United States v. Eric McGinnis ( 2020 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 19-10197
Fifth Circuit
FILED
April 21, 2020
UNITED STATES OF AMERICA, Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
ERIC GERARD MCGINNIS,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
Before HIGGINBOTHAM, JONES, and DUNCAN, Circuit Judges.
STUART KYLE DUNCAN, Circuit Judge:
We again confront a Second Amendment challenge to a federal law
prohibiting individuals subject to certain domestic violence protective orders
from possessing firearms or ammunition for any purpose. 18 U.S.C. § 922(g)(8).
Appellant Eric McGinnis, convicted by a jury of violating § 922(g)(8), claims
the statute is a facially unconstitutional restriction on his right to keep and
bear arms. This court rejected a virtually identical challenge two decades ago
in Judge Garwood’s landmark decision in United States v. Emerson, 270 F.3d
203 (5th Cir. 2001). Much has changed in Second Amendment jurisprudence
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since then, and so we consider whether § 922(g)(8) still passes muster under
our contemporary framework. It does.
Separately, McGinnis argues his conviction should be vacated because
his protective order does not track the requirements of § 922(g)(8). He also
asserts the district court abused its discretion by imposing a written special
condition of supervised release not orally pronounced at sentencing. We affirm
the conviction but remand for the limited purpose of conforming McGinnis’s
written judgment to the district court’s oral pronouncement.
I.
On the evening of July 28, 2017, Grand Prairie Police Department
(GPPD) officers were dispatched to a wooded area upon report of a potentially
suicidal subject. While searching for the subject, they heard three gunshots
nearby. Hurrying toward the source of the shots, the officers spotted a dark
SUV parked near the tree line. As they prepared to approach the vehicle, a
man later identified as McGinnis emerged from the woods.
McGinnis’s presence ended up being unrelated to the suicide call. When
questioned, however, McGinnis stated he had a gun in his backpack. McGinnis
ignored commands to walk backward toward the officers, instead walking
forward while claiming to be a CIA agent and asking the officers if it was illegal
to shoot a gun in Texas. The officers placed McGinnis under arrest and
searched his backpack, where they found a short-barrel AR-15 rifle with a
collapsible stock and 3D-printed lower receiver, along with five thirty-round
magazines. The backpack also held several envelopes containing documents
entitled “9/11/2001 list of American Terrorist” (sic). The list included the names
and addresses of several prominent politicians.
Upon running McGinnis’s driver’s license through law enforcement
databases, the officers learned he was the subject of an active domestic
protective order. The order had been issued by a Dallas County court on August
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31, 2015, following a hearing at which Sherry Thrash, McGinnis’s former
girlfriend, testified that McGinnis had physically assaulted her on two
occasions, injuring her wrists, ribs, and face. McGinnis was present and
participated in the hearing. At its conclusion, the judge issued a protective
order that prohibited McGinnis from, among other things, “[c]ommitting
family violence against” Thrash or “[e]ngaging in conduct . . . reasonably likely
to harass, annoy, alarm, abuse, torment, or embarrass” Thrash or a member of
her family or household. The order included a finding “that family violence has
occurred and that family violence is likely to occur in the foreseeable future.”
It also prohibited McGinnis from possessing a firearm and separately warned
him that doing so would violate 18 U.S.C. § 922(g)(8). The protective order was
to stay in effect for two years, meaning that it remained active at the time of
McGinnis’s 2017 arrest.
Further investigation revealed McGinnis had attempted to purchase a
lower receiver from a retailer in June 2016. He answered “no” to the
background check question that asked whether he was subject to any “court
order restraining [him] from harassing, stalking, or threatening . . . an
intimate partner.” The Bureau of Alcohol, Tobacco, Firearms and Explosives
agent who reviewed the form caught the lie and contacted McGinnis by phone
in July 2016 to inform him that he could not legally purchase the receiver. The
agent also sent McGinnis a letter via certified mail explaining that McGinnis
could not lawfully own a firearm or ammunition because of the active
protective order. At some point after this incident, McGinnis created his own
receiver using a 3D printer.
Following McGinnis’s 2017 encounter with the GPPD, he was charged in
state court with illegally discharging a firearm within city limits and violating
a protective order. Shortly thereafter, a federal grand jury indicted him on two
additional charges. The first count charged McGinnis with illegally possessing
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an unregistered short-barrel rifle. 1 The second count—and the only one at
issue in this appeal—was for possession of ammunition by a prohibited person
in violation of 18 U.S.C. § 922(g)(8). McGinnis pleaded not guilty and proceeded
to trial, where a jury convicted him on both counts. The district court denied
McGinnis’s post-verdict Rule 29 motion for a judgment of acquittal, rejecting
the constitutional and sufficiency challenges he raises again here. The court
then sentenced McGinnis to 96 months imprisonment. 2 This appeal followed.
II.
McGinnis advances three arguments on appeal. First, he maintains that
§ 922(g)(8) is unconstitutional on its face. Second, he claims the protective
order to which he was subject cannot support a conviction under § 922(g)(8)
because the order’s language fails to satisfy the statute’s requirements. Third,
he argues the special condition of supervised released barring him from “places
frequented by Ms. Sherry Thrash” conflicts with the district court’s oral
pronouncement at sentencing. We consider each argument in turn.
A.
We begin with McGinnis’s argument that § 922(g)(8) is a facially
unconstitutional restriction on his Second Amendment right to keep and bear
arms. “We review de novo the constitutionality of federal statutes.” United
States v. Portillo–Munoz, 643 F.3d 437, 439 (5th Cir. 2011). To sustain a facial
challenge, “the challenger must establish that no set of circumstances exists
under which the [statute] would be valid.” United States v. Salerno, 481 U.S.
739, 745 (1987). “Facial challenges to the constitutionality of statutes should
1 See 26 U.S.C. §§ 5841 & 5861(d).
2 McGinnis’s sentence is well above his Guidelines range of 33 to 41 months. The
district court varied upward out of regard for the “extremely serious” nature of his crimes,
the multiple prior warnings he had received about his prohibited-person status, and the
“danger [he posed] to the community.”
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be granted sparingly and only as a last resort.” Serafine v. Branaman, 810 F.3d
354, 365 (5th Cir. 2016) (quoting Hersh v. United States ex rel. Mukasey, 553
F.3d 743, 762 (5th Cir. 2008)). Applying our contemporary framework for
evaluating federal firearms regulations, we reaffirm our holding from Emerson
that § 922(g)(8) is not facially unconstitutional.
1.
The Second Amendment provides: “A well regulated Militia, being
necessary to the security of a free State, the right of the people to keep and
bear Arms, shall not be infringed.” U.S. CONST. amend. II. Our court explored
the text, structure, and history of the Second Amendment nearly twenty years
ago, becoming the first court of appeals to recognize that “the Second
Amendment protects the right of individuals to privately keep and bear their
own firearms that are suitable as individual, personal weapons . . . regardless
of whether the particular individual is then actually a member of a militia.”
Emerson, 270 F.3d at 264 (emphasis added). Even so, we recognized that the
Second Amendment’s protection for individual rights “does not mean that
those rights may never be made subject to any limited, narrowly tailored
specific exceptions or restrictions for particular cases that are reasonable and
not inconsistent with the right of Americans generally to individually keep and
bear their private arms as historically understood in this country.” Id. at 261.
Indeed, in Emerson we upheld the exact provision at issue here—18 U.S.C.
§ 922(g)(8)—as just such a restriction. Id. at 264.
Several years later, the Supreme Court similarly concluded that the
Second Amendment codified a pre-existing “individual right to possess and
carry weapons in case of confrontation.” District of Columbia v. Heller, 554 U.S.
570, 592 (2008) (emphasis added) (striking down a D.C. ordinance banning
handgun possession in the home). After conducting exhaustive textual and
historical analyses much like those Judge Garwood undertook in Emerson, the
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majority held the Second Amendment guarantees “the right of law-abiding,
responsible citizens to use arms in defense of hearth and home.” Id. at 635. The
Court repeatedly noted that the protection afforded by the individual right is
at its zenith in the home, “where the need for defense of self, family, and
property is most acute.” Id. at 628. However, Heller also cautioned that the
individual Second Amendment right is subject to important limitations
including, for instance, “longstanding prohibitions on the possession of
firearms by felons and the mentally ill.” Id. at 626.
Heller “did not set forth an analytical framework with which to evaluate
firearms regulations in future cases.” Nat’l Rifle Ass’n of Am., Inc. v. Bureau of
Alcohol, Tobacco, Firearms & Explosives [NRA], 700 F.3d 185, 194 (5th Cir.
2012). Instead, the Supreme Court stated only that the ordinance at issue
would fail “[u]nder any of the standards of scrutiny that we have applied to
enumerated constitutional rights.” Heller, 554 U.S. at 628. Post-Heller, we—
like our sister circuits—have “adopted a two-step inquiry for analyzing laws
that might impact the Second Amendment.” Hollis v. Lynch, 827 F.3d 436, 446
(5th Cir. 2016). 3 First, we ask “whether the conduct at issue falls within the
scope of the Second Amendment right.” NRA, 700 F.3d at 194. To make that
determination, “we look to whether the law harmonizes with the historical
3 McGinnis urges us to jettison this two-step inquiry in favor of the “historical-
traditional analysis described by then-Judge Kavanaugh in his impressive dissent in Heller
II.” See Heller v. Dist. Of Columbia [Heller II], 670 F.3d 1244, 1271 (D.C. Cir. 2011)
(Kavanaugh, J., dissenting) (“In my view, Heller and McDonald leave little doubt that courts
are to assess gun bans and regulations based on text, history, and tradition, not by a
balancing test such as strict or intermediate scrutiny.”). Seven members of our court recently
expressed support for an approach of that nature. See Mance v. Sessions, 896 F.3d 390, 394–
95 (5th Cir. 2018) (Elrod, J., dissenting from denial of en banc rehearing). In NRA, however,
a panel of our court adopted the two-step inquiry and we are therefore not at liberty to apply
a different standard. See Mercado v. Lynch, 823 F.3d 276, 279 (5th Cir. 2016) (per curiam)
(“Under our rule of orderliness, one panel of our court may not overturn another panel’s
decision, absent an intervening change in the law, such as by a statutory amendment, or the
Supreme Court, or our en banc court.” (cleaned up)).
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traditions associated with the Second Amendment guarantee.” Id. If the
burdened conduct falls outside the scope of the Second Amendment, then the
law is constitutional and the inquiry is over. Otherwise, we proceed to step two,
where we must determine and “apply the appropriate level of means-ends
scrutiny”—either strict or intermediate. Id. at 195. “[T]he appropriate level of
scrutiny ‘depends on the nature of the conduct being regulated and the degree
to which the challenged law burdens the [individual Second Amendment]
right.’” Id. (quoting United States v. Chester, 628 F.3d 673, 682 (4th Cir. 2010)).
Under this framework, a “regulation that threatens a right at the core of the
Second Amendment”—i.e., the right to possess a firearm for self-defense in the
home—“triggers strict scrutiny,” while “a regulation that does not encroach on
the core of the Second Amendment” is evaluated under intermediate scrutiny.
Id. Strict scrutiny “requires that the challenged statute be narrowly drawn to
provide the least restrictive means of furthering a compelling state interest.”
Dart v. Brown, 717 F.2d 1491, 1498 (5th Cir. 1983). Intermediate scrutiny
requires the lesser showing of “a reasonable fit between the challenged
regulation and an important government objective.” NRA, 700 F.3d at 195
(cleaned up).
2.
The statute at issue in this appeal, 18 U.S.C. § 922(g)(8), prohibits
individuals subject to certain domestic protective orders from “possess[ing] in
or affecting commerce, any firearm or ammunition.” To convict a defendant
under § 922(g)(8), the Government must establish that the protective order:
(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)(A)–(C).
At the first step of the NRA inquiry, McGinnis argues that § 922(g)(8)
burdens the Second Amendment right by “criminaliz[ing] the possession of any
firearm or ammunition,” including the possession of weapons in the home for
self-defense. As to the second step, McGinnis urges us to apply strict rather
than intermediate scrutiny because “a blanket disarmament, for any length of
time, goes to the core of the Second Amendment.” Moreover, he maintains that
even under intermediate scrutiny the statute must fail because it is “not
reasonably adapted to reducing domestic gun abuse.” McGinnis candidly
acknowledges the absence of case law support for his position, but urges this
court to “blaze its own trail” in hopes we will “be the court vindicated by the
Supreme Court.”
As an initial matter, we must consider whether McGinnis’s claim is
foreclosed by circuit precedent. As discussed above, the 2001 decision in which
our court articulated an individual-rights theory of the Second Amendment,
Emerson, involved facial and as-applied challenges to the precise law at issue
here: § 922(g)(8). See Emerson, 270 F.3d at 210, 212. Like McGinnis, Timothy
Emerson was found in possession of a firearm while subject to a domestic
protective order issued by a Texas state court, although in Dr. Emerson’s case
the protective order lacked any express finding he posed a future danger to his
intimate partner. Id. at 211. After setting forth our subsequently-vindicated
individual-rights interpretation, we nevertheless held that “section 922(g)(8),
as applied to Emerson, does not infringe his individual rights under the Second
Amendment.” Id. at 260. Although we were “concerned with the lack of express
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findings in the order, and with the absence of any requirement for the same in
clause (C)(ii) of section 922(g)(8),” we nevertheless rejected Emerson’s
constitutional challenge. Id. at 261. We reasoned that because protective
orders like the one at issue could be set aside by the issuing court or subject to
review by an appellate court, “the nexus between firearm possession by the
party so enjoined and the threat of lawless violence, is sufficient, though likely
barely so, to support the deprivation, while the order remains in effect, of the
enjoined party’s Second Amendment right to keep and bear arms.” Id. at 264.
McGinnis contends we are not bound by Emerson because the Supreme
Court’s subsequent Heller decision “effectively hit the reset button for all
Second Amendment jurisprudence.” We are not so sure. McGinnis does not
identify, nor are we aware of, any holding or principle in Heller that casts doubt
on Emerson. To the contrary, Justice Breyer’s dissent in Heller cited Emerson
as the lone example of a circuit court holding the Second Amendment protects
the right to possess firearms for private, civilian purposes. Heller, 554 U.S. at638 n.2 (2008) (Breyer, J., dissenting). Indeed, in United States v. Anderson,
559 F.3d 348 (5th Cir. 2009), we explicitly held that a constitutional challenge
to § 922(g)(1)—the federal statute barring convicted felons from possessing
firearms—was foreclosed by our pre-Heller but post-Emerson precedent, which
Heller “provide[d] no basis for reconsidering.” Id. at 352.
McGinnis nevertheless maintains that Emerson is not controlling
because it did not apply the two-step analytical framework we later adopted in
NRA, and provided no discussion of the appropriate level of means-end
scrutiny. It is true that the Emerson court did not expressly implement a two-
part inquiry à la NRA, yet it was guided by the same concerns. Emerson first
considered the scope of the Second Amendment right “as historically
understood,” and then determined—presumably by applying some form of
means-end scrutiny sub silentio—that § 922(g)(8) is “narrowly tailored” to the
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goal of minimizing “the threat of lawless violence.” Emerson, 270 F.3d at 261,
264. It is difficult to see how the result in Emerson would be different under
the later-developed NRA approach.
Be that as it may, in an abundance of caution we proceed to re-analyze
the constitutionality of § 922(g)(8) under the two-step NRA framework.
3.
a.
At step one, we examine “whether the conduct at issue falls within the
scope of the Second Amendment right.” NRA, 700 F.3d at 194. We have
explained that “a longstanding, presumptively lawful regulatory measure—
whether or not it is specified on Heller’s illustrative list—would likely fall
outside the ambit of the Second Amendment; that is, such a measure would
likely be upheld at step one of our framework.” Id. at 196.
In this facial challenge, the conduct at issue is the keeping and
possessing of firearms by individuals subject to domestic protective orders as
defined in § 922(g)(8). McGinnis argues that this conduct, insofar as it includes
keeping and possessing firearms at home for self-defense purposes, falls within
the scope of the Second Amendment. The Government responds that
restricting this conduct harmonizes with historical “limitations on firearms
possession by individuals based on the risk they pose to others” and therefore
falls outside the Second Amendment’s ambit.
We need not and do not resolve this issue. Even assuming arguendo that
the conduct burdened by § 922(g)(8) falls within the Second Amendment right,
McGinnis’s facial challenge fails. Cf. United States v. Mahin, 668 F.3d 119, 124
(4th Cir. 2012) (assuming arguendo that § 922(g)(8) implicates Second
Amendment); see also Mance v. Sessions, 896 F.3d 699, 704 (5th Cir. 2018)
(assuming arguendo that statutes prohibiting interstate gun sales are not
longstanding or presumptively lawful measures under NRA step one).
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No. 19-10197
b.
Proceeding to step two, we must “determine whether to apply
intermediate or strict scrutiny to the law, and then . . . determine whether the
law survives the proper level of scrutiny.” NRA, 700 F.3d at 194.
i.
“[T]he appropriate level of scrutiny depends on the nature of the conduct
being regulated and the degree to which the challenged law burdens the right.”
Id. at 195. “A law that burdens the core of the Second Amendment guarantee
. . . would trigger strict scrutiny, while a less severe law would be
proportionately easier to justify.” Id. at 205 (cleaned up).
Extending his step-one argument, McGinnis maintains that § 922(g)(8)
strikes the core of the Second Amendment because it completely disarms
individuals subject to qualifying protective orders while offering no exception
for home-defense or self-defense. McGinnis therefore urges us to apply strict
scrutiny. The Government argues that the Second Amendment, at its core, only
protects gun possession by peaceable, responsible citizens, and “any person
who falls within § 922(g)(8)’s scope cannot be considered ‘peaceable’ or
‘responsible.’” The Government further points out that § 922(g)(8), like the
statute in NRA prohibiting 18-to-20-year-olds from buying firearms, disarms
only a discrete category, not the entire community. See NRA, 700 F.3d at 205.
Consequently, the Government says intermediate scrutiny applies. While this
is a close question—and while choosing the appropriate level of scrutiny
involves some degree of arbitrariness—we agree with the Government.
According to the Supreme Court, “whatever else [the Second
Amendment] leaves to future evaluation, it surely elevates above all other
interests the right of law-abiding, responsible citizens to use arms in defense
of hearth and home.” Heller, 554 U.S. at 635; cf. NRA, 700 F.3d at 206 (“The
Second Amendment, at its core, protects law-abiding, responsible citizens”
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(cleaned up)). While § 922(g)(8) is broad in that it prohibits possession of all
firearms, even those kept in the home for self-defense, it is nevertheless narrow
in that it applies only to a discrete class of individuals for limited periods of
time. Critically, the discrete class affected by § 922(g)(8) is comprised of
individuals who, after an actual hearing with prior notice and an opportunity
to participate, have been found by a state court to pose a “real threat or danger
of injury to the protected party.” Emerson, 270 F.3d at 262. 4 Put differently,
individuals subject to such judicial findings are not the “responsible citizens”
protected by the core of the Second Amendment. United States v. Chapman,
666 F.3d 220, 226 (4th Cir. 2012); cf. United States v. Reese, 627 F.3d 792, 802
(10th Cir. 2010) (stating § 922(g)(8) “prohibit[s] the possession of firearms by
[a] narrow class[] of persons who, based on their past behavior, are more likely
to engage in domestic violence”). Additionally, the restrictions imposed by
§ 922(g)(8) apply only for the duration of the protective order.
In sum, intermediate scrutiny applies because § 922(g)(8) is sufficiently
bounded both as to “the nature of the conduct being regulated” (it regulates
gun possession by persons judicially determined to pose a real threat or
danger) and “the degree to which [it] burdens the [Second Amendment] right”
(it prohibits possession only after an adversarial hearing and only for the
duration of the resulting protective order). NRA, 700 F.3d at 195.
4 McGinnis asserts that § 922(g)(8), by its terms, “allow[s] for a criminal conviction
against a citizen who is altogether law-abiding and responsible so long as the court order
prohibits and restrains certain criminal conduct.” Essentially, he takes issue with the fact
that § 922(g)(8)’s text does not require a finding that a respondent pose a credible threat. See
§ 922(g)(8)(C)(ii). This argument, however, is foreclosed by Emerson, which recognized that
Congress enacted § 922(g)(8) “on the assumption” that state laws authorizing protective
orders require “evidence credited by the court reflect[ing] a real threat or danger of injury to
the protected party by the party enjoined.” 270 F.3d at 262; cf. Mahin, 668 F.3d at 126(“[W]hether a finding that the person represents a credible threat is explicit in the order’s
language or not, it is a necessary step in the court’s decision to issue the injunctive order.”).
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Our analysis in NRA supports applying intermediate scrutiny here. In
NRA, we considered a challenge to statutory provisions “prohibit[ing] federally
licensed firearms dealers from selling handguns to persons under the age of
21.” 700 F.3d at 188; see 18 U.S.C. §§ 922(b)(1) & (c)(1). We determined
intermediate scrutiny was “[u]nquestionably” appropriate because the laws did
“not disarm an entire community, but instead prohibit[ed] commercial
handgun sales to 18-to-20-year-olds—a discrete category.” Id. at 205. We
credited Congress’s finding that 18-to-20-year-olds “tend to be relatively
irresponsible and can be prone to violent crime, especially when they have easy
access to handguns.” Id. at 206 (quoting Pub. L. No. 90–351, § 901(a)(6), 82
Stat. 197, 226 (1968)). While we were “inclined to uphold the challenged federal
laws at step one of our analytical framework,” id. at 204, we went on to explain
that even if the laws burdened the core of the Second Amendment right, the
burden was not severe because (1) the laws only affected handgun sales, not
use; (2) 18-to-20-year-olds could still purchase long-guns or “acquire handguns
from responsible parents or guardians;” and (3) the restrictions were only
temporary, ending when a person turns 21. Id. at 206–07. Similarly, § 922(g)(8)
restricts gun possession for a discrete class and for a limited time. To be sure,
§ 922(g)(8) works a total ban on gun possession for persons subject to qualifying
protective orders, but it does so “against the background of the almost
universal rule of American law that for a temporary injunction to issue . . . [a]
presently existing actual threat must be shown.” Emerson, 270 F.3d at 262(cleaned up). In other words, whereas 18-to-20-year-olds only “tend to be
relatively irresponsible,” NRA, 700 F.3d at 206, individuals subject to the
protective orders described in § 922(g)(8) have been adjudged a “real threat.”
Emerson, 270 F.3d at 262. The net result is that neither restriction severely
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burdens Second Amendment rights and so, under the controlling analysis our
circuit has adopted, both call for intermediate scrutiny. 5
ii.
Having determined intermediate scrutiny applies, we consider whenever
§ 922(g)(8), on its face, survives. We ask “whether there is a reasonable fit
between the law and an important government objective.” NRA, 700 F.3d at
207. Stated differently, the Government must demonstrate that the statute is
“reasonably adapted to an important government interest.” Id. The parties
agree that reducing domestic gun abuse is not just an important government
interest, but a compelling one. They only dispute whether § 922(g)(8) is
reasonably adapted to that interest. We hold that it is.
As the Fourth Circuit stated, Ҥ 922(g)(8) rests on an established link
between domestic abuse, recidivism, and gun violence and applies to persons
already individually adjudged in prior protective orders to pose a future threat
of abuse.” Mahin, 668 F.3d at 128. The statute’s procedural requirements, as
discussed above, ensure that any predicate protective order was issued only
after an adversarial hearing where the respondent was entitled to present his
own account of the alleged abuse. Moreover, § 922(g)(8)’s prohibition is
temporary, applying only for the duration of the domestic protective order (in
McGinnis’s case, two years). 6 These features assure us that § 922(g)(8) is
We note that each of our sister courts to have reached step two of the post-Heller
5
framework has applied intermediate scrutiny to § 922(g)(8). See Reese, 627 F.3d at 802;
Chapman, 666 F.3d at 226; Mahin, 668 F.3d at 124.
6 Congress’ tailoring is further revealed by comparing the prohibitions imposed by
§ 922(g)(8) with those imposed by § 922(g)(9). The former, at issue here, prohibits gun
possession only while a court-issued domestic protective order is in effect. The latter, which
applies to individuals “convicted in any court of a misdemeanor crime of domestic violence,”
imposes a lifetime ban on gun possession (or until the conviction is expunged). See United
States v. Skoien, 614 F.3d 638, 644–45 (7th Cir. 2010).
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“reasonably adapted” to the goal of reducing domestic gun abuse, whether or
not it is the least restrictive means for doing so.
This conclusion is supported, if not dictated, by our holding in Emerson.
There we found a sufficient “nexus” between “the threat of lawless violence”
and § 922(g)(8)’s prohibition on gun possession for persons subject to domestic
protective orders—even orders lacking express judicial findings of future
danger. Emerson, 270 F.3d at 264. That is, we concluded § 922(g)(8) was one of
the “limited, narrowly tailored specific exceptions or restrictions for particular
cases that are reasonable and not inconsistent with the right of Americans
generally to individual keep and bear their private arms as historically
understood in this country.” Id. at 261. At a minimum, Emerson applied
heightened—i.e., intermediate—scrutiny, and some have suggested it applied
strict scrutiny. See, e.g., United States v. Elkins, 780 F. Supp. 2d 473, 478 (W.D.
Va. 2011) (describing Emerson as applying “strict scrutiny”). Regardless, we
see no reason to depart from Emerson’s means-end analysis in this case.
In sum, we hold § 922(g)(8) passes constitutional muster under our two-
step NRA framework and therefore reject McGinnis’s facial challenge. We note,
however, that our holding today does not foreclose the possibility of a successful
as-applied challenge to § 922(g)(8). See, e.g., City of El Cenzio v. Texas, 890 F.3d
164, 191 (5th Cir. 2018) (post-enforcement “as-applied challenges . . . are the
basic building blocks of constitutional adjudication” (cleaned up)).
B.
Next, we consider McGinnis’s claim that his conviction must be reversed
because the language of the underlying domestic protective order fails to
satisfy the conditions of § 922(g)(8)(C)(i) or (C)(ii). Since McGinnis raised this
sufficiency-of-the-evidence claim in a Rule 29 motion at trial, our review is de
novo yet “highly deferential to the verdict.” United States v. Bowen, 818 F.3d
179, 186 (5th Cir. 2016) (quoting United States v. Beacham, 774 F.3d 267, 272
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(5th Cir. 2014)). We must affirm as long as “a reasonable jury could conclude
that the evidence presented, viewed in the light most favorable to the
government, established the defendant’s guilt beyond a reasonable doubt.”
United States v. Buluc, 930 F.3d 383, 387 (5th Cir. 2019) (quoting United States
v. Duncan, 164 F.3d 239, 242 (5th Cir. 1999)).
As noted above, § 922(g)(8) contains three elements, the third of which
may be satisfied in the alternative. Subsections (C)(i) and (C)(ii) require that
the underlying protective order either:
(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.
The protective order in this case included a finding “that family violence has
occurred and that family violence is likely to occur in the foreseeable future.”
The order also prohibited McGinnis from (1) “committing family violence
against” Sherry Thrash; (2) “communicating directly with [Thrash] in a
threatening or harassing manner”; (3) “[c]ommunicating a threat through any
person to” Thrash; or (4) “[e]ngaging in conduct directed specifically toward”
Thrash “that is reasonably likely to harass, annoy, alarm, abuse, torment, or
embarrass” her.
McGinnis contends there was insufficient evidence to support his
conviction because his protective order meets neither of the requirements in
§ 922(g)(8)(C). He argues the order is inadequate under (C)(i) because it does
not incorporate a finding that McGinnis “represents a credible threat” to
Thrash’s “physical safety.” He relies on the fact that Texas’s statutory
definition of “family violence” includes assault, an offense that does not
necessarily involve the threat of physical harm. See TEX. FAM. CODE § 71.004;
TEX. PENAL CODE § 22.01(a). Essentially, McGinnis’s position is that if a state’s
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No. 19-10197
definition of family violence includes any conduct that does not “represent[] a
credible threat to . . . physical safety,” then a state court’s generalized finding
of family violence cannot support a federal conviction under § 922(g)(8)(C)(i).
As to § 922(g)(8)(C)(ii), McGinnis argues that the language in his
protective order is not “substantially similar” to the statutory language as
mandated by (C)(ii)’s requirement that the order “by its terms explicitly
prohibit[] the use, attempted use, or threatened use of physical force . . .”
(emphasis added). McGinnis invokes the surplusage canon of statutory
interpretation to argue that Congress would not have included the phrase “by
its terms explicitly” if Congress did not wish to impose a literal requirement
that any qualifying protective order clearly and without implication prohibit
the use, attempted use, or threatened use of physical force. He also cites the
legislative history of § 922(g)(8), arguing the language of (C)(ii) was intended
to satisfy “more conservative” House members by keeping the statute narrow.
We find McGinnis’s arguments unavailing, and hold that, at the very
least, the protective order at issue satisfies the requirements of subsection
(C)(ii). As McGinnis himself observes, other courts of appeals have squarely
held that similar or even broader language suffices under (C)(ii). For example,
the Fourth Circuit has held that a protective order requiring its subject to
“refrain from abusing” his wife “unambiguously satisfies subsection (C)(ii)’s
requirement that the court order prohibit the use, attempted use, or
threatened use of physical force.” United States v. Bostic, 168 F.3d 718, 722
(4th Cir. 1999). Similarly, the First Circuit held that a protective order
prohibiting its subject from “abusing, harassing, or threatening his wife or
children” was sufficient under (C)(ii) even though it “d[id] not use the same
verbiage as the statute.” United States v. Coccia, 446 F.3d 233, 235, 241 (1st
Cir. 2006). The court took a common-sense approach, recognizing that “the
commonly understood definition of ‘abuse’ includes violent acts involving
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No. 19-10197
physical force within the [statutory] definition.” Id. at 242. The Eleventh
Circuit reached the same conclusion as to a protective order enjoining its
subject from “intimidating, threatening, hurting, harassing, or in any way
putting the plaintiff, . . . her daughters and/or her attorney in fear of their lives,
health, or safety.” United States v. DuBose, 598 F.3d 726, 731 (11th Cir. 2010)
(per curiam). The court reasoned that because “the definition of ‘hurt’ as a verb
includes ‘to inflict with physical pain,’ . . . the order’s language restraining [the
subject] from ‘hurting’ his wife . . . satisfies subsection (C)(ii)’s requirement.”
Id. (cleaned up). The court added that “[a] narrower interpretation would
defeat what we conceive to be the obvious and general purpose of the statute.”
Id.Consistent with these cases, we hold that if the commonly understood
definitions of terms in the protective order include acts involving “physical
force,” the protective order is sufficient to support a conviction under
§ 922(g)(8)(C)(ii). Here, McGinnis’s protective order prohibited him from
“[c]omitting family violence” against Thrash or engaging in conduct likely to
“abuse” her. The commonly understood definitions of these terms include acts
involving physical force. Thus, the jury plausibly found that the order satisfied
(C)(ii), and so we decline to reverse McGinnis’s conviction on this basis. 7
C.
Finally, we address McGinnis’s contention that the district court erred
by including a condition of supervised release in its written judgement—
namely, restraining McGinnis from visiting “places frequented by Ms. Sherry
Thrash”—that the court did not pronounce orally at sentencing. Our standard
of review for oral-pronouncement claims varies depending on whether the
7 Because we hold that McGinnis’s underlying protective order satisfies
§ 922(g)(8)(C)(ii), we need not and do not reach the question whether it also satisfies (C)(i).
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No. 19-10197
defendant had opportunity to object. If he had no such opportunity, we review
for abuse of discretion. United States v. Mudd, 685 F.3d 473, 480 (5th Cir.
2012). If the defendant had opportunity but failed to object, we review for plain
error. United States v. Huor, 852 F.3d 392, 398 (5th Cir. 2017).
The district court’s obligation to orally pronounce its sentence is
grounded in the defendant’s right to be present at sentencing, which in turn is
derived from the Sixth Amendment and the Due Process Clause. See United
States v. Morin, 832 F.3d 513, 519 (5th Cir. 2016); United States v. Bigelow,
462 F.3d 378, 381 (5th Cir. 2006). “[W]hen there is a conflict between a written
sentence and an oral pronouncement, the oral pronouncement controls.”
United States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001). In such cases, the
written judgment must be returned to the district court and “reformed to
conform to the oral sentence.” Huor, 852 F.3d at 404. If the difference between
the orally pronounced sentence and the written judgment “is only an
ambiguity,” however, “we look to the sentencing court’s intent to determine the
sentence.” Bigelow, 462 F.3d at 381.
At sentencing, the district court orally granted the Government’s request
to impose a special condition barring McGinnis from having “any direct or
indirect contact with Ms. Thrash during [his] term of supervised release.”
McGinnis did not object to this condition. However, the language appearing on
McGinnis’s written judgment provides not only that McGinnis may not contact
Thrash but also that he “shall not enter onto the premises, travel passed [sic],
or loiter near Ms. Sherry Thrash’s residence, place of employment, or other
places frequented by Ms. Sherry Thrash.”
McGinnis argues that the condition in his written judgment prohibiting
him from entering or traveling past “other places frequented by Ms. Sherry
Thrash” directly conflicts with the district court’s oral pronouncement.
Further, because he “could not have objected to the [later-added language] at
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No. 19-10197
sentencing,” McGinnis submits that the conflict should be reviewed for abuse
of discretion rather than plain error. The Government concedes this issue,
offering no objection “to a remand for the limited purpose of allowing the
district court to delete that short phrase from the rest of the condition.”
Because McGinnis received no notice of the extra terms included in his
written judgment, we review for abuse of discretion. Mudd, 685 F.3d at 480.
McGinnis is correct that by imposing “a more burdensome requirement” than
the special condition recited at sentencing, his written judgment creates a
conflict with the court’s oral pronouncement, not merely an ambiguity.
Bigelow, 462 F.3d at 383. Thus, as the Government acknowledges, McGinnis’s
judgment must be returned to the district court and “reformed to conform to
the oral sentence.” Huor, 852 F.3d at 404.
***
For the foregoing reasons, we AFFIRM McGinnis’s conviction but
REMAND for the limited purpose of amending McGinnis’s written judgment
to conform to the district court’s oral pronouncement at sentencing.
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No. 19-10197
STUART KYLE DUNCAN, Circuit Judge, joined by EDITH H. JONES, Circuit
Judge, concurring:
While our opinion today dutifully applies our court’s two-step framework
for post-Heller Second Amendment challenges, I write separately to reiterate
the view that we should retire this framework in favor of an approach focused
on the Second Amendment’s text and history. 1 Not only would this approach
provide firmer ground for evaluating restrictions on the right to bear arms, but
it would also further cabin judicial application of the “tiers-of-scrutiny
approach to constitutional adjudication,” an exercise which “is increasingly a
meaningless formalism.” Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292,
2326–27 (2016) (Thomas, J., dissenting). 2 “[W]hatever abstract tests [courts]
may choose to devise, they cannot supersede . . . those constant and unbroken
national traditions that embody the people’s understanding” of constitutional
guarantees. United States v. Virginia, 518 U.S. 515, 568 (1996) (Scalia, J.,
dissenting). I would support en banc review in this case or any appropriate
future case to reassess our Second Amendment analysis.
1 See Mance v. Sessions, 896 F.3d 390, 394–95 (5th Cir. 2018) (en banc) (mem.) (Elrod,
J., dissenting from denial of en banc rehearing, joined by Jones, Smith, Willett, Ho, Duncan,
and Engelhardt, JJ.) (“Simply put, unless the Supreme Court instructs us otherwise, we
should apply a test rooted in the Second Amendment’s text and history—as required under
Heller and McDonald—rather than a balancing test like strict or intermediate scrutiny.”);
see also Nat'l Rifle Ass'n, Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 714 F.3d
334, 338 (5th Cir. 2013) (Jones, J., dissenting) (“[W]e should presuppose”—based on Heller’s
analogy to First Amendment rights—“that the fundamental right to keep and bear arms is
not itself subject to interest balancing.”); Heller v. Dist. Of Columbia [Heller II], 670 F.3d
1244, 1271 (D.C. Cir. 2011) (Kavanaugh, J., dissenting) (“In my view, Heller and
McDonald leave little doubt that courts are to assess gun bans and regulations based on text,
history, and tradition, not by a balancing test such as strict or intermediate scrutiny.”).
2 United States v. Virginia, 518 U.S. 515, 567 (1996) (Scalia, J., dissenting) (“These
[tiers of scrutiny] are no more scientific than their names suggest, and a further element of
randomness is added by the fact that it is largely up to us which test will be applied in each
case.”); see also Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-
Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. REV. 1443, 1464–70
(2009) (arguing the intermediate/strict scrutiny distinction is less helpful in Second
Amendment cases than might appear).
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