"Brief Concealment" Plus "My Room" Admission Suffice for Constructive Possession; Perjury Enhancement Upheld for Jail-Call Efforts to Shift Blame; § 922(g)(1) Reaffirmed Post‑Rahimi — Commentary on United States v. Whitehead (10th Cir. Mar. 25, 2025)

Introduction

This commentary analyzes the Tenth Circuit’s unpublished Order and Judgment in United States v. Whitehead, No. 24-6062 (10th Cir. Mar. 25, 2025), affirming a felon-in-possession conviction and sentence. The decision addresses three issues:

Sufficiency of the evidence to prove constructive possession of a firearm in a jointly occupied residence.
Application of the U.S.S.G. § 3C1.1 obstruction-of-justice enhancement premised on perjury concerning efforts to get another person to “take responsibility” for the firearm.
Constitutionality of 18 U.S.C. § 922(g)(1) in the wake of New York State Rifle & Pistol Ass’n v. Bruen and United States v. Rahimi, resolved by reaffirming circuit precedent in Vincent v. Bondi.

Although designated “not binding precedent,” the opinion is citable for its persuasive value and offers meaningful clarifications on evidence sufficient to establish constructive possession in joint-occupancy settings and on what supports a perjury-based obstruction enhancement at sentencing. The panel (Judges Moritz, Eid, and Federico) affirmed on all grounds; Judge Federico did not join Part II.B (obstruction), signaling intra-panel caution on that component even as the judgment stands.

Summary of the Opinion

Conviction affirmed (sufficiency): The court held that a rational jury could find that Whitehead constructively possessed the firearm. Key facts included his brief movement toward the bedroom where the gun was found when officers entered, his recorded admission calling it “my room,” personal effects in that room (a jacket patched with “Otis,” male clothing, mail addressed to him at the house), and an impeaching jail call in which his brother referenced Whitehead bringing the gun to their “safe spot.” The court underscored that even a brief, evasive concealment effort can itself be sufficient circumstantial evidence of dominion and control.
Sentence affirmed (obstruction/perjury): The district court did not clearly err in applying § 3C1.1 based on findings that Whitehead willfully lied under oath about his attempts to get Janishia Shockley to take responsibility for the gun. The court relied on the content of recorded jail calls as reflected in trial and sentencing transcripts and highlighted Whitehead’s telling statement, “It ain’t even a lie,” followed by laughter and “I’m just playing,” and his evasiveness about cutting off recorded explanations.
§ 922(g)(1) constitutional in the Tenth Circuit: The panel rejected the Second Amendment challenge, citing Vincent v. Bondi (10th Cir. 2025), which readopted pre-Rahimi circuit precedent upholding § 922(g)(1) without regard to the “type of felony.”

Case Background

Oklahoma City police executed a search warrant at a two-bedroom house (2237 NW 32nd St., Oklahoma City) in March 2023. Inside were the defendant, his brother (Childers), three nephews, and a teenage sister who had been sleeping in the southwest bedroom. Officers found a handgun sticking out of a black jacket pocket hanging over that bedroom’s closet door; a separate blue jacket bearing the name patch “Otis” hung in the same closet. The room contained male clothing, mail addressed to Otis Whitehead at that address, and no female clothing. Whitehead, a felon, was charged under 18 U.S.C. § 922(g)(1), convicted by a jury, and sentenced to 87 months, including a two-level obstruction enhancement for perjury based on jail-call efforts to shift blame to Shockley. He appealed the conviction, the enhancement, and the statute’s constitutionality.

Analysis

Precedents Cited and Their Influence

United States v. Stepp, 89 F.4th 826 (10th Cir. 2023): Provided the de novo sufficiency standard and articulated constructive possession in joint-occupancy contexts: the government must show a nexus — knowledge, access, and intent to exercise control. Stepp’s framework organized the court’s approach to Whitehead’s challenge.
United States v. Jenkins, 90 F.3d 814 (3d Cir. 1996): Cited for the proposition that attempts to hide contraband can evidence dominion and control. The Tenth Circuit leaned on Jenkins to underscore that brief evasive acts aimed at concealment, particularly by a prohibited person, speak to the intent element of constructive possession.
United States v. Jones, 49 F.3d 628 (10th Cir. 1995): Cited to emphasize that the jury’s verdict was not based on impermissible speculation or conjecture.
United States v. Fernandez-Barron, 950 F.3d 655 (10th Cir. 2019): Set the elements of perjury for § 3C1.1: false testimony under oath, materiality, and willfulness (not confusion/mistake/faulty memory). Guided the district court’s and panel’s analysis.
United States v. Hawthorne, 316 F.3d 1140 (10th Cir. 2003): Required the district court to make independent findings establishing perjury when a sentence enhancement is premised on trial testimony. The panel relied on the sentencing record to confirm the court did so here.
United States v. Craine, 995 F.3d 1139 (10th Cir. 2021): Articulated the clear-error standard for factual findings and the deference owed when two permissible views of the evidence exist.
United States v. Markum, 4 F.3d 891 (10th Cir. 1993): Clarified that a guilty verdict alone does not automatically justify a perjury finding — a defense argument the panel acknowledged and distinguished by pointing to specific, independent perjury findings here.
New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022), and United States v. Rahimi, 602 U.S. 680 (2024): Framed the broader Second Amendment landscape.
Vincent v. Bondi, 127 F.4th 1263 (10th Cir. 2025): On remand from the Supreme Court’s vacatur of Vincent v. Garland, the Tenth Circuit readopted its prior opinion upholding § 922(g)(1), concluding Rahimi did not undermine its reasoning. This dictated the outcome of Whitehead’s constitutional challenge.

Legal Reasoning

A. Constructive Possession — Evidence Was Sufficient

The governing rule is clear: in joint occupancy, the government must establish a nexus linking the defendant to the contraband by showing knowledge, access, and intent to exercise dominion or control. The court found ample circumstantial evidence on intent and control:

Brief concealment behavior: An officer testified that, upon entry, Whitehead ducked around the corner into the hallway leading to the southwest bedroom and reemerged within seconds; the gun was sticking out of a black jacket pocket in that bedroom. Given Whitehead’s status as a felon, this fleeting movement plausibly reflected an effort to conceal, which, under Jenkins, can itself evidence dominion and control. The panel stated this alone could suffice.
“My room” admission and room-specific nexus: In a patrol-car recording, when asked “Pistol,” Whitehead responded: “that motherfucker was in the jacket in my room.” At trial he tried to minimize this by saying he called it “my room” because that’s where he would put his jacket when visiting, but the jury could credit the original admission.
Personal effects and occupancy indicators: The “Otis” name-patched jacket, male clothing (and no female clothing), and mail addressed to Whitehead at the searched address reinforced the inference that the southwest bedroom was functionally his space at least at the relevant time.
Impeaching phone call: Childers’ recorded jail call referenced being upset that Whitehead brought a gun to their “safe spot.” Although Childers tried to walk this back at trial, the jury could find his evasiveness undermined his retraction; coupled with his contemporaneous “Pistol?” question in the patrol car, the jury could reasonably infer knowledge and responsibility on Whitehead’s part.

The panel also corrected an overstatement by the government: it was not established that the black jacket containing the gun belonged to Whitehead. The court carefully parsed the transcript to show that Whitehead admitted ownership of the separate “Otis” jacket, not the black jacket. Even so, the remaining, properly supported evidence sufficed.

Finally, the presence of Whitehead’s teenage sister sleeping in the bedroom did not defeat the nexus; the absence of female clothing and the weight of other indicators supported a reasonable finding that the bedroom was functionally his at the relevant time. Because multiple individuals can constructively possess the same contraband, exclusive control was unnecessary.

B. Obstruction of Justice — Perjury Finding Not Clearly Erroneous

The district court enhanced under U.S.S.G. § 3C1.1 after independently finding perjury: Whitehead testified that he did not try to get Shockley to take responsibility for the gun, but the record (including the substance of jail calls as reflected in trial and sentencing transcripts) supported the contrary.

Key anchors for the willfulness and materiality findings:

Materiality: Whether Whitehead tried to orchestrate Shockley to “take the rap” went directly to the core issue — who possessed, and who intended to control, the firearm.
Willfulness: The panel highlighted two telling features:
- Whitehead’s statement during a call, “It ain’t even a lie,” followed by laughter and “I’m just playing,” undercut his claim that he only wanted “the truth” told.
- Evasiveness during cross-examination about why he cut off Bowman and Shockley from explaining, and his stated concern that recorded calls could get him “in trouble,” supported the inference that he was trying to manage the narrative rather than simply surface truth.

The defense argued that he merely wanted Shockley to truthfully explain why the gun was present (her mother’s move) and to provide corroboration (e.g., a bill showing residence). The panel answered that what mattered was constructive possession — intent to control — not merely the gun’s presence. Under the clear-error standard and Craine’s “two permissible views” rule, the district court’s credibility-based choice was insulated from reversal.

Note: The panel proceeded on the content of the calls as captured in the trial colloquy and sentencing transcript, explicitly observing the video calls were not themselves introduced into evidence on appeal. That underscores that sentencing courts may rely on reliable information in the record, and appellate review assesses the adequacy of the court’s independent findings rather than the admissibility of trial exhibits per se. Judge Federico did not join this part, hinting at potential differences in approach to the robustness of the perjury finding or the reliance on these materials, though the majority’s analysis is controlling for this case.

C. Constitutionality of § 922(g)(1)

Whitehead preserved a Bruen-based Second Amendment challenge, acknowledging that circuit law foreclosed it. The panel cited Vincent v. Bondi (10th Cir. 2025), where the Tenth Circuit, on remand from the Supreme Court’s vacatur of Vincent v. Garland in light of Rahimi, “readopted” its prior opinion upholding § 922(g)(1) without regard to the type of predicate felony. The court therefore rejected Whitehead’s challenge on the merits. In the Tenth Circuit, § 922(g)(1) remains constitutional post‑Rahimi.

Impact and Practical Implications

Constructive Possession in Joint-Occupancy Settings

Brief evasive concealment can carry decisive weight: The panel’s statement that the concealment inference alone “would have been sufficient” (especially for a prohibited person) meaningfully reinforces prosecutors’ ability to prove dominion/control via short-lived conduct consistent with hiding contraband.
Admissions plus personal effects build a nexus: Statements like “my room,” room-specific identifiers (name-patched clothing, mail to defendant at the address), and absence of countervailing indicators (e.g., no female clothing despite a female occupant) together may overcome joint-occupancy hurdles.
Multi-possessor reality: The court reiterates that multiple people can constructively possess the same firearm; exclusivity is unnecessary, and joint occupancy alone is insufficient but readily supplemented by circumstantial ties.
Government overreach checked: The panel’s correction regarding the black jacket signals careful appellate scrutiny; prosecutors should accurately characterize admissions. Defense counsel can leverage such corrections but should be prepared that sufficiency may still be met via the totality of circumstances.

Obstruction-of-Justice Enhancements

“Take the rap” efforts are perjury‑material: Testimony denying blame-shifting attempts can be material and, if willfully false, supports § 3C1.1. Jail calls — and how a defendant manages them — can be dispositive.
“It ain’t even a lie” matters: Statements betraying an effort to manufacture a narrative, coupled with laughter or “I’m just playing,” can concretely establish willfulness.
Recorded-call dynamics: Cutting off explanations on recorded lines may support an inference of intent to conceal. Saying “I was told not to talk about it” can backfire if the topic is material to guilt and the reason for silence appears strategic.
Appellate posture: Even where calls themselves are not appellate exhibits, their substance reflected in trial and sentencing transcripts can sustain an enhancement if the district court makes the independent findings Hawthorne requires.

Second Amendment Landscape in the Tenth Circuit

§ 922(g)(1) remains valid post‑Rahimi: Vincent v. Bondi reaffirms that the felon-in-possession prohibition stands in this circuit irrespective of the felony type. As-applied Bruen challenges of the sort advanced here are foreclosed in the Tenth Circuit.
Plea and trial strategy: Defendants should factor in the near-futility of facial/as‑applied § 922(g)(1) challenges in this circuit, and instead focus on evidentiary defenses (possession) and sentencing mitigation.

Complex Concepts Simplified

Constructive possession: You don’t need the gun in your hand. It’s enough if you know about it, can access it, and intend to control it. In shared spaces, prosecutors must show a link to you (your things in the room, your statements, your behavior) — not just that you were present.
Joint occupancy: Living or staying somewhere with others does not automatically mean you possess what’s found there. But if there’s evidence tying the item to you — your admissions, your belongings nearby, behavior that suggests hiding — that can tip the scales.
Obstruction via perjury (U.S.S.G. § 3C1.1): Lying on the stand about important facts, willfully (not by mistake), can increase your sentence. Trying to get someone else to claim an item and then denying that under oath can qualify.
Materiality (for perjury): The lie must matter to the case’s outcome. Who possessed a gun in a felon-in-possession case is material.
Appellate standards:
- De novo review (sufficiency): The appellate court views the evidence in the light most favorable to the government and asks whether any rational juror could convict.
- Clear error (sentencing facts): The appellate court defers to the trial judge’s credibility calls unless left with a firm conviction that a mistake occurred.
Unpublished orders: Not binding precedent, but can be cited for persuasive value per the rules. They often signal how a circuit is applying existing law to facts.

Conclusion

United States v. Whitehead offers a compact but instructive application of constructive possession doctrine and the obstruction-of-justice enhancement. The panel’s emphasis that a brief concealment attempt, an unguarded “my room” admission, and room-specific personal effects can collectively (and even individually, in the case of concealment) satisfy the dominion/control element provides clear guidance in joint-occupancy prosecutions. On sentencing, the opinion underscores that perjury can be anchored in a defendant’s own recorded communications and courtroom evasiveness, particularly where those communications reveal attempts to shift responsibility to third parties. Finally, the court cements the Tenth Circuit’s post‑Rahimi posture: § 922(g)(1) remains constitutional under Vincent v. Bondi, foreclosing Second Amendment attacks of the kind advanced here.

While nonprecedential, the decision is a practical roadmap for prosecutors assembling a constructive-possession case in shared residences and for defense counsel assessing risks posed by clients’ jail calls and trial testimony. It also reflects the circuit’s continued adherence to established standards of review and sentencing procedures requiring independent perjury findings. The takeaways are straightforward: words and brief actions matter; personal effects can be decisive; and recorded calls can be the difference between a credibility contest and a sentencing enhancement.