Firearms - Possession by Drug User

Favorable and Noteworthy Decisions in the Supreme Court and Federal Appellate Courts

United States v. Augustin, 376 F.3d 135 (3rd Cir. 2004)

The evidence was insufficient to convict the defendant of being a drug user in possession of a firearm, in violation of 18 U.S.C. § 922(g)(3). The evidence only established that he had smoked marijuana prior to possessing the weapon. No other evidence was introduced in connection with his drug use. At a minimum, the government must present evidence that the defendant is a regular user of drugs to obtain a conviction under this statute.

United States v. Herrera, 289 F.3d 311 (5th Cir. 2002)

18 U.S.C. § 922(g)(3) makes it a crime to possess a firearm if the defendant is an unlawful user of or addicted to any controlled substance. The Fifth Circuit defined “is an unlawful user” to mean a person who uses narcotics so frequently and in such quantities as to lose the power of self-control. In other words an “unlawful user” is a person who is just short of addiction. The court reached this result by invoking the Rule of Lenity. This decision was reheard en banc and the conviction was affirmed, because the defendant did not properly articulate his objection to the sufficiency of evidence in his Rule 29 motion. 313 F.3d 882 (5th Cir. 2002).