Appellate Case: 24-6062 Document: 55-1 Date Filed: 03/25/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 25, 2025 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 24-6062 (D.C. No. 5:23-CR-00280-J-1) OTIS RAY WHITEHEAD, JR., (W.D. Okla.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before MORITZ, EID, and FEDERICO, Circuit Judges. _________________________________
Otis Ray Whitehead, Jr., appeals his conviction and sentence on one count of
being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we affirm.1
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 1 Judge Federico joins this Order and Judgment except for Part II.B. Appellate Case: 24-6062 Document: 55-1 Date Filed: 03/25/2025 Page: 2
I. Background
Whitehead was the subject of an investigation by the Oklahoma City Police
Department (“OCPD”). In March 2023, OCPD officers executed a search warrant at
a two-bedroom residence located at 2237 Northwest 32nd Street in Oklahoma City.
There, officers found Whitehead, his brother Tylin Childers, three of Whitehead’s
teenage nephews, and Whitehead’s teenage sister. A search uncovered a handgun in
the pocket of a jacket hanging over a closet door in one of the bedrooms. They
arrested Whitehead and Childers, each of whom had prior felony convictions.
The Government charged Whitehead with one count of being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The jury found
Whitehead guilty. The district court applied a sentencing enhancement for
obstruction of justice and sentenced Whitehead to 87 months of imprisonment.
Whitehead appeals.
II. Discussion
Whitehead raises three issues on appeal, challenging (1) the sufficiency of the
evidence, (2) the enhancement for obstruction, and (3) the constitutionality of
§ 922(g)(1). We address the issues in order.
A. Sufficiency of the evidence
1. Standard of review
“We review the sufficiency of the evidence to support a conviction de novo to
determine whether, viewing the evidence in the light most favorable to the
government, any rational trier of fact could have found the defendant guilty of the
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crime beyond a reasonable doubt.” United States v. Stepp, 89 F.4th 826, 831–32
(10th Cir. 2023) (internal quotation marks omitted). “In conducting this review, we
consider all of the evidence, direct and circumstantial, along with reasonable
inferences, but we do not weigh the evidence or consider the relative credibility of
witnesses.” Id. at 832 (internal quotation marks omitted). “Thus, our review is
limited and deferential; we may reverse only if no rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” Id. (internal
quotation marks omitted).
2. Constructive possession principles
To convict Whitehead “under § 922(g)(1), the Government had to prove,
among other things, that he knowingly possessed . . . a firearm.” Id. (internal
quotation marks omitted). Although “[p]ossession may be actual or constructive,”
id., there is no dispute that this case involves only constructive possession.
“Constructive possession exists when a person, not in actual possession, knowingly
has the power and intent at a given time to exercise dominion or control over an
object.” Id. (brackets and internal quotation marks omitted). “When a defendant has
exclusive control over the premises where an object is found, a jury may infer
constructive possession.” Id. (internal quotation marks omitted). “But when a
defendant jointly occupies the premises, the Government must show a nexus between
the defendant and the firearm . . . .” Id. (internal quotation marks omitted). “That is,
the Government must demonstrate the defendant knew of, had access to, and intended
to exercise dominion or control over the contraband.” Id. (brackets and internal
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quotation marks omitted). “This may be proved by circumstantial as well as direct
evidence.” Id. (internal quotation marks omitted). “Multiple individuals may have
constructive possession of the contraband; exclusive possession is not required.”
Id. at 833. “But the defendant’s joint occupancy alone cannot sustain an inference of
constructive possession.” Id. (internal quotation marks omitted).
3. Whitehead’s argument
Whitehead concedes that “the Government presented ample evidence that [he]
knew about the gun and had access to it,” but argues that “nothing presented to the
jury supports a finding he intended to exercise control over it.” Aplt. Opening Br.
at 25. He contends the evidence is insufficient to support the Government’s claim
that the bedroom where the gun was found was solely his because at the time of the
search, his sister was sleeping in there. He argues that at most, the evidence showed
he jointly occupied that bedroom.
We disagree. We first summarize the relevant evidence and then explain why
it was sufficient to support the conviction.
4. Trial evidence
Officer Harmon was the lead officer conducting the search. At trial, he
testified that when he entered the house, he saw Whitehead at the back of the living
room and “ordered [Whitehead] out,” but Whitehead “did not comply.” R. vol. III
at 29:7. Whitehead then “ducked around the corner to the west and then later came
back out into the living room.” Id. at 29:8–9. The area he “ducked into” contained
the southwest bedroom where the gun was found. See id. at 29:11–13; see also id.
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at 33:10 (describing the bedroom where the gun was found as the “southwest
bedroom”). Whitehead returned to the living room in “a matter of seconds.” Id.
at 45:19. Childers then emerged from the other bedroom. See id. at 32:2–10. There
were also three teenagers who had been asleep on the living room couch, see id.
at 29:16–17, 20–21, and “a female occupant asleep in the [southwest] bedroom,” id.
at 45:22.
After police removed all the occupants out of the house, they began to search
it. They found Childers’s property in the northeast bedroom. Id. at 32:22–24.
Whitehead testified at trial that Childers was living at the house. Id. at 113:14–18.
In the southwest bedroom, police found the following evidence: (1) a handgun
sticking out of the pocket of a black jacket hanging over the closet door and a blue
jacket hanging in the same closet with “a name patch on it that [said] ‘Otis,’” id.
at 35:6–15; (2) male clothing on the floor, see id. at 34:19–20; (3) “a letter addressed
to Otis Whitehead at 2237 Northwest 32nd Street in Oklahoma City,” which was the
address of the house, and “dated 16th of December, 2022,” id. at 34:10–12, which
was several months before the arrest; (4) a letter addressed to Whitehead at
3008 Hillsdale Drive, see id. at 48:2–10, which is where Whitehead claimed he lived
with his wife and children, see id. at 113:20–21; and (5) two documents bearing the
name of Whitehead’s twin brother, Otris Whitehead, see id. at 46:9 to 47:3. Police
did not find any female clothing in the southwest bedroom. See id. at 35:2–3.
Officer Harmon testified that when asked, Whitehead told police that his
address was “2237 Northwest 32nd Street in Oklahoma City.” Id. at 38:5–10. When
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confronted with this admission at trial, Whitehead said, “It was early that morning.
They scared me.” Id. at 120:23–25. When asked if he “gave [that] address to police
as [his] residence,” Whitehead claimed he could not “recall . . . because that’s not my
residence.” Id. at 121:5–8. Whitehead testified that he had arrived at the house
around 1:00 or 2:00 in the morning to visit his brother and play video games with his
nephews and that he goes there “twice a week, or whenever [Childers] call[s].” Id.
at 114:6–20.
The Government played for the jury a police patrol car video recording that
captured a conversation between Whitehead and Childers while they were sitting in
the back of the police car just after their arrest. The jury heard:
Childers: “Where was it at?”
Whitehead: “What?”
Childers: “Pistol.”
Whitehead: “Ah bro that motherfucker was in the jacket in my room.”
Childers: “They probably got it. I don’t know.”
Whitehead: “Hell yeah, they had to get it.”
Suppl. R. vol. 1 at 1:14 to 1:19 (emphasis added); see also R. vol. III at 125:17–25,
127:14–18, 128:12–15 (Whitehead testimony confirming what he says on the video
recording).
At trial, Whitehead admitted he said that the room where the gun was found
was his, but he explained “that’s not my room. I said ‘my room,’ but when I go over
there, that — you could just say ‘my room,’ like, that’s where I go, like, that’s where
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my little brother be at. If I do anything, like, I will put my jacket or something in
there.” Id. at 128:19–23. When asked if the “gun [was] hanging out of the pocket
. . . because [he] didn’t have time to hide it better when [he] ran into that hallway
from police,” id. at 130:3, 9–10, Whitehead answered, “No,” id. at 130:11.
Childers also testified at trial. He said that he and Whitehead did not know
what police had found in the house until they “got downtown.” Id. at 62:5. But
when the prosecution asked Childers if he made a jailhouse phone call on the day of
the arrest during which he said he was upset Whitehead had brought the gun to the
house, Childers said he could not recall. See id. at 62:25 to 63:4. The prosecution
then played a recording of the call to impeach Childers’s testimony. Afterwards, the
following exchange occurred:
Q (By [prosecutor]) Mr. Childers, you were upset that your brother had that gun. A I don’t even — I never said anything about a firearm in that phone call. Q You said you didn’t know why he had that shit with him? A I don’t know what that shit is. I never knew what I went to jail for till I got down there. Q You said you guys don’t keep stuff like that there, that’s your safe spot? A Exactly. What is it? Why are we here? I didn’t know what we are down here for. They never told us what we went to jail for. Id. at 65:14–25.
After the recording of the call was played again, the prosecutor asked: “[Y]ou
also said, ‘why he had it with him,’ correct?” Id. at 67:12–13. Childers responded:
“Past tense. We were already in jail.” Id. at 67:14–15. The prosecutor then asked:
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“Mr. Childers, you were upset with your brother because he brought a gun to your
safe spot?” Id. at 67:18–19. Childers answered: “I’m upset because they said we
had something in our safe spot. They never told us what we were going to jail for.”
Id. at 67:20–21. When pressed, Childers testified that he “did not know” Whitehead
had a firearm in the house. Id. at 68:7–11.
The defense called an OCPD forensic scientist as a witness. He testified that
DNA testing of the gun and the black jacket was inconclusive because it detected a
mixture of DNA from at least three individuals on the gun and from at least four
individuals on the jacket. See id. at 96–97.
Lesley Gill also testified for the defense as follows: She had purchased the
gun in question in February 2023. See id. at 102:19 to 103:2. Shortly afterward, she
was planning on moving, so she asked her daughter, Janishia Shockley, to hold on to
some of her belongings, including the gun. See id. at 103:9–24; id. at 108:23–25.
Gill did not see the gun again and did not know what happened to it until she was
notified that it had turned up at the house where police found it. See id.
at 108:10–12; id. at 109:2–4. She thought Shockley had dated Childers, see id.
at 106:22–24, and she did not know Whitehead, see id. at 104:17–18.
Whitehead testified that Shockley was Childers’s girlfriend and lived at the
house. See id. at 115:22–24; id. at 116:5–18. Whitehead claimed that Shockley
brought the gun into the house. See id. at 116:25 to 117:5; id. at 129:1–4. He
admitted he had several felony convictions. See id. at 117:18 to 118:9. He denied
ever carrying, using, or possessing the gun. See id. at 117:6–9; id. at 118:10–12. But
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he knew the gun was unloaded. See id. at 117:15–17; id. at 129:5–6. He presented
utility bills with his name and the 3008 Hillside Drive address where he claimed he
lived with his wife, dated several months after his arrest. See id. at 119:1–19; id.
at 121:12–18. He denied he ever “ducked down that hallway” when police entered
the house. Id. at 122:19–20. He admitted that the jacket with the “Otis” name patch
was his. See id. at 129:7–13 (asking Whitehead about Government Exhibit 13, which
is a picture of the “Otis” jacket, see Suppl. R. vol. II).2 He knew Gill was Shockley’s
mother but did not know Gill. See id. at 130:19–21.
5. Analysis
The foregoing evidence, viewed in the light most favorable to the Government,
was sufficient for the jury to find that Whitehead intended to exercise dominion or
control over the gun. The jury reasonably could have found that, contrary to
Whitehead’s testimony, he in fact ducked out of sight for a few seconds toward the
2 The Government argues that Whitehead’s testimony here was an admission that the black jacket where the gun was found was his. But plainly the Government is mistaken because Government Exhibit 13 is a picture of the “Otis” jacket. The Government also argues that Whitehead made the same admission at two other points in his testimony. Our review of those portions of the testimony indicates that Whitehead made no such admission. In the first portion, the prosecutor asked: “So — and that black jacket, that was hanging in that room where your stuff was, right?” R. vol. III at 125:1–2. Whitehead asked: “Where my jacket was?” Id. at 125:5. The prosecutor then said “Yes,” and then Whitehead said “Yes.” Id. at 125:6–7. The prosecutor then asked: “And there’s a gun in that jacket, right?” Id. at 125:8. Whitehead said “Yes.” Id. at 125:9. We read this exchange as admitting that the gun was in the black jacket in the room where Whitehead’s “Otis” jacket was, not as an admission that the black jacket was his. In the second portion of Whitehead’s testimony that the Government points to, Whitehead confirmed that, in the patrol car, he said to Childers that the gun “was in the jacket.” Id. at 127:16. He did not say that the jacket where the gun was found was his. 9 Appellate Case: 24-6062 Document: 55-1 Date Filed: 03/25/2025 Page: 10
southwest bedroom where the gun was found and that it was hanging out of the black
jacket’s pocket because he did not have time to hide it better. This alone would have
been sufficient evidence to support the required finding, particularly given that
Whitehead, a convicted felon prohibited from possessing a gun, had motive to hide
the gun. See United States v. Jenkins, 90 F.3d 814, 818 (3d Cir. 1996) (“The kind of
evidence that can establish dominion and control includes, for example, evidence that
the defendant attempted to hide or to destroy the contraband . . . .”).
But there is more. The jury could have reasonably found the southwest
bedroom and the black jacket were Whitehead’s, at least on the day the gun was
seized if not every time he visited, based on (1) his statement, captured on the police
car video, that it was his room; (2) his testimony that when he visits, “that’s where I
go. . . . If I do anything, like, I will put my jacket or something in there.” R. vol. III
at 128:21–23; and (3) the other physical evidence found in the room—the “Otis”
jacket, additional male clothing (but no female clothing), and the letter addressed to
Whitehead at the house’s address. Finally, the jury reasonably could have found that
Whitehead intended to exercise dominion and control over the gun based on the
impeaching phone call in which Childers said he was upset that Whitehead had
brought the gun to their “safe spot,” id. at 67:20–21. Although Childers claimed that,
when he made the call, he did not know what the police were charging them with or
that Whitehead had brought the gun to the house, the jury could have readily found
that effort not credible based on the evasiveness of his answers to the prosecutor’s
questions and his own question to Whitehead, as they sat in the patrol car—which
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was prior to the impeaching phone call—about the status of the “[p]istol,” Suppl. R.
vol. 1 at 1:15.
In sum, the evidence was sufficient to support the conviction, and the jury did
not need to resort to impermissible “speculation and conjecture that render[ed] its
finding a guess or mere possibility,” United States v. Jones, 49 F.3d 628, 632
(10th Cir. 1995) (internal quotation marks omitted).
B. Obstruction of justice enhancement
Whitehead argues that the district court erred in imposing a two-level
enhancement for obstruction of justice pursuant to United States Sentencing
Guideline § 3C1.1 based on a finding that he perjured himself at trial by testifying he
did not try to get Shockley to take responsibility for the gun. We reject his argument.
Section 3C1.1 of the United States Sentencing Guidelines requires a two-level
upward adjustment to a defendant’s offense level “[i]f the defendant willfully
obstructed or impeded, or attempted to obstruct or impede, the administration of
justice during the investigation, prosecution, or sentencing of the instant offense.”
U.S.S.G. § 3C1.1 (2021).3 Perjury can be the basis for such an enhancement. Id.
§ 3C1.1 cmt. 4(B). “To establish perjury, a district court must conclude the
defendant (1) gave false testimony under oath, (2) about a material matter, and (3) the
false testimony was willful and not the result of confusion, mistake or faulty
memory.” United States v. Fernandez-Barron, 950 F.3d 655, 657 (10th Cir. 2019)
3 The computation of Whitehead’s sentence was based on the 2021 edition of the Sentencing Guidelines. 11 Appellate Case: 24-6062 Document: 55-1 Date Filed: 03/25/2025 Page: 12
(internal quotation marks omitted). Where, as here, “a defendant objects to a
sentence enhancement resulting from her trial testimony, a district court must review
the evidence and make independent findings necessary to establish a willful
impediment to or obstruction of justice, or an attempt to do the same, under the
perjury definition.” United States v. Hawthorne, 316 F.3d 1140, 1145 (10th Cir.
2003) (internal quotation marks omitted).
“In assessing the district court’s interpretation and application of the
Sentencing Guidelines, we review legal questions de novo and factual findings for
clear error.” Fernandez-Barron, 950 F.3d at 658 (internal quotation marks omitted).
“A finding of fact is clearly erroneous only if it is without factual support in the
record or if the appellate court, after reviewing all of the evidence, is left with a
definite and firm conviction that a mistake has been made.” United States v. Craine,
995 F.3d 1139, 1157 (10th Cir. 2021) (internal quotation marks omitted).
At trial, the Government asked Whitehead if he knew that the gun “was
registered to [Gill] and [he] tried to get her daughter, Janishia Shockley, to take
responsibility for [it]?” R. vol. III at 130:25 to 131:2. Whitehead acknowledged that
the gun was “not registered to . . . Shockley,” id. at 131:6–7, but denied that he had
tried to get Shockley to take responsibility for it. The Government then asked
Whitehead if he had placed “video calls” from jail to his friend, “Hatashia Bowman,”
and suggested that the purpose of those calls was “to try to get her to get . . .
Shockley to take responsibility for that gun.” Id. at 131:12–13, 20–22. As to the first
call, Whitehead said he just wanted Shockley “to meet up with [his] lawyer to say
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why that gun was even there.” Id. at 131:23–24. To impeach Whitehead, the
Government played the video recording of the first call, after which the following
exchange took place:
Q (By [prosecutor]) You-all thought because her wifi was hooked up there, you would be able to prove that was her gun, right? A No, that’s the reason why the gun is there. Q You needed someone to claim that Janishia stayed there? A No, I needed Janishia, but she don’t like this stuff, but why that gun was there. Q You started to talk about how this was going to happen — ... Q And then you said, “Have Little South do it.” That’s — Little South is Tylin Childers? A His girl — yeah, to have him — to have his girlfriend meet up with my lawyer so this can not be — because I didn’t try to possess or I didn’t intend to do anything with that gun. That is her gun. The only reason that gun was over was because she brought it because her mom was moving. Id. at 133:15 to 134:6.4
The Government then asked Whitehead whether, in a second video call to
Bowman he placed later the same day as the first call, he tried “to get Janishia to take
responsibility for the gun,” id. at 134:15–16, suggesting that Whitehead “needed
Ms. Bowman to help [him] get Janishia on board with [his] plan,” id. at 134:25 to
135:1. Whitehead replied: “No, I needed her to tell the truth. If you listen to any of
4 The video calls were not introduced into evidence and are not part of the record on appeal, so we base our review on the substance of those calls as portrayed through the Government’s questions and Whitehead’s answers. 13 Appellate Case: 24-6062 Document: 55-1 Date Filed: 03/25/2025 Page: 14
my calls, I say I need Janishia to come tell the truth.” Id. at 135:2–3. The
Government then played the second video call, after which the following exchange
took place:
Q (By [prosecutor]) You wanted to know if she was okay with this, didn’t you? A Yeah, going to get — going to make sure that Janishia meets up with my lawyer. Q You said, “It ain’t even a lie,” and then you laughed? A It ain’t a — like, it ain’t a lie I need you to do this. I need this done so —because y’all saying I’m trying to possess something or intent to possess something and I don’t — I didn’t even bring or nothing, other — the gun wouldn’t have been there if it wouldn’t for Janishia mom moving. Q And after you said, “It ain’t even a lie,” you laughed again and said, “I’m just playing.” A I’m just trying — I was just trying to get Janishia to do what was — if you listen to those, I’m saying just tell her — what I need to talk to her, I’d tell her, just come tell the truth. Q And then next you said, “But do you got this.” A Yeah, having Janishia, yeah, do what she — get her bill to show that she lived there, show that she brought it over there and everything, like do what’s true, do what’s right. Id. at 135:17 to 136:11.
The Government then asked Whitehead if, in a third call made a couple of
months later, Whitehead “demanded to talk to Janishia.” Id. at 136:22. Whitehead
agreed that he had. The Government then played the video call, which showed both
Bowman and Shockley on the receiving end, after which the following exchange took
place:
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Q (By [prosecutor]) Mr. Whitehead, you wanted to know if it was true that Janishia was not going to take the rap for you? A She gets mad at my brother and then wanted her not to do it. Instead of just coming to tell the truth, I told her she can’t — Q Many of my questions require a simple response, okay, so please respond to the question that is asked. A Yes, sir. Q And the question that I asked you is that you wanted to know whether or not it was true that she was not going to claim this gun, yes or no? A That’s not it. Q Okay. And then Ms. Bowman tried to explain why she wouldn’t do it and you quickly cut her off, didn’t you? A No, that’s not it. Q You said, “we didn’t” — you didn’t want to talk on this phone about it, did you? A No, I didn’t, because — Q Because you knew the call was recorded? A Yes. And I wanted her to just go tell the truth, not nothing else. Q Mr. Whitehead, you didn’t want Janishia’s reasons about why she wouldn’t do that for you recorded on a jail call — A No, I was getting frustrated because I didn’t know the reason because her and my brother probably argued and she, I’m not going to be around your brother, you know, is a typical relationship. Q Mr. Whitehead, if this was her gun and you didn’t possess it, it shouldn’t matter what she says on that recorded call. A Well, I guess not, but I was told not to talk about none of it because it could get me in trouble. ... Q (By [prosecutor]) You wanted to know whether or not she was going to take that responsibility and when they tried to explain, you quickly cut them off?
15 Appellate Case: 24-6062 Document: 55-1 Date Filed: 03/25/2025 Page: 16
A No. Q You cut them off because you knew the call was recorded and you knew Janishia would say something that would get you in further trouble? A No. Q You did not want to start talking about why you needed her to take responsibility for it? A No. Id. at 137:20 to 138:25, 139:13–23.
At sentencing, the Government provided the district court with a transcript of
these exchanges, relied on all of them, and specifically highlighted portions of the
first and third exchanges. Whitehead’s counsel argued that Whitehead “wasn’t
getting her to say things – or attempting to get her to say things that were untrue.”
Id. at 195:24–25. Instead, counsel argued, Whitehead “was trying to complete the
story so we had the entire picture at trial through her testimony. That ultimately did
not happen. But he was not putting words in her mouth. He was not telling her to
say things that weren’t already at least partly corroborated by the testimony of
Ms. Gill.” Id. at 196:1–5.
In ruling that the enhancement applied, the district court observed that
Whitehead had testified under oath and found that “what was material in this instance
was his – the testimony regarding the firearm registration and the ownership or
possession or responsibility for that.” Id. at 197:4–6. The court further found that “it
appears from the transcript here defendant was less than forthcoming with respect to
his conversations and exchanges with respect to Ms. Shockley and his effort to try to
get her to take responsibility for that gun.” Id. at 197:6–10. The court also did “not 16 Appellate Case: 24-6062 Document: 55-1 Date Filed: 03/25/2025 Page: 17
believe, based on all that [it] recall[ed] and all that [it had] read [at the sentencing
hearing] . . . that the testimony that Mr. Whitehead gave was the result of any
confusion, mistake, or faulty memory.” Id. at 197:11–14.
Whitehead first argues “‘[t]he mere fact that a defendant testifies to his or her
innocence and is later found guilty by the jury does not automatically warrant a
finding of perjury.’” Aplt. Opening Br. at 28 (quoting United States v. Markum,
4 F.3d 891, 897 (10th Cir. 1993)). But the district court’s explanation makes clear
that the court did not impermissibly find Whitehead perjured himself simply because
the jury found him guilty.
Whitehead also contends “the Government’s argument the jail calls were
attempts to shift blame to someone else is equally as plausible as Mr. Whitehead’s
explanation that he ‘just wanted the truth,’” so it was clear error for the district court
to find Whitehead perjured himself. Id. at 30. We disagree. The district court acted
reasonably in interpreting the record as indicating that Whitehead had willfully lied
when he testified that he never tried to get Shockley to take responsibility for the gun
and that, in the video calls, he had attempted to shift possession or responsibility for
the gun from Whitehead to Shockley. Two aspects of the testimony are especially
supportive of that interpretation: (1) Whitehead’s statement that “[i]t ain’t even a
lie,” followed by him laughing and then saying, “I’m just playing,” R. vol. III
at 136:2–3 (internal quotation marks omitted); and (2) the evasiveness in his answers
to the prosecutor’s line of questioning regarding the third call, particularly those
17 Appellate Case: 24-6062 Document: 55-1 Date Filed: 03/25/2025 Page: 18
concerning why he cut Bowman and Shockley off from explaining why Shockley
would not take responsibility for the gun.
Whitehead maintains that he truthfully testified that the gun would not have
been at the house but for Shockley bringing it there and he only wanted Shockley to
say she had brought it there. But it was constructive possession—i.e., control—of
the gun, not the reason for its mere presence at the house, that was at issue. Even if
we were to agree with Whitehead that there were two “equally plausible
interpretations of his testimony,” Aplt. Opening Br. at 30, he cannot prevail on
appeal. See Craine, 995 F.3d at 1157 (“Where there are two permissible views of the
evidence, the factfinder’s choice between them cannot be clearly erroneous.”
(brackets and internal quotation marks omitted)). The district court did not clearly
err in finding that Whitehead perjured himself with respect to his efforts to deflect
control of the gun from himself.
C. Constitutionality of § 922(g)(1)
Whitehead argues that § 922(g)(1) violates the Second Amendment under New
York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022). He states that he
raises this issue solely “for preservation purposes, since his Second Amendment
challenge remains precluded by Vincent v. Garland, 80 F.4th 1197 (10th Cir. 2023).”
Aplt. Opening Br. at 33. In Vincent, this court concluded that Bruen did not disturb
Tenth Circuit precedent upholding the constitutionality of § 922(g)(1) without regard
to “the type of felony involved.” 80 F.4th at 1202. However, the Supreme Court
vacated Vincent and remanded for consideration in light of United States v. Rahimi,
18 Appellate Case: 24-6062 Document: 55-1 Date Filed: 03/25/2025 Page: 19
602 U.S. 680 (2024). See Vincent v. Garland, 144 S. Ct. 2708 (2024). On remand,
this court concluded that Rahimi did not “undermine the panel’s earlier reasoning or
result.” Vincent v. Bondi, 127 F.4th 1263, 1264 (10th Cir. 2025). The court therefore
“readopt[ed]” its “prior opinion.” Id. at 1266. Thus, even after Rahimi, this circuit
holds that § 922(g)(1) does not violate the Second Amendment. Whitehead’s
argument, therefore, fails on the merits.
III. Conclusion
We affirm Whitehead’s conviction and sentence.
Entered for the Court
Allison H. Eid Circuit Judge