UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-4101

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

HENRY LEE HARRIS, a/k/a Henry Fletcher Peterson, 

 Defendant – Appellant. 

Appeal from the United States District Court for the Western 

District of North Carolina, at Charlotte. Richard L. Voorhees, 

District Judge. (3:04-cr-00166-RLV-CH-1) 

Submitted: April 21, 2009 Decided: June 12, 2009 

Before WILKINSON, TRAXLER, and GREGORY, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

Sandra J. Barrett, Asheville, North Carolina, for Appellant. 

Gretchen C. F. Shappert, United States Attorney, Charlotte, 

North Carolina; Amy E. Ray, Assistant United States Attorney, 

Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. 
PER CURIAM: 

 Henry Lee Harris appeals his conviction for possession 

of ammunition by a person previously convicted of a felony, 

contending that the district court erred by refusing to instruct 

the jury on his defense of innocent possession. He also appeals 

his 180-month sentence, arguing that the district court should 

have departed significantly downward from the applicable 

guideline range based on his taking possession of the ammunition 

for the purpose of avoiding greater harm. Finding no error, we 

affirm Harris’ conviction and sentence. 

 During a consent search, a box of ammunition was 

discovered on the headboard of the bed in Harris’ girlfriend’s 

bedroom. Harris presented evidence that he had found the 

ammunition on the ground in front of the apartment, brought the 

box into the apartment, and asked his girlfriend to dispose of 

it so that kids would not get to it. He requested that the 

court instruct the jury that innocent possession was a defense 

to the charge of possession of ammunition by a convicted felon. 

The district court denied the request, finding that Harris’ 

requested charge was included in the charge on the element of 

“knowingly” and that Harris did not qualify for such an 

instruction because he did not make a sufficient showing of 

effort to get the ammunition out of his possession. 

2 
 In a case decided after Harris’ conviction, this court 

held that the text of 21 U.S.C. § 922(g)(1) (2006) “simply does 

not allow for the [innocent possession] exception.” United 

States v. Gilbert, 430 F.3d 215, 218 (4th Cir. 2005).* The court 

stated: “We find such a defense to be wholly absent from the 

statutory text and decline to subvert the congressional scheme 

by imposing a judicially crafted exception. We moreover 

conclude that even if the defense did exist, it would not apply 

to the facts of this case.” We find that the same rationale 

applies in this case. 

 Harris argues that the Due Process Clause and United 

States v. Dixon, 548 U.S. 1 (2006), require that federal courts 

allow the use of common law defenses to which defendants are 

entitled, and he contends that innocent possession is one such 

common law defense. Even if this was an available defense, we 

find that the district court properly refused the instruction 

because Harris failed to qualify for such a defense by not 

making an effort to dispose of the ammunition in an expedient 

manner. Harris gave the ammunition to his girlfriend. It then 

remained in the bedroom for at least a day before the officers 

discovered it during the consent search. We find that, even if 

 *

 Harris was convicted in May 2005. The Gilbert decision 

issued on November 28, 2005. 

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the court were to recognize an innocent possession defense, 

Harris would not qualify. Therefore, the district court did not 

abuse its discretion by refusing to give the requested 

instruction. United States v. Stotts, 113 F.3d 493, 496 (4th 

Cir. 1997). 

 Harris also argues that the district court improperly 

applied the sentencing factors in determining an appropriate 

sentence. He asserts that the court should have granted him a 

significant downward departure based on the innocent reason he 

had for possessing the ammunition. We review sentences imposed 

by district courts for reasonableness, applying an abuse of 

discretion standard. Gall v. United States, 128 S. Ct. 586, 597 

(2007); see United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 

2007). When sentencing a defendant, a district court must: 

(1) properly calculate the guideline range; (2) treat the 

guidelines as advisory; (3) consider the factors set out in 18 

U.S.C.A. § 3553(a) (West 2000 & Supp. 2008); and (4) explain its 

reasons for selecting a sentence. Pauley, 511 F.3d at 473. We 

presume that a sentence within the properly calculated 

sentencing guidelines range is reasonable. United States v. 

Allen, 491 F.3d 178, 193 (4th Cir. 2007); see also Rita v. 

United States, 127 S. Ct. 2456, 2462-69 (2007) (upholding 

application of rebuttable presumption of correctness of within 

guideline sentence). 

4 
 The district court followed the necessary steps in 

sentencing Harris. The district court properly determined that 

the advisory guideline range applicable to Harris was 210 to 262 

months imprisonment. The court then properly considered the 

guideline range and the § 3553(a) factors to fashion an 

appropriate sentence. After finding that Harris’ possession of 

the ammunition was “done to avoid a greater harm to leaving the 

ammunition out where children could be injured or otherwise 

harmed by it,” the court departed downward from the guidelines 

range under U.S. Sentencing Guidelines Manual § 5K2.11 (2007), 

and imposed a sentence of 180 months. The court clarified that 

this thirty-month reduction was “slightly more than a one-level 

reduction” and that Harris was more deserving of that reduction 

than others “because of the circumstances concerning his 

motivation for handling the ammunition, and the fact that the 

charges were not brought in the context of any apparent real or 

contemplated use of the firearms found at the house.” We find 

that the sentence imposed was reasonable and that the district 

court did not abuse its discretion in sentencing Harris. Rita, 

127 S. Ct. at 2462-69. 

 Having reviewed the issues asserted on appeal and 

finding no error, we affirm Harris’ conviction and sentence. We 

dispense with oral argument because the facts and legal 

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contentions are adequately presented in the materials before the 

court and argument would not aid the decisional process. 

AFFIRMED