United States of America v. Henry Lee Harris, a/k/a Henry Fletcher Peterson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4101
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HENRY LEE HARRIS, a/k/a Henry Fletcher Peterson,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (3:04-cr-00166-RLV-CH-1)
Submitted: April 21, 2009 Decided: June 12, 2009
Before WILKINSON, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Sandra J. Barrett, Asheville, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Charlotte,
North Carolina; Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Henry Lee Harris appeals his conviction for possession
of ammunition by a person previously convicted of a felony,
contending that the district court erred by refusing to instruct
the jury on his defense of innocent possession. He also appeals
his 180-month sentence, arguing that the district court should
have departed significantly downward from the applicable
guideline range based on his taking possession of the ammunition
for the purpose of avoiding greater harm. Finding no error, we
affirm Harris’ conviction and sentence.
During a consent search, a box of ammunition was
discovered on the headboard of the bed in Harris’ girlfriend’s
bedroom. Harris presented evidence that he had found the
ammunition on the ground in front of the apartment, brought the
box into the apartment, and asked his girlfriend to dispose of
it so that kids would not get to it. He requested that the
court instruct the jury that innocent possession was a defense
to the charge of possession of ammunition by a convicted felon.
The district court denied the request, finding that Harris’
requested charge was included in the charge on the element of
“knowingly” and that Harris did not qualify for such an
instruction because he did not make a sufficient showing of
effort to get the ammunition out of his possession.
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In a case decided after Harris’ conviction, this court
held that the text of 21 U.S.C. § 922(g)(1) (2006) “simply does
not allow for the [innocent possession] exception.” United
States v. Gilbert, 430 F.3d 215, 218 (4th Cir. 2005).* The court
stated: “We find such a defense to be wholly absent from the
statutory text and decline to subvert the congressional scheme
by imposing a judicially crafted exception. We moreover
conclude that even if the defense did exist, it would not apply
to the facts of this case.” We find that the same rationale
applies in this case.
Harris argues that the Due Process Clause and United
States v. Dixon, 548 U.S. 1 (2006), require that federal courts
allow the use of common law defenses to which defendants are
entitled, and he contends that innocent possession is one such
common law defense. Even if this was an available defense, we
find that the district court properly refused the instruction
because Harris failed to qualify for such a defense by not
making an effort to dispose of the ammunition in an expedient
manner. Harris gave the ammunition to his girlfriend. It then
remained in the bedroom for at least a day before the officers
discovered it during the consent search. We find that, even if
* Harris was convicted in May 2005. The Gilbert decision
issued on November 28, 2005.
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the court were to recognize an innocent possession defense,
Harris would not qualify. Therefore, the district court did not
abuse its discretion by refusing to give the requested
instruction. United States v. Stotts, 113 F.3d 493, 496 (4th
Cir. 1997).
Harris also argues that the district court improperly
applied the sentencing factors in determining an appropriate
sentence. He asserts that the court should have granted him a
significant downward departure based on the innocent reason he
had for possessing the ammunition. We review sentences imposed
by district courts for reasonableness, applying an abuse of
discretion standard. Gall v. United States, 128 S. Ct. 586, 597
(2007); see United States v. Pauley, 511 F.3d 468, 473 (4th Cir.
2007). When sentencing a defendant, a district court must:
(1) properly calculate the guideline range; (2) treat the
guidelines as advisory; (3) consider the factors set out in 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2008); and (4) explain its
reasons for selecting a sentence. Pauley, 511 F.3d at 473. We
presume that a sentence within the properly calculated
sentencing guidelines range is reasonable. United States v.
Allen, 491 F.3d 178, 193 (4th Cir. 2007); see also Rita v.
United States, 127 S. Ct. 2456, 2462-69 (2007) (upholding
application of rebuttable presumption of correctness of within
guideline sentence).
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The district court followed the necessary steps in
sentencing Harris. The district court properly determined that
the advisory guideline range applicable to Harris was 210 to 262
months imprisonment. The court then properly considered the
guideline range and the § 3553(a) factors to fashion an
appropriate sentence. After finding that Harris’ possession of
the ammunition was “done to avoid a greater harm to leaving the
ammunition out where children could be injured or otherwise
harmed by it,” the court departed downward from the guidelines
range under U.S. Sentencing Guidelines Manual § 5K2.11 (2007),
and imposed a sentence of 180 months. The court clarified that
this thirty-month reduction was “slightly more than a one-level
reduction” and that Harris was more deserving of that reduction
than others “because of the circumstances concerning his
motivation for handling the ammunition, and the fact that the
charges were not brought in the context of any apparent real or
contemplated use of the firearms found at the house.” We find
that the sentence imposed was reasonable and that the district
court did not abuse its discretion in sentencing Harris. Rita,
127 S. Ct. at 2462-69.
Having reviewed the issues asserted on appeal and
finding no error, we affirm Harris’ conviction and sentence. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED

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