UNITED STATES COURT OF APPEALS April 15, 2025

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 24-4006

BRANDON KEITH THOMPSON,

Defendant - Appellant. _________________________________

Appeal from the United States District Court for the District of Utah (D.C. No. 2:21-CR-00316-DBB-1) _________________________________ Jessica Stengel, Assistant Federal Public Defender (and Scott Keith Wilson, Federal Public Defender, with her on the briefs), Salt Lake City, Utah, for Defendant - Appellant. Tyler Murray, Assistant United States Attorney (and Trina A. Higgins, United States Attorney, with him on the brief), Salt Lake City, Utah, for Plaintiff - Appellee. _________________________________ Before HARTZ, KELLY, and ROSSMAN, Circuit Judges. _________________________________ KELLY, Circuit Judge. _________________________________

Defendant-Appellant, Brandon K. Thompson, was convicted of being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), and was sentenced to 110 months’ imprisonment and three years’ supervised release. I R. 519–20. On appeal, he argues that (1) the district court’s jury instruction on actual possession incorrectly stated the law, Appellate Case: 24-4006 Document: 61-1 Date Filed: 04/15/2025 Page: 2

(2) the jury was not instructed on his theory of the case, (3) the evidence was insufficient to demonstrate knowing possession, and (4) 18 U.S.C. § 922(g)(1) is an unconstitutional exercise of Congress’s power under the Commerce Clause. Aplt. Br. at 1–2. Exercising our jurisdiction under 28 U.S.C. § 1291, we affirm.

Background

On July 8, 2021, employees at an AT&T store in Sandy, Utah, saw Mr. Thompson “messing” with an area where Apple watches were on display. III R. 395–99. After confronting Mr. Thompson about a missing watch, one of the employees activated a security alarm which alerted the police. Id. at 401–02. Sandy Police Officers Nystrom and Johnson responded to the alert. Id. at 418–19, 495–96. Officer Johnson went inside the store and asked Mr. Thompson for permission to pat him down. Id. at 498. Mr. Thompson initially agreed, but then changed his mind and ran out of the store. Id. at 498–99. Officer Johnson radioed that Mr. Thompson was fleeing, and Officer Nystrom turned on her body camera as both officers ran after Mr. Thompson. Id. at 421–22, 499.

The officers attempted to tackle Mr. Thompson, who tripped and fell into a parked car during the struggle. II Supp. R. Ex. 1a. Officer Johnson attempted to handcuff Mr. Thompson and got on top of him. Id. Mr. Thompson then grabbed onto Officer Johnson’s holster and firearm with both of his hands and began to pull. Id.; see also I Supp. R. Ex. 2–3.

At this time, Eusebio Santos, a retired New York Police Department officer, saw the officers attempting to subdue Mr. Thompson. III R. 346, 355. Mr. Santos got out of

2 Appellate Case: 24-4006 Document: 61-1 Date Filed: 04/15/2025 Page: 3

his truck to help. Id. at 357. According to Mr. Santos, Mr. Thompson had “completely gripped” the firearm, had pulled it partially out of the holster, and had his finger on the trigger. Id. at 360–62.

As Mr. Santos approached, Mr. Thompson pulled the trigger causing a round to fire into the ground. Id. at 424; II Supp. R. Ex. 1a. Office