United States v. Lee Hope, 938 F.3d 790

Background

May 27, 2017: Memphis police arrested Jamal Bowens and Lee Hope in a car; officers recovered two firearms and a marijuana blunt; both charged under 18 U.S.C. § 922(g)(3) (unlawful users of a controlled substance in possession of a firearm).
Government relied heavily on Facebook content (video, photos, comments) posted over the seven months before arrest showing the defendants apparently using marijuana.
A jury convicted both defendants; district court denied Rule 29 and Rule 33 relief.
At Bowens’ sentencing the court applied a two-level Guidelines enhancement under U.S.S.G. § 2K2.1(b)(1)(A) by counting a Sig Sauer recovered in January 2017 (from Bowens’ mother’s house) as a third firearm; Bowens was not charged for that January possession.
Bowens sought concurrent federal and anticipated state sentences and objected to counting the January firearm as relevant conduct; the court denied concurrency and applied the enhancement; the written judgment failed to reflect an oral credit the court had announced.
On appeal the convictions were affirmed; Bowens’ sentence was vacated and remanded for resentencing limited to the relevant-conduct/firearm-count and judgment-correction issues.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence to prove "regular and repeated" marijuana use for § 922(g)(3)	Facebook posts/video, blunt at arrest, and contemporaneous posts show regular, extended use	Facebook evidence ambiguous, possibly not marijuana, not corroborated or authenticated	Conviction affirmed; circumstantial Facebook evidence was sufficient and jury could infer regular use
Standard for Rule 33 new-trial review	N/A (district court applied wrong standard)	District court applied correct "manifest weight" / extraordinary-circumstance standard	District court applied correct standards; denial of Rule 33 not an abuse of discretion
Rehaif knowledge element (must know status as unlawful user)	Rehaif requires jury instruction that defendant knew he was an unlawful user/prohibited person	Any instructional omission was not plain error because evidence showed defendants knowingly used marijuana and ignorance-of-law defense unavailable	No plain error; instructional omission did not undermine outcome
Sentencing: counting January Sig Sauer as a third firearm / concurrency / judgment correction	Bowens: January Sig Sauer not "relevant conduct" to May offense; enhancement improper; request for concurrency appropriate; judgment should reflect oral credit	Gov: possession in January can be counted; concurrency not required; oral-vs-written judgment issue acknowledged	Enhancement vacated as January possession not relevant conduct; denial of concurrency not an abuse; remand for resentencing and correction of written judgment to match oral sentence

Key Cases Cited

United States v. Burchard, 580 F.3d 341 (6th Cir. 2009) (government must prove regular and repeated drug use for § 922(g)(3))
Rehaif v. United States, 139 S. Ct. 2191 (2019) (Government must prove defendant knew his status under § 922(g))
United States v. Mallory, 902 F.3d 584 (6th Cir. 2018) (distinguishing standards for Rule 29 and Rule 33 review)
United States v. Amerson, 886 F.3d 568 (6th Cir. 2018) (relevant-conduct analysis for separate gun possessions: regularity, similarity, timing)
United States v. Phillips, 516 F.3d 479 (6th Cir. 2008) (upholding relevant-conduct finding where repeated possessions shared purpose and circumstances)
United States v. Hill, 79 F.3d 1477 (6th Cir. 1996) (regularity requirement and sliding-scale analysis)
United States v. Pennell, 737 F.2d 521 (6th Cir. 1984) (corroboration rule distinction between post-offense confessions and contemporaneous admissions)
United States v. Algee, 599 F.3d 506 (6th Cir. 2010) (circumstantial evidence can support conviction)
United States v. Vichitvongsa, 819 F.3d 260 (6th Cir. 2016) (on drawing inferences in sufficiency review)
Cheek v. United States, 498 U.S. 192 (1991) (ignorance of law generally not a defense)