                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 13-3543
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                              John Harry Woolsey, Jr.

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                     for the District of North Dakota - Fargo
                                  ____________

                              Submitted: May 12, 2014
                                Filed: July 17, 2014
                                  ____________

Before MURPHY, MELLOY, and BENTON, Circuit Judges.
                          ____________

MELLOY, Circuit Judge.

       A jury found John Harry Woolsey, Jr. guilty of two offenses: (1) being a felon
in possession of a firearm, and (2) being a felon in possession of ammunition, both
in violation of 18 U.S.C. § 922(g)(1). The district court1 sentenced Woolsey to 84


      1
        The Honorable Ralph R. Erickson, Chief Judge, United States District Court
for the District of North Dakota.
months' imprisonment. Woolsey appeals, arguing that his convictions are
multiplicitous and that § 922(g)(1) is unconstitutional under the Second Amendment.
We affirm.

                                          I.

      On April 20, 2012, Deputy Michael Gavere found Eric Burley in Burley's
vehicle in Ardoch, North Dakota. Burley was injured from a self-inflicted gunshot
wound, and he later died from his injuries. During the investigation into Burley's
suicide, Deputy Gavere recovered a .22 caliber pistol and a box of ammunition from
inside Burley's vehicle. Deputy Gavere eventually learned that the gun and
ammunition may have belonged to Woolsey.

        Deputy Gavere contacted Woolsey, and Woolsey agreed to talk to him.
Woolsey told Deputy Gavere that he purchased the gun a few years ago when he was
living in Montana. He said he purchased the gun at a yard sale in Wyoming, and that
at the time, he intended to use the gun to protect himself from bears because the noise
could scare away a bear. Woolsey was friends with Burley, and sometimes they shot
guns at targets, such as tin cans, together. Around December 2011, Woolsey gave
Burley the gun with the expectation that Burley would return it once Burley acquired
his own. Woolsey said he did not know what Burley intended to do with the gun. At
the time Woolsey gave it to Burley, he also gave him a handful of bullets.

       In early April 2012, Burley asked Woolsey if he wanted to go shooting with
him again. Burley asked Woolsey to bring ammunition. Burley told Woolsey he was
out of bullets and did not know where to buy more. Woolsey gave him a box of
ammunition that he said he bought at Wal-Mart. Roughly two weeks later, Burley
killed himself using the gun and ammunition from Woolsey.




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      After initially speaking with Woolsey, Deputy Gavere learned that Woolsey
was a convicted felon at the time Woolsey possessed the gun and ammunition.
Woolsey has felony convictions for aggravated assault and resisting arrest from 2001,
and a 2006 conviction for resisting arrest. Based on Deputy Gavere's investigation,
Woolsey was later indicted on two counts of being a felon in possession. Count One
alleged that Woolsey unlawfully possessed a firearm "[i]n or between December 2011
and April 20, 2012, in the District of North Dakota." Count Two alleged that
Woolsey unlawfully possessed ammunition "[o]n or about April 19 and 20, 2012, in
the District of North Dakota, and elsewhere."

       Prior to trial, Woolsey filed a motion to dismiss the indictment, alleging that
the felon-in-possession statute violated the Second Amendment. The district court
denied the motion. On August 21, 2013, a jury found Woolsey guilty of both
§ 922(g)(1) counts. The presentence report grouped both convictions into one group.
See U.S. Sentencing Guidelines Manual § 3D1.2. The district court sentenced
Woolsey to a below-guidelines sentence of 84 months' imprisonment. The district
court did not discuss at the sentencing hearing the fact that there were two counts of
conviction. The district court also did not allocate the total sentence between the two
counts.

                                          II.

      Woolsey appeals, arguing for the first time that the § 922(g)(1) counts are
multiplicitous and that, therefore, he should not have been convicted separately for
possessing both the gun and the ammunition. He also renews his argument
challenging the constitutionality of the felon-in-possession statute.




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                               A. Multiplicitous Counts

       Normally, this court would review de novo Woolsey's claim that the counts
were multiplicitous. See United States v. Platter, 514 F.3d 782, 785 (8th Cir. 2008).
However, Woolsey did not raise this claim before the district court, so we review for
plain error only. See United States v. Pirani, 406 F.3d 543, 550 (8th Cir. 2005) (en
banc). For Woolsey to prevail, he "must show that the district court committed an
error that is plain, i.e. clear under current law, that he was prejudiced by the error, and
that the error seriously affects the fairness, integrity, or public reputation of judicial
proceedings." United States v. Delgado, 653 F.3d 729, 735 (8th Cir. 2011).

       "The rule against multiplicitous prosecutions is based on the Fifth
Amendment's Double Jeopardy Clause, which 'protects against multiple punishments
for the same offense.'" United States v. Emly, 747 F.3d 974, 977 (8th Cir. 2014)
(citations omitted). When "an indictment includes more than one count charging the
same statutory violation," the court must determine "whether Congress intended the
facts underlying each count to make up a separate unit of prosecution." Id. (internal
quotation marks omitted).

       Woolsey bases his claim on United States v. Richardson, 439 F.3d 421, 422
(8th Cir. 2006) (en banc) (per curiam), which held that a defendant could not be
prosecuted on separate counts for being a felon in possession of a firearm and a drug
user in possession of the same firearm. In Richardson, there was only one firearm,
and the two counts charged the defendant with possessing the firearm on the same
date. Id. The court concluded that "Congress intended the 'allowable unit of
prosecution' to be an incident of possession regardless of whether a defendant
satisfied more than one § 922(g) classification, possessed more than one firearm, or
possessed a firearm and ammunition." Id. (quoting Bell v. United States, 349 U.S.
81, 81 (1955)). The Richardson court vacated the defendant's sentence and remanded



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to the district court to merge the counts of conviction into one and resentence the
defendant based on only one conviction under§ 922(g). Id. at 423.

       Woolsey argues that plain error occurred here because he was charged, tried
and convicted on two § 922(g) counts instead of one. Woolsey directs us to the fact
that the dates he possessed the gun and ammunition overlapped in the indictment
(December 2011 through April 20, 2012, and April 19–20, 2012, respectively).
Woolsey argues the 'multiplicitous' indictment may have had a "psychological effect
upon [the] jury by suggesting to it that [Woolsey] ha[d] committed not one but several
crimes." United States v. Sue, 586 F.2d 70, 71 (8th Cir. 1978) (per curiam). He also
argues that it is possible he received a longer sentence because he was charged with
two counts instead of one. See United States v. Street, 66 F.3d 969, 975 (8th Cir.
1995) ("The vice of multiplicity is that it may lead to multiple sentences for the same
offense." (citation omitted)).

       A felon's possession of both a firearm and ammunition comprises only one
offense, "barring proof that the firearms were obtained at different times or stored
separately." Richardson, 439 F.3d at 422; see also United States v. Cunningham, 145
F.3d 1385, 1398 (D.C. Cir. 1998); United States v. Hutching, 75 F.3d 1453, 1460
(10th Cir. 1996). Thus, where the prosecution seeks "more than one charge under
section 922(g), separate acquisition and storage of the weapons is an element of the
crimes charged." Cunningham, 145 F.3d at 1398. This element presents a question
of fact to be submitted to the jury, "not a question of law for the court." Id. at 1399.
The record here indicates that this element was never submitted to the jury.

      We conclude, however, that no plain error occurred. Woolsey's argument on
appeal that some overlapping time requires possession be charged in a single count
is a misunderstanding of the law. The test is not whether there was any period of
overlap, but whether the two items were separately acquired or stored. It is
undisputed on this record that Woolsey acquired the firearm and ammunition at

                                          -5-
separate times and in separate places, thus providing two separate "units of
prosecution." See Richardson, 439 F.3d at 422. Woolsey acquired the gun at a yard
sale in Wyoming several years before giving it to Burley, and he acquired the
ammunition at Wal-Mart in North Dakota more recently.

      While there are overlapping dates in the indictment for when Woolsey
possessed both the gun and the bullets, there was a months-long gap between when
Woolsey gave Burley the gun in December 2011 and when Woolsey gave Burley the
ammunition used to kill himself in April 2012. Thus, it is undisputed that the gun and
ammunition were stored separately during that time.

       Further, under plain error review, Woolsey cannot show he was prejudiced by
the decision to prosecute him on two counts. Woolsey's presentence report grouped
both counts into one group, see U.S.S.G. § 3D1.1, so Woolsey's base offense level
would not have changed if he was charged with only one possession count rather than
two. See U.S.S.G. § 2K2.1(a)(2) (setting base offense level at 24). In addition, the
district court sentenced Woolsey to a below-guidelines sentence and never
mentioned, at either the sentencing hearing or in the district court's statement of
reasons, the fact that Woolsey was convicted on two counts, rather than one. Because
Woolsey cannot show prejudice, his multiplicitous argument necessarily fails plain
error review.

                   B. Constitutionality of 18 U.S.C. § 922(g)(1)

       Woolsey next argues that 18 U.S.C. § 922(g)(1) is unconstitutional on its face
and as applied to him because it violates his rights under the Second Amendment.
The Eighth Circuit has previously rejected facial challenges to the constitutionality
of § 922(g)(1), see United States v. Joos, 638 F.3d 581, 586 (8th Cir. 2011), and we
likewise find Woolsey's facial challenge to be without merit.



                                         -6-
       To the extent the Eighth Circuit has left open the possibility that a person could
bring a successful as-applied challenge to § 922(g)(1), the Eighth Circuit has denied
similar claims from defendants with criminal histories similar to Woolsey. For
example, in United States v. Brown, 436 F. App'x 725, 726 (8th Cir. 2011) (per
curiam) (unpublished), this court stated the following:

      [The defendant] has not presented "facts about himself and his
      background that distinguish his circumstances from those of persons
      historically barred from Second Amendment protections." United States
      v. Barton, 633 F.3d 168, 174 (3d Cir. 2011). He does not allege, for
      example, that his stipulated prior felony conviction was for a non violent
      offense or that he is "no more dangerous than a typical law-abiding
      citizen." Id. [The defendant's] assertion that he possessed the gun for
      self defense is insufficient to successfully challenge his conviction under
      the felon in possession statute.

       Prior to trial, Woolsey stipulated that he had three prior felony convictions,
which included two convictions for resisting arrest and one for aggravated assault.
These are not non-violent crimes. Woolsey has not shown that he is "no more
dangerous than a typical law-abiding citizen." Brown, 436 F. App'x at 726. We
reject Woolsey's as-applied challenge to the constitutionality of § 922(g)(1).

                                          III.

      The judgment of the district court is affirmed.
                     ______________________________




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