United States of America v. Brenden William Vermilyea

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRENDEN WILLIAM VERMILYEA,
Defendant - Appellant.
No. 14-10495
D.C. No.
4:13-cr-00196-DCB-BPV-1
MEMORANDUM *
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.
FILED
JUN 28 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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.

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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)
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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.
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