FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

NOV 17, 2006

THOMAS K. KAHN

CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 06-10949

Non-Argument Calendar

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D.C. Docket No. 05-00236-CR-CG

UNITED STATES OF AMERICA,

 

Plaintiff-Appellee,

versus

HAROLD SCOTT BAKER,

 Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Alabama 

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(November 17, 2006)

Before EDMONDSON, Chief Judge, DUBINA and HULL, Circuit Judges.

PER CURIAM:

Defendant-Appellant Harold Scott Baker appeals his conviction after a jury

trial for possession of firearms by an unlawful user of a controlled substance, 18

U.S.C. § 922(g)(3). No reversible error has been shown; we affirm.
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During a search of Baker’s house, police officers discovered items including

eight firearms (some of which were loaded with ammunition), a marijuana pipe, a

marijuana grinder, rolling papers, scales, a small amount of marijuana, and

marijuana stems and seeds. Baker first argues that the district court erred in

denying his motion to suppress evidence seized by officers from his home. He

asserts that he did not consent voluntarily to the search of his home because (1)

officers told him that they were not looking for “small stuff” and would be “on

their way” if they did not find a methamphetamine lab or marijuana plants and (2)

officers threatened to obtain a search warrant if he did not consent to the search of

his home.

We review a district court’s denial of a defendant’s motion to suppress

under a mixed standard of review, reviewing the district court’s findings of fact for

clear error and its application of law to those facts de novo. See United States v.

Gil, 204 F.3d 1347, 1350 (11th Cir. 2000). And we construe the facts in the light

most favorable to the party prevailing in the district court, in this case the

government. United States v. Santa, 236 F.3d 662, 668 (11th Cir. 2000). 

A warrantless search may be conducted in the absence of probable cause or

reasonable suspicion when voluntary consent is obtained. United States v. Blake,

888 F.2d 795, 798 (11th Cir. 1989). “The question of voluntariness is one of fact
 To the extent that Baker argues that officers lacked authority to approach his house and ask him 1

for consent to enter, we determine that this argument is without merit.

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to be determined from the totality of the circumstances, and the trial court’s

voluntariness determination must not be reversed on appeal unless clearly

erroneous.” United States v. Ramirez-Chilel, 289 F.3d 744, 752 (11th Cir. 2002)

(quotation and emphasis omitted). To determine whether consent was given

voluntarily, we consider (1) whether the defendant was free to leave; (2) whether

coercive police procedures were used; (3) the extent of the defendant’s

cooperation or awareness of a right to refuse consent; (4) whether the defendant

could refuse to consent; (5) the extent of the defendant’s education and

intelligence; and (6) the defendant’s belief that no incriminating evidence would

be found. Id. 

After a careful review of the record, we conclude that the district court did

not clearly err in determining that Baker’s consent to search his home was

voluntary. Baker consented to the search of his home under non-threatening

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circumstances and after consulting with his wife. He was not detained by the

police when he consented to the search. Baker provided verbal consent to officers

more than once; and he also signed a consent form. We are not persuaded by

Baker’s argument that officers misled him into consenting to the search based on
 Indeed the discovery of marijuana, drug paraphernalia, and several weapons, some of which were

2

loaded with ammunition, would not reasonably be considered insignificant.

 At the suppression hearing, Officer Patrick Donnelly testified that, after Baker pointed out a bag 3

in his house containing marijuana, Officer Donnelly told Baker that Officer Donnelly could go to

a judge and attempt to obtain a search warrant. Officer Benjamin Burke, who also participated in

the search of Baker’s house, testified that officers told Baker that they could go talk to a judge about

obtaining a search warrant. But Baker’s wife testified that officers told Baker that, if he did not

consent to a search, the officers would obtain a search warrant. Because we must consider the facts

in the light most favorable to the government, see Santa, 236 F.3d at 668, we have relied on the

officers’ testimony in this instance.

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his belief that officers would arrest him only if they discovered marijuana plants or

a methamphetamine operation because they were not looking for “small stuff.”2

And Baker’s consent to search was not vitiated because officers told him that they

could attempt to obtain a search warrant if he did not consent to the search. See 3

United States v. Garcia, 890 F.2d 355, 361 (11th Cir. 1989) (concluding that

consent was given voluntarily when officers told defendant that if he refused to

consent to a full search, the officers would attempt to obtain a warrant). 

Therefore, we affirm the denial of Baker’s motion to suppress evidence.

Section 922(g)(3) provides that “[i]t shall be unlawful for any person . . .

who is an unlawful user of or addicted to any controlled substance . . . to possess

in or affecting commerce . . . any firearm.” Baker contends that the evidence

presented at trial was insufficient to prove that he was an “unlawful user” of a

controlled substance under section 922(g)(3) because no evidence was presented

that he was using marijuana in an ongoing manner. 
 In reviewing challenges to sentencing enhancements under U.S.S.G. § 2K2.1, which provides,

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among other things, for an enhanced offense level if a defendant was a “prohibited person,” we have

explained -- using language from section 922(g)(3) -- that a “prohibited person” includes a person

“who is an unlawful user of or addicted to any controlled substance.” United States v. Edmonds, 348

F.3d 950, 953 (11th Cir. 2003). An unlawful user of marijuana includes a person whose marijuana

use was “regular, ongoing, and contemporaneous with his firearm possession.” Id. at 953-54; see

also United States v. Augustin, 376 F.3d 135, 138-39 (3d Cir. 2004) (defining “unlawful user”

pursuant to section 922(g)(3) as a regular user of a controlled substance for time “proximate to or

contemporaneous with the possession of a firearm”).

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We review challenges to the sufficiency of the evidence de novo, resolving

all reasonable inferences from the evidence in favor of the jury’s verdict. See

United States v. Rudisill, 187 F.3d 1260, 1267 (11th Cir. 1999). We must affirm

Baker’s conviction “unless, under no reasonable construction of the evidence,

could the jury have found [him] guilty beyond a reasonable doubt.” United States

v. Garcia, 405 F.3d 1260, 1269 (11th Cir. 2005).

Here, sufficient evidence was presented at Baker’s trial that he was an

unlawful user of marijuana contemporaneously with his possession of firearms.4

At Baker’s home, officers discovered marijuana, marijuana seeds and stems,

several items of drug paraphernalia -- including pipes, rolling papers, scales, and a

grinder -- and many firearms. During Baker’s trial, Investigator Clint Cadenhead

testified that the quantity of marijuana seeds and stems discovered at Baker’s

house probably would yield over 100 marijuana cigarettes. Baker admitted to

officers during the search of his house that he used marijuana to self-medicate; and
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he told federal agent Robert Tolbert that he had been smoking marijuana around

the time that officers searched his home. In addition, Baker’s wife testified that

Baker smoked marijuana because of stress resulting from a friend’s death that

occurred just months before the search of his house. We conclude that Baker’s

conviction was supported by sufficient evidence.

Baker next asserts that 18 U.S.C. § 922(g)(3) is unconstitutionally vague as

applied to him because the statute failed to put him on notice that the manner and

extent to which he used marijuana qualified him as an “unlawful user.” We

review de novo whether a statute is unconstitutionally vague. See United States v.

Biro, 143 F.3d 1421, 1426 (11th Cir. 1998). “[T]he void-for-vagueness doctrine

requires that a penal statute define 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.” Kolender v.

Lawson, 103 S.Ct. 1855, 1858 (1983).

As we have discussed, the evidence in this case -- which indicated that

Baker used marijuana on an ongoing basis, including around the time of the search

of his home, and possessed several firearms -- was sufficient to sustain Baker’s

conviction. We reject Baker’s contention that he was not on notice that his

marijuana use and firearms possession violated section 922(g)(3).

AFFIRMED.