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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 98-50320
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
VERSUS
JASON JEROME EDWARDS, also known as Jason Edwards,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Texas
July 23, 1999
Before POLITZ, JOLLY, and DUHÉ, Circuit Judges.
JOHN M. DUHÉ, JR., Circuit Judge:
A jury convicted Jason Jerome Edwards ("Edwards") of
possessing a firearm while an unlawful user of a controlled
substance in violation of 18 U.S.C.A. § 922(g)(3) (West Supp.
1999). On appeal, Edwards challenges the constitutionality of the
statute on the ground that the phrase "unlawful user of a
controlled substance" is void for vagueness. We affirm his
conviction holding that the statute is constitutional.
BACKGROUND
On December 6, 1996, Midland, Texas police officers executed
a search warrant for a home in which Edwards resided. In the front

room, the officers discovered a burning cigar emitting the odor of
marijuana. The officers also discovered a small amount of cocaine,
approximately $3000 in cash, and three firearms including a .380
caliber pistol. Edwards admitted to the officers that he owned the
pistol, but denied knowing anything about the cocaine.
A jury convicted Edwards of one count of possession of a
firearm while a user of a unlawful controlled substance in
violation of 18 U.S.C.A. § 922(g)(3) (West Supp. 1999). The
district court sentenced him to 24 months imprisonment.
ANALYSIS
Edwards sole argument on appeal is that § 922(g)(3) is
unconstitutionally vague because it fails to designate a time frame
concerning when the individual must use the controlled substance in
connection with the possession of a firearm.1 He contends that the
statute does not clearly distinguish between a past unlawful user
of a controlled substance and a current unlawful user of a
controlled substance. He asserts his conduct does not constitute
1Section 922(g)(3) provides:
(g) It shall be unlawful for any person
(3)who is an unlawful user of or addicted to any controlled
substance (as defined in section 102 of the Controlled
Substances Act (21 U.S.C. 802));
to ship or transport in interstate or foreign commerce, or
possess in or affecting commerce, any firearm or ammunition;
or to receive any firearm or ammunition which has been shipped
or transported in interstate or foreign commerce.
18 U.S.C.A. 922(g)(3) (West Supp. 1999).
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a violation of § 922(g)(3) because he was not using drugs at the
exact moment the police found him in possession of a firearm.
A criminal statute survives our vagueness review if it
"define[s] the criminal offense with sufficient definiteness that
ordinary people can understand what conduct is prohibited and in a
manner that does not encourage arbitrary and discriminatory
enforcement." See United States v. Gray, 96 F.3d 769, 776 (5th
Cir. 1996) (citing Posters 'N' Things, Ltd. v. U.S., 511 U.S. 513,
525 (1994)). Additionally, when a vagueness challenge does not
involve First Amendment freedoms, we examine the statute only in
light of the facts of the case at hand. See id. (citing United
States v. Mazurie, 419 U.S. 544, 550 (1975) and Chapman v. United
States, 500 U.S. 453, 467 (1991)).
Edwards relies on United States v. Reed, 924 F.Supp. 1052,
1056 (D. Kan. 1996), rev'd, 114 F.3d 1067, 1070-71 (10th Cir. 1991)
and United States v. Weissman, 373 F.2d 799, 803 (9th Cir. 1967).
In Reed, out of 7 counts, the court allowed only one where the
defendant actually used a controlled substance while simultaneously
possessing a gun. Reed, 924 F.Supp. at 1056. The Tenth Circuit
reversed and remanded for trial holding that the district court
impermissibly determined the constitutionality of the statute on a
motion to dismiss before the government had presented any evidence
concerning the defendant's conduct. Reed, 114 F.3d at 1070-71. In
Weissman, the Ninth Circuit held the terms "uses narcotic drugs"
and "user of narcotic drugs" were unconstitutionally vague as they
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were used in 18 U.S.C.A. § 1407 requiring the registration of drug
users at international borders. See Weissman, 373 F.2d at 802-03.
However, as the government notes and the Ninth Circuit itself later
observed in United States v. Ocegueda, 564 F.2d 1363, 1366 (9th
Cir. 1977), Weissmann was decided prior to the Supreme Court
decisions limiting the scope of vagueness review in non-First
Amendment cases; therefore, it is not controlling.
The government relies on the Ninth Circuit's decision in
Ocegueda dealing with an identical challenge to § 922(g)(3)'s
predecessor, 18 U.S.C.A. § 922(h)(3). Id. The court held that
"Ocegueda's prolonged use of heroin, occurring before, during and
after the period of the gun purchases, presents a situation where
the term cannot be considered vague under the due process clause of
the Fifth Amendment." Id. at 1366.2
The application of § 922(g)(3) to the facts of the instant
case is clearly constitutional. Edwards admitted to using
marijuana on May 20, 1996 in a hotel and pled guilty to a
possession of marijuana offense arising from that incident. On
July 10, 1996, the police found marijuana in Edwards' car during a
traffic stop. On November 6, 1996, in the course of detaining
2Additionally, the government relies on United States v.
McIntosh, 23 F.3d 1454 (8th Cir. 1994) and United States v. Corona,
849 F.2d 562 (11th Cir. 1988). Addressing sufficiency of the
evidence challenges, the courts merely held that § 922(g)(3) does
not require that the government prove the defendant was using drugs
at the exact moment he purchased or possessed the firearm. See
McIntosh, 23 F.3d at 567; Corona, 849 F.2d at 1458. The courts did
not directly address the constitutionality of the statute.
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Edwards while investigating the smell of marijuana in movie
theater, the police found a baggie of marijuana in the police car
where Edwards was sitting moments before. On December 6, 1996, the
night on which the police recovered the gun forming the basis of
this conviction, the police found marijuana and cocaine at Edwards'
residence. Finally, on September 27, 1997, Edwards admitted in a
statement to a Bureau of Alcohol, Tobacco & Firearms agent that he
used marijuana on a daily basis and had done so for the past two to
three years. An ordinary person would understand that Edwards'
actions establish him as "an unlawful user of a controlled
substance" while in possession of a firearm. For the above
reasons, we affirm Edwards' conviction.
CONCLUSION
The application of § 922(g)(3) to Edwards' conduct clearly
withstands his vagueness challenge; therefore, we affirm his
conviction for possession of a firearm while an unlawful user of a
controlled substance.
AFFIRMED

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