928 F.3d 855
10th Cir.2019Background
- Defendant Stormy Bob Griffith was convicted by jury of (1) conspiracy to distribute/possess with intent to distribute marijuana, (2) possession with intent to distribute marijuana, and (3) being a felon in possession of firearms; sentenced to 97 months’ imprisonment and three years’ supervised release.
- Police executed a search warrant at Griffith’s Colorado property and found 478 marijuana plants, 92 kg processed marijuana, and 28 firearms; prior Wyoming felony (1999) was the predicate for the § 922(g)(1) conviction.
- Defense relied on claimed compliance with Colorado marijuana laws, the Cole Memo and related guidance, and proffered jury instructions on a mistake-of-law/official-interpretation theory and on justification/self-defense; the district court refused those instructions.
- Counsel on appeal moved to withdraw under Anders v. California, asserting no nonfrivolous issues; the Tenth Circuit reviewed the record and pro se filings and conducted full appellate review.
- The court rejected multiple jurisdictional and procedural challenges (including Commerce Clause/Tenth Amendment and selective-prosecution claims), found the evidence sufficient for conspiracy, upheld the felon-in-possession conviction and multiple sentencing enhancements, and dismissed the appeal as frivolous.
Issues
| Issue | Griffith's Argument | Government/Respondent's Argument | Held |
|---|---|---|---|
| Anders withdrawal / appeal viability | Counsel says no nonfrivolous issues; Griffith submitted pro se responses asserting multiple claims | Court must independently review record and briefs to determine frivolousness | Anders withdrawal granted; appeal dismissed as frivolous |
| Subject-matter jurisdiction | Federal government lacks power (Commerce Clause/Tenth Amendment); other sovereign-citizen-type claims | Statutes under which convicted are valid exercises of Commerce Clause power; federal courts have jurisdiction over federal offenses | Jurisdictional challenges rejected as frivolous |
| Compliance with Colorado law / jury instruction (Cole Memo) | Griffith claimed state-law compliance and argued Cole Memo/appropriations language precluded federal prosecution; sought mistake-of-law/official-interpretation instruction | Cole Memo is guidance only and does not create a federal defense; record showed noncompliance with state law (open-field, plant counts) | District court did not abuse discretion in refusing the instruction |
| Justification / self-defense instruction for § 922(g) | Griffith feared for life after shots fired; argued justification for firearm possession | Defendant did not meet elements (imminence, no legal alternative, abandonment, etc.) and elected not to testify | Denial of instruction affirmed |
| Sufficiency of evidence for conspiracy | Griffith argued no agreement to violate law (relied on advice of counsel/state-law compliance) | Testimony (wife/cooperators), payments, shared labor, and conduct supported inference of agreement | Evidence sufficient; conviction sustained |
| Felon-in-possession predicate / restoration of rights | Griffith contended civil rights were restored on completion of sentence, so § 922(g) inapplicable; also raised Second Amendment claim | Restoration determined by Wyoming law; no proof rights were restored; Heller/McDonald preserve felon ban | Conviction under § 922(g)(1) affirmed; plain-error review failed |
| Sentencing enhancements and Guidelines calculations | Challenges to weapon/premises/weapon-in-connection enhancements, firearm count, base offense level, acceptance-of-responsibility | Court found preponderance-supported facts (threats, weapons, number of firearms), Guidelines applied correctly, within-Guidelines sentence reasonable | Sentencing determinations and enhancements affirmed; sentence affirmed |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (procedures when counsel seeks to withdraw on appeal)
- United States v. Calderon, 428 F.3d 928 (10th Cir. 2005) (Anders procedure in Tenth Circuit)
- United States v. Armstrong, 517 U.S. 456 (1996) (standard for selective prosecution claims)
- United States v. Dorris, 236 F.3d 582 (10th Cir. 2000) (validity of § 922(g) under Commerce Clause)
- United States v. Wacker, 72 F.3d 1453 (10th Cir. 1995) (validity of drug statutes under Commerce Clause)
- District of Columbia v. Heller, 554 U.S. 570 (2008) (Second Amendment does not disturb felon firearm prohibitions)
- McDonald v. City of Chicago, 561 U.S. 742 (2010) (Heller holding discussed; felon prohibitions unaffected)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts increasing penalty beyond statutory maximum must be submitted to jury)
- United States v. Pickel, 863 F.3d 1240 (10th Cir. 2017) (standard for sufficiency-of-evidence review)