Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
4-27-2009
USA v. Ross
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-1120
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 08-1120
UNITED STATES OF AMERICA
v.
EDWARD ROSS,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 05-cr-00398)
District Judge: Honorable Gene E. K. Pratter
Submitted Under Third Circuit LAR 34.1(a)
April 24, 2009
Before: SCIRICA, Chief Judge, SLOVITER, and FISHER, Circuit Judges
(Filed: April 27, 2009)
____
OPINION
SLOVITER, Circuit Judge.
Appellant Edward Ross appeals from his conviction and sentence on ten drug-
related and firearms offenses. Because we write only for the benefit of the parties, we
include only those facts necessary for our analysis.
I.
Ross was indicted for, among other crimes, possession of a firearm in furtherance
of a drug trafficking crime (count seven) and possession of a machine gun (count eight),
in violation of 18 U.S.C. § 924(c)(1) and 18 U.S.C. 922(o)(1), respectively. Count seven
charged that Ross possessed both a semiautomatic pistol with an obliterated serial number
(the semiautomatic pistol) and a different semiautomatic pistol that had been converted to
a machine gun (the machine gun). Because count seven charged two guns, the jury was
given a special verdict form on which it could find Ross guilty of knowingly possessing
the semiautomatic pistol, not guilty of knowingly possessing the semiautomatic pistol,
guilty of knowingly possessing the machine gun, and not guilty of knowingly possessing
the machine gun. Ross did not object to this form.
When instructing the jury on this count the trial judge told them:
The Government is not required to prove that both firearms were possessed
as alleged in Count Seven of the indictment, but only one of them.
However, you must unanimously agree that the same means or methods, in
other words, the same firearm alleged in Count Seven of the indictment was
in fact possessed by Mr. Ross in committing the crime charged in Count
Seven. You need not unanimously agree on each means and method, but in
order to convict Mr. Ross under Count Seven, you the jury must
unanimously agree upon which firearm he possessed in furtherance of the
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controlled substance offense. Unless the Government has proven the same
means or method to each of you beyond a reasonable doubt you must acquit
Mr. Ross of the crime alleged in Count Seven.
App. at 1131. Ross’s attorney did not object to these instructions. To reinforce the
unanimity requirement for the verdict, the trial judge later instructed the jury that “[i]n
order to return a verdict, it is necessary that each juror agree to it. Your verdict, in other
words, must be unanimous and it must [be] unanimous in each respect as you go through
the verdict form.” App. at 1147-48. Again Ross did not object. The jury returned guilty
verdicts for, among other charges, possessing both guns on count seven as well as a
possessing a machine gun on count eight.
Before sentencing, Ross objected that the jury had not been required to find the
type of firearm as an element of the offense in count seven. The District Court held that
the jury had made such a finding and that, regardless, it was also appropriate for the
District Court to make that decision as a sentencing factor.
II.
Ross presents a number of challenges to his sentence, although he admits that most
of these challenges would not succeed under the current case law, and are presented
solely to preserve the issue for potential Supreme Court review.1 Neither of the
1
We therefore do not address Ross’s arguments that his
conviction is unconstitutional under United States v. Lopez, 514
U.S. 549 (1995); that he should not have been subjected to a
statutory increase in his mandatory minimum sentence when the
only finding of a prior conviction was made by a judge during
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remaining two issues was raised in the District Court and we therefore review for plain
error.2
Ross argues that the 30-year mandatory minimum sentence for a conviction under
18 U.S.C. § 924(c)(1) should not apply to him because, he contends, the District Court
did not instruct the jury that they were required to make a unanimous finding that he had
possessed the machine gun in order to find him guilty for possession of the machine gun
under count seven. He also argues that the District Court erroneously considered the type
of firearm to be a sentencing factor that the judge could determine by a preponderance of
the evidence at the sentencing.
We reject both arguments. The District Court’s instruction as to the need for
unanimity was clear.
Ross next argues that 18 U.S.C. § 922(o), which prohibits the possession of
machine guns, is unconstitutional after District of Columbia v. Heller, --- U.S. ----, 128 S.
Ct. 2783 (2008). Ross appears to misunderstand Heller. Heller was concerned with a
statute that prohibited all possession of handguns by the public. Id. at 2788. The Heller
majority focused on the history of gun possession as a means of self-defense, finding that
the textual elements of the Second Amendment “guarantee the individual right to possess
sentencing; and that the felon-in-possession statute, 18 U.S.C. §
922(g), is unconstitutional.
2
The District Court had jurisdiction under 18 U.S.C. §
3231. The appeal was timely filed, and we have jurisdiction under
28 U.S.C. § 1291 and 18 U.S.C. § 3742.
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and carry weapons in case of confrontation.” Id. at 2797. In doing so, the Court was
careful to state that it did “not read the Second Amendment to protect the right of citizens
to carry arms for any sort of confrontation.” Id. at 2799 (emphasis in original). In a
further attempt to limit the effect of Heller to the right of law-abiding citizens to possess
handguns for self-defense, the Court also cautioned that “nothing in our opinion should
be taken to cast doubt on longstanding prohibitions on the possession of firearms by
felons and the mentally ill” and noted the “historical tradition of prohibiting the carrying
of ‘dangerous and unusual weapons.’” Id. at 2816-17. Nothing in Heller supports Ross’s
challenge to the constitutionality of a statute criminalizing the possession of a machine
gun.
III.
As the above discussion suggests, we find no error, plain or otherwise, in the
decision of the District Court, and will therefore affirm the conviction and sentence.
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