IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-10391

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

RODNEY DALE WHITLEY,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 7:04-CR-7-1

Before KING, JOLLY, and GRAVES, Circuit Judges.

PER CURIAM:*

Rodney Dale Whitley was convicted by a jury of possession of

methamphetamine and marijuana with intent to distribute, possession of a

firearm in furtherance of a drug trafficking crime, and being a felon in

possession of a firearm. The charges were based on evidence discovered during

a traffic stop. The firearm and 2.49 pounds of marijuana were found in a closed

ice chest which was on the rear floorboard, directly behind Whitley, who was in

the front passenger’s seat.

United States Court of Appeals

Fifth Circuit

F I L E D

February 6, 2012

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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Whitley argues that the district court constructively amended the

indictment by permitting the jury to convict him of Counts Three and Four

absent proof that the firearm found in the ice chest was the same firearm

specified in the indictment. He notes that the firearm found in the ice chest was

not introduced at trial and that there was no evidence to show that the firearm

in question had the same serial number or that it was the same make or model

as the firearm identified in the indictment. 

We review Whitley’s constructive amendment challenge for plain error

because he failed to raise the issue in the district court. See United States v.

Bohuchot, 625 F.3d 892, 897 (5th Cir. 2010). To show plain error, the appellant

must show a forfeited error that is clear or obvious and that affects his

substantial rights. Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If the

appellant makes such a showing, this court has the discretion to correct the error

but only if it seriously affects the fairness, integrity, or public reputation of

judicial proceedings. Id.

“[N]o constructive amendment arises where the evidence proves facts

different from those alleged in the indictment, but does not modify an essential

element of the charged offense.” United States v. Munoz, 150 F.3d 401, 417 (5th

Cir. 1998) (internal quotation marks and citation omitted). Whitley’s firearms

convictions require nothing more than that he be in possession of a firearm. See

id.; 18 U.S.C. §§ 922(g)(1), 924(c)(1)(A). Whitley has failed to satisfy the plain

error standard. See Puckett, 129 S. Ct. at 1429. 

Whitley contends that the evidence was insufficient to support his

firearms convictions. He argues that there was not sufficient proof to show that

he possessed the firearm found in the ice chest. “When reviewing challenges to

the sufficiency of evidence supporting a conviction, we view the evidence and the

inferences that may be drawn from it in the light most favorable to the verdict,

and determine whether a reasonable jury could have found the essential

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elements beyond a reasonable doubt.” United States v. Rains, 615 F.3d 589, 592

(5th Cir. 2010). 

Possession of a firearm may be “actual” or “constructive” and may be

proven by circumstantial evidence. United States v. De Leon, 170 F.3d 494, 496

(5th Cir. 1999). Where there is joint occupancy or control, the Government must,

in addition to showing control over the place where the item was found, present

evidence to support at least a plausible inference that the defendant knew of the

item itself. See De Leon, 170 F.3d at 497. This court applies “a common sense,

fact-specific approach” to a determination whether constructive possession

exists. United States v. Wright, 24 F.3d 732, 735 (5th Cir. 1994). 

We have no difficulty concluding thattheGovernment presented sufficient

evidence to establish Whitley’s constructive possession. Testimony showed that,

approximately three weeks prior to the traffic stop, a rifle was present in

Whitley’s residence, as were quantities of marijuana and methamphetamine. 

The jury was permitted to consider evidence of Whitley’s knowledge and intent

in determining whether Whitley constructively possessed the firearm in the ice

chest. See United States v. Williams, 620 F.3d 483, 491 (5th Cir. 2010); United

States v. Jones, 484 F.3d 783, 788 (5th Cir. 2007). There was also testimony to

the effect that Whitley told an implausible story to the trooper who stopped the

vehicle; this may be regarded as evidence of his guilty knowledge of contraband

within the vehicle. See United States v. Ortega Reyna, 148 F.3d 540, 544 (5th

Cir. 1998). Further, the evidence showed that the trooper detected an odor of

marijuana as he approached the passenger’s side of the vehicle, where Whitley

was seated; the jury therefore could have reasonably inferred that Whitley was

aware of the contents of the ice chest, which included the firearm found on top

of the marijuana. See United States v. Lopez, 74 F.3d 575, 578 (5th Cir. 1996). 

Whitley challenges the district court’s admission of testimony by the

trooper who stopped the vehicle, arguing that there are several instances of

improper opinion testimony. He also contends that the testimony of the

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Government’s expert witness was improper because it constituted drug courier

profile testimony and expert opinion testimony on the ultimate issues for the

jury. The above challenges are subject to plain error review given Whitley’s

failure to raise the issues in the district court. See United States v. Morin, 627

F.3d at 998 (5th Cir. 2010); United States v. Green, 324 F.3d 375, 381 (5th Cir.

2003). In view of the substantial evidence of his guilt, Whitley has failed to meet

his burden to demonstrate an entitlement to relief under the plain error

standard. See Puckett, 129 S. Ct. at 1429. 

Finally, for the first time on appeal, Whitley challenges the imposition of

a four-level enhancement under U.S.S.G. § 2K2.1(b), which applies where a

defendant possessed any firearm in connection with another felony offense. His

contentions regarding the enhancement attack the determination that he

possessed the firearm in the ice chest and are virtually indistinguishable from

his arguments concerning the sufficiency of the evidence to show that he

possessed that firearm. In view of our determination that the evidence was

sufficient to support the jury’s determination that Whitley was in constructive

possession of the firearm found in the ice chest, Whitley’s challenge to the

enhancement for possession of a firearm in connection with another felony

offense fails to satisfy the applicable plain error standard. See Puckett,

129 S. Ct. at 1429. 

AFFIRMED.

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