US v. Dana Kline, No. 11-5156 (4th Cir. 2012)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-5156 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DANA ALEXANDER KLINE, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Anthony J. Trenga, District Judge. (1:11-cr-00275-AJT-1) Submitted: August 16, 2012 Decided: September 12, 2012 Before AGEE, DAVIS, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Alan H. Yamamoto, Alexandria, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Robert J. Heberle, Scott B. Nussbum, Special Assistant United States Attorneys, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: A jury convicted Dana Alexander Kline on one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) months (2006). He imprisonment. constitutional namely, that On challenges his was sentenced appeal, he to Kline twenty-six raises asserted under conviction unsuccessfully 922(g)(1) § the below, as applied violates the Second Amendment and that § 922(g)(1) violates the Commerce Clause defendant s and Tenth constitutional Amendment. challenge We to review a de criminal novo a statute. United States v. Moore, 666 F.3d 313, 316 (4th Cir. 2012). We affirm. In Moore, we joined our sister circuits in holding that § 922(g)(1) [is] a constitutionally valid statute. F.3d at 316-17. successful While as-applied defendant did not we left challenge, fall open the possibility we concluded that the within 666 category of of the a Moore law-abiding responsible citizens that the Second Amendment protects. Id. (citing 635 District (2008)). of Columbia v. Heller, 554 U.S. 570, We further held that the potential for being robbed in a bad neighborhood was far too vague and unsubstantiated to remove his case from the typical Moore, 666 F.3d at 320. 2 felon in possession case. Under Moore, in order for Kline to rebut the presumption of lawfulness regarding § 922(g)(1) as applied to him, he must show that his factual circumstances remove his challenge from the realm of ordinary challenges. Id. at 319. We reaffirmed this standard in our more recent decision, United States v. Smoot, ___ F.3d ___, 2012 WL 3264387 (4th Cir. Aug. 13, 2012), in which we rejected yet another as-applied challenge to § 922(g)(1). history hardly Referencing Moore, we found Smoot s criminal remarkably be egregious, considered a observing law-abiding that Smoot responsible could citizen. Smoot, ___ F.3d at ___, 2012 WL 3264387 at *4. We egregious as acknowledge those of Kline s the criminal defendants history in is Moore not or as Smoot. However, Kline s criminal record includes a 2008 Virginia state felony conviction violation of Va. for eluding Code a law § 46.2-817, enforcement which officer, resulted from in an incident in which Kline led police on a high-speed car chase over a distance of several miles before fleeing on foot and ultimately taser. being apprehended by officers using a canine and We conclude Kline s prior conviction for eluding a law enforcement officer is sufficient to find the statute constitutional as applied. Kline urges us to consider that there is no reason to believe he intended to do anything but take home the firearm he 3 purchased from an undercover agent (resulting in the instant offense) and use it for self-protection, thereby removing him from the realm of ordinary challenges. We find this assertion far too vague and unsubstantiated to remove his case from the typical felon in possession case. Thus, Kline s Second Amendment Moore, 666 F.3d at 320. as-applied challenge to § 922(g)(1) fails. Kline s second argument that his conviction under § 922(g) is unconstitutional because it violates the Commerce Clause and the Tenth Amendment is also unavailing. Kline relies on United States v. Lopez, 514 U.S. 549 (1995), in which the Supreme Court held that Congress exceeded its Commerce Clause authority by enacting a federal statute prohibiting possession of a firearm district in a court, school this zone. court has However, as previously noted by the considered and rejected a challenge to the constitutionality of § 922(g)(1) based on Lopez. (4th Cir. statute at In United States v. Wells, 98 F.3d 808, 810 11 1996), issue this in court Lopez, determined § 922(g) that [u]nlike the requires the expressly Government to prove the firearm was shipped or transported in interstate or foreign commerce; was possessed in or affected commerce; or was received after having been transported in interstate or foreign commerce. at 811 (internal quotation marks 4 omitted). shipped or Wells, 98 F.3d Thus, [t]he existence of this jurisdictional element, requiring the Government to show that a nexus exists between the firearm and interstate commerce to obtain a conviction under § 922(g), distinguishes Lopez and satisfies the minimal nexus required for the Commerce Clause. Id.; see also United States v. Williams, 445 F.3d 724, 740 (4th Cir. 2006); United States v. McQueen, 445 F.3d 757, 759 (4th Cir. 2006); United States v. Gallimore, 247 F.3d 134, 136 (4th Cir. 2001). In this regard, Kline also raises an as-applied challenge to his § 922(g)(1) conviction, arguing all matters in question merit. took place in Virginia. This argument is without At trial, the Government presented evidence that the gun Kline purchased from the ATF agent was manufactured in Austria and imported into the United States by a Glock facility in Smyrna, Georgia. In a broader argument, Kline also asserts that Heller alters the analysis related to the scope of the Commerce Clause by strengthening firearm. to enact whether the individual interest in possessing a As noted by the Government, whether Congress has power such such a a prohibition prohibition under would the run Commerce afoul Amendment are separate and distinct questions. of Clause the and Second See also United States v. Rene E., 583 F.3d 8, 18 (1st Cir. 2009) (stating that the Supreme Court s decision in Heller did not have any effect 5 on the analysis undertaken to evaluate the extent of Congress power under challenge the to Commerce the Clause). Last, constitutionality of § we reject 922(g)(1) Kline s on Tenth Amendment grounds. See United States v. Bostic, 168 F.3d 718 (4th (determining Cir. 1999) constitutional exercise of that Congress § 922(g)(8) Commerce is Clause a power supplementing complementary state legislation). Accordingly, sentence. legal before affirm Kline s conviction and We dispense with oral argument because the facts and contentions the we court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 6

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