Inferring Intent to Control in Joint-Occupancy Constructive Possession and Post-Rahimi Endorsement of § 922(g)(1): United States v. Whitehead (10th Cir. 2025)

Introduction

In United States v. Whitehead, No. 24-6062 (10th Cir. Mar. 25, 2025), the Tenth Circuit affirmed a felon-in-possession conviction under 18 U.S.C. § 922(g)(1), a two-level obstruction-of-justice enhancement for perjury, and rejected a Second Amendment challenge. Although issued as a nonprecedential Order and Judgment, the decision is citable for persuasive value and offers a practical blueprint for proving constructive possession in a joint-occupancy setting. It also illustrates how recorded jail communications can support a perjury-based obstruction enhancement and confirms that, after the Supreme Court’s decision in United States v. Rahimi, § 922(g)(1) remains constitutional in the Tenth Circuit via Vincent v. Bondi (2025).

The case arose from an Oklahoma City Police Department (OCPD) search of a residence on Northwest 32nd Street. Officers found a handgun protruding from the pocket of a black jacket hanging over a closet door in a bedroom. The Government charged Otis Ray Whitehead, Jr. (a convicted felon) with a single § 922(g)(1) count. A jury convicted; the district court imposed 87 months, including an obstruction enhancement for perjury tied to Whitehead’s testimony about efforts to have his brother’s girlfriend, Janishia Shockley, “take responsibility” for the firearm. Whitehead appealed, raising three issues: sufficiency of the evidence (constructive possession), the obstruction enhancement, and the constitutionality of § 922(g)(1).

Summary of the Opinion

Sufficiency of the evidence: Applying the deferential standard of review and the Tenth Circuit’s constructive possession framework, the panel held a rational jury could find Whitehead intended to exercise dominion or control over the firearm. Key evidence included his brief evasive movement toward the bedroom where the gun was found, his statement in a patrol car video identifying that bedroom as “my room,” personal effects and mail linking him to the room, his knowledge that the gun was unloaded, and an impeaching jail call where his brother described being upset that Whitehead brought a gun to their “safe spot.”
Obstruction/perjury enhancement (U.S.S.G. § 3C1.1): The district court did not clearly err in finding Whitehead willfully lied under oath when he denied trying to get Shockley to take responsibility for the gun. The court cited his recorded jail calls, including a remark that “It ain’t even a lie” and his evasive answers about cutting off explanations during a recorded call. The panel affirmed the two-level enhancement. Notably, Judge Federico joined the Order and Judgment except Part II.B (the obstruction section).
Constitutionality of § 922(g)(1): The Tenth Circuit reiterated that, even after Rahimi, § 922(g)(1) remains constitutional in this circuit under Vincent v. Bondi (2025), which readopted the circuit’s pre-Rahimi position without regard to the type of felony.

Analysis

Precedents Cited and Their Influence

United States v. Stepp, 89 F.4th 826 (10th Cir. 2023): The panel’s constructive possession analysis tracks Stepp. When premises are jointly occupied, the Government must establish a “nexus” between the defendant and the contraband: knowledge, access, and intent to exercise dominion or control. Stepp also emphasizes that constructive possession may be proven with circumstantial evidence and that multiple people may jointly constructively possess the same item without exclusivity.
United States v. Jones, 49 F.3d 628 (10th Cir. 1995): The court invoked Jones to stress that sufficiency review cannot rest on speculation. Here, the totality of circumstantial evidence avoided mere conjecture and supported a reasonable inference of intent to control.
United States v. Jenkins, 90 F.3d 814 (3d Cir. 1996): Cited for the principle that attempts to hide contraband can evidence dominion and control. The panel viewed Whitehead’s brief movement toward the room where the gun was located—coupled with the gun’s visible position in the jacket pocket—as consistent with an effort to conceal.
United States v. Fernandez-Barron, 950 F.3d 655 (10th Cir. 2019) and United States v. Hawthorne, 316 F.3d 1140 (10th Cir. 2003): These cases frame the perjury standard under § 3C1.1 and require explicit findings that the defendant’s false testimony was (1) under oath; (2) material; and (3) willful, not due to confusion or mistake. The district court made those findings, and the panel found no clear error.
United States v. Craine, 995 F.3d 1139 (10th Cir. 2021): Reinforces the clear-error standard for factual findings: where two permissible views of the evidence exist, a factfinder’s choice controls. This defeated Whitehead’s argument that his “truth-seeking” explanation was equally plausible.
New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022), United States v. Rahimi, 602 U.S. 680 (2024), and Vincent v. Bondi, 127 F.4th 1263 (10th Cir. 2025): After the Supreme Court vacated the Tenth Circuit’s earlier Vincent v. Garland decision for reconsideration in light of Rahimi, the Tenth Circuit readopted its prior reasoning in Vincent v. Bondi, reaffirming the constitutionality of § 922(g)(1) post-Rahimi. Whitehead’s Second Amendment challenge thus fails on the merits.

Legal Reasoning

1) Sufficiency of the Evidence: Constructive Possession in a Joint-Occupancy Setting

The court reviewed sufficiency de novo, viewing the evidence in the light most favorable to the Government and refraining from reweighing credibility. Because the residence was occupied by multiple people—including Whitehead, his brother, three nephews, and a teenage sister asleep in the southwest bedroom—the Government had to establish a nexus linking Whitehead to the gun beyond mere co-occupancy.

The panel catalogued several mutually reinforcing pieces of evidence establishing knowledge, access, and intent to control:

Evasive movement: Upon police entry, Whitehead briefly “ducked” toward the area containing the southwest bedroom where the gun was discovered, returning in seconds. The panel accepted that a rational jury could view this as an attempt to hide or adjust the firearm’s placement, particularly given that the gun was partially visible in the jacket pocket.
Admissions and linkage to the room: In the patrol car, Whitehead told his brother the gun “was in the jacket in my room.” At trial, he attempted to recast “my room” as a colloquialism for a space he often used during visits. The jury was entitled to credit the earlier admission and corroborating physical evidence over his trial gloss.
Physical evidence tying Whitehead to the bedroom: Officers found a blue jacket with a name patch reading “Otis,” male clothing but no female clothing, and mail addressed to Whitehead at the residence (dated months before the arrest). A letter bearing a different address, where he claimed to live with his wife and children, did not neutralize the link to the search address.
Knowledge about the gun’s condition: Whitehead admitted he knew the firearm was unloaded—suggesting familiarity and access beyond mere awareness.
Impeaching jail call by his brother: A recorded call revealed Childers expressing upset that Whitehead had brought a gun to their “safe spot,” which a rational jury could take as evidence not just of knowledge and access, but of intent and agency.

The panel also addressed a Government misstep: the prosecution had overread Whitehead’s testimony as an admission that the black jacket (from which the gun protruded) was his. The court corrected that characterization in a footnote, clarifying that the record established the “Otis” jacket was his, not that the black jacket was his. Importantly, this correction did not undercut the sufficiency determination because the totality of circumstances—especially Whitehead’s own “my room” statement and the corroborating evidence—provided a robust basis for inferring intent to exercise control over the firearm.

On these facts, the panel emphasized that a rational juror could infer intent to control without indulging impermissible speculation, distinguishing this case from those where constructive possession rests on thin, conjectural links.

2) Obstruction of Justice: Perjury Based on Recorded Jail Calls

The district court applied U.S.S.G. § 3C1.1, concluding that Whitehead perjured himself by denying that he tried to get Shockley to “take responsibility” for the gun. Under Tenth Circuit law, perjury requires findings that the defendant gave false, material, and willful testimony. The district court made those findings, specifying that testimony concerning ownership/possession/responsibility for the firearm was material and that Whitehead’s falsehoods were not due to confusion or faulty memory.

The Government built its case on three recorded jail video calls that, as characterized through examination at trial and in sentencing, depicted Whitehead:

Trying to coordinate with intermediaries to get Shockley to connect with his lawyer and support the narrative of why the gun was at the residence;
Suggesting documentary support (e.g., a bill) to show that Shockley lived there;
Making a telling remark—“It ain’t even a lie”—followed by laughter and “I’m just playing,” which the district court reasonably viewed as evincing consciousness of wrongdoing and coordination, rather than a neutral plea for “truth.”

On appeal, Whitehead argued that his calls simply sought “the truth” about how the gun arrived at the house and did not aim to shift responsibility. The panel held that even if competing interpretations existed, the district court’s choice among two permissible views could not be clearly erroneous. Whitehead’s evasiveness when questioned about cutting off reasons why Shockley would not “take the rap,” combined with the recorded statements and the broader trial record, supported a finding of willful false testimony.

Notably, Judge Federico did not join Part II.B. The Order and Judgment provides no separate concurrence or dissent explaining why. His non-joinder signals some intra-panel disagreement about the obstruction/perjury analysis, but it does not alter the judgment: the enhancement stands on a majority vote.

3) Second Amendment Challenge to § 922(g)(1)

Whitehead preserved a Bruen/Rahimi-based challenge but acknowledged Tenth Circuit precedent foreclosed it. The Supreme Court had vacated and remanded the Tenth Circuit’s earlier Vincent v. Garland decision for reconsideration in light of Rahimi. On remand, the Tenth Circuit issued Vincent v. Bondi (2025), explicitly readopting its prior analysis and holding that § 922(g)(1) remains constitutional in this circuit, without parsing types of felonies. Relying on Vincent v. Bondi, the panel rejected Whitehead’s Second Amendment claim on the merits.

Impact and Practical Significance

Constructive Possession in Shared Spaces

Intent can be inferred from brief evasive conduct plus contextual admissions: The panel treats momentary movement toward a contraband-bearing area at the moment of police entry as potent circumstantial evidence, especially when coupled with a timely admission (“my room”) and physical markers tying the defendant to the space (personal mail, labeled clothing).
Joint occupancy requires a nexus, but not exclusivity: Even with another person sleeping in the bedroom, the absence of female clothing, presence of male clothing, and personalized items allowed the jury to find the room was functionally Whitehead’s. Multiple individuals can have constructive possession; the Government need not prove exclusive control.
“Knowledge that the gun was unloaded” matters: Seemingly small details that show familiarity (e.g., knowing the gun was unloaded) can shift the narrative from mere presence to control-capable knowledge.
DNA mixtures that are inconclusive are often neutral: Mixed-source DNA results did not undermine the circumstantial nexus. In joint-occupancy cases, behavioral evidence and admissions may carry more weight than inconclusive forensic results.

Sentencing: Perjury-Based Obstruction

Jail calls are high-risk for defendants: Attempts to shape narratives or assign responsibility—even couched as a desire for “truth”—can support a finding that the defendant later lied about those efforts under oath. Statements like “It ain’t even a lie” can be devastating at sentencing.
District courts must make Dunnigan-type findings (as reflected in Tenth Circuit cases): Here, the district court explicitly found willful falsity on a material point. On appeal, those findings stood under clear-error review.
Non-joinder by one judge may suggest a close question: Practitioners should anticipate careful scrutiny of the precision of perjury findings and the sufficiency of the evidentiary record, even when a majority affirms.

Second Amendment Landscape in the Tenth Circuit

§ 922(g)(1) remains constitutional post-Rahimi: Vincent v. Bondi (2025) anchors circuit law that felon-in-possession prohibitions survive Bruen and Rahimi. As-applied challenges based on “nonviolent” felony status are foreclosed in this circuit.
Litigation posture: Defendants can preserve the issue, but absent en banc or Supreme Court intervention, § 922(g)(1) challenges face long odds in the Tenth Circuit.

Complex Concepts Simplified

Constructive possession: You do not need to physically hold an item to “possess” it. If you know about it, can access it, and intend to control it, the law treats you as possessing it.
Joint occupancy vs. exclusive control: If you share a space with others, the Government must show a specific link between you and the contraband—your knowledge, your access, and your intent—beyond just being there.
Sufficiency review: On appeal, courts ask whether any rational juror could have convicted based on the record viewed in the Government’s favor. Appellate courts do not reweigh credibility.
Obstruction/perjury (U.S.S.G. § 3C1.1): A sentence can be increased if the defendant lies under oath about something important and does so willfully (not by mistake). The judge must make explicit findings on those elements.
Bruen/Rahimi and § 922(g)(1): Bruen reoriented Second Amendment analysis to text and historical tradition; Rahimi applied that approach to a related firearms prohibition. The Tenth Circuit has reaffirmed that the longstanding ban on felons possessing firearms fits within our historical tradition.
Nonprecedential “Order and Judgment”: In the Tenth Circuit, such decisions are not binding precedent (except in the same case under the law-of-the-case doctrine), but they may be cited for their persuasive value under federal and local rules.

Conclusion

United States v. Whitehead offers a clear, practice-oriented portrait of how the Tenth Circuit analyzes constructive possession in a joint-occupancy context. The panel synthesized circumstantial threads—brief evasive conduct, an on-the-spot “my room” admission, personal effects in the room, and an impeaching jail call—to uphold the jury’s finding of intent to control the firearm. On sentencing, the opinion reinforces that recorded communications that appear to coordinate responsibility can underpin a perjury-based obstruction enhancement when the defendant denies such efforts under oath, provided the district court makes the necessary findings. Finally, on constitutional grounds, the decision underscores that § 922(g)(1) remains secure in the Tenth Circuit post-Rahimi through Vincent v. Bondi’s readoption of the circuit’s prior reasoning.

Although nonprecedential and featuring a partial non-joinder on the obstruction discussion, Whitehead is a persuasive and instructive guide for trial and appellate practitioners. It showcases the kinds of circumstantial evidence that can carry the Government’s burden on constructive possession, highlights pitfalls surrounding recorded jail communications, and confirms the current state of Second Amendment law for felon-in-possession prosecutions in the Tenth Circuit.