USA v. Shane Stone

Filing

FILED OPINION (RICHARD D. CUDAHY, STEPHEN S. TROTT and JOHNNIE B. RAWLINSON) AFFIRMED. Judge: SST Authoring, FILED AND ENTERED JUDGMENT. [8503747]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA ,
Plaintiff-Appellee,

No. 11-10618

v.

D.C. No.
1:11-cr-00008LJO-1

SHANE STONE ,
Defendant-Appellant.

OPINION

Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted
December 4, 2012—San Francisco, California
Filed February 7, 2013
Before: Richard D. Cudahy,* Stephen S. Trott, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Trott

*

The Honorable Richard D. Cudahy, Senior Circuit Judge for the United
States Court of Appeals for the Seventh Circuit, sitting by designation.

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UNITED STATES V . STONE
SUMMARY**

Criminal Law
Affirming a conviction for being a felon in possession of
ammunition in violation of 18 U.S.C. § 922(g)(1), the panel
held that the Supreme Court’s decision in Flores-Figueroa v.
United States, 556 U.S. 646 (2009), did not disturb this
court’s existing holding that the government need not prove
that a defendant knew the firearm or ammunition had traveled
in interstate commerce in order to obtain a § 922(g)(1)
conviction.

COUNSEL
Carolyn M. Wiggin, Federal Public Defender’s Office,
Sacramento, California, for Defendant-Appellant.
Kimberly A. Sanchez, United States Attorney’s Office,
Fresno, California for Plaintiff-Appellee.

OPINION
TROTT, Circuit Judge:
Shane Stone appeals his conviction for being a felon in
possession of ammunition in violation of 18 U.S.C.

**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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§ 922(g)(1). In United States v. Miller, we held that “[t]he
Government did not need to prove that [a defendant] knew
the firearm [or ammunition] had traveled in interstate
commerce” to obtain a conviction under § 922(g)(1). 105
F.3d 552, 555 (9th Cir. 1997), overruled in part on other
grounds by Caron v. United States, 524 U.S. 308 (1998).
Stone argues that the Supreme Court’s decision in FloresFigueroa v. United States, 556 U.S. 646 (2009), effectively
overruled Miller. Because we do not read Flores-Figueroa
as affecting our interpretation of § 922(g)(1), we affirm
Stone’s conviction.
I.
Stone was indicted on one count of violating § 922(g)(1).
Prior to the start of the trial, Stone requested an instruction
that would have required the Government to prove that Stone
knew the ammunition in his possession had traveled in
interstate commerce, citing Flores-Figueroa. The district
court declined to give the instruction because it believed that
extending the mens rea requirement to the interstate
commerce element “would basically remove the statute from
the books.”
At trial, the Government offered evidence that the
ammunition found in Stone’s possession had traveled in
foreign and interstate commerce, but not that Stone knew of
its origins. As a result, the defense moved for a judgment of
acquittal, again relying on Flores-Figueroa. The district
court denied the motions, and the jury convicted Stone.

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UNITED STATES V . STONE
II.

We review de novo the district court’s ruling on Stone’s
motion for a judgment of acquittal. United States v. Sutcliffe,
505 F.3d 944, 959 (9th Cir. 2007). Because Stone argues that
the jury instructions misstated the law and deprived him of
his theory of the case, our review of the jury instructions also
is de novo. United States v. Tucker, 641 F.3d 1110, 1122 (9th
Cir. 2011); United States v. Wiseman, 274 F.3d 1235, 1240
(9th Cir. 2001).
III.
The federal felon-in-possession statute makes it “unlawful
for any person . . . who has been convicted in any court of,
[sic] a crime punishable by imprisonment for a term
exceeding one year . . . to . . . possess in or affecting
commerce[] any firearm or ammunition.” 18 U.S.C.
§ 922(g)(1). Section 922 does not contain a mens rea
requirement. Instead, Congress inserted the mens rea
requirement into a separate penalty provision, 18 U.S.C.
§ 924. The relevant paragraph reads: “[W]hoever knowingly
violates subsection . . . (g) . . . of section 922 . . . shall be
fined as provided in this title, imprisoned not more than 10
years, or both.” 18 U.S.C. § 924(a)(2). Under this circuit’s
precedent, the Government must show that the defendant
knowingly possessed ammunition, but not that the defendant
knew of his status as a felon or that the ammunition traveled
in interstate commerce. Miller, 105 F.3d at 555; see also
United States v. Beasley, 346 F.3d 930, 933–34 (9th Cir.
2003) (“To establish a violation of § 922(g)(1), the
government must prove [only] three elements beyond a
reasonable doubt: (1) that the defendant was a convicted
felon; (2) that the defendant was in knowing possession of a

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firearm; and (3) that the firearm was in or affecting interstate
commerce.”). Stone argues that this circuit’s holding in
Miller is irreconcilable with the Supreme Court’s holding in
Flores-Figueroa and, therefore, is no longer good law. See
Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en
banc) (holding that a panel may break with circuit precedent
in light of “irreconcilable” higher authority).
In Flores-Figueroa, the Court interpreted a provision of
the federal aggravated identity theft statute that imposes a
enhanced penalty on a person who “knowingly transfers,
possesses, or uses, without lawful authority, a means of
identification of another person” during the commission of
certain predicate crimes. 18 U.S.C. § 1028A(a)(1). The issue
was whether “knowingly” modified the entire object of the
sentence or just the words “a means of identification.”
Flores-Figueroa, 556 U.S. at 650. Viewing the issue
primarily “[a]s a matter of ordinary English grammar,” the
Court held that “knowingly” applies to the entire object of the
sentence. Id. at 650. Therefore, the defendant must have
known the means of identification belonged to another
person. Id. at 657.
In Stone’s view, Flores-Figueroa requires the same
grammatical treatment be applied to §§ 922(g)(1) and
924(a)(2). But as Justice Alito pointed out in his
concurrence, the Court in Flores-Figueroa did not announce
an “inflexible rule of construction.” Id. at 661 (Alito, J.,
concurring). Rather, statutory interpretation remains a
contextual matter. Id. at 652 (majority op.). As this circuit
and our sister circuits have recognized, the context in which
§§ 922(g)(1) and 924(a)(2) were enacted does not suggest
Congress intended to extend the mens rea requirement to the
interstate commerce element. See United States v. Miller,

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105 F.3d at 555 (relying on United States v. Capps, 77 F.3d
350 (10th Cir. 1996); United States v. Langley, 62 F.3d 602
(4th Cir. 1995) (en banc); and United States v. Dancy, 861
F.2d 77 (5th Cir. 1988) (per curiam)); see also United States
v. Enslin, 327 F.3d 788, 798 (9th Cir. 2003) (reaffirming
Miller).
Moreover, the interstate commerce element is purely
jurisdictional, i.e., it merely “enhances an offense otherwise
committed with an evil intent” to the federal level. United
States v. X-Citement Video, Inc., 513 U.S. 64, 72 n.3 (1994);
see also United States v. Feola, 420 U.S. 671, 685 (1975)
(knowledge that the victim the defendant assaulted was a
federal officer is irrelevant); United States v. Howery, 427
F.2d 1017, 1018 (9th Cir. 1970) (knowledge that the property
the defendant stole belonged to the United States is
irrelevant). A convicted felon cannot reasonably expect to
possess firearms and ammunition free from restriction.
Congress included the interstate commerce element to ensure
that its efforts to enforce that obvious reality were
constitutional. See Scarborough v. United States, 431 U.S.
563, 575 (1977).
Although the Supreme Court in
Scarborough was interpreting § 922’s predecessor statute,
this court has held its interpretation applies to § 922(g)(1).
United States v. Sherbondy, 865 F.2d 996, 1000–01 (9th Cir.
1988). As such, Stone’s knowledge of the ammunition’s
interstate connection is irrelevant.

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IV.
For the foregoing reasons, we hold that Flores-Figueroa
did not disturb this court’s existing interpretation of
§§ 922(g)(1) and 924(a)(2). Accordingly, the judgment of the
district court is affirmed.
AFFIRMED.