US v. Jimmy Elkins, No. 12-4276 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4276 UNITED STATES OF AMERICA, Plaintiff Appellee, v. JIMMY SCOTT ELKINS, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Big Stone Gap. James P. Jones, District Judge. (2:10-cr-00017-JPJ-PMS-1) Submitted: October 5, 2012 Decided: October 15, 2012 Before SHEDD, DUNCAN, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Dana R. Cormier, DANA R. CORMIER, P.L.C., Staunton, Virginia, for Appellant. Timothy J. Heaphy, United States Attorney, Zachary T. Lee, Assistant United States Attorney, Abingdon, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jimmy Scott Elkins pled guilty to one count of possessing a firearm, in and affecting commerce, while subject to a domestic violence protective U.S.C. § 922(g)(8) (2006). months in prison. order, in violation of 18 Elkins was sentenced to twenty-seven Elkins s plea was a conditional one, Fed. R. Crim. P. 11(a)(2), and on appeal, he raises the constitutional challenge he asserted unsuccessfully below, namely, that § 922(g)(8), as applied to him, violates the Second Amendment. We review de novo a defendant s constitutional challenge to a criminal statute. United States v. Moore, 666 F.3d 313, 316 (4th Cir. 2012). The Supreme Court, in District of Columbia v. Heller, 554 U.S. 570 (2008), identified an individual right to keep and bear arms embodied in the Second Amendment. Subsequently, in United States v. Chester, 628 F.3d 673 (4th Cir. 2010), we established a two-pronged test for assessing a Second Amendment challenge to a criminal statute. The first prong requires an evaluation of whether Second Amendment rights are burden[ed] or regulat[ed] by the statute in question. Id. at 680. If so, under the second prong, the statute must pass constitutional muster in scrutiny. accordance with the appropriate Id. 2 level of judicial We have not yet decided whether the Second Amendment extends beyond the home or to perpetrators of domestic abuse. United States v. Mahin, 668 F.3d 119, 124 (4th Cir. 2012); see United States v. Chapman, 666 F.3d 220, 225 (4th Cir. 2012); United States v. Staten, 666 F.3d 154, 159 (4th Cir. 2011), both cert. Mahin evaluate without denied, and an 132 Chapman, as-applied deciding, S. we Ct. applied challenge that the right in scrutiny to § 922(g)(8), conduct fell assuming, within the Mahin, 668 F.3d at 124; Chapman, Heller the in citizen self-defense. However, Elkins s claim does not fall within the core identified responsible (2012). intermediate to relevant Second Amendment s protection. 666 F.3d at 226. 1937 to possess right and of carry a a law-abiding, weapon for Chapman, 666 F.3d at 226 (emphasis omitted). Accordingly, we evaluate Elkins s challenge using intermediate scrutiny. Intermediate scrutiny requires that the government bear the burden of establishing a reasonable fit between the challenged objective. statute and a substantial Chester, 628 F.3d at 683. government We have decided, [b]ased upon § 922(g)(8) s legislative history, the relevant case law, and common sense, . . . [that] the government has carried its burden of establishing that reducing domestic gun violence is a substantial governmental objective 3 of § 922(g)(8). Chapman, 666 F.3d at 227. Accordingly, we conclude that § 922(g)(8) satisfies the intermediate scrutiny standard. In order for Elkins to prevail on his as-applied challenge, he must show that his factual circumstances remove his challenge from the realm of ordinary challenges. F.3d at 319. fit between Moore, 666 In Chapman, we held that there was a reasonable the substantial government interest of reducing domestic gun violence and disarming an individual who is subject to a court order that (1) satisfies procedural due process; (2) restrains him from harassing, stalking or threatening his intimate partner or a child of that partner, or engaging in other actions that would place the partner in reasonable fear of bodily injury to self or child; and (3) prohibits the use, attempted use, or threatened use of such physical force against the partner or child that would reasonably be expected to cause bodily injury. Chapman, 666 F.3d at 230. Although Elkins concedes that his protective order was nearly identical to that at issue in Chapman, he contends that § 922(g)(8) is unconstitutional as applied to him because there is not a reasonable fit between preventing domestic gun violence and disarming him, specifically. Elkins urges us to consider that he presented no threat of future harm to the woman who obtained the protective order, noting that she continued to maintain her relationship with him after the protective order 4 was issued. We find this assertion insufficient to remove Elkins s case from the ambit of similar cases decided by this court. We held in Chapman that § 922(g)(8)(A)-(B) and (C)(ii) may be somewhat over-inclusive given that not every person who Chapman, 666 falls within . . . it would misuse a firearm. F.3d at 231. the However, we do not believe that this undermines constitutionality of the statute because intermediate scrutiny requires only a reasonable fit, rather than a perfect one. Id. We also reject Elkins s next argument that § 922(g)(8) is unconstitutional as applied to him because the protective order issued against him does not specifically articulate that he is a credible threat. that opinion as-applied actually challenge Although Elkins relies on Mahin, rejects to the notion § 922(g)(8), a that to protective survive order an must recite a talismanic incantation that the subject of the order poses a credible threat. As we concluded in Mahin, whether 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. Id. Elkins also seeks to challenge the validity of the underlying state-court protective order, asserting that it was based on inadequate hearsay evidence 5 and that there were no conclusive findings that he threat. However, as validity of the underlying determination of § 922(g)(8). the represented Government whether order credible correctly is Elkins s a argues, irrelevant conduct future the to falls the within Nothing 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 United order. States v. Hicks, 389 F.3d 514, 535 (5th Cir. 2004) (emphasis omitted). Other courts have reached the same conclusion, and we agree with the overwhelming defendant collateral in a attack protective order. weight of federal § 922(g)(8) on the case law prosecution merits of the preclud[ing] from mounting underlying a a state United States v. Reese, 627 F.3d 792, 804-05 (10th Cir. 2010), cert. denied, 131 S. Ct. 2476 (2011). Finally, Elkins argues that § 922(g)(8) is unconstitutional as applied to him because his protective order was not being enforced. Elkins bases this assertion on our decision in Chapman, which held that § 922(g)(8) only applies to persons under a [domestic violence protective order] then currently in force . Chapman, 666 F.3d at 228. Elkins contends that our decision in Chapman stands for the proposition that if a protective order is not enforced then there is no violation of § 922(g)(8), because the order was not in force. We are unpersuaded. 6 We have interpretation, that we first intent congressional by [w]hen and engaging in statutory strive to implement foremost examining the plain language of the United States v. Abdelshafi, 592 F.3d 602, 607 (4th statute. Cir. held 2010) (internal quotation marks omitted). Section 922(g)(8) states that its restrictions apply to an individual who is subject to a domestic violence protective order. U.S.C. § 922(g)(8). interpretation, enforced in Elkins one that order for encourages requires a an entirely protective § 922(g)(8) to apply. 18 different order We to be find no support for this position within the language of the statute. At the time that Elkins possessed the firearms in question, he was subject to a domestic violence protective order; thus, § 922(g)(8) was properly applied to him. Accordingly, We dispense with oral we affirm argument the district because the court facts judgment. and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 7
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