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United States v. Edwards

Court: Court of Appeals for the Fifth Circuit
Date filed: 1999-07-23
Citations: 182 F.3d 333
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                       UNITED STATES COURT OF APPEALS
                            For the Fifth Circuit



                                     No.     98-50320




                         UNITED STATES OF AMERICA,

                                                                Plaintiff - Appellee,

                                           VERSUS

          JASON JEROME EDWARDS, also known as Jason Edwards,

                                                               Defendant - Appellant.



             Appeal from the United States District Court
                   for the Western District of Texas

                                     July 23, 1999

Before POLITZ, JOLLY, and DUHÉ, Circuit Judges.

JOHN M. DUHÉ, JR., Circuit Judge:

     A    jury      convicted        Jason      Jerome    Edwards      (“Edwards”)           of

possessing      a   firearm   while        an   unlawful       user   of    a    controlled

substance in violation of 18 U.S.C.A. § 922(g)(3) (West Supp.

1999).    On appeal, Edwards challenges the constitutionality of the

statute    on    the   ground    that        the      phrase   “unlawful         user   of    a

controlled      substance”      is    void      for    vagueness.          We    affirm   his

conviction holding that the statute is constitutional.

                                       BACKGROUND

     On December 6, 1996, Midland, Texas police officers executed

a search warrant for a home in which Edwards resided.                           In the front
room, the officers discovered a burning cigar emitting the odor of

marijuana. The officers also discovered a small amount of cocaine,

approximately $3000 in cash, and three firearms including a .380

caliber pistol. Edwards admitted to the officers that he owned the

pistol, but denied knowing anything about the cocaine.

             A jury convicted Edwards of one count of possession of a

firearm         while   a     user    of   a    unlawful        controlled       substance     in

violation of 18 U.S.C.A. § 922(g)(3) (West Supp. 1999).                                      The

district court sentenced him to 24 months imprisonment.

                                           ANALYSIS

             Edwards   sole    argument        on   appeal      is    that   §   922(g)(3)     is

unconstitutionally vague because it fails to designate a time frame

concerning when the individual must use the controlled substance in

connection with the possession of a firearm.1                          He contends that the

statute does not clearly distinguish between a past unlawful user

of       a    controlled      substance    and          a   current   unlawful     user   of    a

controlled substance.                He asserts his conduct does not constitute

     1
      Section 922(g)(3) provides:

     (g) It shall be unlawful for any person –

        (3)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.A. 922(g)(3) (West Supp. 1999).

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a violation of § 922(g)(3) because he was not using drugs at the

exact moment the police found him in possession of a firearm.

     A   criminal   statute   survives   our   vagueness   review   if   it

“define[s] 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.”    See United States v. Gray, 96 F.3d 769, 776 (5th

Cir. 1996) (citing Posters 'N' Things, Ltd. v. U.S., 511 U.S. 513,

525 (1994)).    Additionally, when a vagueness challenge does not

involve First Amendment freedoms, we examine the statute only in

light of the facts of the case at hand. See id.            (citing United

States v. Mazurie, 419 U.S. 544, 550 (1975) and Chapman v. United

States, 500 U.S. 453, 467 (1991)).

     Edwards relies on United States v. Reed, 924 F.Supp. 1052,

1056 (D. Kan. 1996), rev’d, 114 F.3d 1067, 1070-71 (10th Cir. 1991)

and United States v. Weissman, 373 F.2d 799, 803 (9th Cir. 1967).

In Reed, out of 7 counts, the court allowed only one where the

defendant actually used a controlled substance while simultaneously

possessing a gun.      Reed, 924 F.Supp. at 1056.     The Tenth Circuit

reversed and remanded for trial holding that the district court

impermissibly determined the constitutionality of the statute on a

motion to dismiss before the government had presented any evidence

concerning the defendant’s conduct. Reed, 114 F.3d at 1070-71.           In

Weissman, the Ninth Circuit held the terms “uses narcotic drugs”

and “user of narcotic drugs” were unconstitutionally vague as they

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were used in 18 U.S.C.A. § 1407 requiring the registration of drug

users at international borders.          See Weissman, 373 F.2d at 802-03.

However, as the government notes and the Ninth Circuit itself later

observed in United States v. Ocegueda, 564 F.2d 1363, 1366 (9th

Cir. 1977), Weissmann was decided prior to the Supreme Court

decisions limiting the scope of vagueness review in non-First

Amendment cases; therefore, it is not controlling.

       The government relies on the Ninth Circuit’s decision in

Ocegueda dealing with an identical challenge to § 922(g)(3)’s

predecessor, 18 U.S.C.A. § 922(h)(3).                Id.       The court held that

“Ocegueda’s prolonged use of heroin, occurring before, during and

after the period of the gun purchases, presents a situation where

the term cannot be considered vague under the due process clause of

the Fifth Amendment.”        Id. at 1366.2

       The application of § 922(g)(3) to the facts of the instant

case   is   clearly    constitutional.            Edwards      admitted   to    using

marijuana   on   May   20,   1996   in       a   hotel   and    pled   guilty   to a

possession of marijuana offense arising from that incident.                       On

July 10, 1996, the police found marijuana in Edwards’ car during a

traffic stop.     On November 6, 1996, in the course of detaining

  2
   Additionally, the government relies on United States v.
McIntosh, 23 F.3d 1454 (8th Cir. 1994) and United States v. Corona,
849 F.2d 562 (11th Cir. 1988).      Addressing sufficiency of the
evidence challenges, the courts merely held that § 922(g)(3) does
not require that the government prove the defendant was using drugs
at the exact moment he purchased or possessed the firearm. See
McIntosh, 23 F.3d at 567; Corona, 849 F.2d at 1458. The courts did
not directly address the constitutionality of the statute.

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Edwards   while    investigating     the    smell   of   marijuana     in   movie

theater, the police found a baggie of marijuana in the police car

where Edwards was sitting moments before. On December 6, 1996, the

night on which the police recovered the gun forming the basis of

this conviction, the police found marijuana and cocaine at Edwards’

residence.   Finally, on September 27, 1997, Edwards admitted in a

statement to a Bureau of Alcohol, Tobacco & Firearms agent that he

used marijuana on a daily basis and had done so for the past two to

three years.      An ordinary person would understand that Edwards’

actions   establish    him   as   “an   unlawful    user    of    a   controlled

substance” while in possession of a firearm.                     For the above

reasons, we affirm Edwards’ conviction.

                                  CONCLUSION

     The application of § 922(g)(3) to Edwards’ conduct clearly

withstands   his   vagueness      challenge;   therefore,        we   affirm   his

conviction for possession of a firearm while an unlawful user of a

controlled substance.

     AFFIRMED




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