United States v. Mendoza ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4479
JOSE GUILLERMO MENDOZA,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CR-98-42-A)
Submitted: January 26, 1999
Decided: February 23, 1999
Before ERVIN and MOTZ, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
James W. Hyde, IV, FELT, EVANS, PANZONE, BOBROW &
HALLAK, L.L.P., Utica, N.Y.; David Joseph Kiyonaga,
KIYONAGA & KIYONAGA, Alexandria, Virginia, for Appellant.
Helen P. Fahey, United States Attorney, Kathleen M. Kahoe, Assis-
tant United States Attorney, Alexandria, Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Following a bench trial, Jose Mendoza was convicted of one count
of possession of a firearm by a person previously convicted of a crime
involving domestic violence in violation of 18 U.S.C. § 922(g)(9)
(1994). On appeal, Mendoza alleges that the district court erred by
excluding the testimony of his expert witness; that there was no evi-
dence that he knew that the firearm in question had previously trav-
eled in interstate commerce; that he did not knowingly waive his right
to a jury trial when he was tried and convicted on the underlying mis-
demeanor convictions for domestic violence; and that the district
court should have reduced his offense level pursuant to USSG
§ 2K2.1(b)(2)1 because he possessed the firearm for sporting pur-
poses. Finding no reversible error, we affirm.
In October 1996 and May 1997, Mendoza was convicted of misde-
meanors involving domestic violence following bench trials.2 Men-
doza only appealed the second conviction, but he waived his right to
a jury trial on appeal and again pleaded guilty. In July 1997, follow-
ing another incident of domestic violence, Mendoza was arrested by
police officers in Fairfax County, Virginia, and was found in posses-
sion of a handgun.
We review the district court's decision to exclude Mendoza's
expert witness for an abuse of discretion and find none. See United
States v. Ham, 998 F.2d 1247, 1252 (4th Cir. 1993) (court's ruling
will only be overturned if it was arbitrary or irrational). The witness,
an expert economist, was expected to testify that Mendoza's wholly
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1 U.S. Sentencing Guidelines Manual (1997).
2 Under Virginia law, such offenses are tried before a judge alone; there
is no right to a jury trial. On appeal to the circuit court, a defendant may
request a de novo trial by jury.
2
intrastate purchase and possession of the firearm had no effect on the
market for handguns in the United States or interstate commerce. We
find that the district court properly found that this testimony was irrel-
evant. It is well-settled that the Government need only show that the
firearm previously traveled in interstate commerce to satisfactorily
prove a nexus with interstate commerce. See Scarborough v. United
States, 431 U.S. 563, 575 (1977); United States v. Cobb, 144 F.3d
319, 321 (4th Cir. 1998). In the present case, it was undisputed that
the firearm was manufactured in Massachusetts. As a result, it was
clear that the firearm traveled in interstate commerce, and the Gov-
ernment met its burden of proof on this element of the offense; addi-
tional evidence on the practical effect of an individual purchase was
unnecessary.3
We reject Mendoza's contention that 18 U.S.C. § 924(a)(2) (1994)
required the Government to prove that he knew that his possession of
the firearm was illegal and that he knew the weapon had traveled in
interstate commerce.4 We have previously held that the term "know-
ingly" in § 924(a)(2) requires only that a defendant knew he pos-
sessed a firearm; not that he knew his possession was illegal or knew
where the weapon was manufactured. See United States v. Langley,
62 F.3d 602, 606 (4th Cir. 1995).5 Following the framework set forth
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3 We further find that Mendoza's reliance on United States v. Lopez,
514 U.S. 549 (1995), is misplaced. We rejected a similar challenge to
§ 922(g) in United States v. Wells, 98 F.3d 808, 811 (4th Cir. 1996), find-
ing that, unlike the statute attacked in Lopez , § 922(g) contains the
required jurisdictional element.
4 Section 924(a)(2) states that"[w]hoever knowingly violates . . .
[§ 922(g)] shall be fined as provided in this title, imprisoned not more
than 10 years, or both."
5 Mendoza attempts to distinguish Langley by asserting that it only
applies to violations of § 922(g)(1), which prohibits possession of fire-
arms by convicted felons. Specifically, Mendoza argues that convicted
felons may be on notice that they cannot possess firearms, but he was
convicted of misdemeanors and, therefore, had no such notice. We dis-
agree. First, § 924(a)(2) applies to all of§ 922(g), not just subsection
(g)(1). Second, we find that a person convicted of a crime of violence is
on reasonable notice that the government would regulate the means by
which he could commit future acts of violence.
3
in Langley, the Government only had to prove that Mendoza know-
ingly possessed the firearm, that the firearm traveled in interstate
commerce, and that Mendoza had previously been convicted of a
crime involving domestic violence. Here, Mendoza admitted that the
firearm belonged to him, which established knowing possession, and,
as discussed above, the record clearly shows that the firearm traveled
in interstate commerce and that Mendoza was convicted on two occa-
sions for crimes involving domestic violence. Accepting Mendoza's
position would risk "enshrining ignorance of the law as a defense,"
and we decline to follow such a path. See United States v. Forbes, 64
F.3d 928, 933 (4th Cir. 1995).
We are not persuaded by Mendoza's assertion that the evidence
was insufficient to show that he was previously convicted of a misde-
meanor crime involving domestic violence. Mendoza relies on 18
U.S.C.A. § 921(a)(33)(B)(I)(II)(bb) (West Supp. 1998), which states
that a person will not be considered to have been convicted of such
an offense if, in the case of an offense for which the person was "enti-
tled to a jury," the defendant "knowingly and intelligently waived the
right to have the case tried by a jury, by guilty plea or otherwise."
Mendoza claims that his failure to appeal his first conviction and his
waiver of a jury trial and plea of guilty following his second convic-
tion were not knowing and intelligent because neither he nor his
counsel were aware of the existence of § 922(g)(9).6
The district court decided this issue against Mendoza on the ground
that he was not "entitled to a jury" in the first instance under Virginia
law because offenses involving domestic violence are initially tried
before a judge alone; only on appeal is a defendant entitled to a de
novo trial by jury. We decline to address this aspect of the issue
because even if Mendoza was "entitled to a jury" for purposes of the
statute, he failed to show that his waiver of a jury trial in state court
was not knowing or intelligent. We find the Seventh Circuit's reason-
ing in United States v. Long, 852 F.2d 975 (7th Cir. 1988), persuasive
on this issue. The defendant in Long made certain statements as part
of his state plea agreement which were later used against him in a fed-
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6 As a threshold matter, we note that it is quite possible that counsel
was not aware of the statute, since it was enacted only two weeks prior
to Mendoza's first trial.
4
eral firearms prosecution. The Seventh Circuit held that a guilty plea
in a state court is not rendered unknowing or unintelligent for federal
purposes simply because the defendant did not fully assess all of the
consequences of his plea, including the possibility of later federal
prosecution. See Long, 852 F.2d at 978-80. Moreover, as in Long, the
Government here did not participate at all in Mendoza's state prose-
cution. As a result, we find that Mendoza may not now assert a collat-
eral attack on his state proceedings.7
Finally, we review the district court's refusal to grant a downward
adjustment for clear error and find none. See United States v. Holt, 79
F.3d 14, 17 (4th Cir. 1996). Although Mendoza presented evidence
that shortly after his purchase of the firearm in 1995 he fired it at a
range, he admitted to police and at trial that he eventually lost interest
in firing the weapon at the range and kept it for personal protection.
By its terms, the adjustment in USSG § 2K2.1(b)(2) applies only if
the defendant possessed the firearm in question solely for sporting
purposes. Since Mendoza admitted that, at the time of his arrest, he
possessed the weapon primarily for personal protection, the district
court properly found that he was not entitled to the adjustment.
Accordingly, we affirm Mendoza's conviction and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED
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7 We find Mendoza's reliance on United States v. Goins, 51 F.3d 400(4th Cir. 1995), misplaced. The defendant in Goins sought to attack his
guilty plea as unknowing and unintelligent in the federal conviction he
was appealing; not in a prior state conviction.
5