USA v. Ronald Potter
Filing
FILED PER CURIAM OPINION (SUSAN P. GRABER, MILAN D. SMITH, JR. and ROGER T. BENITEZ) AFFIRMED. FILED AND ENTERED JUDGMENT. [7624705]
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RONALD CRAIG POTTER,
Defendant-Appellant.
No. 09-30266
D.C. No.
3:07-cr-05683RBL-1
OPINION
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted January 10, 2011*
Seattle, Washington
Filed January 26, 2011
Before: Susan P. Graber and Milan D. Smith, Jr.,
Circuit Judges, and Roger T. Benitez,** District Judge.
Per Curiam Opinion
*The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
**The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.
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UNITED STATES v. POTTER
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COUNSEL
John R. Muenster, Muenster & Koenig, Seattle, Washington,
for the defendant-appellant.
Michael S. Morgan, Assistant United States Attorney, Seattle,
Washington, for the plaintiff-appellee.
OPINION
PER CURIAM:
Defendant Ronald Craig Potter challenges his conviction
for possession of a firearm in furtherance of drug trafficking,
in violation of 18 U.S.C. § 924(c)(1)(A). He argues that the
statute is unconstitutional on its face or as applied, because it
violates the Second Amendment. Reviewing de novo, United
States v. Vongxay, 594 F.3d 1111, 1114 (9th Cir.), cert.
denied, 131 S. Ct. 294 (2010), we affirm.1
[1] In District of Columbia v. Heller, 554 U.S. 570, 635
(2008), the Supreme Court held that the right to bear arms is
a personal right, rather than a collective or State right, and
that the District of Columbia’s complete ban on firearms in
the home violated the Second Amendment. Defendant argues
that, because he has a personal right to bear arms in his home,
§ 924(c)(1)(A) is unconstitutional. We disagree.
[2] Both implicitly and explicitly, the Court made clear
that its holding concerned the lawful possession and use of a
firearm. Although the courts undoubtedly will continue to
develop the full scope of the rights conferred by the Second
Amendment, it cannot seriously be contended that the Second
Amendment guarantees a right to use a firearm in furtherance
1
In an unpublished disposition filed concurrently with this opinion, we
reject Defendant’s other arguments.
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UNITED STATES v. POTTER
of drug trafficking. In Heller, the Court emphasized that “the
right secured by the Second Amendment is not unlimited” and
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, or laws forbidding the carrying of firearms in sensitive places
such as schools and government buildings, or laws
imposing conditions and qualifications on the commercial sale of arms.
Id. at 626-27.
[3] Not surprisingly, the plurality opinion in the Court’s
later Second Amendment case described the “central holding
in Heller” as “the Second Amendment protects a personal
right to keep and bear arms for lawful purposes.” McDonald
v. City of Chicago, 130 S. Ct. 3020, 3044 (2010) (plurality)
(emphasis added). Clearly, the furtherance of drug trafficking
is not a lawful purpose. We join the Seventh Circuit in holding that § 924(c) is constitutional under the Second Amendment. United States v. Jackson, 555 F.3d 635, 636 (7th Cir.),
cert. denied, 130 S. Ct. 147 (2009); see also Vongxay, 594
F.3d at 1118 (holding that 18 U.S.C. § 922(g)(1), which
criminalizes the possession of firearms by certain felons, is
constitutional).
[4] For the same reasons, the district court properly
rejected Defendant’s proposed “Second Amendment defense”
instruction. Defendant asked that the jury be instructed that it
must find, in addition to finding that the firearm was possessed in connection with drug trafficking, that the firearm
also was not possessed for the defense of Defendant, his family, and his property. Even if he kept the firearm also to protect himself and his home, he committed a crime because he
possessed the firearm in furtherance of drug trafficking. The
final jury instructions were correct. See also United States v.
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UNITED STATES v. POTTER
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Morsette, 622 F.3d 1200, 1200-01 (9th Cir. 2010) (per
curiam) (holding that Heller and McDonald did not require
alteration of a jury instruction concerning self-defense in a
criminal trial).
AFFIRMED.
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