United States v. Lyndon Larson , 502 F. App'x 336 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4599
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LYNDON B. LARSON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Glen E. Conrad, Chief
District Judge. (3:11-cr-00021-GEC-1)
Submitted: December 17, 2012 Decided: January 3, 2013
Before AGEE, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Andrea L. Harris,
Assistant Federal Public Defender, Megan M. Coker, OFFICE OF THE
PUBLIC FEDERAL DEFENDER, Christine Madeleine Lee, Research and
Writing Attorney, Charlottesville, Virginia, for Appellant.
Timothy J. Heaphy, United States Attorney, Ronald M. Huber,
Assistant United States Attorney, Lanny A. Breuer, Assistant
Attorney General, John D. Buretta, Deputy Assistant Attorney
General, David M. Lieberman, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lyndon B. Larson appeals his conviction and
twelve-month sentence imposed following his conditional guilty
plea to possessing a firearm while subject to a court order that
restrained him from harassing, stalking, or threatening his
intimate partner in violation of 18 U.S.C. § 922(g)(8) (2006).
Larson contends that the state court order to which he was
subject did not satisfy § 922(g)(8), that § 922(g)(8) was
applied to him in violation of his due process rights, and that
§ 922(g)(8) violates the Second Amendment as applied to Larson.
We affirm.
This court reviews de novo Larson’s constitutional and
purely legal challenges to his conviction under 18 U.S.C.
§ 922(g)(8) (2006). United States v. Moore, 666 F.3d 313, 316
(4th Cir. 2012). Section 922(g)(8) provides that it shall be
unlawful for any person to possess a firearm:
(8) who is subject to a court order that -
(A) was issued after a hearing of which such
person received actual notice, and at which
such person had an opportunity to
participate;
(B) restrains such person from harassing,
stalking, or threatening an intimate partner
of such person or child of such intimate
partner or person, or engaging in other
conduct that would place an intimate partner
in reasonable fear of bodily injury to the
partner or child; and
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(C)(i) includes a finding that such person
represents a credible threat to the physical
safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the
use, attempted use, or threatened use of
physical force against such intimate partner
or child that would reasonably be expected
to cause bodily injury;
18 U.S.C. § 922(g)(8) (2006). We conclude that Larson’s state
court order, which prohibited him from harassing, stalking, or
threatening his intimate partner, was sufficient under
§ 922(g)(8)(C)(ii) to evidence the state court’s finding that he
represented a credible threat to his intimate
partner. See United States v. Bostic, 168 F.3d 718, 722 (4th
Cir. 1999). Further, because this state court order was entered
at a hearing that Larson had notice of and at which he had an
opportunity to participate, we conclude that his due process
rights were not violated. See United States v. Calor, 340 F.3d
428, 431 (6th Cir. 2003) (holding that actual notice was
satisfied by a summons and the opportunity to participate by a
hearing where the defendant could argue against the court’s
finding that he was a credible threat); Unites States v. Young,
458 F.3d 998, 1006 (9th Cir. 2006) (“The statute does not
require notice of the fact that a restraining order would issue,
nor does it require any other form of ‘advance’
notice.”); Bostic, 168 F.3d at 722 (holding that a person
subject to a civil order “cannot reasonably expect to be free
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from regulation when possessing a firearm” and therefore they
are not entitled to actual notice that possessing a firearm is
illegal while under the order.).
Larson also contends that his prosecution violates the
Second Amendment. The Supreme Court has identified an
individual right to keep and bear arms protected by the Second
Amendment. District of Columbia v. Heller, 554 U.S. 570, 595
(2008). The Court has held that this right is qualified,
“[l]ike most rights, the right secured by the Second Amendment
is not unlimited.” Id. at 626. The primary limitations
recognized by the Heller Court are “longstanding prohibitions on
the possession of firearms by felons,” such as § 922(g)(1), and
other presumptively lawful regulatory measures. Id. at 626-27.
In response to Heller, this court established a two-prong test
for assessing a Second Amendment challenge to a criminal
statute. United States v. Chester, 628 F.3d 673 (4th Cir.
2010). The first prong requires an evaluation of whether Second
Amendment rights are “burden[ed] or regulat[ed]” by the statute
in question. Id. at 680. If so, under the second prong, the
statute must pass constitutional muster in accordance with the
appropriate level of judicial scrutiny. Id.We find it unnecessary to decide whether the conduct
regulated by § 922(g)(8) implicates the Second Amendment. For
the purposes of this case we assume that it does, and proceed to
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assess the statute under intermediate scrutiny. See United
States v. Chapman, 666 F.3d 220, 225 (4th Cir. 2012) (declining
to decide whether the Second Amendment applies to conduct under
922(g)(8)); United States v. Mahin, 668 F.3d 119, 124 (4th Cir.
2012) (“As in Chapman, we may apply intermediate scrutiny to
. . . Mahin’s § 922(g)(8) conviction”). To pass muster under
intermediate scrutiny, “the government bears the burden of
establishing a reasonable fit between the challenged statute and
a substantial governmental objective.” Chapman, 666 F.3d at 226
(citing Chester, 628 F.3d at 683). In Chapman, this court
recognized that reducing domestic gun violence is a valid
substantial governmental objective. 666 F.3d at 226. Chapman
also held that a reasonable fit existed because § 922(g)(8) was
aimed at an exceedingly narrow class of persons who were likely
to commit domestic gun violence. See id. at 228-29. Larson
argues that he is outside this class. We disagree. Because
Larson’s state court order satisfies § 922(g)(8)(C)(ii), we
conclude that he is within the admittedly narrow category of
individuals whose Second Amendment rights may be primarily
burdened, and that, therefore, the Second Amendment does not bar
his prosecution.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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