                                                                     United States Court of Appeals
                                                                              Fifth Circuit
                                                                              F I L E D
                    IN THE UNITED STATES COURT OF APPEALS
                            FOR THE FIFTH CIRCUIT                              July 25, 2007

                                                                         Charles R. Fulbruge III
                                                                                 Clerk
                                   No. 06-20165
                                 Summary Calendar


                             UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                        versus

                                PETE JOE VILLEGAS,

                                                              Defendant-Appellant.

                           --------------------
               Appeal from the United States District Court
                    for the Southern District of Texas
                           USDC No. 4:03-CR-238
                           --------------------

Before JONES, Chief Judge, and KING and DAVIS, Circuit Judges.

PER CURIAM:

               Pete Joe Villegas was convicted by a jury of one count of

being a felon in possession of a firearm in violation of 18 U.S.C.

§§ 922(g)(1) (count one), and one count of possessing a firearm

that     was    not     registered     to   him    in   the    National       Firearms

Registration and Transfer Records, in violation of 26 U.S.C.

§§     5861(a),       5871   (count    two).       Villegas     appeals,       arguing

principally that the district court erred by failing to instruct

the jury that it had to make a unanimous finding as to at least one

of the nine firearms alleged in count one.                  We AFFIRM.

               We   review    the     district    court’s     refusal    to    give    a

requested jury instruction for abuse of discretion.                  United States
v. Correa-Ventura, 6 F.3d 1070, 1076 (5th Cir. 1993).                  This court

has not had occasion to address the precise issue presented here -

whether a specific unanimity instruction is required when multiple

firearms are alleged in a single count charging a violation of

§ 922(g).       Nevertheless, the opinion in Correa-Ventura and the

Supreme Court’s subsequent decision in Richardson v. United States,

526   U.S.     813   (1999),      establish   an    analytical    framework     for

determining whether unanimity as to underlying facts supporting a

conviction is required.           Also persuasive are the opinions of our

sister circuits in United States v. Verrecchia, 196 F.3d 294 (1st

Cir. 1999), and United States v. DeJohn, 368 F.3d 533 (6th Cir.

2004).

               Although the right to a jury trial carries with it a

right to a unanimous verdict, absolute factual concurrence is not

mandatory and, indeed, would be unworkable.                 See Correa-Ventura,

6 F.3d at 1077-78.          The duty of the court is to determine which

facts    are    necessary    to    constitute      the   crime   and   to   require

consensus on those facts.             Id.     In making this determination,

courts    should     consider      several    factors,     including    statutory

language and construction, legislative intent, historical treatment

of the crime by the courts, duplicity concerns with respect to

defining the offense, and the likelihood of juror confusion in

light of the specific facts of the case.                 Id. at 1082.       A court

should also consider the risk that allowing the jury to avoid

addressing specific factual details will cover up disagreement

among the jurors about the defendant’s conduct, or that the jury

                                         2
might convict based on evidence that generally paints the defendant

in a bad light rather than focusing on the facts of the case.            See

Richardson, 526 U.S. at 820.          Further, a court should ask whether

defining a crime that allows a jury to convict while disagreeing

about means “risks serious unfairness and lacks support in history

or tradition.”     Id.

            To begin, the plain language of § 922(g) prohibits any

person falling into one of nine categories from “possess[ing] in or

affecting   commerce,      any     firearm   or   ammunition.”   18   U.S.C.

§ 922(g)(1).   This language states that the element of the offense

is possession of any firearm.            See Verrechia, 196 F.3d at 298.

Moreover, the fact that Congress juxtaposed an extensive list of

specific categories of persons prohibited from such possession -

felons, fugitives, illegal drug users and addicts, the mentally

ill, illegal aliens, persons discharged dishonorably from the

military, citizens who have renounced their citizenship, persons

subject to certain restraining orders, and persons convicted of

domestic violence - with the general term “any firearm” indicates

that the focus of § 922(g) is on the types of persons prohibited

from possession.     See id. at 299.

            The penalty provisions also emphasize the felon rather

than the firearm, as they turn not on the nature or quantity of

weapons but on the characteristics of the offender, such as his

knowing possession, his prior convictions, and whether the offender

qualifies for certain exceptional relief because he is not a threat

to public safety.        See id.

                                        3
           The legislative history of § 922(g) likewise indicates

that the statute’s emphasis is on preventing certain types of

persons from having access to firearms.            See Ball v. United States,

470 U.S. 856, 863 n.12 (1985) (noting statement of Senator Tydings

that the statute was designed primarily to restrict access of

criminals,   juveniles,        and    fugitives    to   handguns);    Verrechia,

196 F.3d at 300 (setting out legislative history demonstrating that

Congress’s intent was to keep firearms out of the hands of felons

and others     who    could    be    dangerous);    United   States   v.   Berry,

977 F.2d 915, 919 (5th Cir. 1992) (the “evil Congress sought to

suppress by section 922 was the arming of felons; the section is

based on the status of the offender and not the number of guns

possessed”).

           With      respect   to    duplicity     concerns,   a   violation   of

§ 922(g) based on simultaneous possession of multiple firearms has

been treated uniformly as a single offense regardless of the number

of weapons involved.          See United States v. Hodges, 628 F.2d 350,

351 (5th Cir. 1980) (discussing 18 U.S.C. § 1202, the predecessor

to § 922(g)); see also Verrechia, 196 F.3d at 297-98.                        This

mitigates any danger of duplicity because alternative factual

scenarios will support only one crime even if all are proven.                  See

Correa-Ventura, 6 F.3d at 1085.

           Turning to the facts of this particular case, it is clear

that there was little to no likelihood of juror confusion.                 See id.

at 1086.   The firearms were all found in a residence where Villegas

was located, including one firearm in a bag that Villegas attempted

                                         4
to grab while being arrested, one firearm under the mattress pad of

the bed Villegas had been using, and several firearms in a bag in

the bedroom between the bed and the wall.                         In addition, the

district court instructed the jury that it had to find that

Villegas “knowingly possessed one or more firearms as charged” and

told the jury that its verdict “must be unanimous on each count of

the indictment.”      These facts weigh against a finding of juror

confusion.

          In a similar vein, given the nature of the offense and

the   uncomplicated       facts,    there          was   little    risk   of   juror

disagreement about Villegas’s underlying conduct, i.e., possession

of a firearm, which mitigates the significance of any disagreement

about the particular firearm.         See Verrechia, 196 F.3d at 301.             It

is also unlikely that the lack of a specific unanimity instruction

increased the danger that the jury would ignore underlying factual

details and convict on an improper basis. See id.; see also

Richardson, 526 U.S. at 810.

          For all of these reasons, the district court did not

abuse its discretion in refusing to instruct the jury that it had

to make a unanimous finding with respect to at least one of the

firearms set forth in count one of the indictment.                   We do not mean

to suggest, however, that such an instruction is never required in

a § 922(g) case, and we decline to speculate as to which factual

scenarios might require such an instruction.                 See Correa-Ventura,

6 F.3d at 1087; see also DeJohn, 368 F.3d at 542.                     Rather, such

determinations     must     be     made       on    a    case-by-case     basis   in

                                          5
consideration of the factors enunciated in Richardson and in

Correa-Ventura, 6 F.3d at 1087.

             In a second point of error, Villegas argues, solely to

preserve the issue for Supreme Court review, that § 922(g) is

unconstitutional as applied because it requires a substantial

effect on interstate commerce, while the facts here established

only that the firearms traveled in interstate commerce at some

point   in    the   past.    As   we   have   repeatedly   held,    “the

constitutionality of § 922(g) is not open to question.”            United

States v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001).

             For the foregoing reasons, the judgment of the district

court is AFFIRMED.




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