UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-4369

ROBERT H. BROWN,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

James R. Spencer, District Judge.

(CR-99-47)

Submitted: February 28, 2001

Decided: March 23, 2001

Before WILLIAMS, MICHAEL, and TRAXLER, Circuit Judges.

Affirmed in part, reversed in part, and remanded by unpublished per

curiam opinion. 

COUNSEL

Audrey Freeman jaCobs, Richmond, Virginia, for Appellant. Helen F.

Fahey, United States Attorney, Stephen W. Miller, Assistant United

States Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 
OPINION

PER CURIAM: 

Robert H. Brown appeals his conviction entered after a bench trial

for carrying two firearms and two boxes of ammunition despite being

a person convicted of a misdemeanor domestic violence offense in

violation of 18 U.S.C.A. § 922(g)(9) (West 2000). Brown, who had

been convicted of the requisite predicate offense, was arrested in possession of two firearms and two boxes of ammunition. After a trial,

the district court found Brown guilty and sentenced him based on the

four counts in the indictment; one count for each firearm and box of

ammunition. Brown received fifteen months imprisonment on each

count to be served concurrently and a $100 special assessment on

each of the four counts of conviction. It is this judgment and sentence

from which Brown appeals. 

Brown’s first assignment of error on appeal need not detain us for

long. Brown argues that the Congress exceeded its authority under the

Commerce Clause in enacting § 922(g)(9). Brown relies on United

States v. Lopez, 514 U.S. 549 (1995) (invalidating 18 U.S.C.

§ 922(q)(1)(A)), and United States v. Morrison, 529 U.S. 598 (2000)

(invalidating the Violence Against Women Act, 42 U.S.C.A. § 13981

(West Supp. 2000)), in suggesting that § 922(g)(9) is merely a criminal statute that has nothing to do with interstate commerce. As such,

Brown contends that Congress overstepped the bounds of the Commerce Clause in enacting the statute. However, the statute contains a

specific jurisdictional requirement that the possession be "in or affecting commerce." 18 U.S.C.A. § 922(g). Because of that additional element, lacking in the statutes in question in the authority Brown cites,

§ 922(g)(9) is an appropriate exercise of Congressional authority

under the Commerce Clause. Gillespie v. City of Indianapolis, 185

F.3d 693, 704-05 (7th Cir. 1999); see United States v. Nathan, 202

F.3d 230, 234 (4th Cir. 2000) (upholding § 922(g)(1)); United States

v. Bostic, 168 F.3d 718, 723 (4th Cir. 1999) (upholding § 922(g)(8)).

Brown’s contention on this point is without merit. 

Brown suggests for the first time on appeal that the district court

erred in convicting him of multiple counts of being a person convicted of a crime of domestic violence in possession of firearms and

ammunition. Brown contends that because he possessed the two fire2 UNITED STATES v. BROWN
arms and two boxes of ammunition "together," he committed only

one offense under 18 U.S.C.A. § 922(g)(9). See United States v. Dunford, 148 F.3d 385, 390 (4th Cir. 1998)(holding that defendant’s "possession of the six firearms and ammunition, seized at the same time

from his house, supports only one conviction of 18 U.S.C. § 922(g)").

Because Brown failed to raise this claim before the district court, this

Court’s review is limited to a search for plain error. See Fed. R. Crim.

P. 52(b); United States v. Olano, 507 U.S. 725, 732-33 (1993); United

States v. Hastings, 134 F.3d 235, 239 (4th Cir. 1998). Consequently,

Brown "must show that an error occurred, that the error was plain,

and that the error affected his substantial rights." Hastings, 134 F.3d

at 239. Even if the three requirements are met, correction of the error

still lies "within the sound discretion of the court of appeals, and the

court should not exercise that discretion unless the error seriously

affect[s] the fairness, integrity or public reputation of judicial proceedings." Olano, 507 U.S. at 732 (internal citations and quotation

marks omitted). 

The government concedes that under United States v. Dunford, 148

F.3d 385 (4th Cir. 1998), it was error for the district court to convict

Brown of multiple offenses based on only one instance of possession

of the two firearms and two boxes of ammunition. Id. at 390. Given

that this Court decided Dunford more than two years before Brown’s

conviction and that there has been no vacillation from its holding, the

error was plain. Further, the error affected Brown’s substantial rights

in that he was subjected to three additional special assessments of

$100 each and three additional convictions and concurrent sentences.

See Olano, 507 U.S. at 734; Hastings, 134 F.3d at 240. With respect

to the final consideration under Olano, we conclude that correcting

this error is an appropriate exercise of our discretion. 

Accordingly, we affirm one conviction of a violation of 18 U.S.C.

§ 922(g)(9) and reverse three. Because the district court sentenced

Brown on the basis of four courts and thus directed Brown to pay a

$100 special assessment for each count, we vacate his sentence and

remand this case for resentencing. We dispense with oral argument

because the facts and legal contentions are adequately presented in the

materials before the Court and argument would not aid the decisional

process. 

AFFIRMED IN PART, REVERSED IN PART,

AND REMANDED

UNITED STATES v. BROWN 3