                     NONPRECEDENTIAL DISPOSITION
                       To be cited only in accordance with
                               Fed. R. App. P. 32.1



           United States Court of Appeals
                            For the Seventh Circuit
                            Chicago, Illinois 60604

                           Submitted February 13, 2008
                            Decided February 14, 2008

                                     Before

                   Hon. JOEL M. FLAUM, Circuit Judge

                   Hon. TERENCE T. EVANS, Circuit Judge

                   Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 07-1226

UNITED STATES OF AMERICA,                   Appeal from the United States District
    Plaintiff-Appellee,                     Court for the Northern District of
                                            Indiana, South Bend Division
      v.
                                            No. 06 CR 3
JEFFREY D. KIRKLAND,
     Defendant-Appellant.                   Allen Sharp,
                                            Judge.

                                    ORDER

      Jeffrey Kirkland was sentenced to 180 months of imprisonment after a jury
found him guilty of possession of a firearm by a felon. See 18 U.S.C. § 922(g)(1).
Kirkland filed a notice of appeal, but his newly appointed appellate attorneys now
move to withdraw because they cannot discern a nonfrivolous basis for appeal. See
Anders v. California, 386 U.S. 738 (1967). Kirkland responded to our invitation to
comment on counsel’s motion. See CIR. R. 51(b). We confine our review to the
potential issues identified in counsel’s facially adequate brief and in Kirkland’s
response. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).

      At trial John Sheets, the owner of Three Sheets Bar in Michigan City,
Indiana, testified for the government that Kirkland looked intoxicated when he
No. 07-1226                                                                    Page 2

entered the bar on October 7, 2005. Sheets refused to serve him, and Kirkland left.
Shortly thereafter, according to Sheets, Kirkland came back, placed a pistol on the
bar, and asked for a beer. Sheets grabbed the gun and asked Kirkland if he had a
permit. Kirkland told him that the permit was in his truck and left to retrieve it,
yet never returned. The next day, Sheets continued, Kirkland’s mother came in and
said the gun was her husband’s and asked for it back. Sheets, though, had already
given it to the police.

        Kirkland, testifying on his own behalf, admitted that he was drunk on that
night. But he maintained that he found the gun in the bar parking lot and brought
it inside to keep it away from children who might play in the lot. At the time, he
added, he was unaware that his mother (who died before trial) had put the gun in
his truck that day while her car was being serviced. He speculated that it fell out
earlier without him noticing. Kirkland denied asking again for a beer when he
placed the gun on the bar.

       Jack Langford, a friend of Kirkland’s mother and acquaintance of Sheets,
also testified for Kirkland. He claimed that Sheets later told him that Kirkland had
said, when he brought the gun in, that he found it in the parking lot. On rebuttal,
however, Sheets denied Langford’s account and testified that Kirkland had never
mentioned finding the gun in the parking lot.

       At the close of the evidence, Kirkland proposed a jury instruction on his
defense that he innocently possessed the pistol. The district court concluded that
the instruction misstates the law and refused to give it. The jury then returned a
guilty verdict, and the court, relying on the presentence report accepted by both
sides without objection, calculated a guidelines imprisonment range of 188 to 235
months based on a total offense level of 33 and a criminal history category of IV.
Since both sides agreed that a below-guidelines sentence was sufficient, the court
sentenced Kirkland, an armed career criminal, to the 180-month mandatory
minimum. See 18 U.S.C. § 924(e)(1).

        In their Anders submission counsel first consider challenging the district
court’s refusal to give Kirkland’s proposed jury instruction but conclude that the
argument would be frivolous because the instruction misstates the law. We agree.
A defendant is entitled to his proposed jury instruction on a defensive theory if it
correctly states the law, is supported by the evidence, is not already covered by the
court’s charge, and is necessary to assure a fair trial. United States v. Prude, 489
F.3d 873, 882 (7th Cir. 2007); United States v. Al-Shahin, 474 F.3d 941, 947 (7th
Cir. 2007). Here, Kirkland proposed to instruct the jury that it should acquit him if
it believed his testimony that he found the gun in the parking lot and innocently
carried it into the bar to keep it out of the hands of children. As the district court
recognized, however, Kirkland’s proposed instruction would have misinformed the
No. 07-1226                                                                     Page 3

jury about the law: a felon “innocently” possesses a gun only when the evidence
supports a justification defense, which Kirkland’s testimony did not. See United
States v. Hendricks, 319 F.3d 993, 1005-06 (7th Cir. 2003). No child was around, so
the gun posed no imminent threat; to avert the perceived harm, Kirkland could
have waited beside the gun until another patron either picked it up or alerted
Sheets. But picking it up himself under the circumstances Kirkland described
constituted a violation of § 922(g)(1), see Hendricks, 319 F.3d at 1005-06; United
States v. Conley, 291 F.3d 464, 473 (7th Cir. 2002), so it was not error to refuse his
proposed instruction.

       Counsel next consider whether Kirkland might challenge the sufficiency of
the evidence underlying his conviction. To convict under § 922(g)(1), the
government need only establish that the defendant (1) was a felon (2) when he
possessed a firearm (3) in or affecting commerce. 18 U.S.C. § 922(g)(1); United
States v. Morris, 349 F.3d 1009, 1013 (7th Cir. 2003). In this case Kirkland
stipulated to the first and third elements and disputed only the second. He argued,
consistent with his proposed jury instruction, that he did not have control of the
gun long enough to have “possessed” it within the meaning of § 922(g)(1). Yet we
have held that even a brief possession of a firearm is sufficient to convict under
§ 922(g)(1). Hendricks, 319 F.3d at 1005-06; Conley, 291 F.3d at 473. At trial
Kirkland admitted that he knowingly picked up the gun, carried it inside, and
placed it on the bar. As counsel recognize, any contention that this conduct did not
constitute possession would be frivolous.

       We also agree with counsel that any challenge to the reasonableness of
Kirkland’s prison sentence would be frivolous. Kirkland did not dispute that he
committed the offense after incurring three convictions for felony crimes of violence,
and thus under the Armed Career Criminal Act he faced a mandatory term of at
least 15 years. See 18 U.S.C. § 924(e). That is the sentence he received, so any
reasonableness challenge would necessarily be frivolous. See United States v.
Roberson, 474 F.3d 432, 436-37 (7th Cir. 2007); United States v. Cannon, 429 F.3d
1158, 1160-61 (7th Cir. 2005).

       Finally, to the extent that Kirkland proposes in his Rule 51(b) response to
argue that his trial or appellate lawyers have been deficient, he would be better
served bringing that claim through a collateral proceeding under 28 U.S.C. § 2255.
See, e.g., Massaro v. United States, 538 U.S. 500, 504-05 (2003); United States v.
Parker, 469 F.3d 1074, 1075 n.1 (7th Cir. 2006).

      For the above reasons, counsel’s motion to withdraw is GRANTED, and the
appeal is DISMISSED.
