*1 rehearing en banc was petition The judges to all of the of the
transmitted active service. A regular who are
court Briscoe, requested Judges
poll was
Lucero, Murphy, and voted to O’Brien Briscoe, Lucero,
grant rehearing. Judges O’Brien,
Murphy, Tymkovich voted to abate decision on rehear-
the alternative
ing pending en banc Gall. is therefore denied. petition America,
UNITED STATES of
Plaintiff-Appellee, BAKER,
James E. Defendant-
Appellant.
No. 07-3002. Appeals,
United States Court of
Tenth Circuit.
Dec. *2 Henderson, Jr.,
John K. Assistant Fed- Defender, eral Public of the Federal Office Kansas, Public Defender for the District of Wichita, KS, appearing Appellant. Treaster, Matt Assistant United States (Eric Attorney F. Melgren, United States brief), Attorney, with him on Office Attorney for the District United Kansas, Wichita, KS, appearing Ap- pellee. TACHA, Judge,
Before Chief Circuit HOLLOWAY, MURPHY, Circuit Judges.
TACHA, Judge. Chief Circuit Defendant-Appellant ap- James Baker peals being his conviction for a felon ammunition, possession of as well as his upon are called to decide sentence. We whether should have been in- proposed on Mr. Baker’s “inno- structed possession” cent defense to of ammunition and whether 921(a)(20) of the Armed Ca- 18 U.S.C. contemplates might Act a “convic- child find it. reer Criminal Before Mr. Baker tion-specific” approach application. to its station, however, drove to the he questions negative. answer both and two other individuals drove to another apartment complex. He testified
I. BACKGROUND sitting was in the car in complex’s the approximately At 4:00 a.m. on Novem- parking lot when he saw Officer Bachman 1, 2005, sitting ber James Baker was in a patrol figured the car. Mr. Baker he parking stepdaugh- car in a lot outside his could hand the bullets over to Officer apartment complex. ters’ Officer Richard Bachman rather go than sta- Wichita, Bachman of the Kansas Police tion, got ap- so he out of the car and Department patrolling was the area and Bachman, proached Officer who had exited vehicle, thought parked that the which was patrol the car. Bachman Officer immedi- on, lights suspicious. with its looked He ately started questioning Mr. Baker about patrol lights turned his car’s on the vehi- lot, parking the reason he was the so, got cle. As he did Mr. Baker out of the give before Mr. Baker could him the bul- approached car and patrol car. Officer lets, placed Officer Bachman him under Bachman Mr. stop instructed Baker to arrest and discovered the bullets. Mr. moving and asked Mr. Baker for identifica- only Baker also testified that he had the tion, provided. dispatcher which he The ammunition for about ten minutes before vehicle, ran a routine records check on the he was arrested. which revealed that tag had been re- ported as lost or stolen. Based on this evidence, At the close of the Mr. Baker information, Officer Bachman Mr. detained requested an possession” jury “innocent dispatcher reported Baker. The then Specifically, instruction. he sought the fol- a records check on Mr. Baker revealed the lowing instruction: city existence of two active bench warrants charge It is defense to the of unlawful for his arrest. Officer Bachman therefore possession of ammunition that the defen- Mr. During arrested Baker. a search inci- possession dant’s of the ammunition con- arrest, dent to the Officer Bachman found possession. stituted innocent Posses- speed loader with six rounds of live of ammunition sion constitutes innocent pocket. ammunition in Mr. It Baker’s was possession where: later discovered that the ammunition had been stolen earlier that night during 1. ammunition was obtained inno- burglary of Doc’s Steakhouse in Wichita. cently purpose; and held with no illicit charged
Mr. Baker was in a two-count being possession indictment with a felon in of the ammunition Possession ammunition, in violation of 18 U.S.C. i.e., transitory, light of the circum- 922(g)(1), possession with of stolen presented good stances there is a basis ammunition, in violation of 18 U.S.C. adequate to find that the defendant took 922(j). pleaded guilty, He and the measures to rid himself of trial, went to trial. During case Mr. promptly the ammunition as as reason- Baker testified he saw the ammuni- ably possible. ground leaving tion on the after a Hallow- you If possessed find that the defendant party apartment at an complex. een Ac- specified ammunition in Count Baker, cording picked up to Mr. 2 and that Count constituted ammunition so that he turn it into could possession, you should find the police; he did not want to leave it on ground because he that a guilty. was worried defendant not II. DISCUSSION concluded The District Court on the evi- not warranted instruction was A. Possession Innocent the motion. and denied presented dence jury instructions de We review trial, jury two-day con- Following whole, novo, whether, in asking as a Baker of victed Mr. jury accurately informed the structions ammunition, him acquitted but session of governing and the law. United the issues of stolen ammunition. (10th LaVallee, judgment acquittal Baker moved for Cir.2006). a criminal defen Importantly, trial, that he was arguing again a new jury instruction on his is entitled to dant on “innocent to a instruction entitled *4 if that instruction is theory of defense denied The District Court possession.” foun by the law and has some supported the motion. v. in the evidence. United States dation presen- prepared office probation The (10th Al-Rekabi, 1113, 1121 Cir. 454 F.3d (“PSR”) recommending that report tence 2006). follow, we con For the reasons that ca- as an armed Mr. Baker be sentenced jury in requested that Mr. Baker’s clude 924(e) § and under 18 U.S.C. reer criminal supported by is not the law. struction Sentencing § Guidelines 4B1.4 of the U.S. (“Guidelines”) de- upon based the office’s To obtain a conviction under pri- Mr. Baker had three termination that 922(g)(1), government prove § must for violent felonies. or convictions (1) doubt that beyond a reasonable not be sen- that he should argued Baker previously convicted of defendant was criminal, ob- an armed career tenced as (2) felony; the defendant thereafter know of one of his jecting characterization (3) ammunition; ingly possessed and felony.” “violent convictions as a prior affecting was in or interstate possession Mr. Baker’s The District Court overruled Ledford, v. 443 commerce. United States the recommenda- objection adopted (10th Cir.2005). 702, gov F.3d 713 upon a total of- tions of the PSR. Based that the defen ernment need not establish history cate- and criminal fense level of 33 any il possessed the contraband for dant VI, recommended a the Guidelines gory purpose; licit the defendant’s motive for range of 235 to 293 months’ sentencing is irrelevant to the possessing ammunition con- imprisonment. The District Court DeSoto, v. crime. See United States advisory cluded that a sentence within (10th Cir.1991) 626, (explaining in this case and range appropriate a firearm is possessing that motive for a term of 235 Mr. Baker to sentenced irrelevant to offense of felon appeals Baker now both his months. Mr. firearm); also possession of see United sentence, arguing conviction and his (4th Gilbert, 215, v. 430 F.3d refusing give the District erred Court Cir.2005) (“The 922(g)] in no [§ statute jury an instruction on “innocent way investigation why into the de invites him an sentencing as session” and long possessed a firearm or how fendant jurisdic- criminal.1 We have armed career lasted.”); v. 1291, AF- § and we tion under 28 U.S.C. (11th 1210, 1214 Cir. Reynolds, 215 F.3d FIRM. arguments doing under federal law. Mr. Baker from so 1. Mr. Baker raises two other (1) candidly Supreme 922(g)(1) admits that appeal: is an uncon- 18 U.S.C. argu- precedent these Congress’s authority Tenth Circuit forecloses stitutional exercise ments, Clause; (2) merely preserve the and he seeks because under the Commerce acknowledge review. We permitted possess ammunition issues for further Mr. Baker is prohibited he has done so. not be under state he should 2000) (“Section[ ... 922(g) not fo ures to rid ] do[es] himself of of the purpose cus on the motive or of the cur promptly reasonably firearm as as possi- firearms.”). fact, rent possession of ble. previously characterized federal fire Id. at 624. It reasoned that absent such a imposing “something ap arms laws as defense, “a felon-in-possession always will
proaching
liability.”
absolute
United
guilty
knowingly
be
once he
possesses a
(10th
Adkins,
States v.
weapon,
regard
without
why
how or
Cir.1999)
omitted).
(quotation
came into
or for
long pos-
how
argues,
Mr. Baker
that his mo-
session was retained.” Id. at 623.
(or
tive in
the ammunition is
view, however,
In our
pre
that is
be)
should
relevant to the
charged.
crime
cisely
what
by prohib
envisioned
Specifically, he contends that
if a defen-
iting
willful,
knowing,
opposed
as
pos
innocently,
dant obtains ammunition
with session of ammunition. See United States
purpose,
no illicit
adequate
takes
Reed,
(10th
Cir.
measures to rid himself of it
promptly
as
1997) (a
conviction
922(g) requires
under
reasonably possible,
he cannot be con- knowing possession).
*5
law,
In criminal
§ 922(g).
support
victed under
As
for this
“knowing” possession simply requires
contention, Mr. Baker cites United States
proof of knowledge of the facts that consti
Mason,
(D.C.Cir.2000),
(1)
cessity
the defendant must show
the firearm
innocently
was attained
“(1)
(2)
legal
that
there is no
alternative to
and held with no illicit purpose (2)
violating the
harm
pre
to be
the firearm was transito-
(3)
imminent,
direct,
ry i.e., in
vented is
light of the
causal
circumstances
—
presented,
good
relationship
there is a
...
basis to find
between defen
exist[s]
that the
adequate
defendant took
meas-
dant’s action and the avoidance of harm.”
to read a “concrete-involvement”
(quotation
refusing
Al-Rekabi,
statutory defini-
into the clear
omitted).2
requirement
requiring
purpose
“distribution,”
explained:
we
tion of
legal
he had no
that
to show
defendant
to force
violating the law “is
language
alternative
“concrete involvement”
[I]f
options
the various
separating
an actor to evaluate
a means of
is
used as
one” be
choose the best
other situa-
presented
criminal acts from
“true”
cases,
will be a clear
most
there
tions,
police
cause
offi-
“[i]n
such as an undercover
Bak
1123. Mr.
Id. at
legal
drugs
alternative.”
to an unsus-
cer who transfers
require
does not
requested instruction
er’s
course of a
buyer during the
pecting
legal options
contemplate
the felon
or the “Good Samari-
sting operation,
possession.
into
taking
contraband
prior
drugs
who finds
private
tan”
citizen
would ex
an instruction
permit such
To
them to the
the street and takes
and contravene
necessity defense
pand the
station,
“concrete involve-
we believe the
“strictly and
be
rule that the defense
vehi-
language
inappropriate
is an
ment”
Id. at 1122. In
applied.”
parsimoniously
841(a)(1) would,
§ ]
[Title
cle.
U.S.C.
addition,
acknowledge
Su
literally,
the two situ-
if read
criminalize
question
called into
preme
that re-
above. While
ations described
necessity defense.
validity of the narrower
absurd,
may seem
the conclusion
sult
v. Oakland Cannabis
See
this re-
fact intended
490, 121
483,
S.Ct.
Co-op.,532 U.S.
Buyers’
bolstered
the enactment
sult is
(2001) (“We note
149 L.Ed.2d
con-
statutes like 21
which
U.S.C.
question whether federal
open
that it is an
immunity
an individual like an
fers an
*6
authority
recognize a
have
courts ever
who handles con-
undercover officer
provided by stat
necessity defense not
the course of
during
trolled substances
ute.”).
expand
decline to
therefore
We
Congress
duties.
If
did
his official
this defense.
type
to criminalize this
of conduct
intend
any
of
however,
there is no evidence
because
even
suggests,
Mr. Baker
involvement,”
§
then
885
the facts of
“concrete
existing case
under our
Moreover, while
unnecessary.
a crime.
seems
not amount to
his case do
841(a)(1)
Santistevan,
to an
literally
§
extend
might
In
disagree.
(10th Cir.1994),
drugs
who
on the street
this
individual
finds
Court
station,
them to a
we
drugs
brings
distribution of
addressed whether
841(a)(1)
adequate
exists
protection
“con-
believe
requires
§
under U.S.C.
prosecutorial
exercise of
disere-
sound
in the distribution.
crete involvement”
discussed,
rea-
explicitly
quires proof that the defendant had "no
never
have
but
2. We
also
defense,
recognized,
"fleeting possession”
legal
given
...
the cir-
a
sonable
alternative
"(1)
requires proof
cumstances,”
the defendant
which
making
aspect
thus
this
merely momentarily possessed
contra-
fleeting possession
redundant
defense
band,
(2)
knowledge that he
either lacked
proof
necessity
Id. at 1126. And
defense.
legally justifi-
possessed
or had a
contraband
knowledge that he
that a defendant
lacked
temporally.” Al-
possess it
able reason to
part
an affir-
possessed contraband is not
Rekabi,
(quotations
on these Baker an a not a violent Mr. was that conviction is considered concluded that felony Mr. Baker con- had his criminal. if the defendant has civil armed career cannot be his conviction “unless ... rights that such restora- tends restored predicate a offense under as rights expressly provides counted tion of that civil civil re- rights had his because he ACCA person may ship, transport, under to this conviction Kansas stored as sess, add- (emphasis receive firearms” or law. ed)). an de novo issue of
We review
Circuit, however,
In this
to de
involving the
statutory
interpretation
state
expressly
termine whether
law
re
Burns,
v.
ACCA. United States
firearms,
right
possess
stricts a felon’s
to
Cir.1991).
(10th
1157,
A
defendant’s
law.”
we “look to the whole of state
restored under state
rights
civil
been
Burns,
provi
(consulting
F.2d at
921(a)(20)
§
if the
purposes
law
criminal
Kansas
code to deter
sions of the
has also restored
defendant’s
state
firearm).4
right
possess
mine
to
a
a felon’s
id.
See
at 1160
right
possess
to
firearms.
Kansas,
parole
And
from
or
release
did not have his
(concluding
defendant
automatically
imprisonment does not
re
defendant did
rights
civil
restored because
right
possess
store
a firearm.
firearms);
possess
right
not have
Rather,
Kansas criminalizes
Dockter,
see also United States
who,
“by
person
a
a
within
firearm
(8th Cir.1995)
1284,
(explaining
preceding five
has been convicted of
civil rights
a
to have his
re
person
“for
felony
...
has been released from
[or]
purposes
for the
of sec
stored
state
imprisonment
felony.”
for a
Kan. Stat.
921(a)(20),
must
the relevant state
tion
21-4204(a)(3).
statute,
§Ann.
this
Under
right
the felon’s
actually have restored
right
possess
has not had
Baker
omitted)).
(quotations
possess firearms.”
burglary
his
convic
firearm since
first
parole
from
Kansas
release
Under
tion
His
for the 1997
in 1997.
sentence
“restoring
imprisonment
the effect
burglary
discharged
conviction
on
was
rights
by operation of law
all civil
lost
21-4204(a)(3),
May 13,
1999. Under
commitment,”
§ 22-
Kan. Stat. Ann.
upon
prohibited
was
from
firearms
hold
including
any pub
“to
eligibility
date,
May
until
Before
how
...,
register
lic
voter or to
office
ever,
9, 1999, Mr. Baker
on March
any
... or
serve as a
vote
election
His sen
burglary.
convicted of his second
case,”
any
criminal
juror in
civil or
id.
discharged
tence for that offense was
21-4615(1).
say
§ 22-3722 does not
But
13, 2002.
*8
thus continu
December
He was
right to
anything
possess
about a felon’s
ously
from
prohibited
firearms
isolation, §
firearms.
If
in
22-3722
taken
from the 1997 conviction until December
indicate
would
that once
has been
13, 2007.
parole
imprisonment,
from
the
released
or
however,
argues,
Mr. Baker
that 18
a
underlying
cannot be used as
offense
921(a)(20)
sentencing
specific,”
§
U.S.C.
is “conviction
predicate offense for
under the
split
regarding
a
a determination.
See United
4. We note
in the circuits
make such
Chenowith,
(5th
only
may
whether a court
look
to
certificate
459 F.3d
States v.
rights upon
Seventh,
Fifth,
of restoration of
release from
Cir.2006)
civil
(noting that
the
parole
imprisonment
decide
the
or
to
whether
approach,
to
Circuits adhere
the former
Ninth
right
expressly
certificate
limits a
to
felon's
Fourth, Sixth, and Tenth Circuits
while the
whether,
firearms,
possess
as in this Cir-
approach).
to the latter
adhere
cuit,
may
of
we
look
the whole
state law to
to
each
should therefore look to
con-
state that he could not possess
a firearm.
Burns,
1159;
viction in isolation to determine whether
F.2d at
see
also
921(a)(20).
right
possess
§
he had his
to
a firearm re-
rejected
U.S.C.
We
that ar
because,
respect
particular
gument
stored with
to that
con-
“looking to the
of
whole
way,
law,”
In this
viction.
he contends
his
state
defendant
continuously
the
was
possess
right
subject
to
a firearm as to the 1997
disability
to the firearms
in
found
automatically
§
conviction
burglary
was
re- Kan.
Ann.
up
Stat.
21-42045
to the time
13, 2004,
May
after
felon-in-possession offense;
is,
stored on
five
his of the
discharged—
for that
five-year
sentence
crime was
there
never a
period
was
between
notwithstanding the fact
was incar-
that he
the time was discharged
he
from
bur
the
at
point
felony
for
glary
cerated
another
convictions and the time he was con
and, accordingly, was under
fire-
being
another
victed for
a felon in possession that
Burns,
arms restriction for that
in prison
conviction.
he was
felony.
not
Thus,
1160-61.
right
F.2d at
to
“[h]is
addressed a
question
related
possess a firearm was
effectively
never
Burns,
United States v.
F.2d 1157
result,
Id. at 1161.
restored.”
As a
(10th Cir.1991).
case,
In that
the defen
burglary convictions could be used to en
pleaded guilty
dant
to three
of bur
counts
hance the defendant’s sentence
under
glary under Kansas law in
Id.
1965.
ACCA. Id. at 1160-61.
1158. He received a
certificate
dis
charge from Kansas for
those offenses
Bums stands for
proposition
September
imprisoned
1981 while he was
that the defendant must actually have the
forgery
drug
several unrelated
right
possess
to
him
firearms restored to
Id.
purported
offenses.
The certificate
an otherwise-qualifying
before
conviction
rights,
restore
“in
defendant’s civil
pur
is not considered a violent felony for
vote,
cluding
right
but
limited to the
924(e). Indeed,
poses
§of
two of our sis
office,
right
public
hold
and the
ter
relied on
explicitly
circuits
Bums in
right
jury.”
to serve on a
He
Id.
rejecting
approach urged by
Bak
custody
forgery
from
released
on the
Dockter,
er. See
States v.
United
drug
September
offenses
Id. He
1984.
(8th Cir.1995) (“/AJctual
1284, 1291
resto
again,
was arrested
in December
right
possess
ration of the
[is
firearms
year
of that
and remained incarcerated
required] in order for a conviction to be
later,
until
year
March
Id. One
921(a)(20).”
§
(emphasis
excludable under
pleaded guilty to the federal
offense
added));
Clark,
United
felon in
firearm.
(4th Cir.1993) (“We
402, 405
hold ... as a
Id.
matter of federal law that a state convic
argued
against applica-
defendant
tion
felony
for a violent
is not excluded
ACCA,
924(e)
tion
contending
§
that his
from consideration under
921(a)(20)
burglary
convictions
1965 could not be provisions of
until
law of
considered
violent
under
effectively
felonies
the relevant state
restores
921(a)(20)
because the
right
possess
certificate
dis-
the defendant
fire
added)).
*9
charge restoring his civil
did not
rights
(emphasis
arms.”
with
agree
similar,
older,
who,
interpreted
years
preceding
Bums
an
but
ver-
five
within
such viola-
sion of the same statute at
this
issue in
case.
felony
tion has
convicted of a
been
under
(1991)
21-4204(l)(b)
See Kan. Stat. Ann.
any
jurisdiction
laws of Kansas or
other
(providing
possession
that "[u]nlawful
of a
imprisonment
has
from
for a
been released
possession
is ...
firearm
of a firearm with a
felony”).
long by
person
barrel less than 12
a
inches
in
to those
when
circumstances similar
circuits,
now hold that
fense
and we
these
a
continuously
in
prohibited
presented
law
the instant case.
state
firearm, the
a
from
defendant
majori
It seems we should examine
effectively
the de-
restored
has not
state
holding
implications.
in
full
To do
ty’s
its
each
rights
his civil
therefore
fendant
so,
necessary,
prec
under our general
it is
otherwise-qualifying
of the defendant’s
edents,
in
to
consider
evidence
felony un-
a violent
constitutes
convictions
in
to
Baker
light most favorable Defendant
924(e).
§der
to
determining
Baker is entitled
whether
case,
burgla
In
since
first
this
his
con
defense
1997, Mr. Baker has not
conviction in
ry
Al-Rekabi,
States v.
sidered. See United
custody
period
of
for
been out
state
(10th Cir.2006).
Bak
felony convictions.
years
five
between
had
to
er testified that he
an aversion
Thus,
firearm was
possess
his
right
three
had been
firearms because
relatives
effectively restored as to the
never
he
by gunshots. He
that
killed
testified
properly
District
burglary, and the
Court
possessed a firearm
1996.1
had not
since
felony under
a violent
considered it
Further,
testimony
on this
his
was that
924(e).
did
Court therefore
The District
very
spite
in
of the
late
night,
Halloween
enhancing
in
his sentence.
not err
hour,
there
children out and about
were
apartment complex
where he found
III. CONCLUSION
that he
the contra
ammunition and
took
that “innocent
Because we conclude
away
place
that
of concern
band
from
out
in
session” is not a defense
safety;
he
to take the
for
intended
ammunition,
conclude
we
possession of
station;
that he
ammunition to a
did
in refus-
that the District
not err
stop
way
made one short
on the
to accom
an instruction. Accord-
ing to tender such
that he
companions;
modate one of his
conviction.
ingly, we AFFIRM Mr. Baker’s
had been
the ammunition
addition,
that Mr.
we conclude
because
only
testimony
ten
His
minutes.
right
fire-
possess
Baker never had his
approached
he
Officer Bachman with
Kansas
effectively restored under
arms
over
turning
intention
ammunition
properly concluded
the District Court
by the
to him was partially corroborated
is a vio-
burglary
that his 1997
conviction
officer,
ap
who testified
Baker was
felony
of the ACCA.
purposes
lent
him
Baker
proaching
before
ordered
Baker’s
Accordingly,
AFFIRM Mr.
stop.
testimony,
Baker’s
which
Thus
sentence.
if Baker
accepted
determining
should be
show
made
viable innocent
HOLLOWAY,
dissenting:
Judge,
Circuit
possess
that he
ing, demonstrated
did not
majori-
respectfully
I
dissent from the
illicit
Ma
purposes.
the ammunition for
I-A,
ty’s holding in Part
which refuses
son,
duress or
are
which
similarly
not
lan-
statutory
found
GARCIA, Plaintiff-Appellant,
Maria N.
are,
guage
presumably, contrary
and so
posited legislative
intent of
liabil-
strict
COMPANY,
FEDERAL INSURANCE
ity. Nor would
an
de-
entrapment
even
Defendant-Appellee.
fense,
established,
if
such
afford relief if
No. 05-14720.
statutory
applied.2
strict
construction were
Appeals,
Second, majority’s
reliance on prose-
Eleventh Circuit.
misplaced,
cutorial discretion is
this
4,
Dec.
clearly.
illustrates
not
case
rather
This is
prosecutori-
because there was an abuse of
Guerra, Rodriquez,
L.
Jorge
Tramont,
contrary,
al
case.
discretion
this
To the
Nunez, P.A.,
Gables, FL,
Guerra &
Coral
this
record it seems reasonable
for
R. Hugh Lumpkin,
Ploeg & Lumpkin,
Ver
prosecutor to have decided that Baker’s P.A., Miami, FL, for Garcia.
explanation
“plausible,
albeit debata-
Porter,
Hicks, Hicks,
Irene
Mark
Mason,
ble.”
narrow defense stat- “does offend the goal guns
ute’s out keeping of the hands Mason, of convicted felons.” DUBINA, Before KRAVITCH and 624. No prosecutorial doubt discretion GIBSON,* Judges. JOHN R. Circuit * Gibson, entrapment theory 2. The defense likewise has John Honorable R. United States Cir- statutory genesis Circuit, no never Judge Eighth sitting by cuit spoken subject. on the Mathews v. United designation. States, 883, 485 U.S. S.Ct. (1988). L.Ed.2d 54