USA V. BRENDEN VERMILYEA, No. 14-10495 (9th Cir. 2016)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS JUN 28 2016 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 14-10495 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. 3
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