                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             APR 3, 2007
                              No. 06-12418                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                     D. C. Docket No. 05-00211-CR-WS

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

FLOYD DEWAYNE DAVIS,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                    for the Southern District of Alabama
                       _________________________

                               (April 3, 2007)

Before BLACK, CARNES and MARCUS, Circuit Judges.

PER CURIAM:

     Floyd Dewayne Davis appeals his convictions for (1) making a false
statement in connection with the acquisition of a firearm, in violation of 18 U.S.C.

§ 922(a)(6); (2) causing a federal firearms licensee to make a false statement, in

violation of 18 U.S.C. § 924(a)(1)(A); and (3) possession of a firearm by an

unlawful user of a controlled substance, in violation of 18 U.S.C. § 922(g)(3).

Davis’ sole contention in this appeal is that the district court committed reversible

error by refusing to adopt his proposed jury instructions. For the reasons set forth

below, we affirm.

                                          I.

      Davis’ convictions stem from his purchase of two assault rifles from a

Mobile, AL gun dealer. He bought the first assault rifle on December 13, 2004 and

the second one on March 21, 2005. Before allowing Davis to purchase either rifle,

the gun dealer required Davis to fill out ATF Form 4473, a form used by the

Bureau of Alcohol, Tobacco, and Firearms to identify people who purchase

firearms illegally. One question on Form 4473, question 12(e), asks whether the

prospective purchaser “is an unlawful user of, or addicted to, marijuana, or any

depressant, stimulant, or narcotic drug, or any other controlled substance.” Davis

answered “no” to question 12(e) both times that he filled out Form 4473.

      Subsequent events proved that Davis was lying when he answered question

12(e). On March 29, 2005, two Mobile police detectives saw Davis drive through



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two red lights in his black Hummer. When the detectives pulled Davis over, they

noticed that one of the assault rifles he had purchased was laying on the back seat.

They also found marijuana and codeine inside of the vehicle. After the detectives

found the drugs, they asked Davis about his drug use, and he told them that he

smoked marijuana every day.

      About four months later, on July 28, 2005, Davis was again pulled over for

traffic violations. This time law enforcement officials found more marijuana inside

of Davis’ vehicle. Apparently, after Mobile law enforcement officers found the

drugs and assault rifle inside of Davis’ vehicle, they alerted the ATF, and the ATF

began investigating how Davis had acquired the firearm. As part of that

investigation the ATF searched Davis’ home. During the search they found

marijuana, codeine, drug paraphernalia, and ammunition for the assault rifles.

       On August 25, 2005, the government obtained a five-count superceding

indictment against Davis. The counts against Davis included (1) making a false

statement in connection with the acquisition of a firearm, in violation of 18 U.S.C.

§ 922(a)(6) (counts one and three); (2) causing a federal firearms licensee to make

a false statement, in violation of 18 U.S.C. § 924(a)(1)(A) (counts two and four);

and (3) possession of a firearm by an unlawful user of a controlled substance, in

violation of 18 U.S.C. § 922(g)(3) (count five).



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      The false statement that Davis was charged with in counts one through four

was his representation on Form 4473 that he was not an unlawful user of marijuana

or any other controlled substance. He was tried on all five counts on December 1,

2005. Before instructing the jury on the charges against Davis, the district court

held a charge conference. At that conference Davis’ attorney offered two proposed

jury instructions. The first instruction, a proposed definition of “unlawful user,”

was taken from a Fifth Circuit opinion. It reads as follows:

      [A]n “unlawful user” is one who uses narcotics so frequently and in
      such quantities as to lose the power of self control and thereby pose a
      danger to the public morals, health, safety, or welfare. In other words,
      an “unlawful user” is someone whose use of narcotics falls just short
      of addiction, as that term is defined by the Controlled Substances Act.

United States v. Herrera, 289 F.3d 311, 323–24 (5th Cir. 2002), vacated by 300

F.3d 530 (5th Cir. 2002) (en banc), abrogation recognized by United States v.

McCowan, 469 F.3d 386 (5th Cir. 2006). The second of Davis’ proposed jury

instructions was taken from a Ninth Circuit case. It reads as follows:

      [I]f a word has two meanings and if the answer to a question is
      literally true under one meaning of a word, the answer cannot be said
      to be false because, by some process of interpretation, including the
      determination of congressional purpose, a second meaning might be
      given to the word.

United States v. Isaacs, 539 F.2d 686, 688 (9th Cir. 1976). It appears from Davis’

brief that he sought to have the second proposed instruction submitted to the jury



                                          4
because some of the testimony at trial suggested that ATF officers and the

employees of the gun dealership held different “definitions as to what constitutes

an unlawful user.”

      The district court did not give either proposed instruction. Instead, the

district court instructed the jury as follows:

             The term “unlawful user of a controlled substance” means a
      person who uses a controlled substance in a manner other than as
      prescribed by a licensed physician.
             The Defendant must have been actively engaged in use of a
      controlled substance during the period of time he allegedly made a
      false statement or allegedly possessed the firearm. But the law does
      not require that he used the controlled substance at the precise time he
      allegedly made the false statements in Counts One through Four or
      allegedly possessed the firearm in Count Five.
             An inference that a person was a user of controlled substances
      may be drawn from the evidence of a pattern of use or possession of a
      controlled substance that reasonably covers the time that the firearm
      was possessed.

      Davis’ attorney made no specific objection to the district court’s omission of

his proposed definition of “unlawful user,” but he did make a specific objection to

the district court’s omission of the proposed “multiple meanings” instruction. The

district court overruled Davis’ objection, stating that the proposed instruction was

“(a) confusing and (b), not a correct statement of the law.” The jury convicted

Davis on all five counts.




                                            5
                                           II.

       We review the district court’s refusal to give a proposed jury instruction for

abuse of discretion. United States v. Klopf, 423 F.3d 1228, 1241 (11th Cir. 2005),

cert. denied, 126 S. Ct. 1931 (2006). “A trial judge’s refusal to give a requested

instruction will warrant a new trial only if (1) the requested instruction was

substantively correct, (2) the court’s charge to the jury did not cover the gist of the

instruction, and (3) the failure to give the instruction substantially impaired the

defendant’s ability to present an effective defense.” United States v. Roberts, 308

F.3d 1147, 1153 (11th Cir. 2002).

       Each of Davis’ proposed jury instructions relate to the term “unlawful user.”

His argument for the first proposed instruction is that the statute’s failure to define

the term “unlawful user” created a situation where the Fifth Circuit’s definition in

Herrera, 289 F.3d at 323–24, since abandoned, should have been included.

       Although we normally review a district court’s refusal to give a proposed

jury instruction for abuse of discretion, Klopf, 423 F.3d at 1241, Davis did not

object to the district court’s refusal to offer his first proposed instruction.

Consequently, our review is for plain error. See United States v. Dudley, 463 F.3d

1221, 1227 (11th Cir. 2006). To satisfy his burden under a plain error review the

defendant must demonstrate (1) an error, (2) that is plain, and (3) that affects



                                             6
substantial rights. United States v. Olano, 507 U.S. 725, 730–32, 113 S. Ct. 1770,

1776 (1993).

      Davis has not shown any error, much less a plain one. The Fifth Circuit has

vacated the holding of the case from which Davis extracted his proposed

instruction. See McCowan, 469 F.3d at 391–92. The district court could not

possibly have committed a plain error by refusing to offer a jury instruction that

was based on a legal definition that has never been part of the law of this circuit

and is based on the decision of another circuit that was itself vacated en banc.

      Because Davis did properly object to the district court’s failure to consider

his second proposed jury instruction, we review the district court’s decision for an

abuse of discretion. Klopf, 423 F.3d at 1241. Davis’ argument in support his

second, “mixed meaning” instruction proceeds as follows: (1) an ATF agent, an

employee of the gun dealership, and a manager of the gun dealership all testified

that they did not know the legal meaning of the term “unlawful user” as defined in

18 U.S.C. §§ 922, 924; (2) their testimony shows that the term “unlawful user” is

ambiguous; and (3) because the term is ambiguous, the jury could not properly

discharge its duties without the aid of the “mixed meaning” instruction.

      Davis’ argument is not persuasive. We have previously defined an unlawful

user as a person whose drug use is “ongoing and contemporaneous with his firearm



                                           7
possession.” United States v. Edmonds, 348 F.3d 950, 953–54 (11th Cir. 2003)

(quoting United States v. Bernardine, 73 F.3d 1078, 1082 (11th Cir. 1996)). The

district court’s instruction was consistent with that definition, and we have never

required a “mixed meaning” instruction in the context of 18 U.S.C. §§ 922, 924.

Thus, the district could was under no obligation to submit Davis’ multiple-

meanings instruction to the jury. Moreover, Davis has not shown how the district

court’s refusal to the instruction impaired his ability to present an effective

defense. See Klopf, 423 F.3d at 1241. As a result, he has not carried his burden of

showing that the district court abused its discretion by refusing his second

proposed instruction.

      There is one more item to address, however. Under the “Nature of Offense”

section on the first page of the district court’s judgment, the court inadvertently

transposed the description of the offense that Davis was charged with in counts one

and three in the superceding indictment with the description of the offense that

Davis was charged with in counts two and four of the indictment. We therefore

vacate the district court’s judgment and remand this case to the district court for the

limited purpose of allowing it to correct that clerical error. See United States v.

Anderton, 136 F.3d 747, 751 (11th Cir. 1998) (remanding with directions to the

district court to correct the clerical errors where the statute cited in the judgment



                                            8
and commitment order was incorrect). Because this error does not affect Davis’

substantial rights, it does “not prejudice the defendant in any reversible way.”

United States v. Diaz, 190 F.3d 1247, 1252–53 (11th Cir. 1999).

      AFFIRMED IN PART; VACATED AND REMANDED IN PART.




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