United States v. Antonoff

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-13608 APR 21, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 9:09-cr-80048-DMM-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
MICHAEL JAMES ANTONOFF,
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 21, 2011)
Before HULL, MARTIN and BLACK, Circuit Judges.
PER CURIAM:
Michael Antonoff appeals his 51-month sentence, imposed within the
applicable guideline range, for making false statements in connection with his
acquisition of a firearm, in violation of 18 U.S.C. § 924(a)(1)(A). Antonoff was
assessed a base offense level of 20, pursuant to U.S.S.G. § 2K2.1(a)(4)(B), for
being a “prohibited person,” namely, an “unlawful user” of marijuana. On appeal,
Antonoff argues the district court erred in finding that he was an unlawful user of
marijuana because the evidence upon which the district court relied was too far
attenuated to permit an inference of current marijuana use. After review, we
affirm.1
Section 2K2.1 of the Guidelines, which addresses firearm offenses, assigns
a base offense level of 20 if, inter alia, the defendant “was a prohibited person at
the time the defendant committed the instant offense.” U.S.S.G. § 2K2.1(a)(4)(B).
A “prohibited person” is “any person described in 18 U.S.C. 922(g),” id. cmt.
(n.3)., which prohibits individuals who are “unlawful user[s] of or addicted to any
controlled substance” from carrying firearms, 18 U.S.C. § 922(g)(3). Federal
1
We review the district court’s application of the Sentencing Guidelines de novo, and its
factual findings for clear error. United States v. Smith, 480 F.3d 1277, 1278 (11th Cir. 2007). As
with statutes, we construe regulations, where possible, according to their plain meaning. See
Gilbert v. Alta Health & Life Ins. Co., 276 F.3d 1292, 1303 (11th Cir. 2001) (holding that,
according to the plain meaning of a regulation and common sense, the regulation did not apply to
the case).
2
regulations, in turn, define “unlawful user” as “any person who is a current user of
a controlled substance” as defined therein. 27 C.F.R. § 478.11.2
To be an “unlawful user” for sentencing purposes, the “defendant’s use
must be ongoing and contemporaneous with the commission of the offense.”
United States v. Edmonds, 348 F.3d 950, 953 (11th Cir. 2003) (quotation omitted).
Under this standard, the Government need not show that the defendant was under
the influence of a controlled substance at the time of his arrest, but only that he
qualified as an unlawful user “during the same time period as the firearm
possession.” Id. (holding that defendant’s admitted history of drug use, testimony
that the defendant was rolling a marijuana cigarette at the time of the arrest, and
the defendant’s positive test for marijuana two months after the arrest, were
sufficient to prove that the defendant was an unlawful user). The federal
regulations also clarify that “[a]n inference of current use may be drawn from
evidence of a recent use or possession of a controlled substance or a pattern of use
or possession that reasonably covers the present time, e.g., a conviction for use or
2
The federal regulations also define “unlawful user” as “a person who uses a controlled
substance and has lost the power of self-control with reference to the use of controlled
substance.” 27 C.F.R. § 478.11. Although Antonoff asserts the government failed to provide
any evidence he had lost self-control with respect to his use, we decline to consider this argument
because the record supports the district court’s finding that Antonoff was an “unlawful user”
under the “ongoing and contemporaneous” test.
3
possession of a controlled substance within the past year [or] multiple arrests for
such offenses within the past 5 years if the most recent arrest occurred within the
past year.” 27 C.F.R. § 478.11.
The Government presented “reliable and specific” evidence that Antonoff
was an “unlawful user.” United States v. Bernardine, 73 F.3d 1078, 1081 (11th
Cir. 1996). The district court relied on the following: (1) Antonoff’s possession of
a “personal use” amount of marijuana when police observed him with the gun in
question; (2) an arrest and pending charge for possession of marijuana less than a
year before the instant offense; (3) numerous other arrests with respect to use of
controlled substances, including a recent arrest for possession of marijuana; and
(4) his admission to the probation officer that he used marijuana “every day.”3
Taking these sources together, the district court had sufficient evidence upon
which to conclude Antonoff’s use was contemporaneous and ongoing with the
instant offense sufficient to support the application of §2K2.1.
AFFIRMED.
3
Although Antonoff attempted to qualify his statement to the probation officer at
sentencing by arguing that he did not use drugs between age 13 and his 2008 gunshot wound, he
did not personally testify to this effect. Moreover, his arguments were inconsistent and
conflicted with his 2007 drug arrest.
4