US v. Henry Harris

Filing 920090612

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4101

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. HENRY LEE HARRIS, a/k/a Henry Fletcher Peterson, Defendant ­ Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Richard L. Voorhees, District Judge. (3:04-cr-00166-RLV-CH-1)

Submitted:

April 21, 2009

Decided:

June 12, 2009

Before WILKINSON, TRAXLER, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Sandra J. Barrett, Asheville, North Carolina, for Appellant. Gretchen C. F. Shappert, United States Attorney, Charlotte, North Carolina; Amy E. Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Henry Lee Harris appeals his conviction for possession of ammunition by a person previously convicted of a felony,

contending that the district court erred by refusing to instruct the jury on his defense of innocent possession. He also appeals

his 180-month sentence, arguing that the district court should have departed significantly downward from the applicable

guideline range based on his taking possession of the ammunition for the purpose of avoiding greater harm. affirm Harris' conviction and sentence. During a consent search, a box of ammunition was Finding no error, we

discovered on the headboard of the bed in Harris' girlfriend's bedroom. Harris presented evidence that he had found the

ammunition on the ground in front of the apartment, brought the box into the apartment, and asked his girlfriend to dispose of it so that kids would not get to it. He requested that the

court instruct the jury that innocent possession was a defense to the charge of possession of ammunition by a convicted felon. The district court denied the request, finding that Harris'

requested charge was included in the charge on the element of "knowingly" instruction and that he Harris did did not a qualify for such an of

because

not

make

sufficient

showing

effort to get the ammunition out of his possession.

2

In a case decided after Harris' conviction, this court held that the text of 21 U.S.C. § 922(g)(1) (2006) "simply does not allow for the [innocent possession] exception." United court

States v. Gilbert, 430 F.3d 215, 218 (4th Cir. 2005). * The stated:

"We find such a defense to be wholly absent from the

statutory text and decline to subvert the congressional scheme by imposing a judicially crafted exception. We moreover

conclude that even if the defense did exist, it would not apply to the facts of this case." applies in this case. Harris argues that the Due Process Clause and United States v. Dixon, 548 U.S. 1 (2006), require that federal courts allow the use of common law defenses to which defendants are entitled, and he contends that innocent possession is one such common law defense. Even if this was an available defense, we We find that the same rationale

find that the district court properly refused the instruction because Harris failed to qualify for such a defense by not

making an effort to dispose of the ammunition in an expedient manner. Harris gave the ammunition to his girlfriend. It then

remained in the bedroom for at least a day before the officers discovered it during the consent search. We find that, even if

Harris was convicted in May 2005. issued on November 28, 2005.

*

The Gilbert decision

3

the

court

were

to

recognize

an

innocent

possession

defense,

Harris would not qualify. abuse its discretion by

Therefore, the district court did not refusing to give the requested

instruction. Cir. 1997).

United States v. Stotts, 113 F.3d 493, 496 (4th

Harris also argues that the district court improperly applied the sentencing factors in determining an appropriate

sentence.

He asserts that the court should have granted him a

significant downward departure based on the innocent reason he had for possessing the ammunition. by district courts for We review sentences imposed applying an abuse of

reasonableness,

discretion standard.

Gall v. United States, 128 S. Ct. 586, 597

(2007); see United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). When sentencing calculate a the defendant, guideline a district (2) court treat must: the

(1) properly

range;

guidelines as advisory; (3) consider the factors set out in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2008); and (4) explain its reasons for selecting a sentence. presume that a sentence Pauley, 511 F.3d at 473. the properly We

within

calculated

sentencing guidelines range is reasonable.

United States v.

Allen, 491 F.3d 178, 193 (4th Cir. 2007); see also Rita v. United States, 127 S. Ct. 2456, 2462-69 (2007) (upholding

application of rebuttable presumption of correctness of within guideline sentence). 4

The

district

court

followed

the

necessary

steps

in

sentencing Harris.

The district court properly determined that

the advisory guideline range applicable to Harris was 210 to 262 months imprisonment. guideline range and The court then properly considered the the § 3553(a) factors to fashion an

appropriate sentence.

After finding that Harris' possession of

the ammunition was "done to avoid a greater harm to leaving the ammunition out where children could be injured or otherwise

harmed by it," the court departed downward from the guidelines range under U.S. Sentencing Guidelines Manual § 5K2.11 (2007), and imposed a sentence of 180 months. The court clarified that

this thirty-month reduction was "slightly more than a one-level reduction" and that Harris was more deserving of that reduction than others "because of the circumstances concerning his

motivation for handling the ammunition, and the fact that the charges were not brought in the context of any apparent real or contemplated use of the firearms found at the house." We find

that the sentence imposed was reasonable and that the district court did not abuse its discretion in sentencing Harris. 127 S. Ct. at 2462-69. Having reviewed the issues asserted on appeal and We Rita,

finding no error, we affirm Harris' conviction and sentence. dispense with oral argument because the facts and

legal

5

contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED

6