U S A v. Baker

• Citation: 197 F.3d 211
• Decision Date: 23 September 1999
• Docket Number: No. 98-6146,98-6146
• Parties: (6th Cir. 1999) United States of America, Plaintiff-Appellee, v. Jim Edd Baker, Defendant-Appellant. Argued:
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 211

197 F.3d 211 (6th Cir. 1999)

United States of America, Plaintiff-Appellee, v. Jim Edd Baker, Defendant-Appellant.

No. 98-6146

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: September 23, 1999

Decided and Filed: November 23, 1999

Appeal from the United States District Court for the Eastern District of Kentucky at Lexington, No. 98-00017--Karl S. Forester, District Judge. [Copyrighted Material Omitted] Charles P. Wisdom, Jr., Assistant U.S. Attorney, Kenneth R. Taylor, ASSISTANT U.S. ATTORNEY, Lexington, Kentucky, for Appellee.

Donald D. Waggener, Lexington, Kentucky, for Appellant.

Before: KRUPANSKY and NORRIS, Circuit Judges; GWIN, District Judge^*.

OPINION

GWIN, District Judge.

Defendant Jim Baker appeals his conviction and sentence for unlawful possession of a firearm while subject to a domestic violence protection order, in violation of 18 U.S.C. § 922(g)(8). In appealing his conviction, Baker contends that the district court erred in both overruling his constitutional challenge to § 922(g)(8) and refusing to instruct the jury that knowledge of the law is a required element of a § 922(g)(8) offense. Baker also appeals his sentence, arguing that the enhancement of his sentence based on his possession of an assault weapon, rather than an ordinary firearm, unconstitutionally deprives him of equal protection of the laws.

I. BACKGROUND

Jim Baker has had a history of abusive relationships with women. On three separate occasions Baker's various love interests have obtained orders restraining him from committing acts of domestic violence. The first of these orders was entered in September 1996, at the request of Baker's former girlfriend, Honey Barnes. This order indicated, in bold print, that "it is a federal violation to purchase, receive, or possess a firearm while subject to this order."

Nevertheless, while still subject to the protection order referenced above, Baker purchased an SKS assault rifle in April 1997. Baker purchased the rifle from a gun store in Kentucky, while accompanied with his new girlfriend, Kimberly Hughes. Either Hughes or the store clerk checked a box indicating that Baker was qualified to purchase the rifle. Neither Hughes nor the clerk knew of the domestic violence protection order entered against Baker.

Following the rifle purchase, Baker's relationship with Hughes rapidly deteriorated, such that Hughes sought a domestic violence protection order to restrain Baker from threatening her with his assault rifle. A second order was then entered against Baker in May 1997. Like the first order, this order contained language informing Baker of his disqualification from the purchase or possession of firearms.

Near the time of the second order, Baker threatened yet another woman with his assault rifle. This woman, Baker's estranged wife, also sought a domestic violence protection order against Baker, which was entered in June 1997. This order contained the same firearm disability notification as printed on the previous orders.

On June 27, 1997, Baker accidentally shot one of the few persons in this narrative who had not sought protection from his violent behavior - Baker himself. The accidental shooting alerted the authorities to Baker's possession of a firearm while subject to multiple domestic violence protection orders. This prosecution commenced thereafter.

On March 5, 1998, Jim Baker was indicted on two criminal charges arising from his purchase and possession of the SKS assault rifle. The first count alleged that Baker violated 18 U.S.C. §922(g)(8), which makes it unlawful for a person subject to a domestic violence protection order to possess a firearm. The second count alleged that Baker violated 18 U.S.C. § 922(a)(6) by making knowingly false statements to a licensed firearms dealer.

Before trial, Baker filed a motion to dismiss the indictment. In this motion, Baker argued that § 922(g)(8) is unconstitutional on various grounds. Specifically, Baker claimed that the statute (1) violates the procedural and equal protection aspects of the Due Process Clause of the Fifth Amendment; (2) violates the Cruel and Unusual Punishment Clause of the Eighth Amendment; and (3) reflects an impermissible exercise of Congress's power to regulate commerce under the Commerce Clause found in Article I. The district court denied Baker's motion.

Following the denial of his motion to dismiss, Baker requested that the district court instruct the jury that to violate § 922(g)(8), a defendant must know that his conduct was illegal. The district court refused Baker's request.

A jury subsequently convicted Baker on the first count of the indictment, finding that Baker possessed a firearm while subject to a domestic violence protection order. The jury, however, acquitted Baker on the second count of the indictment.

In sentencing Baker, the district court determined Baker's base offense level pursuant to U.S.S.G. § 2K2.1(a)(4)(B). This guideline provides for an offense level increase if the defendant possessed the type of firearm described in 18 U.S.C. § 921(a)(30). The SKS assault rifle Baker possessed fell within the description provided in § 921(a)(30), and thus the district court enhanced Baker's base offense level accordingly. Baker objected to the determination of his base offense level, claiming that the enhancement of his sentence based solely on his possession of an assault weapon constituted an equal protection violation. The district court overruled Baker's objection.

Baker then filed this present appeal. On appeal, Baker raises the same objections to his conviction and sentence outlined above. As discussed below, we find that the district court properly rejected Baker's claims.

II. DISCUSSION

A. Constitutionality of § 922(g)(8)

Baker first challenges his conviction by claiming §922(g)(8) violates the United States Constitution. Again, this statute prohibits individuals subject to domestic violence protection orders from possessing firearms:

It shall be unlawful for any person

(8) who is subject to a court order that -

(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

(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 . . .

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

The district court overruled each of Baker's constitutional claims. We review the district court's determination of the constitutionality of a federal statute de novo. See United States v. Brown, 25 F.3d 307, 308 (6th Cir.1994).

1. Due Process Clause

Baker contends that § 922(g)(8) violates the Due Process Clause of the Fifth Amendment in three respects. First, Baker claims that the statute allows for selective prosecution, in violation of the equal protection guarantee implicitly embodied in the Due Process Clause. ¹ On its face, §922(g)(8) neither provides for nor encourages selective prosecution. Thus, we presume Baker is claiming only that his conviction resulted from selective prosecution.

This Court has set forth the three elements of an equal protection claim based on selective prosecution:

First, [the state actor] must single out a person belonging to an identifiable group, such as those of a particular race or religion, or a group exercising constitutional rights, for prosecution even though he has decided not to prosecute persons not belonging to that group in similar situations. Second, he must initiate the prosecution with a discriminatory purpose. Finally, the prosecution must have a discriminatory effect on the group which the defendant belongs to.

Stemler v. City of Florence, 126 F.3d 856, 873 (6th Cir. 1997) (quoting United States v. Anderson, 923 F.2d 450, 453 (6th Cir.1991)).

In proving these elements, Baker must produce "clear evidence" to rebut the "strong presumption" that state actors have properly discharged their duties. Stemler, 126 F.3d at 873 (citing United States v. Armstrong, 517 U.S. 456, 464, 116 S. Ct. 1480, 1487, 134 L. Ed.2d 687 (1996)). However, Baker has failed to present any evidence suggesting that the prosecutor singled him out for prosecution. Instead, Baker offers only the conclusory allegation that his conviction under § 922(g)(8) is somehow tainted by selective prosecution. Without more, we find no merit in Baker's selective prosecution claim.

Next, Baker argues that § 922(g)(8) deprives him of equal protection of the laws in that it "infringes upon the exercise of a fundamental right and operates to a disadvantage of a suspected class." Exactly what fundamental right or suspect class Baker refers to remains a mystery. Baker has no fundamental right to possess an assault rifle. See United States v. Warin, 530 F.2d 103, 106-07 (6th Cir. 1976) (finding that Second Amendment does not guarantee a personal right to bear arms). And the United States Supreme Court has yet to recognize as a suspect class individuals subject to domestic violence protection orders.

Affecting neither a fundamental right nor a suspect class, §922(g)(8) warrants only rational basis review. This level of review, unlike strict scrutiny, is highly deferential to Congress's judgment in enacting a particular statute. To survive rational basis review, a...