U.S. v. Patterson, 04-41077.

• Decision Date: 01 December 2005
• Docket Number: No. 04-41077.,04-41077.
• Citation: 431 F.3d 832
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Nolon Lee PATTERSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 832

431 F.3d 832

UNITED STATES of America, Plaintiff-Appellee, v. Nolon Lee PATTERSON, Defendant-Appellant.

No. 04-41077.

United States Court of Appeals, Fifth Circuit.

December 1, 2005.

COPYRIGHT MATERIAL OMITTED

Traci Lynne Kenner, Asst. U.S. Atty., Tyler, TX, for Plaintiff-Appellee.

Jeffrey Scott Harrelson, Harrelson, Moore & Giles, Texarkana, AR, for Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Texas.

Before BARKSDALE and CLEMENT, Circuit Judges, and ENGELHARDT,^* District Judge.

EDITH BROWN CLEMENT, Circuit Judge:

Nolon Lee Patterson was convicted of possession of a firearm while an unlawful user of a controlled substance, pursuant to 18 U.S.C. § 922(g)(3). For the reasons that follow, we affirm.

I. FACTS AND PROCEEDINGS

An investigation of Nolon Lee Patterson and his father revealed that the two men were using and selling marijuana from their residence and that they possessed a number of firearms. On August 11, 2003, federal and state authorities executed a search warrant at their residence. From information obtained during the course of the investigation, the officers believed Patterson's father resided in a larger house that was the primary residence on the property and that Patterson occupied the smaller house located behind his father's.

When the authorities arrived, Patterson was in the smaller house with his father. Searching this structure, authorities found a loaded semiautomatic pistol located inside the back pocket of a chair. When asked about the gun, Patterson claimed that it was his and accused the agent of trying to trick him into admitting it was his father's. Patterson later claimed that he was holding the gun for his brother. The officers also found evidence of marijuana use: six plastic bags containing marijuana, a metal canister that held cigarette rolling paper, a lighter, two pipes for smoking marijuana, marijuana residue in the pipes, and a "High Times" magazine. In addition, the officers found two pairs of shorts that were too small for Patterson's father but that could have fit Patterson. Outside of the house near a storage shed, the officers found two buckets in which marijuana was being grown.

The officers read Patterson his Miranda rights and informed him that he would probably be released pending any hearings, during which time he would have to refrain from using drugs. Patterson stated he did not think he could abide by such a condition. The officers questioned Patterson about his marijuana use. He admitted that he had been using the drug for approximately two years. When officers informed Patterson that smoking marijuana and possessing a firearm violates federal law, Patterson expressed dissatisfaction with the law. A urine sample submitted by Patterson on August 18, 2003, tested positive for marijuana.

On September 9, 2003, Patterson was indicted for possession of a firearm while an unlawful user of a controlled substance, in violation of 18 U.S.C. § 922(g)(3). Patterson pleaded not guilty and proceeded to trial. The jury convicted him, and he was sentenced to twenty-one months imprisonment, followed by a two-year term of supervised release. Patterson timely appeals and raises four issues: (1) the constitutionality of the statute under which he was convicted; (2) the sufficiency of the evidence to support conviction; (3) the correctness of the jury instructions on the definition of "unlawful user;" and (4) the admissibility of certain evidence.

II. DISCUSSION

A. The Constitutionality of 18 U.S.C. § 922(g)(3)

At the close of the government's case, Patterson requested that the district court dismiss the indictment, claiming that § 922(g)(3) was unconstitutional. Patterson contends that § 922(g)(3) violates the Second Amendment and is vague and overbroad. The statute provides:

It shall be unlawful for any person who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)) to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

18 U.S.C. § 922(g)(3). "This Court reviews de novo the district court's decision with respect to challenges to the constitutionality of a federal statute." United States v. Shelton, 325 F.3d 553, 563 (5th Cir. 2003) (citing United States v. Rasco, 123 F.3d 222, 226 (5th Cir. 1997)).

Patterson's Second Amendment challenge to § 922(g)(3) is unavailing in light of United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), and United States v. Everist, 368 F.3d 517 (5th Cir. 2004). In Emerson, this court reasoned that the Second Amendment's right to bear arms is subject to "limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country." 270 F.3d at 261. Congress may prohibit those who pose a risk to society, like felons, from exercising the right to bear arms. Id. The Emerson court found 18 U.S.C. § 922(g)(8), which prohibits the possession of a firearm by individuals subject to domestic restraining orders, to be constitutional. Id. In Everist, the defendant challenged the constitutionality of § 922(g)(1), which prohibits felons from possessing firearms. The Everist court found that the provision survived a constitutional challenge for the same reason, citing to Emerson. 368 F.3d at 519. Prohibiting unlawful drug users from possessing firearms is not inconsistent with the right to bear arms guaranteed by the Second Amendment as construed in Emerson and Everist. Like the classes of criminals in Emerson and Everist, unlawful users of controlled substances pose a risk to society if permitted to bear arms. Section 922(g)(3) survives Patterson's constitutional challenge.

Patterson also contends that § 922(g)(3) is unconstitutionally vague and overbroad. This court rendered a decision on a vagueness challenge to § 922(g)(3) in United States v. Edwards, 182 F.3d 333 (5th Cir. 1999). The vagueness challenge in Edwards related only to the statute's failure to "designate a time frame concerning when the individual must use the controlled substance in connection with the possession of a firearm." Id. at 334-35. Patterson's challenge is broader; he argues that the statute is unconstitutional for vagueness because the term "unlawful user" is undefined. Nonetheless, the reasoning of the Edwards court proves fatal to Patterson's assertion. First, a criminal statute is not unconstitutionally vague "if it `defines the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.'" Id. at 335 (quoting United States v. Gray, 96 F.3d 769, 776 (5th Cir. 1996)). Second, "when a vagueness challenge does not involve First Amendment freedoms, [this court] examine[s] the statute only in light of the facts of the case at hand." Id. The Edwards court concluded that the application of § 933(g)(3) was clearly constitutional as applied to the defendant because "an ordinary person would understand that [the defendant's] actions establish him as `an unlawful user of a controlled substance' while in possession of a firearm." Id. at 335-36.

This analysis compels the same result for Patterson's case. As the statute applies to Patterson, it is not vague; an ordinary person would understand that Patterson's actions establish him as an unlawful user. He admitted that he regularly used marijuana and that he would have a difficult time complying with a release condition that required him not to use marijuana, and his urine specimen a week later tested positive for the drug. Section 922(3)(g) is not unconstitutionally vague as applied to Patterson.

B. Sufficiency of the Evidence

Patterson did not present evidence at trial. Therefore, because he moved for a judgment of acquittal at the close of the government's case, the standard of review in assessing his challenge to the sufficiency of the evidence is whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Virgen-Moreno, 265 F.3d 276, 284 (5th Cir. 2001). Evidence is viewed in the light most favorable to the government and with all reasonable inferences and credibility choices made in support of the jury's verdict. United States v. Kim, 884 F.2d 189, 192 (5th Cir. 1989) (citation omitted). Additionally, review is limited to whether we find the jury's verdict to be reasonable, not whether we believe it to be correct. United States v. Williams, 264 F.3d 561 (5th Cir. 2001).

The evidence supports a finding that Patterson used marijuana. The evidence showed both possession of marijuana and a pattern of use. Patterson admitted that the government had seized marijuana as well as metal canisters containing related paraphernalia. One officer testified that Patterson admitted to "being a user of marijuana for some time." He also stated that Patterson expressed doubt about whether or not he could comply with a condition of release that required him to abstain from drug use. Another agent testified that Patterson admitted he had been using the drug for two years. Additionally, Patterson's urine specimen tested positive for marijuana. One of the government's expert witnesses testified that marijuana stays in the system of an occasional user for up to two weeks.

The evidence also supports a finding that Patterson possessed a firearm. Possession can be either actual or constructive. United States v. McKnight, 953 F.2d 898, 901 (5th Cir. 1992). Generally, a person has constructive possession over contraband if he knowingly has ownership or...