BARRY MICHAELS V. LORETTA LYNCH, No. 17-15279 (9th Cir. 2017)

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FILED NOT FOR PUBLICATION NOV 3 2017 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT BARRY MICHAELS, U.S. COURT OF APPEALS No. 17-15279 Plaintiff-Appellant, D.C. No. 2:16-cv-00578-JAD-PAL v. JEFFERSON B. SESSIONS III*, Attorney General; THOMAS E. BRANDON, Deputy Director, Head of the Bureau of ATF, MEMORANDUM** Defendants-Appellees. Appeal from the United States District Court for the District of Nevada Jennifer A. Dorsey, District Judge, Presiding Submitted October 23, 2017*** Before: LEAVY, WATFORD, and FRIEDLAND, Circuit Judges. Barry Michaels appeals from the district court’s judgment dismissing his * Jefferson B. Sessions III has been substituted for his predecessor, Loretta E. Lynch, as United States Attorney General under Fed. R. App. P. 43(c)(2). ** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. *** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). action challenging the constitutionality of 18 U.S.C. § 922(g)(1) under the Second Amendment. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under Federal Rule of Civil Procedure 12(b)(6). Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005, 1014 (9th Cir. 2012). We affirm. The district court properly dismissed Michaels’s action because prior precedent forecloses Michaels’s as-applied challenge to § 922(g)(1). See United States v. Vongxay, 594 F.3d 1111, 1115 (9th Cir. 2010) (stating that “felons are categorically different from the individuals who have a fundamental right to bear arms,” and upholding § 922(g)(1) against a Second Amendment challenge); see also United States v. Phillips, 827 F.3d 1171, 1174-75 (9th Cir. 2016) (rejecting as foreclosed by precedent the argument that imposing § 922(g)(1) on non-violent felons violates the Second Amendment). We reject as meritless Michaels’s contention that the district court committed reversible error by failing to apply strict scrutiny. See United States v. Chovan, 735 F.3d 1127, 1136-38 (9th Cir. 2013) (holding that a statute “does not implicate this core Second Amendment right [if] it regulates firearm possession for individuals with criminal convictions”). We do not consider matters not specifically and distinctly raised and argued 2 17-15279 in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). AFFIRMED. 3 17-15279

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