United States v. Tyrone Brown

Filing

PER CURIAM OPINION FILED - THE COURT: DIANA E. MURPHY, KERMIT E. BYE and LAVENSKI R. SMITH, (UNPUBLISHED) [3846064] [10-3678]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________
No. 10-3678
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United States of America,

*
*
Plaintiff - Appellee,
*
* Appeal from the United States
v.
* District Court for the
* Eastern District of Missouri.
Tyrone Brown,
*
* [UNPUBLISHED]
Defendant - Appellant.
*
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Submitted: October 17, 2011
Filed: November 3, 2011
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Before MURPHY, BYE, and SMITH, Circuit Judges.
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PER CURIAM.
A jury found Tyrone Brown guilty of being in a felon in possession of a firearm
in violation of 18 U.S.C. § 922(g)(1). The district court1 sentenced him to 77 months
in prison. Brown appeals his conviction, arguing that it violates his Second
Amendment right to possess and bear arms. We affirm.
At trial the government presented evidence that in November 2009 police
found a loaded 9 millimeter semiautomatic pistol under Brown's bedroom mattress
1

The Honorable Carol E. Jackson, United States District Judge for the Eastern
District of Missouri.

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while executing a search warrant. Police arrested Brown after they found him hiding
in a closet underneath a pile of clothes. He told police he had the gun because he had
previously "been shot at." The parties stipulated that Brown had previously been
convicted of a felony offense. The district court denied Brown's motion for a
judgment of acquittal at the conclusion of the evidence, rejecting his argument that
a conviction would violate his Second Amendment right to keep and bear arms. The
jury returned a guilty verdict, and the district court sentenced Brown to 77 months,
the bottom of his guideline range of 77 to 96 months.
Brown appeals, renewing his argument that the conviction violates his Second
Amendment right to keep and bear arms. We review the constitutionality of the
statute de novo. United States v. Seay, 620 F.3d 919, 923 (8th Cir. 2010). Brown
contends that the Supreme Court has confirmed that the right to bear arms for self
defense is fundamental and that a handgun is considered to be the "quintessential selfdefense weapon." McDonald v. City of Chicago, Ill., 130 S. Ct. 3020, 3036 (2010)
(quoting District of Columbia v. Heller, 554 U.S. 570, 629 (2008)). He asserts that
he possessed the handgun for self defense and therefore his conduct was protected by
the Second Amendment.
We reject Brown's Second Amendment challenge. We have previously upheld
the felon in possession statute, 18 U.S.C. § 922(g)(1), against a facial Second
Amendment challenge. See, e.g., United States v. Joos, 638 F.3d 581, 586 (8th Cir.
2011). Moreover, the Supreme Court explicitly declined to "cast doubt" on the
validity of felon in possession statutes in the same cases Brown cites in support of his
Second Amendment challenge. See McDonald, 130 S. Ct. at 3047; Heller, 554 U.S.
at 626. To the extent that Brown also makes an as applied challenge to the statute,
he is unsuccessful. Brown has not presented "facts about himself and his background
that distinguish his circumstances from those of persons historically barred from
Second Amendment protections." United States v. Barton, 633 F.3d 168, 174 (3d Cir.
2011). He does not allege, for example, that his stipulated prior felony conviction
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was for a non violent offense or that he is "no more dangerous than a typical lawabiding citizen." Id. Brown's assertion that he possessed the gun for self defense is
insufficient to successfully challenge his conviction under the felon in possession
statute.
Accordingly, the judgment of the district court is affirmed.
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