Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-27-2009

USA v. Ross
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1120




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Recommended Citation
"USA v. Ross" (2009). 2009 Decisions. Paper 1480.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1480


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                                                      NOT PRECEDENTIAL


UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                            No. 08-1120




                 UNITED STATES OF AMERICA

                                 v.

                         EDWARD ROSS,
                                   Appellant




           On Appeal from the United States District Court
              for the Eastern District of Pennsylvania
                       (D.C. No. 05-cr-00398)
            District Judge: Honorable Gene E. K. Pratter




             Submitted Under Third Circuit LAR 34.1(a)
                          April 24, 2009

Before: SCIRICA, Chief Judge, SLOVITER, and FISHER, Circuit Judges

                       (Filed: April 27, 2009)

                                ____

                             OPINION
SLOVITER, Circuit Judge.

       Appellant Edward Ross appeals from his conviction and sentence on ten drug-

related and firearms offenses. Because we write only for the benefit of the parties, we

include only those facts necessary for our analysis.

                                             I.

       Ross was indicted for, among other crimes, possession of a firearm in furtherance

of a drug trafficking crime (count seven) and possession of a machine gun (count eight),

in violation of 18 U.S.C. § 924(c)(1) and 18 U.S.C. 922(o)(1), respectively. Count seven

charged that Ross possessed both a semiautomatic pistol with an obliterated serial number

(the semiautomatic pistol) and a different semiautomatic pistol that had been converted to

a machine gun (the machine gun). Because count seven charged two guns, the jury was

given a special verdict form on which it could find Ross guilty of knowingly possessing

the semiautomatic pistol, not guilty of knowingly possessing the semiautomatic pistol,

guilty of knowingly possessing the machine gun, and not guilty of knowingly possessing

the machine gun. Ross did not object to this form.

       When instructing the jury on this count the trial judge told them:

       The Government is not required to prove that both firearms were possessed
       as alleged in Count Seven of the indictment, but only one of them.
       However, you must unanimously agree that the same means or methods, in
       other words, the same firearm alleged in Count Seven of the indictment was
       in fact possessed by Mr. Ross in committing the crime charged in Count
       Seven. You need not unanimously agree on each means and method, but in
       order to convict Mr. Ross under Count Seven, you the jury must
       unanimously agree upon which firearm he possessed in furtherance of the

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       controlled substance offense. Unless the Government has proven the same
       means or method to each of you beyond a reasonable doubt you must acquit
       Mr. Ross of the crime alleged in Count Seven.

App. at 1131. Ross’s attorney did not object to these instructions. To reinforce the

unanimity requirement for the verdict, the trial judge later instructed the jury that “[i]n

order to return a verdict, it is necessary that each juror agree to it. Your verdict, in other

words, must be unanimous and it must [be] unanimous in each respect as you go through

the verdict form.” App. at 1147-48. Again Ross did not object. The jury returned guilty

verdicts for, among other charges, possessing both guns on count seven as well as a

possessing a machine gun on count eight.

       Before sentencing, Ross objected that the jury had not been required to find the

type of firearm as an element of the offense in count seven. The District Court held that

the jury had made such a finding and that, regardless, it was also appropriate for the

District Court to make that decision as a sentencing factor.

                                              II.

       Ross presents a number of challenges to his sentence, although he admits that most

of these challenges would not succeed under the current case law, and are presented

solely to preserve the issue for potential Supreme Court review.1 Neither of the



                    1
                       We therefore do not address Ross’s arguments that his
             conviction is unconstitutional under United States v. Lopez, 

(1995); that he should not have been subjected to a
             statutory increase in his mandatory minimum sentence when the
             only finding of a prior conviction was made by a judge during

                                               3
remaining two issues was raised in the District Court and we therefore review for plain

error.2

          Ross argues that the 30-year mandatory minimum sentence for a conviction under

18 U.S.C. § 924(c)(1) should not apply to him because, he contends, the District Court

did not instruct the jury that they were required to make a unanimous finding that he had

possessed the machine gun in order to find him guilty for possession of the machine gun

under count seven. He also argues that the District Court erroneously considered the type

of firearm to be a sentencing factor that the judge could determine by a preponderance of

the evidence at the sentencing.

          We reject both arguments. The District Court’s instruction as to the need for

unanimity was clear.

          Ross next argues that 18 U.S.C. § 922(o), which prohibits the possession of

machine guns, is unconstitutional after District of Columbia v. Heller, --- U.S. ----, 128 S.

Ct. 2783 (2008). Ross appears to misunderstand Heller. Heller was concerned with a

statute that prohibited all possession of handguns by the public. 

The Heller

majority focused on the history of gun possession as a means of self-defense, finding that

the textual elements of the Second Amendment “guarantee the individual right to possess


               sentencing; and that the felon-in-possession statute, 18 U.S.C. §
               922(g), is unconstitutional.
                      2
                       The District Court had jurisdiction under 18 U.S.C. §
               3231. The appeal was timely filed, and we have jurisdiction under
               28 U.S.C. § 1291 and 18 U.S.C. § 3742.

                                               4
and carry weapons in case of confrontation.” 

In doing so, the Court was

careful to state that it did “not read the Second Amendment to protect the right of citizens

to carry arms for any sort of confrontation.” 

(emphasis in original). In a

further attempt to limit the effect of Heller to the right of law-abiding citizens to possess

handguns for self-defense, the Court also cautioned that “nothing in our opinion should

be taken to cast doubt on longstanding prohibitions on the possession of firearms by

felons and the mentally ill” and noted the “historical tradition of prohibiting the carrying

of ‘dangerous and unusual weapons.’” 

Nothing in Heller supports Ross’s

challenge to the constitutionality of a statute criminalizing the possession of a machine

gun.

                                             III.

       As the above discussion suggests, we find no error, plain or otherwise, in the

decision of the District Court, and will therefore affirm the conviction and sentence.




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