                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-4101


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

HENRY LEE HARRIS, a/k/a Henry Fletcher Peterson,

                  Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (3:04-cr-00166-RLV-CH-1)


Submitted:    April 21, 2009                 Decided:   June 12, 2009


Before WILKINSON, TRAXLER, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Sandra J. Barrett, Asheville, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Charlotte,
North Carolina; Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Henry Lee Harris appeals his conviction for possession

of    ammunition    by       a   person     previously            convicted        of    a    felony,

contending that the district court erred by refusing to instruct

the jury on his defense of innocent possession.                                  He also appeals

his 180-month sentence, arguing that the district court should

have    departed        significantly             downward            from       the     applicable

guideline range based on his taking possession of the ammunition

for the purpose of avoiding greater harm.                                  Finding no error, we

affirm Harris’ conviction and sentence.

            During       a       consent    search,          a       box    of   ammunition         was

discovered on the headboard of the bed in Harris’ girlfriend’s

bedroom.      Harris         presented         evidence          that       he   had     found      the

ammunition on the ground in front of the apartment, brought the

box into the apartment, and asked his girlfriend to dispose of

it so that kids would not get to it.                                  He requested that the

court instruct the jury that innocent possession was a defense

to the charge of possession of ammunition by a convicted felon.

The    district    court         denied     the       request,         finding     that       Harris’

requested charge was included in the charge on the element of

“knowingly”       and    that         Harris      did    not          qualify      for       such   an

instruction    because           he   did   not       make       a    sufficient        showing     of

effort to get the ammunition out of his possession.



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              In a case decided after Harris’ conviction, this court

held that the text of 21 U.S.C. § 922(g)(1) (2006) “simply does

not   allow    for    the   [innocent   possession]     exception.”         United

States v. Gilbert, 430 F.3d 215, 218 (4th Cir. 2005). * The                  court

stated:    “We find such a defense to be wholly absent from the

statutory text and decline to subvert the congressional scheme

by    imposing    a    judicially    crafted     exception.        We     moreover

conclude that even if the defense did exist, it would not apply

to the facts of this case.”             We find that the same rationale

applies in this case.

              Harris argues that the Due Process Clause and United

States v. Dixon, 548 U.S. 1 (2006), require that federal courts

allow the use of common law defenses to which defendants are

entitled, and he contends that innocent possession is one such

common law defense.          Even if this was an available defense, we

find that the district court properly refused the instruction

because   Harris      failed   to   qualify    for   such   a   defense    by   not

making an effort to dispose of the ammunition in an expedient

manner.    Harris gave the ammunition to his girlfriend.                  It then

remained in the bedroom for at least a day before the officers

discovered it during the consent search.               We find that, even if


      *
       Harris was convicted in May 2005.                The Gilbert decision
issued on November 28, 2005.



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the   court     were       to    recognize      an    innocent       possession       defense,

Harris would not qualify.                   Therefore, the district court did not

abuse     its    discretion            by    refusing        to    give   the        requested

instruction.        United States v. Stotts, 113 F.3d 493, 496 (4th

Cir. 1997).

              Harris also argues that the district court improperly

applied    the     sentencing          factors       in    determining    an    appropriate

sentence.       He asserts that the court should have granted him a

significant downward departure based on the innocent reason he

had for possessing the ammunition.                         We review sentences imposed

by    district     courts        for   reasonableness,            applying     an    abuse    of

discretion standard.              Gall v. United States, 128 S. Ct. 586, 597

(2007); see United States v. Pauley, 511 F.3d 468, 473 (4th Cir.

2007).      When    sentencing          a    defendant,       a   district      court       must:

(1) properly       calculate           the    guideline        range;     (2)       treat    the

guidelines as advisory; (3) consider the factors set out in 18

U.S.C.A. § 3553(a) (West 2000 & Supp. 2008); and (4) explain its

reasons for selecting a sentence.                         Pauley, 511 F.3d at 473.            We

presume     that       a        sentence      within        the    properly         calculated

sentencing guidelines range is reasonable.                              United States v.

Allen, 491 F.3d 178, 193 (4th Cir. 2007); see also Rita v.

United    States,      127        S.   Ct.     2456,       2462-69    (2007)        (upholding

application of rebuttable presumption of correctness of within

guideline sentence).

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            The     district    court       followed    the       necessary     steps   in

sentencing Harris.           The district court properly determined that

the advisory guideline range applicable to Harris was 210 to 262

months imprisonment.            The court then properly considered the

guideline     range     and     the    § 3553(a)       factors       to    fashion      an

appropriate sentence.           After finding that Harris’ possession of

the ammunition was “done to avoid a greater harm to leaving the

ammunition    out     where    children      could     be    injured      or    otherwise

harmed by it,” the court departed downward from the guidelines

range under U.S. Sentencing Guidelines Manual § 5K2.11 (2007),

and imposed a sentence of 180 months.                  The court clarified that

this thirty-month reduction was “slightly more than a one-level

reduction” and that Harris was more deserving of that reduction

than   others       “because     of    the      circumstances         concerning        his

motivation for handling the ammunition, and the fact that the

charges were not brought in the context of any apparent real or

contemplated use of the firearms found at the house.”                            We find

that the sentence imposed was reasonable and that the district

court did not abuse its discretion in sentencing Harris.                             Rita,

127 S. Ct. at 2462-69.

            Having     reviewed       the    issues    asserted       on   appeal       and

finding no error, we affirm Harris’ conviction and sentence.                            We

dispense     with     oral     argument      because        the    facts       and   legal



                                            5
contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                           AFFIRMED




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