Appellant, Ronald Lee Williams, was charged in a three count indictment with bank robbery, using a firearm in the commission of a felony, and being a felon in possession of a firearm. He was convicted on each count. He was sentenced by the district court 1 to 360 months in prison on the bank robbery charge, to run consecutively with a five year sentence on the use of a firearm charge, but concurrently with a life sentence on the felon in possession charge. This appeal followed. We affirm.
Appellant’s first point on appeal is a challenge to the sufficiency of the indictment. It is his position that the indictment fails to state an offense because each of the three counts lacks an allegation that he acted with criminal intent. We disagree. “An indictment is not fatally defective, though it fails to alleged felonious intent, if its wording parallels the statute.”
United States v. Love,
Appellant’s second point challenges the adequacy of the instructions. He maintains that the instructions given by the district court were improper because
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they did not define “knowingly” and “willfully.” However, he has raised this point for the first time on appeal, and “[n]o party may assign as error any portion of the charge ... unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which that party objects and the grounds of the objection,” Fed.R.Crim.P. 30. When no objection is lodged at the district court, we will reverse for plain error only.
See United States v. Gantos,
While “knowingly” is included in 18 U.S.C. 924(a)(2), dealing with the penalty for one type of violation of 18 U.S.C. 922(g), appellant was tried and sentenced under 18 U.S.C. 924(e)(1). This section applies to a person with three violent felony convictions. It does not contain the term “knowingly.” Neither does 18 U.S.C. 922(g) which defines the substantive offense. At any rate, the court in instruction number 14 dealing with 18 U.S.C. 922(g) and 18 U.S.C. 924(e)(1) required as its first element “that defendant knowingly possessed a firearm.” (Add. A8). Whether appellant was entitled to the inclusion of this phrase in the instruction is questionable. But it is clear that in this circuit appellant was not entitled to a definition of “knowingly.”
See United States v. Smith,
The Committee Comments to Instruction 7.02 recommend that an instruction on “willfully” not be used when it does not appear in the statute. “Willfully” is not an element of any of the charged offenses. Given the Committee Comments, an instruction on “willfully” was therefore not required. When the district court failed to give such an instruction, he did not commit plain error.
Appellant’s third point challenges the district court’s refusal to sever the felon in possession charge. Specifically, at the hearing on defendant’s motion, defense counsel argued that the prejudicial effect arose from the fact that the defendant’s three prior convictions were for armed robberies, two of which were armed bank robberies and similar in nature to the present offense. “The decision to sever is within the sound discretion of the [district court] and the denial of a motion to sever is not subject to reversal absent a showing of ‘real prejudice.’ ”
United States v. Jones,
Appellant’s final point challenges the constitutionality of the Sentencing Guidelines. First, he maintains that the Guidelines violate the Presentment Clause of Article I. We have held otherwise.
See United States v. Barnerd,
The judgment of the district court is affirmed.
Notes
. The Honorable Dean Whipple, United States District Judge for the Western District of Missouri.
. In point four of Appellant’s brief, he challenges the impartiality of a juror. The corrected transcript establishes that this juror was not influenced by an outside communication.
. He also maintains that the Guidelines violate his fifth amendment due process rights. This argument is without merit.