F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS May 17, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
No. 06-5056
v. (D.C. No. 04-CR-214-HDC)
(N . Dist. Okla.)
VAUDA VIRGLE SHIPP, JR.,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TA CH A, Chief Judge, SEYM OUR, Circuit Judge, and R OBIN SO N, **
District Judge.
Vauda Virgle Shipp, Jr. was convicted of being a felon in possession of a
firearm and sentenced to 188 months imprisonment. He appeals his conviction,
the district court’s denial of his motion for a new trial, and his sentence. W e
affirm.
Cheryl Ann Shipp filed a protective order against her husband, M r. Shipp.
*
This order and judgment is not binding precedent, except under the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.
**
Honorable Julie A. Robinson, United States District Judge, United States
District Court for the District of Kansas, sitting by designation.
She also informed the police that firearms were stored in a gun cabinet in the
bedroom of their shared home and provided them with consent to enter the house
and retrieve the firearms. The next day, Deputy James Yeager of the M ayes
County Sheriff’s office arrived at the Shipp house and encountered M r. Shipp.
He informed M r. Shipp of the protective order and his intent to search the home
for weapons. M r. Shipp led the deputy to the firearms in the bedroom. He was
arrested and charged with one count of being a felon in possession of a firearm.
At trial, M s. Shipp testified she bought the guns for her husband and
recounted M r. Shipp’s testimony from a state civil proceeding acknowledging he
used the guns for hunting. M r. Shipp’s son-in-law testified M r. Shipp handed him
one of the firearms when he was visiting the Shipp home in 2003. M r. Shipp
subsequently objected to the inclusion of a jury instruction entitled
“OW NERSH IP IM M ATERIAL.” See Rec., vol. I, doc. 62 at 18 (“The ownership
of any firearm alleged to have been possessed by defendant is not to be
considered by you. The ownership of such a firearm is immaterial.”). The court
overruled this objection, the instruction was given, and the jury returned a guilty
verdict.
The presentence report (PSR ) initially assigned M r. Shipp an offense level
of 14. Under the Armed Career Criminal provision, however, the offense level
was enhanced to 33. See U.S.S.G. § 4B1.4(b)(3)(B). To support this
enhancement, the PSR cited three prior felony convictions, including a 1987
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escape conviction for failing to return to a detention facility after overstaying an
official pass. W ith a criminal history category of IV, the suggested sentencing
range w as 188 to 235 months.
M r. Shipp then filed a motion alleging his attorney was ineffective for
failing to adequately investigate, and requesting a new trial on the basis of new
evidence. M r. Shipp’s trial attorneys withdrew and new counsel was appointed.
At sentencing, M r. Shipp’s new attorney disputed the PSR’s classification of his
escape conviction as a violent felony, and requested a new trial, based on newly
discovered evidence and ineffective assistance of trial counsel. The district court
denied these requests and sentenced M r. Shipp to 188 months imprisonment. On
appeal, M r. Shipp contends the search of his home was unlawful; the evidence
presented was insufficient to support his conviction; and the court erred by
instructing the jury that ownership of the firearms w as immaterial, by denying his
motion for new trial, and in sentencing him as an Armed Career Criminal. W e
address each argument in turn.
M r. Shipp argues for the first time on appeal that the search of his home
was unlaw ful because he was present and did not consent. “W here no objection is
made at trial to the admission of evidence, the alleged error is not preserved for
appellate review unless its admission constitutes plain error.” United States v.
Brown, 540 F.2d 1048, 1056 (10th Cir. 1976). M r. Shipp relies on Georgia v.
Randolph, 547 U.S. 103 (2006), where the Court held “a warrantless search of a
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shared dwelling for evidence over the express refusal of consent by a physically
present resident cannot be justified as reasonable as to him on the basis of consent
given to the police by another resident.” Id. at 1526. Here, Deputy Yeager
briefly described his encounter with M r. Shipp prior to entering the house. His
limited testimony indicates that M r. Shipp did in fact consent to the search. ***
Neither party produced evidence at trial that would have led the district court to
question the provision of consent, see United States v. Baker, 638 F.2d 198, 203
(10th Cir. 1980), and we therefore cannot conclude the court committed plain
error. See United States v. M itchell, 783 F.2d 971, 977 (10th Cir. 1986).
“W e review de novo whether the prosecution presented sufficient evidence
to support a conviction.” United States v. Avery, 295 F.3d 1158, 1177 (10th Cir.
2002). W e examine evidence and the reasonable inferences to be drawn
therefrom in the light most favorable to the government. United States v. Serrata,
425 F.3d 886, 895 (10th Cir. 2005). “W e will not re-weigh the evidence or assess
the credibility of witnesses,” id., and will not overturn a conviction “unless no
rational trier of fact could have reached the disputed verdict.” United States v.
Wilson, 182 F.3d 737, 742 (10th Cir. 1999). To establish a violation of 18 U.S.C.
§ 922(g)(1), the government must prove “(1) that the defendant was previously
***
See Rec., vol. VI at 44 (“[Government]: Did you ask Mr. Shipp where the
guns were located? [Deputy Yeager]: Yes, I did. [Government]: And did he show you
where they were located? [Deputy Yeager]: Yes, sir.”); id. at 49 (“[Deputy Yeager]:
Mr. Shipp, he took me to [the firearms] and pointed to them.”).
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convicted of a felony; (2) that the defendant thereafter knowingly possessed a
firearm or ammunition; and (3) that the possession was in or affecting interstate
comm erce.” United States v. Ledford, 443 F.3d 702, 713 (10th Cir. 2005).
The first and third elements are not disputed here. Instead, M r. Shipp
impugns the motives of his wife and the credibility of his son-in-law’s testimony
in an effort to undermine the knowing possession element of the crime. It is not
within our province to assess the credibility of witnesses. M oreover, Officer
Yeager’s testimony that M r. Shipp directed him to the location of the firearms
also supports the knowing possession element. See Ledford, 443 F.3d at 714 (“To
sustain a conviction for constructive possession, the government must present
evidence supporting at least a plausible inference that the defendant had
knowledge of and access to the weapon.”). Consequently, we conclude there was
sufficient evidence to support the conviction.
M r. Shipp also contends the district court erred in instructing the jury not to
consider ownership of the firearms. “This court reviews a district court's decision
to give a particular jury instruction for an abuse of discretion and considers the
instructions as a whole de novo to determine whether they accurately informed the
jury of the governing law.” United States v. Cota-M eza, 367 F.3d 1218, 1221
(10th Cir. 2004). In United States v. Al-Rekabi, 454 F.3d 1113, 1120 (10th Cir.
2006), we held that “[a] knowing ability to control is all constructive possession
requires, even in a joint occupancy situation.” M s. Shipp’s alleged ownership of
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the firearms does not influence this crucial inquiry into whether M r. Shipp had
the knowing ability to control the firearms in his home. See United States v.
M ains, 33 F.3d 1222, 1228 (10th Cir. 1994) (“Section 922(g)(1) requires
possession, not ownership of the gun.”); United States v. Johnson, 683 F.2d
1187,1188 (8th Cir. 1982) (The felon in possession “statute . . . prohibits the
knowing possession of firearms. Ownership is immaterial.”). Thus, the
instruction accurately informed the jury of the governing law.
M r. Shipp’s motion for a new trial alleged newly discovered evidence,
namely police documents he alleges reflect inconsistencies with provided
testimony. W e review a district court’s denial of a motion for a new trial for
abuse of discretion. United States v. LaVallee, 439 F.3d 670, 700 (10th Cir.
2006). Our five part test to determine whether newly discovered evidence
warrants a new trial begins with the requirement that “the evidence was
discovered after trial.” Id. Here, the district court recognized that the evidence
“w[as] mentioned at the trial.” Rec., vol. VII at 6. Accordingly, the district court
did not abuse its discretion by denying the new trial request on this ground.
M r. Shipp also sought a new trial on the grounds that his counsel was
ineffective for failing to investigate, subpoena, and present relevant witnesses and
records. A “motion for a new trial grounded on any reason other than newly
discovered evidence must be filed within 7 days after the verdict . . . .”
F ED .R.C RIM .P. 33(b)(2). The jury returned its verdict on September 14, 2005,
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and M r. Shipp submitted his motion on December 1. To be timely, therefore, M r.
Shipp’s ineffectiveness claim must instead be couched as newly discovered
evidence, which has a longer filing period. See F ED . R. C RIM . P. 33(b)(1) (latest
filing date for newly discovered evidence is three years after verdict).
“Ineffective assistance of counsel may not serve as the basis for a motion for a
new trial on the ground of newly discovered evidence under Rule 33 where the
facts alleged in support of the motion were within the defendant's knowledge at
the time of trial.” United States v. M iller, 869 F.2d 1418, 1421 (10th Cir. 1989).
M r. Shipp was aware at the time of trial that his attorneys were not investigating
and preparing to call witnesses. Consequently, the district court did not err in
denying his motion for a new trial on ineffectiveness grounds.
Finally, M r. Shipp objected to the application of the Armed Career
Criminal provision. He contends the district court erred by classifying his escape
charge as a violent felony and by failing to submit to the jury the question of
whether his escape crime w as a “violent” offense. W e need not linger on M r.
Shipp’s claim that the jury, not the district court, was the proper arbiter of
whether his escape conviction was a crime of violence. In United States v.
M oore, 401 F.3d 1220, 1226 (10th Cir. 2005), we clearly rejected this argument
and “conclude[d] that the government need not . . . prove to a jury that a
defendant’s prior conviction constitutes a ‘violent felony’ under § 924(e).”
M r. Shipp also asserts his escape crime did not involve actual or potential
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violence, stating he “simply failed to return to the Lexington Assessment Center
after being permitted to leave on an official pass.” Aplt. Br. at 19. W e review
the district court’s application of the 18 U.S.C. § 924(e) enhancement de novo.
M oore, 401 F.3d at 1226. A violent offense in this context “involves conduct that
presents a serious risk of physical injury to another.” 18 U.S.C. §
924(e)(2)(B)(ii); U.S.S.G. § 4B1.2(a)(2). In United States v. M oudy, 132 F.3d
618, 620 (10th Cir. 1998), we said the “reasons . . . for holding escape to be a
crime of violence apply to all escapes, whether or not violence was actually
involved.” See United States v. Gosling, 39 F.3d 1140, 1142 (10th Cir. 1994)
(“[E]ven in a case where a defendant escapes from a jail by stealth and injures no
one in the process, there is still a serious potential risk that injury will result
when officers find the defendant and attempt to place him in custody.”). Even
assuming M r. Shipp’s escape was non-violent, we attribute a potential for
violence to all escapes as outlined in Gosling. The district court did not err in
determining M r. Shipp’s escape conviction was a crime of violence.
W e A FFIR M .
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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