might accept responsibility for the gun and
possibly receive a misdemeanor.
      In a conversation with Higgs, Mudd stated that he thought he could beat
the charges because the house belonged to his mother and the gun could have
been there for years. Mudd told Higgs that the gun had been discovered in a
black bag. He asked her to take pictures of the cobwebs on the bag, in order to
prove that the bag had been in the bedroom for a long time. Mudd also told her
that he did not know what bag “they” were talking about.
      Agent Waters testified that he interviewed Mudd a second time on March
11, 2009. He confronted Mudd about identifying the location of the firearm
during his calls from jail. Waters pointed out that at the time of his arrest,
Mudd had told him that he did not know the location of the firearm. Mudd told
Waters that his parole officer had visited him in jail two weeks prior to the

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interview and told him where the firearm was discovered. Waters told Mudd
that his facts did not “add up” because Mudd told Higgs the location of the
firearm in a phone call two days after his arrest. Mudd had no further comment
at that time. At a subsequent interview after his indictment, Mudd told Waters
that a police officer at the scene told him where the shotgun was discovered.
      On September 28, 2010, a jury found Mudd guilty of possession of a
firearm by a convicted felon. On December 15, 2010, Mudd was sentenced to 77
months’ imprisonment and three years’ supervised release.            This appeal
followed.
                                        II.
                                        A.
      “When reviewing sufficiency of the evidence, we will affirm if a reasonable
trier of fact could have concluded that the evidence established the essential
elements of the offense beyond a reasonable doubt.” United States v. Santillana,
604 F.3d 192, 195 (5th Cir. 2010).       “We consider all evidence, credibility
determinations, and reasonable inferences drawn therefrom in the light most
favorable to the prosecution.” Id. “The jury may choose among reasonable
constructions of the evidence: The evidence need not exclude every reasonable
hypothesis of innocence or be wholly inconsistent with every conclusion except
that of guilt.” Id. “We will reverse, however, if after viewing the evidence in the
light most favorable to the prosecution, the evidence still gives equal or nearly
equal support to a theory of guilt and a theory of innocence, because in that
event, a reasonable trier of fact must necessarily entertain reasonable doubt.”
Id. (internal citations omitted).
                                        B.
      “In order to convict one for felon in possession of a firearm, the government
must prove that the defendant (1) has been convicted of a felony; (2) possessed
a firearm in or affecting interstate commerce; and (3) knew that he was in

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possession of the firearm.” United States v. Ybarra, 70 F.3d 362, 365 (5th Cir.
1995).   “Possession of the firearm may be actual or constructive.”              Id.
“Constructive possession is ‘ownership, dominion, or control over the contraband
itself, or dominion or control over the premises in which the contraband is
concealed.’” Id. (quoting United States v. Smith, 930 F.2d 1081, 1085 (5th Cir.
1991)) (emphasis omitted).
      “In determining what constitutes dominion and control over an illegal
item, this Court considers not only the defendant’s access to the dwelling where
the item is found, but also whether the defendant had knowledge that the illegal
item was present.” United States v. De Leon, 170 F.3d 494, 497 (5th Cir. 1999).
“[M]ere control or dominion over the place in which contraband or an illegal item
is found by itself is not enough to establish constructive possession when there
is joint occupancy of a place.” United States v. Mergerson, 4 F.3d 337, 349 (5th
Cir. 1993) (emphasis omitted). “In our previous joint occupancy cases, this court
has adopted a commonsense, fact-specific approach to determining whether
constructive possession was established.”       Id. (internal quotation marks
omitted). “We have found constructive possession in such cases only when there
was some evidence supporting at least a plausible inference that the defendant
had knowledge of and access to the weapon or contraband.” Id.
      This court has likewise determined that mere proof of dominion over a
place or vehicle is insufficient to sustain a conviction, of which knowing
possession is an element, where the contraband at issue was discovered in a
hidden compartment. “[I]n order to satisfy the knowledge element in hidden
compartment cases, this Court has normally required additional ‘circumstantial
evidence that is suspicious in nature or demonstrates guilty knowledge.’” United
States v. Resio-Trejo, 45 F.3d 907, 911 (5th Cir. 1995) (quoting United States v.
Anchondo-Sandoval, 910 F.2d 1234, 1236 (5th Cir. 1990)).            Inconsistent
statements and implausible explanations are among the behaviors previously

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                                  No. 10-41320

recognized in this circuit as circumstantial evidence of guilty knowledge. See
United States v. Ortega Reyna, 148 F.3d 540, 544 (5th Cir. 1998).
      Turning now to the present case, we conclude that the totality of the
evidence presented at trial creates at least a plausible inference that Mudd had
knowledge of and access to the weapon. First, two days after Mudd’s arrest, he
identified in a phone conversation that the shotgun was found in a black bag,
despite his unequivocal denials at the time of his arrest of knowledge of the
weapon and its location. When confronted with this discrepancy a month after
his arrest, Mudd claimed that his parole officer had informed him of the location
of the weapon two weeks earlier. Although the Government did not produce
evidence refuting Mudd’s claim that his parole officer told him the location of the
weapon two weeks after his arrest, Mudd’s allegation does not explain how he
came to know the location of the weapon in a black bag two days after police
initially discovered it in his bedroom and he denied all knowledge of it. Given
these inconsistencies, it was reasonable for the jury to conclude that Mudd’s
explanations lacked credibility and to infer that Mudd was aware of and had
access to the shotgun prior to its discovery by law enforcement.
      Additionally, the jury was presented with evidence that, despite the
defense’s suggestion that the gun had belonged to Mudd’s deceased father and
essentially been forgotten, the gun had only recently been handled and placed
into the bay window storage compartment. For instance, Agent Waters testified
that the black electrical tape wrapped around the shotgun was new, flexible, and
in good condition. Parole Officer Brown testified that a Hobby Lobby shopping
bag was found underneath the weapon. Although Higgs testified that Debbie
Mudd also worked and shopped at Hobby Lobby, suggesting that the shopping
bag beneath the shotgun could have belonged to Debbie, the jury could
reasonably have determined that Higgs’s testimony was not credible given her
relationship to the defendant. When taken together, the new tape on the

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                                       No. 10-41320

shotgun and Hobby Lobby shopping bag found beneath it create a plausible
inference that the gun had only been in the storage compartment for a short
time.
        Moreover, there is evidence that the weapon was stored in reasonably
plain view of a person in Mudd’s bedroom.                The shotgun was found in a
compartment beneath a window, and the lid of the compartment was partially
open. The stock of the shotgun was protruding from a partially unzipped black
bag. Officer Parker testified that a person sitting on the bed could see inside of
the compartment, as he did while stooping. The jury was permitted to regard
this testimony as credible. Although Parole Officer Brown did not corroborate
that the weapon itself was plainly visible, she did not dispute the assertion and
acknowledged that the black bag was plainly visible.                        Moreover, the
Government’s photographic exhibits clearly show that the storage compartment
was large, conspicuous, adjacent to the bed, and partially open.1 Through this
opening, the black bag in which the sawed-off shotgun was discovered is clearly
visible. The evidence presented regarding the position and appearance of the
storage compartment and the visibility of the weapon is sufficient to create a
plausible inference that Mudd, who lived in the bedroom for more than two




        1
         Following briefing and oral argument, we reviewed the original photographic exhibits
submitted at trial by the Government. Exhibit 03 shows Mudd’s bedroom. Mudd’s bed is
adjacent to the partially open storage compartment, which is beneath the room’s large window.
Exhibit 04 is a closer view of the storage compartment. The very large storage compartment
is directly next to two end tables beside Mudd’s bed, on which a portable heater, plate, and
household goods rest. The storage compartment is open, and a black bag is clearly visible
inside. Exhibit 05 shows the storage compartment with the lid completely open. Inside is the
black bag with the shotgun partially protruding out of it. Exhibit 06 is a photograph of the
shotgun and bag placed on the bed. The shotgun is long, large, and appears heavy. The end
of the shotgun is wrapped in black tape. The black bag which had enclosed the shotgun is also
very large. We conclude that the photographic exhibits corroborate Officer Parker’s testimony
that, by virtue of the partially open storage compartment, the firearm was in reasonably plain
view of a person in Mudd’s bedroom.

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months and presumably sat on his bed at least once, was aware of the presence
of the weapon beneath the window.
      The quality and quantity of the evidence of guilty knowledge in this case
is more probative than in cases where this court has previously ruled that there
was insufficient evidence of knowing possession to support a jury verdict beyond
a reasonable doubt. For instance, in Mergerson, we reversed a defendant’s
conviction for being a felon in possession of a firearm which was discovered
between the mattress and boxsprings of the bed he shared with his girlfriend.
4 F.3d at 348.      A pawnshop receipt revealed that the handgun had been
purchased by the defendant’s girlfriend long before he moved into the residence.
Id. The weapon was not in plain view. As there was “no . . . circumstantial
indicia” of the defendant’s knowledge of the weapon, we reversed. Id. at 349.
      In United States v. Onick, we reversed the drug conviction of a houseguest
of a drug dealer. 889 F.2d 1425 (5th Cir. 1989). As “[n]o evidence establishe[d]
that she lived in the house[,]” we reasoned that dominion over the drugs therein
should not be lightly imputed. Id. at 1429. The connection between the
houseguest and the drugs, we concluded, was simply too attenuated to affirm the
conviction.
      In Ortega Reyna, we reversed a defendant’s conviction of possession with
intent to distribute illegal drugs, which were stuffed into the tire of a truck he
borrowed. 148 F.3d 540. There, the circumstantial indicia of guilty knowledge
relied upon by the Government were not directly related to the contraband;
instead, the Government largely relied upon behavioral characteristics and
factual circumstances generally associated with guilt, such as the defendant’s
lack of nervousness, lack of luggage, and possession of $700 in cash, which were
easily explained for reasons other than his being a drug trafficker. See id. at 547
(“[W]hen circumstantial evidence and the reasonable inferences to be drawn



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from it permit conclusions of both guilt and innocence that are essentially in
balance, there has to be reasonable doubt.”).
      The present case is distinguishable from Mergerson, Onick, and Ortega
Reyna in multiple respects.      First, there is testimonial and photographic
evidence that the firearm was located in reasonably plain view of Mudd’s bed.
Second, Mudd’s inconsistent statements go directly to his knowledge of the
location of the weapon. Such inconsistent statements are much more probative
of guilt than inconsistent statements regarding tangential matters, such as
where one was traveling or why one was traveling late at night. Lastly, as Mudd
actually lived in his mother’s home and had been living there for over two
months, it is reasonable to infer, particularly after consideration of his
inconsistent statements, that belongings in his bedroom belonged to or were
accessible to him.
      Under our deferential review of jury verdicts in cases where knowing
possession of contraband is disputed, all that is required to sustain a jury verdict
is evidence supporting at least a plausible inference that the defendant had
knowledge of and access to the weapon or contraband. The facts outlined above,
when taken together, create a plausible inference of Mudd’s guilty knowledge.
Accordingly, the defendant’s conviction will be affirmed.
                                        III.
                                        A.
      As Mudd had no opportunity at his sentencing to object to special
conditions later included in his written judgment, “instead of reviewing for plain
error, we review the . . . court’s imposition of those conditions for an abuse of
discretion[.]” United States v. Bigelow, 462 F.3d 378, 381 (5th Cir. 2006)
(internal quotation marks omitted).




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                                       B.
      “[I]f the written judgment conflicts with the sentence pronounced at
sentencing, that pronouncement controls.” Id. (emphasis omitted). “If, however,
the difference between the two is only an ambiguity, we look to the sentencing
court’s intent to determine the sentence.” Id. “The key determination is
whether the discrepancy between the oral pronouncement and the written
judgment is a conflict or merely an ambiguity that can be resolved by reviewing
the rest of the record.” United States v. Mireles, 471 F.3d 551, 558 (5th Cir.
2006). “If the written judgment broadens the restrictions or requirements of
supervised release from an oral pronouncement, a conflict exists.” Id.
      At Mudd’s sentencing, the district judge pronounced orally that he would
“recommend drug and alcohol treatment instead of testing upon his release.”
However, the first special condition of supervision included in the written
judgment provides that Mudd shall participate in a drug treatment program
“which may include, but not be limited to urine, breath, saliva and skin testing”
and shall “further submit to drug-detection techniques, in addition to those
performed by the treatment agency, as directed by the probation officer.”
      As the district court stated at sentencing that Mudd would be afforded
treatment in lieu of testing upon his release, the condition of supervision
requiring him to submit to testing broadens the restrictions of the oral
pronouncement. Accordingly, a conflict, rather than a mere ambiguity, exists,
and the case must be remanded to the district court.
                                      IV.
      For the foregoing reasons, we AFFIRM Mudd’s conviction, VACATE his
sentence in part, and REMAND the matter to the district court with
instructions to conform the written judgment to the oral pronouncement at
sentencing.



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