[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

F O R THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JANUARY 24, 2007

THOMAS K. KAHN

N o . 06-13855

CLERK

N o n - A r g u m e n t Calendar

D . C. Docket No. 05-00025-CR-W-N

U N IT E D STATES OF AMERICA,

Plaintiff-Appellee,

versus

RODRICK MONROE, SR.,

Defendant-Appellant.

A p p e al from the United States District Court

fo r the Middle District of Alabama

(J a n u a ry 24, 2007)

B efo re HULL, WILSON and PRYOR, Circuit Judges.

P E R CURIAM:

R o d rick Monroe appeals his conviction and sentence for being an unlawful u ser of a controlled substance in possession of a firearm, in violation of 18U.S.C.

§ 922(g)(3). After review, we affirm.

I. BACKGROUND FACTS R e sp o n d in g to a report of a shooting, local police officers arrived at M o n ro e's residence to find Sharon Miles with gunshot wounds to her hands and h ead . Miles told officers that Monroe, who was her boyfriend, had accidently shot h er. Monroe admitted to officers that he was a regular user of crack cocaine and h ad used crack cocaine approximately 24 hours before the shooting.

A search of Monroe's home uncovered three firearms. Monroe admitted to o f f ic er s that two of the guns were his and that the third gun belonged to his brother b u t had been in Monroe's possession for two years.

At trial, Monroe, Miles and one of the officers, Sergeant Sonny Schrieber, p ro v id ed testimony consistent with the above facts. Specifically, Sergeant S c h r ie b e r testified that Monroe had admitted that he smoked crack cocaine as often as possible and slept, walked and showered with a gun. Miles testified that she liv ed with Monroe, that she had seen firearms in Monroe's home and that Monroe u s e d crack cocaine all day, every day. Monroe testified that he had used crack co cain e off and on since returning from Vietnam and that all three guns found in h is home belonged to him. Monroe also acknowledged using crack cocaine from b efo re Christmas until his arrest in mid-January.

T h e jury found Monroe guilty. The district court sentenced Monroe to 60 m o n th s' imprisonment. This appeal followed.

II. DISCUSSION O n appeal, Monroe raises several arguments that are clearly without merit an d which we address only briefly. First, the district court did not abuse its d iscretio n by refusing to give Monroe's proposed jury instruction defining the term s "addict" and "unlawful user" because Monroe failed to request this in stru ctio n in writing and in a timely manner as required by Federal Rule of C rim in al Procedure 30. See United States v. Cunningham, 194 F.3d 1186, 1200 ( 1 1 th Cir. 1999) (affirming district court's refusal to give instruction where d e f en d a n t failed to comply with Rule 30). We also reject Monroe's contention that 1 8U.S.C. § 922(g)(3) is unconstitutionally vague as applied to him because "u n law fu l user" and "addict" are undefined. The evidence at trial established that, in the days and weeks leading up to his arrest, Monroe smoked crack cocaine.

Ordinary people would understand that this conduct constituted unlawful use of a co n tro lled substance within the meaning of § 922(g)(3). See United States v. M a rte , 356 F.3d 1336, 1342 (11th Cir. 2004) (explaining that vagueness challenges m u st be evaluated in light of the facts of the case at hand, except where First A m e n d m e n t rights are involved).

S eco n d , the district court did not constructively amend Monroe's indictment w h e n it gave a supplemental jury instruction explaining that the indictment, which w a s phrased in the conjunctive, was consistent under the law with the jury verdict fo rm , which was phrased in the disjunctive. See United States v. Simpson, 228 F .3 d 1294, 1300 (11th Cir. 2000) (explaining that an indictment phrased in the co n ju n ctiv e is not constructively amended by a jury instruction phrased in the d isju n ctiv e); United States v. Cornillie, 92 F.3d 1108, 1110 (11th Cir. 1996) (affirm in g district court's response to jury question that the government could ch arg e the defendant in the conjunctive but prove the case at trial in the d is ju n c tiv e ) .

Third, the district court did not abuse its discretion by refusing to repeat the en tire jury charge after giving the supplemental jury instruction discussed above b ecau se the district court reminded the jury of the burden and quantum of proof an d the presumption of innocence and to consider all the instructions as a whole.

See United States v. L'Hoste, 609 F.2d 796, 809 (5th Cir. 1980).1 Fourth, the d istrict court did not abuse its discretion by refusing to allow Monroe to present a ju stificatio n defense because, even assuming arguendo that the affirmative defense is available in § 922(g)(3) cases, Monroe failed to satisfy the elements necessary to estab lish a justification defense. See United States v. Deleveaux, 205 F.3d 1292, 1 2 9 7 (11th Cir. 2000) (delineating the elements needed to establish a justification d efen se to a charge under § 922(g)(1)).

Fifth, the district court did not abuse its discretion by excluding evidence of M o n ro e's post-traumatic stress disorder and mental problems because § 922(g)(3) is not a specific intent crime. See 18U.S.C. § 17(a); United States v. Cameron, 9 0 7 F.2d 1051, 1060-66 (11th Cir. 1990) (explaining that by enacting § 17(a), C o n g ress eliminated the use of psychiatric evidence to show diminished capacity fo r purposes of exoneration or mitigation, but permits its use to negate specific in ten t when it is an element of the charged offense). Sixth, the district court did n o t abuse its discretion by excluding evidence in support of an ignorance of the law defense or by refusing to instruct the jury on that defense because Monroe a ctiv e ly possessed a firearm while being an unlawful user of crack cocaine. See L am b ert v. California, 355 U.S. 225, 228, 78 S. Ct. 240, 243 (1957) (concluding th at an ignorance of the law defense is appropriate only when the defendant's co n d u ct is wholly passive). F in ally, the district court did not err at sentencing when it applied the crossreferen ce under U.S.S.G. § 2K2.1(c)(1)(A) because this provision applies to u n c h a rg e d conduct, see United States v. Miller, 166 F.3d 1153, 1155 (11th Cir. 1 9 9 9 ), and Miles testified that Monroe shot her during an altercation and that she h ad lied to the responding police officers that the shooting was accidental.2 M o n r o e 's final argument merits a bit more discussion. Monroe argues that th e district court's jury instructions misstated the elements of his offense. Under § 9 2 2 ( g ) ( 3 ) , it is "unlawful for any person . . . who is an unlawful user of or addicted to any controlled substance . . . to . . . possess in or affecting commerce, any firearm or ammunition . . . ." 18U.S.C. § 922(g)(3).

Here, when charging the jury, the district court first read the statutory lan g u ag e of 18U.S.C. § 922(g)(3) and then instructed the jury that Monroe could b e found guilty of the charged offense if the government proved beyond a reaso n ab le doubt "that before the defendant possessed the firearm, the defendant h a d been an unlawful user of or addicted to a controlled substance, such as crack co cain e." (Emphasis added.) Monroe argues that this instruction erroneously in d ic ate d to the jury that it needed to find that Monroe possessed a firearm before b e c o m in g an unlawful user of cocaine. In support, Monroe points to a jury q u estio n submitted during deliberations as to whether the defendant's possession o f the firearm had to occur before the defendant became an unlawful user.

O rd in arily, we review de novo the legal correctness of a jury instruction; h o w ev er, when, as here, the defendant did not object to the jury instruction in the d istrict court, we review only for plain error. United States v. Prather, 205 F.3d 1 2 6 5 , 1270 (11th Cir. 2000). To reverse under a plain error standard of review, the ch allen g ed instruction must be a plainly incorrect statement of the law and must h a v e been "`probably responsible for an incorrect verdict, leading to substantial in ju stice.'"N ath a"" Id. at 1271 (quoting Montgomery v. Naga, 168 F.3d 1282, 1 2 9 4 (11th Cir. 1999)).

W e note that the district court acknowledged its error after receiving the ju r y 's question. The district court proposed a correction that removed the word "b efo re" from the instruction and redefined the second element of the offense to s ta te that the government needed to prove that the defendant was an unlawful user o f or addicted to a controlled substance at the time of the possession. The district co u rt's proposed correction was not submitted to the jury, however, because M o n ro e objected to it. Instead, the district court instructed the jury to rely on the p la in language of the statute.

H ere, for several reasons, Monroe failed to show that any alleged error in the d istrict court's instruction was "probably responsible for an incorrect verdict." F ir st, this is so because the challenged instruction, if anything, put a greater burden o n the government than is required by the statute. Under the statute, the date the d efen d an t acquired the firearm is irrelevant so long as the defendant possessed the firearm contemporaneously with the unlawful drug use. The jury instruction req u ired the government to show that Monroe was using crack even before he p o ssessed the firearm. Second, the district court proposed to correct the in stru ctio n , but Monroe objected and cannot complain now, much less show s u b s ta n tia l injustice. Third, the evidence was overwhelming that Monroe used crack while he possessed the firearm, and Monroe has totally failed to show the ju ry instruction was responsible for an incorrect verdict.

F o r all the foregoing reasons, we affirm Monroe's conviction and sentence.

A F F IR M E D .

1 In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted as binding precedent all decisions from the former Fifth Circuit decided on or before September 30, 1981.

2 Monroe also argues that the district court erred in denying his motion for a downward departure. We are without jurisdiction to review this claim, however, because the district court recognized its authority to depart downward and declined to grant Monroe's motion. See United States v. Winningear, 422 F.3d 1241, 1245 (11th Cir. 2005).