United States v. Brown

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4369
ROBERT H. BROWN,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CR-99-47)
Submitted: February 28, 2001
Decided: March 23, 2001
Before WILLIAMS, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed in part, reversed in part, and remanded by unpublished per
curiam opinion.
COUNSEL
Audrey Freeman jaCobs, Richmond, Virginia, for Appellant. Helen F.
Fahey, United States Attorney, Stephen W. Miller, Assistant United
States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. BROWN
OPINION
PER CURIAM:
Robert H. Brown appeals his conviction entered after a bench trial
for carrying two firearms and two boxes of ammunition despite being
a person convicted of a misdemeanor domestic violence offense in
violation of 18 U.S.C.A. § 922(g)(9) (West 2000). Brown, who had
been convicted of the requisite predicate offense, was arrested in pos-
session of two firearms and two boxes of ammunition. After a trial,
the district court found Brown guilty and sentenced him based on the
four counts in the indictment; one count for each firearm and box of
ammunition. Brown received fifteen months imprisonment on each
count to be served concurrently and a $100 special assessment on
each of the four counts of conviction. It is this judgment and sentence
from which Brown appeals.
Brown’s first assignment of error on appeal need not detain us for
long. Brown argues that the Congress exceeded its authority under the
Commerce Clause in enacting § 922(g)(9). Brown relies on United
States v. Lopez, 514 U.S. 549 (1995) (invalidating 18 U.S.C.
§ 922(q)(1)(A)), and United States v. Morrison, 529 U.S. 598 (2000)
(invalidating the Violence Against Women Act, 42 U.S.C.A. § 13981
(West Supp. 2000)), in suggesting that § 922(g)(9) is merely a crimi-
nal statute that has nothing to do with interstate commerce. As such,
Brown contends that Congress overstepped the bounds of the Com-
merce Clause in enacting the statute. However, the statute contains a
specific jurisdictional requirement that the possession be "in or affect-
ing commerce." 18 U.S.C.A. § 922(g). Because of that additional ele-
ment, lacking in the statutes in question in the authority Brown cites,
§ 922(g)(9) is an appropriate exercise of Congressional authority
under the Commerce Clause. Gillespie v. City of Indianapolis, 185
F.3d 693, 704-05 (7th Cir. 1999); see United States v. Nathan, 202
F.3d 230, 234 (4th Cir. 2000) (upholding § 922(g)(1)); United States
v. Bostic, 168 F.3d 718, 723 (4th Cir. 1999) (upholding § 922(g)(8)).
Brown’s contention on this point is without merit.
Brown suggests for the first time on appeal that the district court
erred in convicting him of multiple counts of being a person con-
victed of a crime of domestic violence in possession of firearms and
ammunition. Brown contends that because he possessed the two fire-
UNITED STATES v. BROWN 3
arms and two boxes of ammunition "together," he committed only
one offense under 18 U.S.C.A. § 922(g)(9). See United States v. Dun-
ford, 148 F.3d 385, 390 (4th Cir. 1998)(holding that defendant’s "pos-
session of the six firearms and ammunition, seized at the same time
from his house, supports only one conviction of 18 U.S.C. § 922(g)").
Because Brown failed to raise this claim before the district court, this
Court’s review is limited to a search for plain error. See Fed. R. Crim.
P. 52(b); United States v. Olano, 507 U.S. 725, 732-33 (1993); United
States v. Hastings, 134 F.3d 235, 239 (4th Cir. 1998). Consequently,
Brown "must show that an error occurred, that the error was plain,
and that the error affected his substantial rights." Hastings, 134 F.3d
at 239. Even if the three requirements are met, correction of the error
still lies "within the sound discretion of the court of appeals, and the
court should not exercise that discretion unless the error seriously
affect[s] the fairness, integrity or public reputation of judicial pro-
ceedings." Olano, 507 U.S. at 732 (internal citations and quotation
marks omitted).
The government concedes that under United States v. Dunford, 148
F.3d 385 (4th Cir. 1998), it was error for the district court to convict
Brown of multiple offenses based on only one instance of possession
of the two firearms and two boxes of ammunition. Id. at 390. Given
that this Court decided Dunford more than two years before Brown’s
conviction and that there has been no vacillation from its holding, the
error was plain. Further, the error affected Brown’s substantial rights
in that he was subjected to three additional special assessments of
$100 each and three additional convictions and concurrent sentences.
See Olano, 507 U.S. at 734; Hastings, 134 F.3d at 240. With respect
to the final consideration under Olano, we conclude that correcting
this error is an appropriate exercise of our discretion.
Accordingly, we affirm one conviction of a violation of 18 U.S.C.
§ 922(g)(9) and reverse three. Because the district court sentenced
Brown on the basis of four courts and thus directed Brown to pay a
$100 special assessment for each count, we vacate his sentence and
remand this case for resentencing. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the Court and argument would not aid the decisional
process.
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED