                                                                           FILED
                           NOT FOR PUBLICATION                              OCT 12 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-30354

              Plaintiff - Appellee,              D.C. No. 1:10-cr-00091-RFC-1

  v.
                                                 MEMORANDUM *
LEMUEL THOMAS SMALL, AKA
Butch,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 12-30014

              Plaintiff - Appellee,              D.C. No. 1:10-cr-00091-RFC-2

  v.

CHRISTINA PILKINGTON SMALL,

              Defendant - Appellant.



                    Appeal from the United States District Court
                            for the District of Montana
                                  Billings Division

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

                                          1
                    Richard F. Cebull, District Judge, Presiding

                           Submitted October 10, 2012 **
                               Seattle, Washington

Before: TASHIMA, M. SMITH, and CHRISTEN, Circuit Judges.

      Defendants-Appellants Lemuel and Christina Small appeal their jury

convictions of being felons in possession of firearms and ammunition in violation

of 18 U.S.C. § 922(g)(1). As the facts and procedural history are familiar to the

parties, we do not recite them here except as necessary to explain our disposition.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      The Second Amendment “guarantee[s] the individual right to possess and

carry weapons in case of confrontation,” but this right does not extend to “felons

and the mentally ill[.]” District of Columbia v. Heller, 554 U.S. 570, 592, 626

(2008); see also United States v. Vongxay, 594 F.3d 1111, 1114 (9th Cir. 2010)

(“[n]othing in Heller can be read legitimately to cast doubt on the constitutionality

of § 922(g)(1).”). Accordingly, the district court properly determined that Mr.

Small’s prosecution did not infringe on his Second Amendment rights.

      We also reject Mr. Small’s contention that it violates the Equal Protection

Clause to allow those convicted of certain white collar crimes identified in 18


       **     The panel has unanimously concluded this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).

                                          2
U.S.C. § 921(a)(20)(A) to possess firearms under § 922(g), but not a felon

convicted of drug trafficking. Convicted felons do not have a fundamental right to

possess firearms, Vongxay, 594 F.3d at 1119, so rational basis review applies. Id.

Because Congress could rationally conclude that firearms are more likely to be

involved in drug conspiracies than they are in monopolization attempts or other

business-related crimes, Mr. Small’s Equal Protection challenge fails.

      Additionally, the district court did not abuse its discretion in denying Mr.

Small the opportunity to present a surrebuttal argument. The district court properly

followed the format for closing arguments specified by Federal Rule of Criminal

Procedure 29.1. The Federal Rules of Criminal Procedure are promulgated by the

Supreme Court and are presumptively constitutional. Burlington N. R.R. Co. v.

Woods, 480 U.S. 1, 6 (1987). Mr. Small’s assertion that his inability to present a

surrebuttal argument impermissibly shifted the burden of proof from the

government to Mr. Small is contrary to authority and reason.

      Finally, we reject Ms. Small’s argument that the evidence against her was

insufficient to support her conviction as a felon in possession of firearms and

ammunition. It is undisputed that firearms and ammunition were in the Smalls’

home. Tony Larvie, a special agent for the Bureau of Indian Affairs, testified at

trial that Mr. Small told him that Mr. and Ms. Small were the only residents of the


                                          3
home.1 Larvie testified that the firearms were in the bedroom closet, and

ammunition was in plain view. Mr. Small testified at trial that both Mr. Small and

Ms. Small stored possessions in the bedroom closet. Accordingly, there was

sufficient evidence for a rational jury to convict Ms. Small of constructive

possession of firearms and ammunition.

      AFFIRMED.




      1
         Ms. Small did not object to the admission of this testimony against her or
seek a limiting instruction.

                                          4
