United States v. Gregory Pruess , 703 F.3d 242 ( 2012 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 11-5127
GREGORY ROLAND PRUESS,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Statesville.
Richard L. Voorhees, District Judge.
(5:08-cr-00054-RLV-DSC-1)
Argued: December 7, 2012
Decided: December 31, 2012
Before MOTZ, DUNCAN, and WYNN, Circuit Judges.
Affirmed by published opinion. Judge Motz wrote the opin-
ion, in which Judge Duncan and Judge Wynn joined.
COUNSEL
ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS
OF WESTERN NORTH CAROLINA, INC., Charlotte, North
Carolina, for Appellant. Amy Elizabeth Ray, OFFICE OF
THE UNITED STATES ATTORNEY, Asheville, North Car-
olina, for Appellee. ON BRIEF: Henderson Hill, Executive
2 UNITED STATES v. PRUESS
Director, Peter S. Adolf, Assistant Federal Defender, FED-
ERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina, for Appellant. Anne M.
Tompkins, United States Attorney, Charlotte, North Carolina,
for Appellee.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
Gregory Roland Pruess, a convicted felon, pled guilty to
possession of ammunition in violation of 18 U.S.C.
§ 922(g)(1) (2006). In doing so, he reserved the right to chal-
lenge the conviction as a violation of his rights under the Sec-
ond and Fifth Amendments. Pruess contends that application
of the felon-in-possession prohibition to him, an assertedly
non-violent felon, violates the Constitution. For the reasons
set forth within, we reject Pruess’ challenge and affirm his
conviction.
I.
Pruess, formerly a licensed firearms dealer and collector of
weapons and other military memorabilia, owned and operated
a military museum. Over the years, he has been convicted of
numerous firearms violations.
In 1994, following an undercover operation conducted by
the Bureau of Alcohol, Tobacco, and Firearms, the Govern-
ment charged Pruess with twelve firearms offenses related to
his possession and transfer of three grenades and a mortar
round, all with obliterated identification and lot numbers.
Pruess pled guilty to one felony count and the court sentenced
him to twelve months’ imprisonment.
Soon after his release, Pruess returned to arms dealing,
despite his status as a convicted felon. Pruess sold UZI sub-
UNITED STATES v. PRUESS 3
machine gun barrels, M-16 components, M-122 remote firing
devices, AK-47 machine guns, grenades, and other weap-
ons—including stolen weapons—to undercover agents and a
cooperating witness. On one occasion, when selling weapons,
Pruess brought extra guns, telling the agents that the guns
were for protection or in case anything went wrong with the
deal. Authorities arrested Pruess and charged him with
twenty-five firearms violations. After Pruess pled guilty to
eighteen counts, the court sentenced him to 108-month and
60-month terms of imprisonment, to be served concurrently.
In 1999, shortly before sentencing, Pruess ordered a pistol
online using an altered firearms license. As a result, he pled
guilty to an additional count and the court added eight months
to his sentence.
Following his release, Pruess sought to purchase from a
confidential informant belted ammunition, grenades, and
parachute flares, knowing they were likely stolen. Agents
arrested Pruess after he paid for the ammunition. Pruess
entered a conditional guilty plea, admitting possession of
ammunition as a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1), but reserving the right to appeal the district
court’s rejection of a constitutional challenge to his convic-
tion. The district court accepted the plea and sentenced Pruess
to twenty-one months’ imprisonment and a $550 fine.
Pruess appealed the judgment, asserting that the felon-in-
possession prohibition violated the Second and Fifth Amend-
ments when applied to non-violent felons like him. Pruess
also claimed that he was not planning to use the ammunition
himself, but rather intended to have others use it to test a
device he had designed to enable attachment of night vision
scopes to rifles and other weapons. We remanded the case for
consideration in light of our recent decision in United States
v. Chester, 628 F.3d 673 (4th Cir. 2010). See United States v.
Pruess, 416 F. App’x 274, 275 (4th Cir. 2011). On remand,
the district court again upheld the constitutionality of Pruess’
conviction. Pruess appeals that judgment here.
4 UNITED STATES v. PRUESS
II.
Pruess’ appeal principally rests on his contentions that he
is a non-violent felon and that the Second Amendment pro-
tects the right of non-violent felons to possess ammunition.
We consider such constitutional challenges de novo. See
United States v. Moore, 666 F.3d 313, 316 (4th Cir. 2012).
In District of Columbia v. Heller, 554 U.S. 570, 625
(2008), the Supreme Court held that the Second Amendment
confers a right to keep and bear arms "typically possessed by
law-abiding citizens for lawful purposes." Following Heller,
we developed a "framework for deciding Second Amendment
challenges" in United States v. Chester. 628 F.3d at 678. That
framework has two steps. First, we ask whether "the chal-
lenged law imposes a burden on conduct falling within the
scope of the Second Amendment’s guarantee." Id. at 680.
That is, was "the conduct at issue . . . understood to be within
the scope of the right at the time of ratification"? Id. If the
answer is no, "the challenged law is valid." Id. "If the chal-
lenged regulation burdens conduct that was within the scope
of the Second Amendment as historically understood, then we
move to the second step of applying an appropriate form of
means-end scrutiny." Id.
In Moore, 666 F.3d at 318, we held that "the Chester analy-
sis is more streamlined" in cases involving firearms regula-
tions deemed "presumptively lawful" in Heller. That is, a
presumptively lawful regulation could not violate the Second
Amendment unless, as applied, it proscribed conduct "fall-
[ing] within the category of . . . ‘law-abiding responsible citi-
zens . . . us[ing] arms in defense of hearth and home.’" See
id. at 319 (quoting Heller, 554 U.S. at 635). Among the fire-
arms regulations specifically enumerated as presumptively
lawful in Heller are "longstanding prohibitions on the posses-
sion of firearms by felons." 554 U.S. at 626-27 & n.26.1 Like
1
Pruess notes that Heller did not explicitly label regulation of felons’
possession of ammunition as presumptively lawful. This omission does not
UNITED STATES v. PRUESS 5
this case, but unlike Chester (which involved a misdemeanor
domestic violence offender, see 628 F.3d at 677), Moore
addressed a Second Amendment challenge to the presump-
tively lawful felon-in-possession prohibition under
§ 922(g)(1). See Moore, 666 F.3d at 315. The defendant in
Moore failed to rebut the presumption of lawfulness by show-
ing his conduct was that of a "law-abiding responsible citi-
zen" acting "in defense of hearth and home." See id. at 319.
Thus, we rejected Moore’s challenge without proceeding
through a full Chester analysis.
Here, Pruess, like the defendant in Moore, cannot rebut the
presumption of lawfulness of the felon-in-possession prohibi-
tion as applied to him. Pruess’ repeated violations of the fire-
arms laws, leading to at least twenty prior convictions, make
clear he is hardly "law-abiding" and "responsible." Indeed,
even if Pruess did not intend to use them for violence himself,
he acknowledged that he believed that weapons and ammuni-
tion underlying his convictions were stolen. "Courts have held
in a number of contexts that offenses relating to . . . receiving
stolen weapons are closely related to violent crime." United
States v. Barton, 633 F.3d 168, 174 (3d Cir. 2011). Hence
Pruess "undoubtedly flunks the ‘law-abiding responsible citi-
zen’ requirement." Moore, 666 F.3d at 320.
Moreover, Pruess’ vast collection of weapons and explo-
aid Pruess, however, because the felon-in-possession ban to which Heller
did explicitly refer has long encompassed a ban on ammunition by felons.
See, e.g., 18 U.S.C. § 922(g) (covering ammunition); see also Gun Control
Act of 1968, Pub. L. No. 90-618, § 922(g)-(h), 82 Stat. 1213, 1220-21
(same). Pruess’ related argument that the prohibition of possession of fire-
arms by non-violent felons is not "longstanding" and so not presumptively
lawful under Heller, 554 U.S. at 626-27 & n.26, also fails. Pruess himself
admits that the federal felon-in-possession ban has applied to non-violent
felons for more than half a century. See Pub. L. No. 87-342, 75 Stat. 757
(1961) (amending the Federal Firearms Act to ban possession of firearms
by all felons, rather than all persons convicted of a "crime of violence").
6 UNITED STATES v. PRUESS
sives with clearly military purposes—including the belted
ammunition appropriate for use in machine guns at issue in
this case—demonstrates that the firearms and ammunition
cannot be intended, in any substantial part, for "defense of
hearth and home."2 Tellingly, although Pruess asserts that the
belted ammunition, when detached from the belt, is standard
ammunition "sold at Wal-Mart," he does not assert that his
purpose in acquiring the ammunition was self-defense.
Rather, he claims he intended to use the ammunition to test
the night-vision scope-attachment device he had designed.
Yet Pruess cites no post-Heller precedent to support his dubi-
ous contention that the Second Amendment protects this pur-
pose, either because it (like hunting) provides him financial
support, or because it purportedly supports the military.
Accordingly, Pruess’ "proffered reason for possessing" the
ammunition at issue "is far too vague and unsubstantiated to
remove his case from the typical felon in possession case."
Moore, 666 F.3d at 320.
Therefore, as in Moore, we can conclude without a full
Chester analysis that Pruess’ conduct lies outside the scope of
the Second Amendment’s protection.3 This conclusion
accords with precedent from this court and others, which have
2
The nature of Pruess’ weapons collection also counsels against finding
Pruess’ conduct to be within the scope of the Second Amendment based
on the statement in Heller that "the sorts of weapons" the Amendment pro-
tects are "those in common use at the time" of ratification—not "danger-
ous and unusual weapons," which there is a "historical tradition of
prohibiting." 554 U.S. at 627 (internal quotation marks omitted).
3
Because the presumption of constitutionality from Heller and Moore
governs, we need not pursue an analysis of the historical scope of the Sec-
ond Amendment right. We note, however, that Pruess errs in suggesting
that historical sources weigh in his favor. The Government offers substan-
tial evidence that the Founders severely limited the right to bear arms,
excluding from its protection a broad range of often non-violent individu-
als and groups deemed "dangerous." See also United States v. Carter, 669
F.3d 411, 415 (4th Cir. 2012) ("[T]he Anglo-American right to bear arms
has always recognized and accommodated limitations for persons per-
ceived to be dangerous.").
UNITED STATES v. PRUESS 7
repeatedly upheld the constitutionality of § 922(g) in the face
of Second Amendment challenges. Indeed, Pruess "has not
pointed us to a single court of appeals decision in the after-
math of Heller that has reversed any § 922(g) conviction on
Second Amendment grounds." United States v. Mahin, 668
F.3d 119, 123 (4th Cir. 2012).
Most specifically relevant, our sister circuits have consis-
tently upheld applications of § 922(g)(1) even to non-violent
felons. See, e.g., United States v. Torres-Rosario, 658 F.3d
110, 113 (1st Cir. 2011) (rejecting an as-applied challenge to
§ 922(g)(1) by a drug offender with "no prior convictions for
any violent felony"), cert. denied, 132 S. Ct. 1766 (2012);
Barton, 633 F.3d at 174 (same for felon with only prior drug
and receipt of stolen weapon convictions); United States v.
Rozier, 598 F.3d 768, 769 & n.1 (11th Cir. 2010) (same for
felon with only prior drug convictions); United States v.
Vongxay, 594 F.3d 1111, 1113-14 (9th Cir. 2010) (same for
felon with only prior non-violent car burglary and drug pos-
session convictions); see also United States v. Skoien, 614
F.3d 638, 640 (7th Cir. 2010) (en banc) ("[E]xtension of the
[§ 922(g)(1)] disqualification to non-violent felons (embez-
zlers and tax evaders, for example) is presumptively constitu-
tional, as Heller said . . . ."); United States v. Scroggins, 599
F.3d 433, 451 (5th Cir. 2010) ("Prior to Heller, this circuit
had already recognized an individual right to bear arms, and
had determined that criminal prohibitions on felons (violent or
nonviolent) possessing firearms did not violate that right.").
We now join our sister circuits in holding that application
of the felon-in-possession prohibition to allegedly non-violent
felons like Pruess does not violate the Second Amendment.
Though we acknowledged in Moore that there in theory might
be "an as-applied Second Amendment challenge to 922(g)(1)"
that "could succeed," Pruess’ challenge, like Moore’s, "is not
remotely close." Moore, 666 F.3d at 320.
8 UNITED STATES v. PRUESS
III.
Pruess also claims that § 922(g)(1), as applied, violates the
Fifth Amendment equal protection guarantee in that it denies
him, an assertedly non-violent felon, an alleged fundamental
right to bear arms. We again review de novo. United States
v. Staten, 666 F.3d 154, 157-58 (4th Cir. 2011). We have held
that Pruess has failed to rebut the constitutionality under the
Second Amendment of his conviction as a felon in possession.
As a result, Pruess has no right—much less a fundamental
right—to bear arms and we apply only rational basis review
to Pruess’ equal protection challenge. See Giarratano v. John-
son, 521 F.3d 298, 302-03 (4th Cir. 2008) (citing City of Cle-
burne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985)).
The Government easily satisfies this standard. There is a
plainly rational relation between the felon-in-possession pro-
hibition as applied to a collector of dangerous, often stolen
weapons and explosives who has repeatedly and flagrantly
ignored the laws of the United States, like Pruess, and the
legitimate government interest in public safety. See Lewis v.
United States, 445 U.S. 55, 56-57, 65-66 (1980) (holding that
application of a felon-in-possession ban to a felon with only
a prior breaking-and-entering conviction, entered without the
defendant having aid of counsel, "clearly meets" rational basis
scrutiny); Vongxay, 594 F.3d at 1114, 1118-19 (following
Lewis post-Heller to hold that application of § 922(g)(1) to a
felon with only non-violent prior convictions satisfies rational
basis review). Accordingly, Pruess’ equal protection chal-
lenge also fails.
IV.
Because we find each of Pruess’ claims on appeal to be
without merit, we affirm the judgment of the district court.
AFFIRMED