United States v. Charles SmootUnited States v. Charles Smoot
Case Information
*1 Before TRAXLER, Chief Judge, and KING and WYNN,
Circuit Judges.
Affirmed by published opinion. Judge King wrote the opin- ion, in which Chief Judge Traxler and Judge Wynn joined. COUNSEL ARGUED: Christopher Bowmar Mead, LONDON & MEAD, Washington, D.C., for Appellant. Anthony William Vitarelli, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Rod J. Rosen- stein, United States Attorney, Baltimore, Maryland, Stacy Belf, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland; Lanny A. Breuer, Assistant Attorney General, Greg D. Andres, Acting Deputy Assistant Attorney General, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
OPINION
KING, Circuit Judge:
Following a jury trial in the District of Maryland, Charles Lee Smoot was convicted and sentenced to prison for being a felon in possession of a firearm. Smoot contends on appeal that his possession of the firearm was legally justified, or, in the alternative, that he is entitled to a new trial on the ground that the jury was misinstructed on an essential element of the offense. We reject Smoot’s challenges to his conviction, and another to his sentence, and we affirm.
I.
On October 3, 2008, the police department of Hyattsville,
Maryland, received a call from a citizen advising that there
was an outstanding warrant for the arrest of Charles Smoot,
and that he was located in a house at 4404 Oliver Street.
[1]
That
address was known to the authorities as a place where narcot-
ics activity frequently occurred. After confirming the exis-
tence of the warrant with the Prince George’s County Sheriff,
The facts set forth herein are derived from the record on appeal, includ-
ing an ATF agent’s November 26, 2008 affidavit supporting Smoot’s fed-
eral arrest warrant, and the evidence presented at Smoot’s trial. We recite
the latter in the light most favorable to the government, as the prevailing
party at trial.
See United States v. Singh
,
the Hyattsville police dispatched several officers to execute it. Upon arriving at the Oliver Street residence, the officers divided into three teams and began a search for Smoot. Two officers approaching the property from a rear alley encoun- tered a man matching Smoot’s description in the backyard of the residence. They ordered the man to the ground, and one of the officers recognized him from previous encounters as Smoot. During the ensuing patdown, an officer seized a loaded .38 caliber Smith and Wesson revolver from the left side of Smoot’s waistband.
Smoot was charged on November 26, 2008, and then
indicted on February 11, 2009, for having possessed a firearm
as a felon, in violation of
CHARLES LEE SMOOT,
having been convicted of a crime punishable by imprisonment for a term exceeding one year, did knowingly and unlawfully possess a firearm, to wit: a Smith and Wesson .38 caliber revolver bear- ing serial number D817726, in or affecting commerce.
J.A. 10. To establish a
case-in-chief, to affirmatively rebut a presumption that his possession of the revolver was for legitimate self-defense pur- poses.
Having been alerted that Smoot likely intended to mount a
constitutional challenge to
Smoot’s trial began in Greenbelt on October 12, 2010. That
morning, prior to jury selection, the district court heard argu-
ment on the government’s motion in limine. In granting the
Smoot’s proposed instruction on the third element of
You may also consider whether the firearm had lost its interstate character or stopped its interstate movement at the time of the alleged offense. However, if you find that the government has not proved that the defendant’s continuing possession of the firearm had an ongoing effect on interstate commerce, even if slight, then you must acquit the defendant.
United States v. Smoot , 8:09-cr-00070, Docket No. 17 (D. Md. Oct. 4, 2010).
motion, the court relieved the government from having to prove that Smoot had not possessed the revolver in his home for self-defense, observing along the way that nothing in the record supported Smoot’s contention that he was, at any rele- vant time, actually in his home. Indeed, after hearing from the parties, the court related that, "even the proffer that [defense counsel has] made is just a generic, general proffer about someone at another one’s home, in a yard walking around with a gun." J.A. 73. The ruling also barred Smoot from argu- ing to the jury, by reference to the government’s evidence, that the revolver had lost its nexus to interstate commerce by having been manufactured and sold across state lines a full thirty-five years previously.
The government presented its case to the jury later that same day, introducing into evidence Smoot’s .38 revolver and its ammunition, and calling two of the arresting officers as witnesses. The officers testified that Smoot was carrying the loaded revolver in his waistband when he was arrested. One of the officers, Danielle Gray, saw Smoot outside the resi- dence, in its backyard, but never saw him exit the house. The other officer, Sergeant Bergling, first saw Smoot after he had been subdued in the backyard, whereupon he seized the loaded revolver from Smoot’s waistband. The government also called an official of Smith and Wesson, who confirmed that the revolver seized from Smoot had been manufactured in Massachusetts in 1975 and shipped to Maryland that same year.
Smoot neither testified nor presented any evidence at trial. His lawyer informed the jury during argument, however, that Smoot did not contest having possessed the .38 Smith and Wesson revolver as alleged, or that the weapon had been shipped from Massachusetts to Maryland in 1975. Notably, the parties stipulated before the jury that the revolver satisfied the statutory definition of a firearm, and that Smoot had been previously convicted of a crime punishable by imprisonment for a term exceeding one year.
At the close of the evidence, the court instructed the jury
on the elements of a
The district court sentenced Smoot on April 13, 2011. At
the sentencing hearing, the court denied Smoot a decrease in
his offense level for acceptance of responsibility. Smoot, the
court reasoned, had gone to trial on the
Smoot was determined to be an armed career criminal
under
II.
We review de novo a defendant’s constitutional challenge to a criminal statute. See United States v. Moore , 666 F.3d 313, 316 (4th Cir. 2012). We review for abuse of discretion a defendant’s claim that a trial court erroneously admitted or excluded evidence, or misinstructed the jury. See United States v. Hornsby , 666 F.3d 296, 307, 310 (4th Cir. 2012). Finally, a court’s refusal to grant a sentencing reduction will not be disturbed absent clear error. See United States v. Jeff- ery , 631 F.3d 669, 678 (4th Cir. 2011).
III.
On appeal, Smoot presses his as-applied challenge to § 922(g)(1) by reiterating that, even as a convicted felon, he was entitled under the Second Amendment to possess a fire- arm in his home for self-defense purposes. [4] Next, he asserts that the district court erred in instructing the jury on the inter- state commerce nexus element of the § 922(g)(1) offense, and in not permitting him to argue at trial consistently with his own proposed instruction. Finally, Smoot maintains that he was erroneously denied a sentencing reduction for acceptance of responsibility. We assess these contentions in turn.
A.
In District of Columbia v. Heller , the Supreme Court iden- tified an individual right to keep and bear arms embodied in We are satisfied to summarily reject the proposition that, under Heller , the government was required to assume the burden and prove, as an addi- tional element of the § 922(g)(1) offense, that Smoot did not possess the .38 revolver in his home for self-defense purposes.
the Second Amendment, without any connection to militia
service.
See
The record reveals several factual obstacles that hinder
Smoot from presenting his Second Amendment challenge in
the light he would prefer. Smoot contends that he was arrested
[5]
The Second Amendment provides that "[a] well regulated Militia,
being necessary to the security of a free State, the right of the people to
keep and bear Arms, shall not be infringed."
inside of his home in possession of the loaded .38 Smith and Wesson revolver. There is no evidentiary support, however, for the proposition that Smoot ever lived at 4404 Oliver Street, but merely conflicting representations made by the lawyers at the pretrial hearing on the government’s motion in limine. The government asserted, for example, that the resi- dence on Oliver Street was actually a "flop house" or "crack house" for drug use, pointing out that Smoot gave a different address as his residence when arrested. The defense countered that Smoot had actually lived at the Oliver Street house, as indicated by some of his personal property being found inside. See J.A. 75-76.
Moreover, the trial record persuasively indicates, through the uncontroverted testimony of two police officers, that Smoot was arrested in the backyard of 4404 Oliver Street, i.e., within what could be considered the curtilage of the resi- dence. Smoot appears to assume for purposes of his Heller argument, without having recognized or argued the point, that a home’s curtilage is equivalent to the home itself. In any event, we need not resolve here whether Smoot was ever inside the residence, whether it was in fact his residence, or whether the Second Amendment applies to a curtilage in the context of an attempted defense to a § 922(g)(1) prosecution. Even if we grant Smoot the benefit of the doubt on all those points, his as-applied challenge to his conviction fails.
As we recently recognized in United States v. Moore , 666 F.3d 313 (4th Cir. 2012), the vast majority of our sister cir- cuits have rejected similar challenges to § 922(g)(1). See id. at 316-17; supra note 6. Our friend Judge Agee acknowledged in Moore , however, the possibility that presumptively lawful measures could yet be unconstitutional if confronted with a proper as-applied challenge. See Moore , 666 F.3d at 319; United States v. Chester , 628 F.3d 673, 679 (4th Cir. 2010). At trial, neither party presented any evidence of where Smoot lived. Indeed, there was no issue raised at trial concerning where he lived. *10 10
That situation does not exist here;
Chester
and
Moore
are
dispositive of the issue in Smoot’s case.
Chester
established
a two-prong test for assessing a Second Amendment chal-
lenge. The first prong, reflecting
Heller
’s observation that the
Second Amendment embodies rights existing at its ratifica-
tion, requires our historical review to evaluate whether those
rights, as understood in 1791, are "burdened or regulated" by
the statute in question.
Chester
,
In order for Smoot to rebut the presumption of lawfulness
regarding § 922(g)(1) as applied to him, he "must show that
his factual circumstances remove his challenge from the realm
of ordinary challenges."
Moore
, 666 F.3d at 319. In
Moore
,
the defendant’s criminal history placed him outside the scope
of Second Amendment protections for "law-abiding responsi-
ble citizens to use arms in defense of hearth and home."
Id.
(quoting
Heller
,
Smoot seeks to otherwise distinguish his situation from the normal application of § 922(g)(1), emphasizing that the anon- ymous tip leading to his arrest advised that "other people were Smoot’s presentence report reveals he has been arrested thirty-two times and convicted sixteen times over the course of twenty-one years. See J.A. 236. He has accrued a wide range of convictions –– including assault on a police officer, possession of various controlled substances, possession of cocaine with intent to distribute, firearms offenses, and destruction of property –– which in the aggregate demonstrate a pattern of criminality placing his character well outside any definition of "law-abiding." J.A. 235-36.
looking for him." J.A. 127. The meaning of that cryptic lan- guage, however, was the subject of dispute. The government, in the pretrial proceedings, characterized the tip as acknowl- edging that other members of law enforcement were seeking to arrest Smoot, while the defense countered that it reflected a threat on Smoot’s life. Even taking the defense’s view, there is no indication in the record that Smoot himself knew of a possible threat, or that there could be dire consequences if the threat were credible. Like the threat in Moore –– the potential for being robbed in a bad neighborhood –– any threat to Smoot was "far too vague and unsubstantiated to remove his case from the typical felon in possession case." Moore , 666 F.3d at 320. In any event, had there been a credible threat against Smoot, his appropriate response would have been to seek the aid of law enforcement, rather than arm himself.
The Third Circuit’s decision in United States v. Barton , 633 F.3d 168 (3rd Cir. 2011), illustrates the typical felon-in- possession case. The Barton court recognized that a felon maintains an interest in securing the "defense of hearth and home," but ruled that a felony conviction nonetheless excises the felon’s right to possess arms for that purpose. Barton , 633 F.3d at 175. [9] As the court explained, § 922(g)(1), like other disabilities, "does not depend on how or for what reason the right is exercised." Id.
Assuming, as we did in
Moore
, that a criminal defendant
may demonstrate, in an appropriate case, that § 922(g)(1) is
being applied to him inconsistently with the Second Amend-
ment, Smoot’s situation falls far short of any such hypotheti-
cal. Put simply, the circumstances surrounding Smoot’s
possession of the loaded .38 Smith and Wesson revolver in
his waistband in the backyard on Oliver Street do not distin-
The court of appeals in
Barton
identified disabilities accompanying a
felony conviction that the Supreme Court has already found constitutional,
including disenfranchisement and restrictions on the right to travel.
See
Barton
,
guish his challenge from the typical application of § 922(g)(1). We are therefore satisfied that Smoot has failed to rebut the presumptively lawful status of the statute under which he was prosecuted.
B.
Smoot’s objections relating to the interstate commerce nexus element of his conviction are twofold. Smoot first con- tends that the district court erred as a matter of law in reject- ing his proposed jury instruction, see supra note 3, and denying him the opportunity to make arguments and present trial evidence contesting the legal sufficiency of the govern- ment’s proof. Secondly, Smoot maintains that the instruction actually given the jury resulted in a directed finding on that element, contrary to United States v. Gaudin , 515 U.S. 506 (1995).
On the interstate commerce nexus element of § 922(g)(1), the court instructed the jury, in pertinent part:
[T]he third element that the government must prove beyond a reasonable doubt is that the firearm the defendant is charged with possessing was in or affecting interstate or foreign commerce. This means that the government must prove that at some point prior to the defendant’s possession, the firearm had traveled in interstate commerce.
It is sufficient for the government to satisfy this element by proving that at any time prior to the date charged in the indictment, the firearm crossed a state line or the United States border.
* * *
In this regard, there has been evidence that the firearm in question was manufactured in a different state than the state where the defendant is charged with possessing it. You are permitted to infer from this fact that the firearm traveled in interstate com- merce. However you are not required to do so . J.A. 187-88 (emphasis added).
Smoot acknowledges that our decision in
United States v.
Gallimore
, 247 F.3d 134 (4th Cir. 2001), explains that the
interstate commerce nexus may be established at trial simply
by showing that a firearm was manufactured somewhere other
than the state in which it was discovered.
See id.
at 138.
There, we explicitly rejected the defendant’s argument that
the government was required to "prove the firearm possessed
in violation of §922(g) was involved in interstate commerce
beyond mere transportation across state lines."
Id.
In that
sense, then, Smoot seeks futilely to simply reargue the wis-
dom of our binding precedent.
See Dickerson v. United States
,
In the highly unlikely circumstance that we were disposed
to entertain such an argument, the Supreme Court’s decision
in
Scarborough v. United States
,
It is elementary that a jury instruction is not flawed if it is
a fair and accurate statement of law.
See United States v. Rah-
man
,
Though the district court’s instruction correctly stated the applicable law, it would yet be impermissible insofar as it pre- vented the jury from deciding an element of the charged offense. Smoot suggests that the first paragraph of the court’s instruction "did not leave the jury free to acquit if it believed that shipping the firearm across state lines 35 years ago was not sufficient to establish that Defendant Smoot’s possession was ‘in or affecting commerce.’" Appellant’s Reply Br. 16. Smoot’s contention is undermined by the remainder of the instruction, however, which unambiguously instructs the jury to decide for itself whether the interstate nexus element had been proven. Because the question was left to the jury, the challenged instruction was not defective.
The Second Circuit’s decision in United States v. Parkes , 497 F.3d 220 (2d Cir. 2007), on which Smoot additionally relies, is readily distinguishable. In Parkes , a Hobbs Act pros- ecution, the government asked the district court to instruct that if the robbery’s object was "to obtain illegal drugs or money earned from the sale of drugs, the requirement of an effect on interstate commerce is satisfied." 497 F.3d at 230. Inasmuch as that language could have described any garden- variety drug robbery, the instruction assumed that the inter- From the outset of the proceedings, Smoot indicated that he planned to adduce evidence to counter the government’s anticipated proof as to the interstate commerce nexus element. Smoot’s plan was properly derailed by the district court. The trial court can limit evidence that may confuse the jury. See Delaware v. Van Arsdall , 475 U.S. 673, 679 (1986). Evi- dence and arguments that contradict established law present a palpable risk of confusing the jury as to the legal standard it must apply. Smoot’s plan of attack being clearly contrary to established precedent, the district court’s curtailing of Smoot’s presentation was well within its discretion. state commerce nexus had been met, rather than reserving the question for the jury.
The court of appeals in Parkes concluded that the trial court had properly rejected the instruction as invading the province of the jury: "[t]hat instruction would have impermissibly vio- lated Parkes’s ‘right to have a jury determine, beyond a rea- sonable doubt, his guilt of every element of the crime with which he is charged.’" Id. at 230 (quoting Gaudin , 515 U.S. at 522-23.). The established precedent supporting the instruc- tion in Smoot’s case, together with the explicit language prop- erly reserving the jury’s province, defy any similarity to Parkes . We therefore reject as meritless Smoot’s arguments on appeal concerning the interstate commerce nexus element.
C.
Smoot’s final contention is that his offense level under the Guidelines should have been decreased by 2 levels for accep- tance of responsibility. Although Smoot’s presentence report recommended that he be awarded the decrease, the district court declined at hearing to adopt the probation officer’s rec- ommendation. Smoot was found to have a criminal history level of VI and an offense level of 33, resulting in an advisory sentencing range of 235 to 293 months. With a 2-level decrease, Smoot’s offense level would have been 31 and the advisory range 188 to 235 months. Smoot characterizes his position on acceptance of responsibility as consistent with Application Note 2 of Guidelines § 3E1.1(a), which advises:
This adjustment is not intended to apply to a defen- dant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt . . . . In rare situations a defendant may clearly demon- strate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial. This may occur, for example, where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e.g., to make a con- stitutional challenge to a statute or a challenge to the applicability of a statute to his conduct).
USSG § 3E1.1(a) cmt. n.2 (2010).
Smoot advances two grounds supporting his assertion that the district court erroneously denied the offense level decrease for acceptance of responsibility. First, Smoot reiterates that he was not allowed to affirmatively present evidence or argu- ment supporting his interpretation of the interstate commerce nexus element; thus, he could not have actually contested his factual guilt. Second, Smoot disagrees with the court’s finding that a trial was unnecessary to preserve his constitutional challenges.
As we have emphasized, Smoot did not dispute the govern- ment’s evidence. Indeed, the parties stipulated that Smoot was a felon in possession of a firearm that had travelled in inter- state commerce thirty-five years earlier. See J.A. 108-09, 191- 92. Smoot reaffirmed the stipulation at closing argument, stat- ing to the jury:
We do not dispute the only evidence that the govern- ment has offered with respect to in or affecting com- merce. The only evidence of in or affecting commerce that the government offered is that 35 years ago this firearm was shipped into the state of Maryland and that’s it .
Id. at 192 (emphasis added).
The court acknowledged Smoot’s concession on the factual evidence supporting the interstate commerce nexus element, but stressed his refusal to agree to the legal conclusion that the firearm was "in or affecting commerce." Id. at 230. The court thus understood Smoot’s defense to have implicitly raised the argument that the evidence on that element was insufficient to convict. See id. at 162, 226-27 (reflecting the court’s observations that defense contested the interstate com- merce nexus at trial and sentencing).
Smoot nevertheless contends that he cannot be considered to have contested "the essential factual elements of guilt," as contemplated by Application Note 2, because he was not allowed to squarely and pointedly argue that the government’s proof of the revolver’s nexus to interstate commerce was too remote in time to the charged possession. See Appellant’s Br. 31-32. It is plain, however, that regardless of Smoot’s asser- tion that his case was handicapped, the interstate commerce nexus element was presented to the jury as a point in contro- versy that it was required to decide. Defense counsel’s closing argument hammering the "only evidence" of an interstate commerce nexus invited the jury to conclude that the govern- ment had not proved each and every element of its case.
We agree with the government that Smoot’s situation is reminiscent of the one in United States v. Dickerson , 114 F.3d 464 (4th Cir. 1997). In Dickerson , a perjury prosecution, the defendant did not contest the facts presented, i.e., that he had made certain false statements before the grand jury, but insisted that the statements lacked materiality, an essential element of the offense. We nonetheless concluded that the defendant’s argument amounted to "[a] [challenge] [to] his ‘factual guilt.’" Id. at 470. Because Smoot likewise attacked the legal sufficiency of an essential element of his offense, he contested his guilt in fact. Thus, the district court appropri- ately denied him an offense level decrease for acceptance of responsibility.
Finally, Smoot maintains that there was no alternative to a trial that would have allowed him to maintain his appellate rights. The district court rejected that proposition, however, finding that Smoot could have, for example, agreed to a com- prehensive stipulation of facts, which would have preserved his grounds for appeal without putting the government to its burden of proof. We defer to the court’s finding as not clearly erroneous, and we will therefore not disturb its sentencing cal- culus.
IV.
Pursuant to the foregoing, we affirm the judgment of the district court.
AFFIRMED