[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
------------------------------------------- ELEVENTH CIRCUIT
NOV 17, 2006
No. 06-10949
THOMAS K. KAHN
Non-Argument Calendar
CLERK
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D.C. Docket No. 05-00236-CR-CG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HAROLD SCOTT BAKER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Alabama
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(November 17, 2006)
Before EDMONDSON, Chief Judge, DUBINA and HULL, Circuit Judges.
PER CURIAM:
Defendant-Appellant Harold Scott Baker appeals his conviction after a jury
trial for possession of firearms by an unlawful user of a controlled substance, 18
U.S.C. § 922(g)(3). No reversible error has been shown; we affirm.
During a search of Baker’s house, police officers discovered items including
eight firearms (some of which were loaded with ammunition), a marijuana pipe, a
marijuana grinder, rolling papers, scales, a small amount of marijuana, and
marijuana stems and seeds. Baker first argues that the district court erred in
denying his motion to suppress evidence seized by officers from his home. He
asserts that he did not consent voluntarily to the search of his home because (1)
officers told him that they were not looking for “small stuff” and would be “on
their way” if they did not find a methamphetamine lab or marijuana plants and (2)
officers threatened to obtain a search warrant if he did not consent to the search of
his home.
We review a district court’s denial of a defendant’s motion to suppress
under a mixed standard of review, reviewing the district court’s findings of fact for
clear error and its application of law to those facts de novo. See United States v.
Gil, 204 F.3d 1347, 1350 (11th Cir. 2000). And we construe the facts in the light
most favorable to the party prevailing in the district court, in this case the
government. United States v. Santa, 236 F.3d 662, 668 (11th Cir. 2000).
A warrantless search may be conducted in the absence of probable cause or
reasonable suspicion when voluntary consent is obtained. United States v. Blake,
888 F.2d 795, 798 (11th Cir. 1989). “The question of voluntariness is one of fact
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to be determined from the totality of the circumstances, and the trial court’s
voluntariness determination must not be reversed on appeal unless clearly
erroneous.” United States v. Ramirez-Chilel, 289 F.3d 744, 752 (11th Cir. 2002)
(quotation and emphasis omitted). To determine whether consent was given
voluntarily, we consider (1) whether the defendant was free to leave; (2) whether
coercive police procedures were used; (3) the extent of the defendant’s
cooperation or awareness of a right to refuse consent; (4) whether the defendant
could refuse to consent; (5) the extent of the defendant’s education and
intelligence; and (6) the defendant’s belief that no incriminating evidence would
be found. Id.
After a careful review of the record, we conclude that the district court did
not clearly err in determining that Baker’s consent to search his home was
voluntary.1 Baker consented to the search of his home under non-threatening
circumstances and after consulting with his wife. He was not detained by the
police when he consented to the search. Baker provided verbal consent to officers
more than once; and he also signed a consent form. We are not persuaded by
Baker’s argument that officers misled him into consenting to the search based on
1
To the extent that Baker argues that officers lacked authority to approach his house and ask him
for consent to enter, we determine that this argument is without merit.
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his belief that officers would arrest him only if they discovered marijuana plants or
a methamphetamine operation because they were not looking for “small stuff.”2
And Baker’s consent to search was not vitiated because officers told him that they
could attempt to obtain a search warrant if he did not consent to the search.3 See
United States v. Garcia, 890 F.2d 355, 361 (11th Cir. 1989) (concluding that
consent was given voluntarily when officers told defendant that if he refused to
consent to a full search, the officers would attempt to obtain a warrant).
Therefore, we affirm the denial of Baker’s motion to suppress evidence.
Section 922(g)(3) provides that “[i]t shall be unlawful for any person . . .
who is an unlawful user of or addicted to any controlled substance . . . to possess
in or affecting commerce . . . any firearm.” Baker contends that the evidence
presented at trial was insufficient to prove that he was an “unlawful user” of a
controlled substance under section 922(g)(3) because no evidence was presented
that he was using marijuana in an ongoing manner.
2
Indeed the discovery of marijuana, drug paraphernalia, and several weapons, some of which were
loaded with ammunition, would not reasonably be considered insignificant.
3
At the suppression hearing, Officer Patrick Donnelly testified that, after Baker pointed out a bag
in his house containing marijuana, Officer Donnelly told Baker that Officer Donnelly could go to
a judge and attempt to obtain a search warrant. Officer Benjamin Burke, who also participated in
the search of Baker’s house, testified that officers told Baker that they could go talk to a judge about
obtaining a search warrant. But Baker’s wife testified that officers told Baker that, if he did not
consent to a search, the officers would obtain a search warrant. Because we must consider the facts
in the light most favorable to the government, see Santa, 236 F.3d at 668, we have relied on the
officers’ testimony in this instance.
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We review challenges to the sufficiency of the evidence de novo, resolving
all reasonable inferences from the evidence in favor of the jury’s verdict. See
United States v. Rudisill, 187 F.3d 1260, 1267 (11th Cir. 1999). We must affirm
Baker’s conviction “unless, under no reasonable construction of the evidence,
could the jury have found [him] guilty beyond a reasonable doubt.” United States
v. Garcia, 405 F.3d 1260, 1269 (11th Cir. 2005).
Here, sufficient evidence was presented at Baker’s trial that he was an
unlawful user of marijuana contemporaneously with his possession of firearms.4
At Baker’s home, officers discovered marijuana, marijuana seeds and stems,
several items of drug paraphernalia -- including pipes, rolling papers, scales, and a
grinder -- and many firearms. During Baker’s trial, Investigator Clint Cadenhead
testified that the quantity of marijuana seeds and stems discovered at Baker’s
house probably would yield over 100 marijuana cigarettes. Baker admitted to
officers during the search of his house that he used marijuana to self-medicate; and
4
In reviewing challenges to sentencing enhancements under U.S.S.G. § 2K2.1, which provides,
among other things, for an enhanced offense level if a defendant was a “prohibited person,” we have
explained -- using language from section 922(g)(3) -- that a “prohibited person” includes a person
“who is an unlawful user of or addicted to any controlled substance.” United States v. Edmonds, 348
F.3d 950, 953 (11th Cir. 2003). An unlawful user of marijuana includes a person whose marijuana
use was “regular, ongoing, and contemporaneous with his firearm possession.” Id. at 953-54; see
also United States v. Augustin, 376 F.3d 135, 138-39 (3d Cir. 2004) (defining “unlawful user”
pursuant to section 922(g)(3) as a regular user of a controlled substance for time “proximate to or
contemporaneous with the possession of a firearm”).
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he told federal agent Robert Tolbert that he had been smoking marijuana around
the time that officers searched his home. In addition, Baker’s wife testified that
Baker smoked marijuana because of stress resulting from a friend’s death that
occurred just months before the search of his house. We conclude that Baker’s
conviction was supported by sufficient evidence.
Baker next asserts that 18 U.S.C. § 922(g)(3) is unconstitutionally vague as
applied to him because the statute failed to put him on notice that the manner and
extent to which he used marijuana qualified him as an “unlawful user.” We
review de novo whether a statute is unconstitutionally vague. See United States v.
Biro, 143 F.3d 1421, 1426 (11th Cir. 1998). “[T]he void-for-vagueness doctrine
requires that a penal statute define 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.” Kolender v.
Lawson, 103 S.Ct. 1855, 1858 (1983).
As we have discussed, the evidence in this case -- which indicated that
Baker used marijuana on an ongoing basis, including around the time of the search
of his home, and possessed several firearms -- was sufficient to sustain Baker’s
conviction. We reject Baker’s contention that he was not on notice that his
marijuana use and firearms possession violated section 922(g)(3).
AFFIRMED.
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