United States v. John Mudlock , 483 F. App'x 823 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5332
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOHN ANDREW MUDLOCK,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:10-cr-00115-WO-1)
Argued: March 21, 2012 Decided: June 19, 2012
Before NIEMEYER, GREGORY, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: J. David James, SMITH, JAMES, ROWLETT & COHEN, LLP,
Greensboro, North Carolina, for Appellant. Michael Francis
Joseph, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North
Carolina, for Appellee. ON BRIEF: Ripley Rand, United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
The grand jury indicted John Andrew Mudlock for knowingly
possessing firearms in contravention of a restraining order
issued by a Tennessee court, in violation of 18 U.S.C.
§§ 922(g)(8) and 924(a)(2). Mudlock filed a motion to dismiss
the indictment, alleging that, as applied to him, § 922(g)(8)
was unconstitutional under the Second Amendment. The district
court denied the motion. After trial, the jury returned a
guilty verdict. The district court subsequently sentenced
Mudlock to 42 months’ imprisonment. In this timely appeal,
Mudlock challenges the district court’s constitutionality
determination, several evidentiary rulings, and aspects of his
sentencing. For the reasons that follow, we affirm.
I.
A.
Early in the morning on January 10, 2010, Mudlock
telephoned the 911 dispatcher in Rockingham County, North
Carolina, and hung up. When the 911 operator called back,
Mudlock stated that he was going to kill himself and that he
would shoot any law enforcement officer who approached his home.
He stated that he had enough weapons to take out “anybody that
came through the door.”
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After an all-day standoff, at around 8:00 p.m., officers
fired tear gas into Mudlock’s home, which caused him to
surrender. Officers handcuffed Mudlock, but when his hands were
temporarily freed because of a problem with the handcuffs, he
attempted to grab one of the officers’ guns. The government
played a video of this incident at trial.
After the officers secured Mudlock, Detective Benjamin
Strader obtained a search warrant for his home. The search
produced six firearms and numerous rounds of ammunition. Three
of the firearms were loaded.
On May 2, 2010, Mudlock, who remained in jail, telephoned
Justin Herr to ask that Herr remove three “fishing poles” from
Mudlock’s home. When Herr went to the home, however, he found
firearms in place of the purported fishing poles. He also found
ammunition. Herr informed ATF Special Agent Paul Johnson of his
discovery.
Johnson subsequently obtained another search warrant for
Mudlock’s home. He executed the search warrant on May 6, 2010.
During the search, he located and seized three firearms in an
open gun safe in Mudlock’s bedroom closet and approximately
4,000 rounds of ammunition.
At the sentencing hearing, ATF Special Agent David M.
Schauble, who also participated in the May 6, 2010, search and
took pictures of the scene, testified about what he had
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observed. During this testimony, he spoke about a photograph
that he took of a high-capacity magazine that accepted more than
fifteen rounds of ammunition. According to Schauble, officers
found the magazine in a dresser that was two or three steps from
the open gun safe where they located the three guns, one of
which was capable of accepting the magazine.
During all relevant time periods, Mudlock was subject to a
domestic restraining order that barred him from lawfully
possessing firearms. The restraining order provided that
Mudlock “received actual notice of the hearing; that [Mudlock]
had an opportunity to participate in the hearing”; and that he
was “restrained from committing further acts of abuse, domestic
abuse, stalking or sexual assault or threats of abuse, stalking
or sexual assault against” his wife or her minor children. It
also stated that Mudlock had “made a general appearance
. . . and ha[d] submitted himself to the jurisdiction of [the
court.]” The order further announced that Mudlock “represents a
credible threat to the physical safety of [Ms. Mudlock].” And,
it required that Mudlock “terminate [his] physical possession of
the firearms [in his possession] by any lawful means.” The
order states that, barring a continuation, it would be in effect
for one year. Mudlock signed the order on August 18, 2009.
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B.
The grand jury indicted Mudlock on March 30, 2010, for
possession of firearms while subject to a restraining order, in
violation of 18 U.S.C. §§ 922(g)(8) and 924(a)(2). Mudlock
subsequently filed a motion to dismiss the indictment, arguing
that § 922(g)(8) was unconstitutional as applied to him. The
district court denied the motion.
A jury trial commenced on July 1, 2010. On July 2, 2010,
the jury returned a verdict of guilty as charged. On September
13, 2010, Mudlock filed a motion seeking substitute counsel.
The district court held a sentencing hearing on November 17,
2010, at which time it denied Mudlock’s motion. It subsequently
sentenced him to 42 months’ imprisonment. Mudlock thereafter
filed this timely appeal.
II.
First, Mudlock argues that the district court erred in
denying his motion to dismiss the 18 U.S.C. § 922(g)(8) charge
because, as applied to him, this statute infringes on his Second
Amendment rights. We review this question de novo. United
States v. Buculei, 262 F.3d 322, 327 (4th Cir. 2001).
Section 922(g)(8) forbids those persons who are subject to
an active domestic violence protection order from possessing
firearms or ammunition while the order is in effect.
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Specifically, the statute makes it unlawful for any person under
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
(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;
* * * *
to ship or transport in interstate or foreign
commerce, or possess in or affecting commerce, any
firearm or ammunition; or to receive any firearm or
ammunition which has been shipped or transported in
interstate or foreign commerce.
18 U.S.C. § 922(g)(8).
The Supreme Court determined in District of Columbia v.
Heller, 554 U.S. 570 (2008), that the Second Amendment protects
the individual “right of law-abiding, responsible citizens to
use arms in defense of hearth and home.” Id. at 635. But the
Court made clear that the right is not unlimited and listed
presumptively lawful restrictions, including the prohibition on
the possession of firearms by felons and the mentally ill, as
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well as the carrying of weapons in certain places. Id. at 626-
27.
Our review of Mudlock’s constitutional challenge entails a
two-step inquiry. United States v. Chester, 628 F.3d 673, 680
(4th Cir. 2010). First, we must determine whether § 922(g)(8)
infringes on conduct within the purview of the Second
Amendment’s guarantee, as that right has been historically
understood. United States v. Chapman, 666 F.3d 220, 225 (4th
Cir. 2012) (citing Chester, 628 F.3d at 680). “If the answer to
this question is no, that is the end of the matter. If the
answer is yes, then we move on to consider the second part of
the two-part approach, which involves application of the
appropriate form of means-end scrutiny.” Id. (citation omitted)
(citing Chester, 628 F.3d at 680).
For purposes of this appeal, we assume that Mudlock’s
conduct falls within the purview of the Second Amendment. Thus,
we focus of the second step of the inquiry. And in doing so, we
must first determine the appropriate level of scrutiny.
Like that of the defendant in Chapman, Mudlock’s “claim is
not within the core right identified in Heller—the right of a
law-abiding, responsible citizen to possess and carry a weapon
for self-defense.” Id. at 226 (emphasis omitted). This is so
because we are hard-pressed to think of an instance in which a
responsible citizen would be (1) “restrained from committing
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further acts of abuse, domestic abuse, stalking or sexual
assault or threats of abuse, stalking or sexual assault against”
another or (2) adjudged to “represent[] a credible threat to the
physical safety of [another].” Moreover, in view of Mudlock’s
statement to the 911 dispatcher stating that he would shoot any
law enforcement officer who approached his house, it can hardly
be said that Mudlock is law-abiding. “Accordingly, we conclude
that intermediate scrutiny is the appropriate standard of
scrutiny for [Mudlock] and similarly situated persons.” Id.
We have previously held in considering a constitutional
challenge to § 922(g)(8) that the statute serves the substantial
government objective of “reducing domestic gun violence” and
that there is a “reasonable fit” between the law and this
objective. United States v. Mahin, 668 F.3d 119, 124-25 (4th
Cir. 2012) (internal quotation marks omitted). Specifically we
have held that the government has established the following:
(1) domestic violence is a serious problem in the
United States; (2) the rate of recidivism among
domestic violence misdemeanants is substantial; (3)
the use of firearms in connection with domestic
violence is all too common; (4) the use of firearms in
connection with domestic violence increases the risk
of injury or homicide during a domestic violence
incident; and (5) the use of firearms in connection
with domestic violence often leads to injury or
homicide.
Chapman, 666 F.3d at 229.
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We have reviewed the record and find nothing that would
render the application of the statute unconstitutional in this
case. As the district court found, § 922(g)(8) provides for a
time-limited restriction, which is applicable only while the
restraining order is in effect. It also requires that specific
procedural safeguards be present at the restraining order stage
before that order can trigger the firearm restriction. The
forbidden conduct entails serious or other conduct that would
cause reasonable fear of bodily injury. Lastly, the statute
requires that the restraining order contain a finding that the
defendant has been adjudged to be a specific and “credible
threat to the physical safety” of another or that it explicitly
prohibit the use of force or threatened force “that
would reasonably be expected to cause bodily injury.”
§ 922(g)(8). In that we agree with the district court that all
of these factors are present in this case, we adopt the
reasoning of the district court.
Consequently, in that we have found that there is a
reasonable fit between § 922(g)(8) and the substantial
governmental objective of reducing domestic gun violence, we
affirm the district court’s decision to deny Mudlock’s motion to
dismiss.
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III.
Next, Mudlock contends that the district court erred in
sentencing him based upon an incorrect base offense level.
We review sentences for reasonableness under an abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007). Pursuant to this review, we must consider both the
procedural and substantive reasonableness of a sentence. Id.;
see also United States v. Lynn, 592 F.3d 572, 575 (4th Cir.
2010). Properly preserved claims of procedural error are
subject to harmless-error review. Lynn, 592 F.3d at 576. If
the sentence is free of significant procedural error, we then
review the substantive reasonableness of the sentence. Id. at
575; United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).
When judging the reasonableness of a sentence, we “review the
district court’s legal conclusions de novo and its factual
findings for clear error.” United States v. Hampton, 441 F.3d
284, 287 (4th Cir. 2006).
Pursuant to U.S.S.G. § 2K2.1(a)(4)(B), Mudlock’s base
offense level was set at twenty. For this guideline to apply,
it requires, among other things, that the offense involved a
“semiautomatic firearm that is capable of accepting a large
capacity magazine.” Id. The application notes to this
guideline define this term to include the following:
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a semiautomatic firearm that has the ability to fire
many rounds without reloading because at the time of
the offense (A) the firearm had attached to it a
magazine or similar device that could accept more than
15 rounds of ammunition; or (B) a magazine or similar
device that could accept more than 15 rounds of
ammunition was in close proximity to the firearm.
Id. § 2K2.1 cmt. n.2.
Mudlock first argues that the district court erred in
concluding that he possessed a firearm capable of accepting a
large capacity magazine and that the magazine was in close
proximity to the firearm on January 10, 2010, the date of the
alleged offense. But our review of the record shows that the
evidence does not comport with these contentions.
At the sentencing hearing, Agent Schauble testified as
follows:
Q: Agent Schauble, do you know if what is described
as a high capacity magazine was seized from the
residence that day?
A: Yes, ma’am.
Q: Could you explain to the Court what a high
capacity magazine is exactly?
A: It’s a magazine that will fit—can carry more than
15 rounds. In this particular case, that
magazine would carry 30 rounds.
Q: And you actually saw that magazine yourself and
have determined that it will accommodate more
than 15 rounds of ammunition?
A: Yes, ma’am.
* * * *
Q. And there are two—actually two firearms in this
photograph. Which is which in the photograph?
A: There’s actually three firearms. There’s an SKS
7.62 by 39 here, which is a double-barreled
shotgun. To the left of the gun—in the left-hand
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corner of the gun safe, and there’s another rifle
in the right-hand corner of the gun safe.
* * * *
Q: All right. And Government’s No. 5?
A: That is the magazine for the SKS that was found
in the top dress—top right-hand dresser drawer in
the bedroom.
* * * *
Q: And proximity wise, how many steps would you have
had to have taken from the dresser to get to the
gun safe?
A: Two or three.
* * * *
Q: Would you estimate that’s about 10 feet?
A: Yes, sir, six to eight—six to 10 feet.
Given this undisputed testimony, we cannot say that the
district court erred in finding that Mudlock possessed a
firearm, in this instance an SKS, capable of accepting a large
capacity magazine and that such a magazine was in close
proximity to the firearm at the time of the alleged offense.
Hence, Mudlock’s claim to the contrary fails.
Second, Mudlock claims that the ban on firearms capable of
accepting large capacity magazines has been repealed.
Therefore, according to Mudlock, the increased punishment under
the Sentencing Guidelines for possession of such a firearm is
unreasonable. But we have already considered this issue and
decided that “the repeal of the assault-weapon ban did not
operate as a repeal of the 2005 enhancement.” United States v.
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Myers, 553 F.3d 328, 330 (4th Cir. 2009). Accordingly, this
claim must fail as well.
IV.
Mudlock also maintains that the district court committed
reversible error in its refusal to allow him to present evidence
concerning the Tennessee court hearing that led to the
imposition of the restraining order. Our review of the district
court’s admission of evidence is for an abuse of discretion.
United States v. Wilson, 624 F.3d 640, 649 (4th Cir. 2010).
“[T]he overwhelming weight of federal case law precludes a
defendant in a § 922(g)(8) prosecution from mounting a
collateral attack on the merits of the underlying state
protective order.” United States v. Reese, 627 F.3d 792, 804
(10th Cir. 2010). In fact, the Fifth Circuit has noted that
“nothing in the language of 18 U.S.C. § 922(g)(8) indicates that
it applies only to persons subject to a valid, as opposed to an
invalid, protective order.” United States v. Hicks, 389 F.3d
514, 535 (5th Cir. 2004). Mudlock has not presented, and we
have not found, any reason to diverge from the majority
approach. As such, we find no error in the district court’s
disallowance of any evidence concerning the Tennessee court
hearing.
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V.
According to Mudlock, the district court also erred in
admitting certain evidence at his trial that was not charged in
the indictment and was irrelevant to the charges contained in
the indictment. Specifically, Mudlock objects to the district
court’s admission of (1) evidence concerning his request to Herr
that Herr remove firearms from Mudlock’s home and (2) evidence
regarding his attempt to grab one of the officers’ guns. As
noted above, we review the district court’s admission of
evidence for abuse of discretion. Wilson, 624 F.3d at 649.
At trial, the government was required to prove beyond a
reasonable doubt that Mudlock “knowingly” possessed firearms.
See § 924(a)(2). And, as the district court observed, Mudlock’s
statements and conduct “that reflect his knowledge of the
firearms that were present in his home and, to a certain degree,
his control of those firearms,” including his statements to
Herr, relate to his “knowing possession.” Therefore, we hold
that this evidence was “admitted as to acts intrinsic to the
crime charged, and . . . not admitted solely to demonstrate bad
character.” United States v. Chin, 83 F.3d 83, 88 (4th Cir.
1996) (citing United States v. Allen, 960 F.2d 1055, 1058 (D.C.
Cir. 1992)). Moreover, to assure that the jury did not consider
the evidence for anything but Mudlock’s state of mind, the
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district court gave a limiting instruction to the jury. Thus,
the district court properly admitted this evidence. See id.Mudlock’s assignment of error to the district court’s
admission of evidence concerning Mudlock’s grabbing of an
officer’s gun fares no better. The district court noted, “I
think here this is some evidence of a knowing possession of
firearms, . . . continued even after he was placed into custody.
. . . I think it’s part of the transaction, and I also think
it’s probative of that knowledge and intent on his part.” To
ameliorate any unfair prejudice, the district court gave a
limiting instruction as to this evidence as well. Accordingly,
we find no abuse of discretion.
VI.
Finally, Mudlock states that the district court erred in
refusing to appoint substitute counsel prior to his sentencing.
Our review of a district court’s decision on a motion to
substitute counsel is for abuse of discretion. United States v.
Reevey, 364 F.3d 151, 156 (4th Cir. 2004).
It is axiomatic that an indigent defendant has a Sixth
Amendment right to counsel. Gideon v. Wainwright, 372 U.S. 335,
343-45 (1963). But the exercise of this right “cannot ‘deprive
courts of the exercise of their inherent power to control the
administration of justice.’” United States v. Perez, 661 F.3d
15189, 191 (4th Cir. 2011) (quoting United States v. Gallop, 838
F.2d 105, 108 (4th Cir. 1988)). Thus, an indigent defendant is
entitled to substitute appointed counsel only for good reason.
Id.“Our review of denial-of-substitution claims has focused on
three inquiries: (1) the timeliness of the motion; (2) the
adequacy of the court’s subsequent inquiry; and (3) ‘whether the
attorney/client conflict was so great that it had resulted in
total lack of communication preventing an adequate defense.’”
United States v. Smith, 640 F.3d 580, 588 (4th Cir. 2011)
(quoting Gallop, 838 F.2d at 108). There is no dispute that
Mudlock’s motion was timely. Therefore, we consider only
factors two and three.
As to the adequacy-of-the-inquiry prong, according to
Mudlock, the district court failed adequately to inquire into or
consider the following alleged shortcomings of his counsel:
counsel’s failure to obtain documentation regarding the
Tennessee proceedings, despite Mudlock’s request; counsel’s
failure to review Mudlock’s objections to the Presentence Report
with him; counsel’s instruction to Mudlock that he should write
directly to the probation office regarding his objections; and
counsel’s failure to accept or return Mudlock’s telephone calls.
Contrary to Mudlock’s contention, the record shows the district
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court made an extensive inquiry into Mudlock’s complaints.
There was more than sufficient discussion to satisfy this prong.
All said, from our review of the record, it appears that
Mudlock’s chief complaint about his counsel concerns the
validity of the restraining order and the gun enhancement. But,
as discussed above, Mudlock’s arguments regarding the
restraining order lack merit. And we have never held that an
attorney who declines to make unmeritorious claims demanded by a
client risks being replaced. Mudlock’s counsel made arguments
regarding the gun enhancement, which the district court
properly rejected. Thus, as the district court observed, “I
don’t see that there’s any reason to believe that it [would have
been] any better by substituting counsel.”
Concerning the communication prong, Mudlock complains that
there was a complete breakdown of communication between him and
his counsel and that the district court erred in holding
otherwise. Mudlock states that he detailed for the district
court the alleged unacceptable length of time that his counsel
failed to communicate with him. Moreover, Mudlock avows that,
even when he was able to communicate with his counsel, his
counsel failed to take action on his behalf or explain to him
the reason or reasons that he could not take the requested
action. Instead, according to Mudlock, his counsel merely
instructed him to contact court officials himself.
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The district court aptly summarized the record before us,
however, by stating that Mudlock and his counsel had “been
discussing the case,” but “there [was] disagreement over what
constitutes a meritorious objection and what doesn’t.” In light
of the fact that these discussions were occurring, we are unable
to say that there was a total breakdown of communication.
Accordingly, the district court did not abuse its
discretion in refusing to appoint substitute counsel prior to
sentencing.
VII.
Wherefore, for the reasons stated above, Mudlock’s
conviction and sentence are
AFFIRMED.
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