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United States v. Bowens

United States Court of Appeals, Sixth Circuit

September 12, 2019

United States of America, Plaintiff-Appellee,
v.
Jamal Bowens (18-5636); Lee Hope (18-5637), Defendants-Appellants.

          Argued: June 27, 2019

          Appeal from the United States District Court for the Western District of Tennessee at Memphis. No. 2:17-cr-20296-Sheryl H. Lipman, District Judge.

         ARGUED:

          Tyrone J. Paylor, FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for Appellant in 18-5636.

          Alexander C. Wharton, THE WHARTON LAW FIRM, Memphis, Tennessee, for Appellant in 18-5637. Marques T. Young, UNITED STATES ATTORNEY'S OFFICE, Memphis, Tennessee, for Appellee.

         ON BRIEF:

          Tyrone J. Paylor, FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for Appellant in 18-5636.

          Alexander C. Wharton, THE WHARTON LAW FIRM, Memphis, Tennessee, for Appellant in 18-5637.

          Marques T. Young, UNITED STATES ATTORNEY'S OFFICE, Memphis, Tennessee, for Appellee.

          Before: ROGERS, GRIFFIN, and NALBANDIAN.

          OPINION

          ROGERS, CIRCUIT JUDGE

         A jury convicted Jamal Bowens and Lee Hope of possessing firearms while being unlawful users of marijuana, a controlled substance, after they were arrested with guns and marijuana in May 2017. See 18 U.S.C. § 922(g)(3). There was sufficient evidence of the defendants' regular and repeated use of marijuana to sustain the conviction, notwithstanding defendants' arguments regarding the credibility of some of the evidence from their Facebook accounts. There was also ample evidence showing that the defendants knew they used marijuana, such that it was not plain error that the jury was never asked if the defendants were "knowingly" unlawful users of a controlled substance, notwithstanding the Supreme Court's recent decision in Rehaif v. United States, 139 S.Ct. 2191 (2019). There was not, however, enough of a connection between Bowens' possession of a firearm in January 2017 to justify the district court's determination that the earlier possession was "relevant conduct" that could count against him at sentencing. In all, the defendants' convictions stand but Bowens' case will be remanded for resentencing.

         I.

         On May 27, 2017, Memphis police officers found Bowens and Hope in the backseat of a vehicle with a marijuana blunt between them, as well as two firearms-one at Bowens' feet and the other on Hope's person. The Government charged both men with violating 18 U.S.C. § 922(g)(3), which prohibits unlawful users of controlled substances from possessing firearms. Under our caselaw, the Government needed to prove that the defendants were regular and repeated users of marijuana to get a conviction. See United States v. Burchard, 580 F.3d 341, 350 (6th Cir. 2009).

         To do this, the Government presented the jury with evidence from Facebook. A video uploaded to Bowens' Facebook account the day of the arrest showed the defendants in the parking lot of a McDonald's brandishing the firearms they were later arrested with and smoking what appeared to be a marijuana blunt. There were various comments and posts on both defendants' accounts in which they appeared to describe using marijuana; statements such as "Getting high and drunk da whole day," or "Too high last night. Just woke up." There were also some pictures on their Facebook accounts that appeared to show the men smoking marijuana, some with captions like "Smoking dope wit da demons" or "Smoking gas to my face." These photos and comments were uploaded or posted over the course of seven months leading up to the date of the defendants' arrests. The jury was convinced, and convicted both men. The district court sustained the convictions, denying motions for judgment of acquittal and for a new trial.

         At Bowens' sentencing, the Government sought a two-level enhancement under U.S.S.G. § 2K2.1(b)(1)(A) for an offense involving three to seven firearms. Only two firearms were recovered from the arrest, but the Government got to three by counting a firearm Bowens allegedly possessed in January 2017. This firearm had been recovered in Bowens' room at his mother's house as part of an unrelated investigation into a shooting that had occurred that month. Bowens was never charged with unlawful possession of this firearm. Over Bowens' objection, the district court found that this firearm possession constituted "relevant conduct" and applied the two-level enhancement to Bowens' sentence. Bowens asked that his sentence run concurrently with his anticipated state sentence for the January shooting, but the ...


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