United States v. John Myers , 581 F. App'x 171 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4891
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN CHARLES MYERS,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. John Preston Bailey,
Chief District Judge. (5:12-cr-00017-JPB-JES-1)
Submitted: July 31, 2014 Decided: August 4, 2014
Before WILKINSON, KING, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Donald J. Tennant, Jr., TENNANT LAW OFFICES, Wheeling, West
Virginia, for Appellant. William J. Ihlenfeld, II, United
States Attorney, David J. Perri, Assistant United States
Attorney, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Charles Myers was convicted after a jury trial of
possession of a firearm while subject to a domestic violence
protection order, in violation of 18 U.S.C. §§ 922(g)(8),
924(a)(2) (2012), and was sentenced to eighteen months’
imprisonment. On appeal, Myers challenges his conviction,
arguing that the district court erred in granting the
Government’s motions in limine and in instructing the jury.
Myers also seeks to challenge the validity of the underlying
state-court order (“the final order”) entering and extending the
duration of the terms of the previously-entered state-court
domestic violence protection order. We affirm.
Myers claims first that the district court erred in
granting the Government’s motion in limine and ruling that the
domestic violence protection order complied with 18 U.S.C.
§ 922(g)(8)(C)(ii). Myers, however, fails to support this claim
in accordance with Fed. R. App. P. 28(a)(8)(A) (“[T]he
[appellant’s] argument . . . must contain . . . appellant’s
contentions and the reasons for them, with citations to the
authorities and parts of the record on which the appellant
relies.”). We therefore deem this claim abandoned. See Wahi v.
Charleston Area Med. Ctr., Inc., 562 F.3d 599, 607 (4th Cir.
2009); Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6
(4th Cir. 1999).
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Next, we reject as without merit Myers’ contention
that the district court erred in instructing the jury on the
second and third elements of the § 922(g)(8) offense because
Myers invited the error of which he now complains by opposing
amendment of the proposed instructions at the charging
conference. United States v. Lespier, 725 F.3d 437, 445-46,
449-51 (4th Cir. 2013) (invited error doctrine applies where
defendant opposed the provision of a lesser-included offense
instruction and then argued on appeal that it was error for the
instruction not to have been given), cert. denied, 134 S. Ct.
974 (2014); United States v. Hickman, 626 F.3d 756, 772
(4th Cir. 2010) (declining, under invited error doctrine, to
review defendant’s claim that the jury misused a book containing
transcripts of recorded telephone calls where defendant
confirmed to the district court that he did not object to the
jury having access to the book and further agreed to the method
by which the jury would gain access to the book). Further,
Myers does not establish the presence of extraordinary
circumstances that would warrant of our review of an error
invited by an appellant. Hickman, 626 F.3d at 772.
We further conclude that Myers fails to establish that
the district court abused its discretion in granting the
Government’s motion in limine on the issue of whether he had
notice of the relevant state-court hearing. See United States
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v. Hornsby, 666 F.3d 296, 309 (4th Cir. 2012) (stating standard
of review).
Section 922(g)(8) prohibits the possession of a
firearm by a person who is subject to a court order that “was
issued after a hearing of which such person received actual
notice, and at which such person had an opportunity to
participate.” 18 U.S.C. § 922(g)(8)(A). * For purposes of
§ 922(g)(8), notice “necessarily means that the hearing must
have been set for a particular time and place and the defendant
must have received notice of that and thereafter the hearing
must have been held at that time and place.” United States v.
Spruill, 292 F.3d 207, 220 (5th Cir. 2002). The statute,
however, does not require advance notice or notice of the
content of the hearing. United 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. Indeed, Congress
chose to modify ‘notice’ with ‘actual’ rather than ‘advance,’
implying that it did not intend to require ‘advance’ notice.”);
see also United States v. Lippman, 369 F.3d 1039, 1042 (8th Cir.
2004) (“A [§ 922(g)(8)-compliant] hearing requires actual notice
*
Myers makes no claim on appeal that he was not afforded
the “opportunity to participate” at the hearing.
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and an opportunity to be heard, but the statute does not require
that evidence actually have been offered or witnesses called.”).
Relying on these definitions of notice, we conclude
that Myers had adequate notice of the state-court hearing. The
record in this case makes clear that the state court issued an
order scheduling the hearing, and Myers appeared at the hearing
with his counsel. The fact that Myers appeared at the hearing
necessarily means that he had actual notice of it. We further
reject Myers’ assertion in support of this claim that the
Government was required to prove he was served with or received
a copy of the final order prior to his possession of a firearm.
See United States v. Napier, 233 F.3d 394, 398-99 (6th Cir.
2000).
Finally, we reject as without merit Myers’ effort to
challenge the constitutionality of the final order on the basis
that its one-hundred-year prohibition on his possession of
firearms violates his right under the Second Amendment to bear
arms. As the Government correctly argues, the validity of the
final order is not relevant to the determination of whether
Myers violated § 922(g)(8). “[N]othing 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).
Other courts have reached this same conclusion, and we agree
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with “the overwhelming weight of federal case law preclud[ing] 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, 804–05
(10th Cir. 2010).
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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