United States v. Hope, No. 18-5637 (6th Cir. 2019)Annotate this Case
Police found Bowens and Hope in a vehicle with a marijuana blunt between them and two firearms. Both were charged under 18 U.S.C. 922(g)(3), as unlawful users of controlled substances possessing firearms. To prove that the defendants were regular and repeated marijuana users, the government presented evidence from Facebook: a video uploaded the day of the arrest showed the defendants brandishing the firearms they were arrested with and smoking what appeared to be a marijuana blunt. There were, pictures, comments and posts on both defendants’ accounts, apparently describing marijuana use: “Getting high and drunk da whole day,” “Too high last night. Just woke up,” posted during seven months before their arrests. The court applied a two-level sentencing enhancement for an offense involving 3-7 firearms, counting a firearm that had been recovered months earlier in Bowens’ room during an unrelated investigation into a shooting. Bowens was never charged with unlawful possession of that firearm. The Sixth Circuit affirmed in part. There was sufficient evidence to establish the defendants’ regular and repeated use of marijuana, notwithstanding arguments regarding the credibility of the Facebook evidence, and ample evidence showing that the defendants knew they used marijuana. It was not plain error that the jury was never asked if the defendants were “knowingly” unlawful users of a controlled substance. There was not, however, enough of a connection between Bowens’ possession of a firearm months earlier to justify the enhancement to Bowens’ sentence.