*1 argu no Finally, Woodward offers O’Banner, to Mr. appeal relating
ment on fact that he other than the is black. Con record, has sidering entire Woodward Mississippi Su not demonstrated denial of his Baton claim preme Court’s determina was based on an unreasonable light of the evidence tion of the facts 2254(d). Accord presented. 28 U.S.C. ingly, Woodward is not entitled to habeas
relief on this claim.
CONCLUSION above, For the reasons discussed Wood- request ward’s habeas relief is DENIED. America,
UNITED STATES Plaintiff-Appellee, BURCHARD, Randall H. Defendant-
Appellant. No. 07-6312. of Appeals, United States Court Sixth Circuit. Argued: Dec. 2008. Sept. Decided and Filed: 2009. *2 KY, Paducah, Attorney, Ap- for
ed States Walter, BRIEF: Richard L. pellee. ON Paducah, KY, Boehl, Graves, & Stopher Brien, Jr., Brien, Neely May- B. & James field, David Kentucky, Appellant. for G. Attorney, United States Sparks, Assistant Paducah, Kentucky, Terry Cushing, M. Wheatley, Assistant United States Monica Louisville, KY, Attorneys, Appellee. for WHITE, Before: GIBBONS and Circuit TARNOW, Judges; Judge.* District WHITE, J., opinion delivered the of the TARNOW, court, D.J., joined. in which 355), GIBBONS, (p. J. delivered
separate concurring opinion.
OPINION WHITE, Judge. of know-
Following trial on three counts affecting a firearm in and ingly possessing being an unlawful user or commerce while substance, to a controlled in viola- addicted tion of 18 U.S.C. 924(a)(2), jury found Defendant possessing guilty
Randall H. Burchard charged five of the nine firearms indictment. The district sentenced Burchard to concurrent terms of 27 imprisonment years’ months’ and two su- pervised release on each of the three counts, $6,000 fine. Burch- imposed final appeals ard from the sentence and judgment, challenging adequacy defining an “unlawful user instruction of controlled substance” and the district his motion for court’s denial of acquittal, contending that the Govern- that his Walter, Boehl, ment failed establish L. ARGUED: Richard Graves, Paducah, KY, prolonged. We dis- was consistent Stopher Ap- & agree, and affirm. pellant. Sparks, G. David Assistant Unit- * Tarnow, by designation. Michigan, sitting Arthur J. The Honorable Judge States for the Eastern District District
I involved,” drugs may that he con- detective, tacted a narcotics and that nar- Kimberly witness Pace tes- Government cotics Detective Toliver came to the South trial that met Burchard for tified at she 4th Street address. Officer White testified 2004, at a *3 the first time around October talking that while he was to Burchard as Paducah, in and that between that motel truck, Burchard sat in his he noticed they used and mid-October 2005 time in handgun strapped a holster over the together on three or four crack cocaine if it driver’s seat. He asked Burchard was occasions, occa- some of those different was, gun, responded that it days. Pace testi- spanning sions several it, and Officer White then asked to see with Burchard at a fied that she had been number, it, hours, recorded the serial unloaded to 6 at her home in motel for 5 LaCenter, and returned it to Burchard after and several times at his farm. confirm- they Every they together ing gun time were used that it was not stolen. The awas crack cocaine. Huger model Blackhawk .30 caliber revolv- (the er, serial number 51-12649 weapon Pace testified that she and Burchard 1). specified Count detectives days together at his farm a few were then took over the Officer case. White (the specified before October date testified that Burchard did not want 1) that pro- and used cocaine he Count complaint regarding make a formal the morning of October vided. On theft Nicole. to a house in they went Paducah cocaine, they crack and where obtained 13, 2005, testified that Pace on October named Nicole. The picked up woman she and Burchard returned to the motel Hickory three then rented a room the belongings, for their each and took cou- crack. House Motel and smoked Nicole ple of of crack on way pick up hits (October 13), morning left next before woman named Patricia South 19th Burchard awoke. Burchard Pace and Street Paducah. Burchard had made a police asked Pace to call the because Ni- phone they call for crack cocaine and wait- from him. Pace testi- cole had stolen $500 drug delivery ed for the at the 19th Street police fied that she called the and Pace address. testified she witnessed Burchard asked her to take the crack “Q” eight-balls, named deliver six they them pipes using place had been and corners, packed baggie to Burchard and police outside the motel room before the paid that Burchard him with a check. arrived. police Pace called the from the 19th Street responded Officer David White reported house and transaction. cash theft complaint. Officer White testi- Officer White testified that he and an- fied that Burchard told him that Nicole dispatched other officer were on that same his, had left with and that he had $500 13, 2005, day, October to the 19th Street phone her cell and knew where she lived. a complaint address based on that there back-up, Officer White called for and fol- was a male there who had in his (who lowed Burchard and Pace were in arrived, possession. When he he saw one truck) Burchard’s to Nicole’s house on house, entering figured man and later 4th Nicole South Street Paducah. out that it was Burchard he was because there, not Ni- and the officers contacted wearing the same clothes he wore father, cole’s who came to the home and morning. it. allowed them to search Officer White po- Pace testified that since uniformed they addi- “developed testified some supported tional information that the fact lice officers arrived before the undercover door, time, not know where Rever- officers, likely did peo- knocked on the in the house. put end Warren had them house had time to at the 19th Street ple However, the re- dope.” police “flush single- seized from Burchard’s Officers baggie from the rest- empty covered an rifle, a .22 caliber loaded wide mobile home room, a search the execution of items, drug-related including pipe. from a pipe seized a crack made warrant drug-related items were Certain from the console and deep-well socket analyzed and found to contain cocaine. Of- of Burchard’s truck. The socket floorboard shotgun from gauge ficers also seized .12 for cocaine. Later positive material tested property. trailer on the uninhabited day, police executed a search warrant Five firearms were recovered from *4 at for Burchard’s blood and urine Lourdes Reverend and his wife lived house Warren below, samples Hospital. As discussed firearm from in. Another was recovered positive tested for cocaine. jury near the house. The did garage possessing not convict Burchard of these (the charged date On October six firearms. II), in were execut- Count search warrants at Burchard’s ed at address Mayfield Police officers had contact with registered, vehicle which turned out to (the Burchard on November date be Burchard’s mother’s home. offi- III), receiving in charged Count after warrant, cers showed Burchard the search call that in a persons one more vehicle and Burchard showed the officers a shot- at a home. Burchard con- were unwanted in gun a back bedroom closet. When sented to search of his and his Ruger vehicle, Burchard noticed that the .30 cali- by vehicle. As Burchard stood ber revolver was identified the search per he removed his boot the officers’ re- warrant, he told the officers that someone quest, glass pipe containing and a wire days it truck had stolen from his several it glass mesh fell out of and broke. The earlier, reported cocaine, and that he had not it negative copper tested but the stolen. positive. mesh tested Officers found a .22 handgun caliber with an obliterated serial that he Burchard admitted owned 600- number on the floorboard of the driver’s acre farm on Route State 408 West. side of Burchard’s vehicle. Burchard re- Agents obtained search warrant for ported buying gun recently. and, in a single-wide location mobile home acres, 14, 2005, police located on the 600 found items in- On November executed mail that cluding indicated Burchard resid- another search warrant for Burchard’s Johnson, Ryan ed there. Burchard’s and urine. a forensic blood premises specialist Kentucky was confirmed Reverend science at the State Warren, year-old laboratory, an 86 retired minister Police forensic central testified sepa- samples whom Burchard allowed to live in a that he Burchard’s examined 14, 2005, rate house on the farm. Reverend Warren drawn on November as well as stopped samples testified to see that had been drawn on October nearly every day, him that all Hospital, and his wife 2005 Lourdes samples positive he never saw Burchard under the tested for cocaine. John- generally, influence of a narcotic. He testified that son testified that cocaine re- him given guns Burchard had several mains in the blood for a maximum of hours; him keep samples sometime 2003 and asked to twelve thus the drawn on him, not con- them for but that Burchard had not November 2005 would have ingested seen them or asked to see them since that tained cocaine or about Octo- give requested jury court’s refusal to 2005. He also testified ber found Burchard’s blood levels of cocaine instruction is reviewed for an abuse of ingestion, opposed indicated direct Gunter, discretion. United States breathing in someone else’s smoke. (6th Cir.2009). testified for the de- witnesses Several Ill
fense, daugh- including Burchard’s son ter, part regarding guns found good § 922(g)(3)provides: 18 U.S.C. at the house in which Reverend Warren (g) any person— It shall be unlawful for mentioned, con- jury did not lived. As 6 firearms possessing vict Burchard of garage nearby. in that and a
found house (3) who is an unlawful user or ad- Burchard’s mo- The district court denied (as any dicted controlled substance acquittal. tion for a defined in section 102 of the Con- III, I and guilty found Burchard Counts (21 trolled Substances Act U.S.C. possessing 3 of the 9 firearms under 802)); Count 2. The district sentenced *5 imprisonment Burchard to 27 months’ ship to or transport interstate or counts, the three to be served each of commerce, foreign or possess or af super- concurrently, two-year term commerce, fecting any firearm or am counts, each of the three vised release on munition; any or to receive firearm or concurrently, to served and a also be ammunition which shipped has been $6,000 appeal fine. This ensued.
transported foreign interstate II commerce.[1] objected to the district The term “unlawful user” is not defined proposed jury court’s failure to read his 921, in 18 U.S.C. and the Sixth Circuit instruction, preserved. thus the issue is adopted jury has defining not instruction jury instructions are claimed to be When “unlawful user.” erroneous, they to are reviewed as whole proposed Burchard’s stated: instruction they adequately in determine whether The term “unlawful user of a con- jury the relevant consider formed the trolled substance” means a who provided a basis in law for ations and frequently uses narcotics so and in such jury reaching its aiding the decision. quantities power as to lose the of self Kuehne, 667, v. 547 F.3d 679 United States thereby danger control and pose (6th Cir.2008). judgment may A re morals, health, public safety, or welfare. instructions, if the viewed as a versed words, an “unlawful other user” is whole, confusing, misleading were just someone whose use of falls narcotics Robinson, v. prejudicial. United States The short addiction. defendant must (6th Cir.2008). 547 F.3d actively have as an unlaw- engaged been question is a adequacy of instructions ful user of a controlled substance of law this court reviews de novo. H.C. Co., possessed of time he fire- Marine Smith Invs. Outboard (6th Cir.2004). arm, require but the law does not F.3d at A district presentence report Bu- was observed in his truck on October 1. The states Tobacco, Alcohol, Kentucky Ex- not manufactured in reau of Firearms and Ruger com- plosives that Burchard's therefore had traveled in interstate determined revolver, which merce. Model Blackhawk .30 caliber reasonably at the of a controlled substance the controlled substance he used possessed. firearm. covers the time firearm was time he precise X X X v regard The term “addict” with use, any habitually means individual who rejected Burehard’s district any endanger uses narcotic so as to instruction and read the follow proposed morals, health, public safety, or wel- instruction, ing patterned after the fare, or who is so far addicted to the use pattern jury criminal instruction Circuit’s of narcotic as to have lost the defining “unlawful user:”2
power of self-control with reference to by of Firearm Possession Unlawful his addiction. of or Addict to a Controlled
User A Substance reject The district court did not err in The term user of a con- “unlawful ing proposed Burchard’s instruction. a person trolled substance” means who Burchard’s instruction was taken from in a manner uses a controlled substance (Herrera I), v. Herrera United States than a licensed prescribed other Cir.2002), 322-24 in which physician. A one time use of a con- the Fifth Circuit construed the term “un trolled substance is not sufficient to be narrowly, lawful user” and concluded applicable an unlawful user under the there was insufficient evidence to establish Rather, statute. the Defendant must that Herrera anwas unlawful user of co engaged have been caine: a controlled substance either close *6 construction, contemporaneous Giving
time to or with the the term a narrow period possessed of time he the firearm. we hold that an ‘unlawful user’ is one require frequently The law does not that the Defen- who uses narcotics so and in quantities dant used the controlled substance at such as to power lose the precise possessed thereby the time he the fire- self control and a pose danger morals, health, arm. An public safety, inference that Defendant was or words, an unlawful user of controlled sub- welfare. In other an ‘unlawful may stance be drawn from evidence of user’ is someone whose use of narcotics addiction, pattern pattern possession just of use or falls short of as that term before, 2. At the time Burchard was tried in weeks but rather that the unlawful Eighth Jury Circuit's Pattern Instruction recently enough use has occurred to indi- 6.18.922(G)(3) § provided: actively engaged cate that the individual is (18 Drug User in Possession of Firearm per- [An in such conduct. inference that a 922(g)(3)) § U.S.C. [was] [is] son user of controlled sub- phrase The "unlawful user of a controlled may be stance drawn from evidence of a substance” means a who uses con- pattern of use or of a controlled trolled substance in a manner other than as reasonably substance covers the time prescribed by physician. a licensed The possessed.] [firearm] [ammunition] actively engaged defendant have must been "drug any term addict” means individ- [The in use of controlled [a] substance[s] habitually any ual who uses controlled sub- the time [he] [she] [firearm] morals, endanger public stance so as to [ammunition], require but the law does not health, welfare, safety, or who is so far used the [he] [she] controlled sub- addicted to the use of a controlled sub- precise pos- stance[s] [he] at the time [she] power stance as to have lost the of self- sessed the Such [firearm] [ammunition]. control with reference addic- [his] [her] use is not limited to on tion.] particular day, days or within a matter of charge it would someone by the Controlled Substances for the is defined Act. crime: sup- conceded in its I, 323-24, [T]he Government The 325.] 289 F.3d at
[Herrera
that,
banc,
en banc
Circuit,
plemental
vacated the
brief
de-
sitting en
Fifth
I
to Herr-
an
pertaining
of Herrera
fendant
to be
“unlawful user” for
portion
conviction under
§
unlawful user
922(g)(3) purposes,
“drug
era’s
that conviction in
922(g)(3),
and affirmed
regularity
have to be with
would
(Herrera II), 313
v. Herrera
United States
period
of time”.
over
extended
(5th Cir.2002).
Although
F.3d
Government reiterated this
en banc
expressly address the
Herrera II does not
argument:
certainly
oral
“We
wouldn’t
of the term “unlaw-
Herrera I construction
charge one time use.
It would have to
user,”
disapproval
Fifth
ful
Circuit’s
over a
of time.”
the Herrera I defini-
and abandonment of
States v.
tion was made clear
Furthermore,
circuit
no
has construed
Patterson,
Cir.
431 F.3d
838-39
proposed by
the statute
the manner
2005):
Rather,
the district court and Herrera I.
I
argues that the Herrera
def-
Patterson
interpreting
922(g)(3) typically
cases
correct, an
“unlawful user” is
inition of
concepts: contemporaneous-
discuss two
make conviction
assertion which would
ness and regularity.
However,
the district
more difficult.
explained
generally
has
that “courts
in its instruction
court misstated
law
agree the law runs the risk of being
The Herrera
defining “unlawful user.”
unconstitutionally vague
judi-
without a
employed by
I
the district
standard
cially-created temporal nexus between
rejected by this court in Herr-
court was
the gun possession
regular drug
Additionally,
II.
it is inconsistent
era
Turnbull,
use.”
United States
employed by other
with the definition
(8th Cir.2003)
(citing
Unit-
However,
subject
the error is
circuits.
Jackson,
ed States v.
280 F.3d
review,
harmless error
and we find
(4th Cir.2002),
grounds,
vacated
other
court’s error was harmless.
district
*7
1047,
543 U.S.
125 S.Ct.
160
by
I was vacated
this court’s
Herrera
(2005) (finding
L.Ed.2d 993
Booker er-
decision to undertake en banc review.
ror),
414
942
reinstated
F.3d
Cir.
banc,
Sitting en
the Herrera II court
2005);
Purdy,
v.
264
United States
F.3d
propriety
reviewed the
of the defen-
(9th Cir.2001)).
Third,
812
The
“unlawful user”
under
dant’s
conviction
Fourth, and Ninth
have stated
Circuits
miscarriage
jus-
the limited manifest
of
regularity
that
there must be some
of
because, in
tice standard of review
in
contemporane-
use
addition to
acquittal,
motion for a
of
require-
ousness to meet the statute’s
only
had contested
the addic-
Herrera
Augustin,
ments. United States v.
376
tion,
user, prong.
the unlawful
As a
not
(3d Cir.2004) (“[T]o
F.3d
139
result,
pre-
the court did not delineate a
user,
unlawful
one needed to have en-
definition of the term “unlawful
cise
gaged
in
use
a
of
period
over
user;” rather,
analyzed
the court
wheth-
proximate
contemporaneous-
time
to or
any
devoid of
evidence
er the record was
possession
ness
with the
[sic]
that
an “un-
qualified
the defendant
Jackson,
firearm.”);
moment
cuit held that the term “unlawful user”
a person
it a criminal offense for
make
922(g)(3)
unconstitutionally
§
was not
ill,
or to
mentally
leper,
or a
to be
vague
applied
as
to the defendant under
A
with a venereal disease.
afflicted
testimony
the circumstance that
estab-
general
determine that the
might
State
lished
the defendant had used
require that the vic-
health and welfare
marijuana
years,
and had smoked
other human afflictions
tims of these and
methamphetamine
contemporaneously
treatment,
by compulsory
be dealt with
firearm,
with his
of a
such that
confinement, or se-
involving quarantine,
qualified
he was on notice that he
as an
But,
light
of contem-
questration.
Purdy
unlawful user. The
court noted:
knowledge,
human
a law which
porary
trial,
at
Based on
facts established
a criminal offense of such
dis-
made
universally
Purdy possessed
there is no doubt that
would doubtless be
ease
thought to be an infliction of cruel and
any
Nor is there
firearm.
doubt
punishment
unusual
in violation of the
Purdy
methamphetamine
smoked
and Fourteenth Amendments.
marijuana, which are defined as con-
the statute be-
cannot but consider
We
trolled substances under
federal
law.
category.
fore us as of the same
§
only question
is whether
recognized
for the State
Court counsel
provided Purdy with sufficient notice
In-
narcotic addiction is an illness.
that the manner and extent to which he
deed,
apparently
it is
illness
marijuana
methamphet-
smoked
innocently or involun-
may be contracted
amine
him an “unlawful
qualified
user
law which
tarily.
hold
a state
We
...
controlled substance.” 18
[ ]
thus afflicted as
imprisons
§ 922(g)(3).
U.S.C.
criminal,
though
even
he has never
Ocegueda,
In [United
v.]
[564
States
any
narcotic
within
touched
Cir.1977),]
1364-65
we
guilty
any irregular
State or been
challenge
a constitutional
confronted
there,
a cruel and un-
inflicts
behavior
Purdy
922 similar to the one that
rais
usual
violation of
punishment
Ocegueda
here.
was convicted of
es
Amendment ....
Fourteenth
‘knowingly receiving firearms’ while be
Robinson,
666-668,
at
82 S.Ct.
370 U.S.
... of heroin. Id.
ing ‘an unlawful user
(some
omitted).
internal citations
appeal, Ocegueda
chal
1364. On
provide
Robinson does not
assistance
lenged
claiming
the conviction
defining
922(g)(3),
“unlawful user” under
term ‘unlawful user’ was unconstitution
would
apparent
it is not
how Robinson
ally vague
applied
to him.
Id. at
request-
the instruction Burchard
claim
rejected this
be
1364-65. We
criminalize
922(g)(3) does not
ed. Section
*9
(1)
six-year
histo
Ocegueda
cause
had
being an unlawful user or
the status of
arrest;
leading up to his
ry of heroin use
addict,
rather,
possessing
the act of
but
(2)
evidence and
“[c]ireumstantial
and
being an unlawful user or
firearm while
[Ocegueda] clearly
the admissions of
Further,
the court’s instruction
addict.
during
use of heroin
show the continued
regular
actual
required the
to find
Id. at
gun purchases.”
of the
per-
period
rather than
of a controlled substance
Indeed, in
we
Ocegueda
the evidence showed
limits.
conclud-
Specifically,
1364.
Ocegueda’s
‘date[d]
that
heroin habit
analysis by stating:
ed our
Ocegueda
and that
used her-
from 1970’
Ocegueda
drug
may
Had
used a
that
ten times from March to
oin ‘at least
by laymen in
circum-
legally
used
some
1976,’
pe-
which was
August,
stances, or had his use
heroin been
the firearms.
Id.
purchased
riod that he
past,
and in the
we
infrequent
distant
Ocegueda,
we stated that while the
entirely
an
different
would be faced with
term ‘unlawful user’ was not defined
vagueness challenge to the term ‘unlaw-
history, ‘a
legislative
the statute or its
ful user’ ....
meaning
phrase
common sense
added).
(emphasis
rather than on whether Burchard
show
defendant used
controlled
precise
pos-
substance
time he
regular
use.
must, however,
a
It
sessed
firearm.
Lastly,
argues
the district
in a
engaged
pat-
establish
he was
ordinary
recognize
failed
regular
repeated
tern of
and
use of a
only
meaning of the term “user” includes
a
controlled substance
history
pattern
individuals who have
reasonably
covers the time a fire-
agree,
all the
use. We
as do
possessed.
arm was
courts that have addressed the matter as
tell,
far
we can
the term “user”
IV
use,
but con-
contemplates
pattern of
Burchard asserts that he was enti
clude that
the district court’s instruction
judgment
acquittal
tled to a
because
adequately conveyed
through
the con-
Government failed to establish
his
“regular use.” Because the district
cept of
prolonged,
use was consistent
and
fairly
adequately
court’s instruction
inadequate
sup
thus there was
evidence to
submitted the “unlawful user” issue
port
his conviction of
of a fire
jury, we find no reversible error in the
by
drugs
arm
an unlawful user of
instruction.
§ 922(g)(3).
only
He contends that
regarding
illegal
witness who testified
C
Pace,
was Kim
and that she
applicable
Because there is no
Sixth Cir
supplied only
examples
three or four
instruction,
cuit
given
and the instruction
illegal drug
by
use
him over several
problematic
in the instant case could be
months.
circumstances,
under different
we offer an
“This court reviews de
novo deni
instruction for future use that embodies
al
judgment
acquittal,
of motion for
necessary concepts4:
evidence,
but affirms the decision if the
The term “unlawful user of a controlled
light
viewed
most favorable to the
contemplates
substance”
government, would allow a rational trier of
repeated use of a
controlled substance
guilty beyond
fact to find the defendant
a manner other than
prescribed
reasonable doubt.” United States v. Solor
physician.
licensed
The one
in-
time or
io,
(6th Cir.2003) (inter
337 F.3d
588
frequent use of a controlled substance is
omitted).
quotation
nal
marks
This court
not sufficient to establish the defendant
will
not substitute its
for that of
Rather,
as an “unlawful user.”
the de-
Hilliard,
jury.
United States v.
11
engaged
fendant must have been
use
(6th Cir.1993).
620
sufficiently
that was
pro-
consistent and
longed
pattern
as to
regu-
constitute
disagree with Burchard’s character-
We
repeated
lar and
of a
controlled ization of the testimony. Pace testified
government
substance. The
need not
that she and Burchard smoked crack co-
Corona,
(11th
discussing
4. We have reviewed the cases
United States v.
353
13, 2005, yielded positive test results for
one-year
occasions over
came on various
jurors
could have
cocaine. Reasonable
those occasions
on several of
period,
concluded from this evidence that Burch-
Pace
example,
For
days in a row.
regular,
ard’s use of crack cocaine was
smoked
that she and Burchard
testified
sustained,
contemporaneous
with his
13,
October
days before
crack for several
possession of the five firearms.
heard testi-
13.
and on October
13, Burchard car-
on
mony that
October
insufficiency argu
In
of his
support
truck,
which the
gun
ried a holstered
ment, Burchard
the evidence
asserts
examined,
returned to
logged, and
police
not rise to the level of
this case does
testimony
was also
McIntosh,
him unloaded. There
v.
drug use United States
23
charged
date
(8th
that on the second
Cir.1994), and United
F.3d 1454
2005,
Oleson,
indictment,
28,
(8th
search war-
October
States v.
310
1085
F.3d
Cir.
2002). However,
farm uncov-
in both McIntosh rants executed at Burchard’s
owned,
he
as well
Oleson four other firearms
evidence was found sufficient
ered
Thus,
some of which test-
drug paraphernalia,
conviction.
these cases
Further, Burch-
help
establishing
for cocaine.
no
minimum
positive
provide
ed
urine, samples
proof required.
of which
level of
That
there are
ard’s blood and
McIntosh5
14,
factual
between
and November
distinctions
were taken on October
informant,
McIntosh,
acquittal
charge
on
5.
a confidential
Townsend,
922(g)(3),
§
police in December 1991
because the statute should be in-
told the
terpreted
requiring
government
the defendant McIntosh was
that he knew
regularly,
selling marijuana
prove
using
and that McIn-
the controlled substance
he was
magnum
armed with a .357
tosh had been
at the same time he was in
bought
disagreed,
when Townsend
mari-
three occasions
firearm. The
not-
subsequent set-up
juana
During a
ing:
from him.
buy
marijuana, the defendant
of one ounce of
section
too re
McIntosh reads
wearing a
in a holster. On
was
revolver
strictively.
interpretation of
Our
section
30, 1991, a different officer visited
December
922(g)(3) comports with the Eleventh Cir
Corona,
at his
and saw a shoulder
McIntosh
home
reasoning in United States v.
cuit's
denied,
(11th
.357 caliber rounds. That
Cir.1988),
holster and several
cert.
ther of time he with firearm.” al., SCHREIBER, et Kenneth C. sum, support cases
In none of these Plaintiffs-Appellants, Bureh- denying court erred the district acquittal. motion for ard’s assertion, Burchard’s the Gov- Contrary to PHILIPS DISPLAY COMPONENTS which a evidence from presented ernment COMPANY, al., et Defendants- that his jury could conclude rational Appellees. prolonged, thus consistent use was adequate evidence there was No. 07-2440. by an of a firearm possession conviction Appeals, States Court of § 922(g)(3). under user of
unlawful Sixth Circuit. trial, presented at viewed The evidence to the Govern- most favorable light Argued: Oct. 2008. ment, of fact to allow a rational trier would Sept. Filed: 2009. Decided and a reasonable guilty beyond find Burehard Solorio, at 588. supra, 337 F.3d doubt. AFFIRM.
We GIBBONS, SMITH JULIA concurring. Judge, except Part opinion in all of the I concur I no criticism of the III.G. While make section, in that I would instruction offered question of what not to reach the prefer in future cases given instruction should experience, 922(g)(3). my infrequently are cases under have little basis for and we prosecuted, warm, contemporaneous with fire- handgun half-burned found requisite "pattern reviewing not establish the marijuana cigarette. the rele- arm does After use, use, I, prolonged (including Herr- continuous Herrera because vant cases I), F.Supp.2d. at yet controlled substance." vacated Herrera era II had not use, even 576. that onetime court held district