Case: 12-50550       Document: 00512335471         Page: 1     Date Filed: 08/08/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           August 8, 2013
                                       No. 12-50550
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

BILLY MAY, also known as Billy Frank May,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:11-CR-509-1


Before HIGGINBOTHAM, CLEMENT, and PRADO, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:*
       Billy May has appealed his jury conviction of possession of a firearm by an
unlawful user of a controlled substance. See 18 U.S.C. § 922(g)(3). May
contends that the district court erred in denying his motion for a mistrial.
Although the record reflects that the Government inadvertently exposed some
members of the jury to prejudicial extrinsic evidence, the district court dismissed
the only juror who indicated that he had been prejudiced, gave detailed curative
instructions, and ensured that the remaining jurors were unimpeded in their


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 12-50550

ability to judge the facts impartially.       And the Government introduced
overwhelming evidence of May’s guilt: May admitted, in an interview with
investigators, that he used marijuana; moreover, May’s son testified that May
smoked marijuana after gun shows and during the time prior to his arrest. On
this record, we will not disturb the district court’s determination that the
extrinsic evidence did not interfere with the jury’s deliberations. See United
States v. Ruggiero, 

, 652–53 (5th Cir. 1995).
      In an attack on the statute of conviction, May asserts that § 922(g)(3) is
unconstitutionally vague as applied to him because it does not provide a
definition of what it means to be an “unlawful user” of a controlled substance
and because the statute gives law enforcement officers too much discretion,
allowing the law to be applied in an arbitrary and discriminatory fashion.
Because an ordinary person would understand that May’s use of marijuana
while in possession of firearms established him as an “unlawful user” in
violation of § 922(g)(3), the statute is not unconstitutionally vague as applied to
May. See United States v. Patterson, 

, 835–36 (5th Cir. 2005).
      May also asserts that § 922(g)(3) is unconstitutional on its face based on
its infringement of the Second Amendment. But this argument is precluded by
our precedent: we have recognized previously that unlawful users of controlled
substances pose a risk to society if permitted to bear arms and that prohibiting
such persons from possessing firearms does not infringe the Second Amendment.
See Patterson, 431 F.3d at 836; see also NRA v. Bureau of Alcohol, Tobacco,
Firearms, & Explosives, 

, 207 (5th Cir. 2012); United States v.
Scroggins, 

, 451 (5th Cir. 2010).
      Though May styles his appeal as a challenge to the constitutionality of
§ 922(g)(3), the gravamen of his complaint is that the Government selectively
prosecuted him for the impermissible purpose of curtailing his lawful exercise
of his Second Amendment rights.           Specifically, May contends that the
Government intended a “chilling effect on those that operate, buy, and sell guns

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                                 No. 12-50550

at gun shows” and targeted May because he is the “number one exhibitor at the
Texas gun show.” But aside from May’s ipse dixit, there is nothing in the record
to suggest that the Government targeted May for any reason other than his
illegal conduct. May has not carried his heavy burden to establish selective
prosecution. See United States v. Kahl, 

, 1353 (5th Cir. 1978).
      The judgment is AFFIRMED.




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