                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 17-4284


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

MEREDITH ANN YATES,

                    Defendant - Appellant.



                                      No. 17-4294


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

KEVIN WAYNE VANOVER,

                    Defendant - Appellant.



Appeals from the United States District Court for the Western District of North Carolina,
at Asheville. Max O. Cogburn, Jr., District Judge. (1:15-cr-00097-MOC-DLH-1; 1:15-cr-
00097-MOC-DLH-2)


Submitted: June 28, 2018                                       Decided: August 3, 2018
Before NIEMEYER, TRAXLER, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


William Robert Terpening, TERPENING WILDER LAW, Charlotte, North Carolina;
Leslie Carter Rawls, Charlotte, North Carolina, for Appellants. R. Andrew Murray, United
States Attorney, Anthony J. Enright, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

       After a joint trial, a jury convicted Meredith Ann Yates and Kevin Wayne Vanover

of aiding and abetting the possession with intent to manufacture marijuana, in violation of

18 U.S.C. § 2 (2012); 21 U.S.C. § 841(a)(1), (b)(1)(B) (2012); and possession of

unregistered firearms, in violation of 26 U.S.C. §§ 5841, 5861(d), 5871 (2012). The jury

also convicted Vanover of being a felon in possession of firearms, in violation of 18 U.S.C.

§§ 922(g)(1), 924(a)(2) (2012), and Yates of possession of a firearm by an unlawful

controlled substance user, in violation of 18 U.S.C. §§ 922(g)(3), 924(a)(2) (2012), and

making a false material statement in connection with the acquisition of a firearm, in

violation of 18 U.S.C. §§ 922(a)(6), 924(a)(2) (2012). The district court sentenced Yates

to a mandatory minimum sentence of 60 months’ imprisonment and Vanover to 70 months’

imprisonment, at the bottom of his Sentencing Guidelines range.

       On appeal, Yates and Vanover contest the constitutionality of their statutes of

conviction. Yates separately challenges the district court’s jury instruction related to her

possession of a firearm charge, while Vanover appeals the district court’s denial of a two-

level reduction to his Sentencing Guidelines offense level for acceptance of responsibility.

We affirm.

       Yates and Vanover first challenge the constitutionality of their statutes of

conviction. Specifically, they claim that the Second Amendment does not allow the

government to limit gun ownership based on prior convictions or marijuana use; the

government lacks authority to restrict marijuana use under the Tenth Amendment; and,

because multiple states have legalized marijuana use, their marijuana convictions violate

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the Full Faith and Credit Clause and Article IV’s Privileges and Immunities Clause.

Conceding that precedent forecloses these claims, Yates and Vanover assert that they

present these issues to preserve them for potential Supreme Court review.

       We review preserved constitutional claims de novo, United States v. Dowell, 771

F.3d 162, 167 (4th Cir. 2014), and unpreserved constitutional claims for plain error, United

States v. Jackson, 706 F.3d 264, 270 n.2 (4th Cir. 2013). The Government contends that

Yates and Vanover did not preserve these issues for appellate review and therefore our

review should be for plain error, but we need not determine the applicable standard of

review because Yates and Vanover’s constitutional challenges fail under either standard.

       As Yates and Vanover concede, the Second Amendment permits prohibitions on

gun ownership by felons and illegal drug users. See District of Columbia v. Heller, 554

U.S. 570, 626 (2008); United States v. Carter, 750 F.3d 462, 470 (4th Cir. 2014). Further,

the Tenth Amendment, which reserves for the states “powers not delegated to the United

States by the Constitution, nor prohibited by it to the states,” does not prohibit the federal

government from restricting marijuana use. U.S. Const. amend. X; Gonzales v. Raich, 545

U.S. 1, 9 (2005) (holding Commerce Clause gives Congress authority to prohibit

possession and manufacturing of marijuana for personal medical use). Finally, the Full

Faith and Credit Clause and Article IV’s Privileges and Immunities Clause offer Yates and

Vanover no protection, as neither clause applies to federal statutes or federal courts. See

Univ. of Tenn. v. Elliott, 478 U.S. 788, 799 (1986); Cramer v. Skinner, 931 F.2d 1020,

1029 n.7 (5th Cir. 1991). Thus, these constitutional claims are unavailing.



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       Yates next contends that the district court’s jury instruction regarding her charge for

possession of a firearm by a controlled substance user was erroneous because the court

failed to instruct the jury that, to convict Yates, it must find her possession of the firearm

“knowing,” and the court did not define the term “unlawful user.” Because Yates did not

object at trial, we review Yates’ challenges to the instruction for plain error. See United

States v. Hale, 857 F.3d 158, 172 (4th Cir. 2017). Thus, “to prevail on appeal, [Yates]

must show: (1) there was an error; (2) the error was clear or obvious, rather than subject

to reasonable dispute; (3) the error affected [her] substantial rights, which in the ordinary

case means it affected the outcome of the district court proceedings; and (4) the error

seriously affected the fairness, integrity or public reputation of judicial proceedings.”

United States v. Fuertes, 805 F.3d 485, 497 (4th Cir. 2015) (internal brackets and quotation

marks omitted).

       Under 18 U.S.C. § 922(g)(3), it is unlawful for any person “who is an unlawful user

of . . . any controlled substance . . . to . . . possess in or affecting commerce, any firearm.”

Such conduct must be done “knowingly” in order to constitute an offense. 18 U.S.C.

§ 924(a)(1)(B) (2012); see United States v. Frazier-El, 204 F.3d 553, 561 (4th Cir. 2000).

       Yates fails to establish plain error in the district court’s instruction. First, assuming

without deciding that the district court’s instruction was inadequate, Yates fails to show

that such error affected the outcome of the proceedings. At trial, Yates admitted purchasing

the handgun in question, thus demonstrating that her possession of the firearm was

knowing. Yates also cannot show plain error with regard to the district court’s decision

not to define the term “unlawful user,” as she admitted smoking marijuana daily during the

                                               5
period in which she purchased the firearm and evidence showed that she smoked marijuana

on the date of the firearm’s purchase.

       Finally, Vanover argues that the district court erred in denying him a two-level U.S.

Sentencing Guidelines Manual § 3E1.1(a) (2015) reduction for acceptance of

responsibility. According to Vanover, he qualified for such a reduction because he

admitted committing all the elements of the charged offenses and went to trial solely to

challenge the constitutionality of the statutes of conviction.

       “We review a district court’s decision concerning an acceptance-of-responsibility

adjustment for clear error[,] . . . giv[ing] great deference to the district court’s decision

because the sentencing judge is in a unique position to evaluate a defendant’s acceptance

of responsibility.” United States v. Dugger, 485 F.3d 236, 239 (4th Cir. 2007) (internal

brackets and quotation marks omitted). To qualify for the two-level USSG § 3E1.1(a)

offense level reduction, “a defendant must prove to the court by a preponderance of the

evidence that he has clearly recognized and affirmatively accepted personal responsibility

for his criminal conduct.” Id. (internal quotation marks omitted). “This adjustment is not

intended to apply to a defendant who puts the government to its burden of proof at trial by

denying the essential factual elements of guilt, is convicted, and only then admits guilt and

expresses remorse.” USSG § 3E1.1, cmt. n.2. However, “[i]n rare situations,” including

“where a defendant goes to trial to assert and preserve issues that do not relate to factual

guilt,” such as a “constitutional challenge to statute,” the “defendant may clearly

demonstrate an acceptance of responsibility for his criminal conduct.” USSG § 3E1.1, cmt.

n.2.

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       We conclude that the district court did not clearly err in denying Vanover a USSG

§ 3E1.1(a) reduction.      Vanover did not “clearly demonstrate an acceptance of

responsibility” because, in addition to challenging the constitutionality of his statutes of

conviction at trial, he also “den[ied] the essential factual elements of guilt” by accusing a

government informant of lying and law enforcement of conducting a corrupt investigation.

USSG § 3E1.1, cmt. n.2. Vanover’s lack of remorse for his criminal conduct is further

underscored by his statements at sentencing.

       Accordingly, we affirm the judgments of the district court. We deny Vanover’s

motion for leave to file a pro se supplemental brief. See United States v. Penniegraft, 641

F.3d 566, 569 n.1 (4th Cir. 2011). We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before this court and argument

would not aid the decisional process.

                                                                                AFFIRMED




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