United States v. Smith

MEMORANDUM *

Appellant Linzey Smith appeals his conviction and sentence for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922 (g)(1). We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742 (a). We affirm.

The district court did not err in instructing the jury that Smith had the burden of proving justification for possessing the firearm. In United States v. Beasley, 346 F.3d 930, 934-35 (9th Cir.2003), cert. denied, 542 U.S. 921 , 124 S.Ct. 2871 , 159 L.Ed.2d 779 (2004), this court held that the defense has the burden of proving justification, and we are bound by this holding. See United States v. Gay, 967 F.2d 322, 327 (9th Cir.1992) (“As a general rule, one three-judge panel of this court cannot reconsider or overrule the decision of a prior panel.”).

The district court’s erroneous instruction that the government had to prove specific intent to possess the firearm is not a basis for reversal because the instruction put the government to a higher burden and thus did not prejudice Smith. See United States v. Frega, 179 F.3d 793 , 807 n. 16 (9th Cir.1999) (“Jury instructions, even if imperfect, are not a basis for overturning a conviction absent…