                                                                            FILED
                              NOT FOR PUBLICATION
                                                                             JUN 28 2016
                       UNITED STATES COURT OF APPEALS                    MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                               FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 14-10495

             Plaintiff - Appellee,                D.C. No.
                                                  4:13-cr-00196-DCB-BPV-1
  v.

BRENDEN WILLIAM VERMILYEA,                        MEMORANDUM *

             Defendant - Appellant.


                      Appeal from the United States District Court
                               for the District of Arizona
                       David C. Bury, District Judge, Presiding

                                Submitted June 17, 2016**
                                San Francisco, California

Before: CLIFTON and IKUTA, Circuit Judges, and HAYES,*** District Judge.




       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The panel unanimously concludes this case suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
       ***
            The Honorable William Q. Hayes, United States District Judge for the
Southern District of California, sitting by designation.
      Appellant Brenden Vermilyea appeals from his conviction by a jury for one

count of Possession of Firearm by a Prohibited Person and one count of Possession

of Ammunition by a Prohibited Person in violation of 18 U.S.C. § 922(g)(1). We

have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

      Vermilyea contends that the district court’s jury instruction regarding prohibited

possession of a firearm violated due process by relieving the government of the

obligation to prove all elements of the offense where the instruction stated that (1) “a

general court martial conviction is a crime that satisfies section 922(g)(1) if the crime

for which a defendant is court-martialed was punishable by imprisonment for a term

exceeding one year” and (2) “imprisonment includes a term of confinement in a

military institution.” We conclude that under United States v. MacDonald, 992 F.2d

967 (9th Cir. 1993), the issue of whether a court-martial conviction is a crime under

§ 922(g)(1) is a matter of law. The jury instructions were an accurate statement of the

law under MacDonald, see 992 F.3d at 970, and did not relieve the government of the

obligation to prove that Vermilyea was convicted of a crime punishable by

imprisonment for a term exceeding one year.

      Vermilyea also contends that § 922(g)(1) is unconstitutionally vague by failing

to provide reasonable notice to Vermilyea, and others similarly situated, that his

military conviction made him a prohibited possessor. We conclude that § 922(g)(1)


                                           2
is not unconstitutionally vague because ordinary people can understand that an offense

in violation of the Uniform Code of Military Justice may qualify as a “crime” and that

military confinement may qualify as “imprisonment” for purposes of § 922(g)(1). See

Kolender v. Lawson, 461 U.S. 352, 357 (1983).

      AFFIRMED.




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