U.S. v. Bostic

• Decision Date: 17 February 1999
• Docket Number: No. 97-4881,97-4881
• Citation: 168 F.3d 718,1999 WL 74754
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael J. BOSTIC, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 718

168 F.3d 718

UNITED STATES of America, Plaintiff-Appellee, v. Michael J. BOSTIC, Defendant-Appellant.

No. 97-4881.

United States Court of Appeals Fourth Circuit.

Argued Sept. 25, 1998.

Decided Feb. 17, 1999.

ARGUED: Hunt Lee Charach, Federal Public Defender, Charleston, West Virginia, for Appellant. Stephanie Dawn Thacker, Assistant United States Attorney, Charleston, West Virginia, for Appellee. ON BRIEF: Mary Lou Newberger, Assistant Federal Public Defender, Charleston, West Virginia, for Appellant. Rebecca A. Betts, United States Attorney, Charleston, West Virginia, for Appellee.

Before WILKINSON, Chief Judge, MOTZ, Circuit Judge, and BULLOCK, Chief United States District Judge for the Middle District of North Carolina, sitting by designation.

Affirmed by published opinion. Chief Judge BULLOCK wrote the opinion, in which Chief Judge WILKINSON and Judge DIANA GRIBBON MOTZ joined.

OPINION

BULLOCK, Chief District Judge:

Michael Bostic appeals from his conviction and sentence. With respect to his conviction, Bostic challenges the district court's denial of his motion to dismiss an indictment charging him with violations of 18 U.S.C. §§ 922(g)(8) and 924(a)(2), relating to the unlawful possession of a firearm by an individual subject to a domestic violence protective order. Bostic contends the domestic violence protective order in his case did not meet the requirements of Section 922(g)(8)(C). Bostic also raises several constitutional challenges against Section 922(g)(8). With respect to his sentence, Bostic objects to a four-level enhancement he received for use of a firearm in connection with another felony offense pursuant to U.S. Sentencing Guidelines Manual (USSG) § 2K2.1(b)(5) (1995). Finding no merit in Bostic's claims, we affirm.

I.

Bostic and his wife, Kelly, were married in April 1991. They lived together until November 1996, when they separated. They have one child, Ryan Bostic. At the time they separated, Kelly maintained primary custody of Ryan.

On January 23, 1997, Kelly filed a Family Violence Petition in the Magistrate Court of Greenbrier, West Virginia, seeking an order to protect her and/or Ryan from family violence or abuse pursuant to W.Va.Code §§ 48-2A-4 and 5. The petition alleged that on January 22,1997, during a visitation period when Bostic had Ryan at his residence, Bostic used the child to lure Kelly to the residence by claiming that Ryan had a fever and needed Motrin. When Kelly arrived, however, she discovered that Ryan did not have a fever. Instead, Bostic initiated an argument with her which culminated in an attempted rape.

The Greenbrier County Magistrate Judge issued a temporary protective order pursuant to W. Va.Code §§ 48-2A-5(a) and (b) and scheduled a final protective order hearing for January 28, 1997. Notice of both the temporary protective order and the final protective order hearing was served on Bostic. On January 28, 1997, following a full hearing on the matter at which Bostic was present with counsel and had the opportunity to testify, the magistrate judge issued a final protective order ("the Order") against Bostic. In issuing the Order, the magistrate judge found that Kelly had proven her allegations of family violence and abuse and ordered Bostic to refrain from abusing or harassing Kelly. The Order further awarded temporary custody of Ryan to Kelly, but did allow for Bostic to have visitation from January 29 through February 2, 1997. The Order did not provide that Bostic was to surrender possession of any firearms he may have otherwise legally possessed and it did not contain any notice that the mere possession of a firearm while subject to the Order would constitute a violation of any law, state or federal. The Order did notify that violation of the Order itself "is a civil contempt of court, may be a crime, and may result in an order to post bond, a fine and/or imprisonment." J.A. at 57. Nevertheless, at no time did Bostic receive notice from any other source that the issuance of the Order extinguished his right to possess firearms he owned and possessed in his home.

In accordance with the terms of the Order, Bostic picked up Ryan on the evening of January 29, 1997. On the morning of February 1, Bostic again lured Kelly to his house, claiming that Ryan was sick and needed to go to the hospital. When Kelly entered the residence, Bostic locked the doors, shoved the couch against the back door, and wielded a .20 gauge shotgun. Bostic engaged in an extended verbal assault, threatening to kill Kelly, Ryan, and himself. Fortunately, no physical violence occurred and Kelly ultimately succeeded in removing herself from the residence. Bostic was arrested later that day and was charged with want on endangerment and brandishing in Green-brier County Magistrate Court in violation of W. Va.Code §§ 61-7-11 and 61-7-12. Incident to the arrest, a loaded .22 caliber handgun was retrieved from a bedroom in Bostic's residence. Although other firearms were observed by officers on February 1, they were not seized because they were located in a locked gun cabinet.

Thereafter, officers executed a search warrant of Bostic's residence on February 15, 1997. At this time, three additional firearms and numerous rounds of ammunition were retrieved from Bostic's residence. One of the three firearms seized on February 15 was the .203 gauge shotgun believed to have been used during the February 1 incident.

On June 5, 1997, a federal grand jury sitting in Charleston, West Virginia, returned an indictment against Bostic charging him with five counts of violating 18 U.S.C. § 922(g)(8): Count I (possession of the .20 gauge shotgun on February 1); Count II (possession of .12 gauge shotgun on February 15); Count III (possession of a .270 caliber rifle on February 15); Count IV (possession of the .20 gauge shotgun on February 15); Count V (possession of the .22 caliber revolver on February 1). On June 18, 1997, Bostic filed a motion to dismiss the indictment. In support of the motion to dismiss, Bostic argued that the indictment was multiplicitous, that the facts of the case did not conform to the elements required for a Section 922(g)(8) violation, and that Section 922(g)(8) was unconstitutional. On August 4, 1997, the district court entered an opinion which held that the indictment was multiplicitous in some respects, but rejected all of Bostic's remaining challenges to the statute and the indictment. Bostic subsequently pled guilty to Count V (possession of the .22 caliber revolver on February 1) on August 11, 1997. In his plea agreement, Bostic reserved the right to appeal the district court's ruling on his motion to dismiss the indictment.

A sentencing hearing was held on October 27, 1997, at which the district court heard argument on Bostic's objections to the presentence report. With respect to the ruling he challenges on appeal, Bostic objected to the recommendation in the presentence report that his offense level be increased by four levels for the use of a firearm in connection with another felony offense pursuant to USSG § 2K2.1(b)(5). The district court overruled Bostic's objection and applied the four-level enhancement. Ultimately, Bostic was sentenced to imprisonment for a period of thirty-three months and supervised release for a period of three years. This appeal followed.

II.

Because they present questions of law, we review de novo the district court's rulings as to whether the Order meets the requirements of Section 922(g)(8) and as to all issues related to the constitutionality of Section 922(g)(8). See United States v. Han, 74 F.3d 537, 540 (4th Cir.), cert. denied, 517 U.S. 1239, 116 S.Ct. 1890, 135 L.Ed.2d 184 (1996).

A.

Before addressing Bostic's constitutional challenges to Section 922(g)(8), we first address Bostic's argument that the Order fails to meet the requirements of Section 922(g)(8). To convict Bostic for violating Section 922(g)(8), the United States is required to show that Bostic was subject to a court order which satisfied three prerequisites. In particular, the United States has to show the issuance of 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[.]

18 U.S.C. § 922(g)(8). While Bostic concedes the Order meets the requirements of subsections (A) and (B), he maintains that the Order did not satisfy either subsection (C)(i) or (C)(ii). We disagree. The Order's directive that Bostic "shall refrain from abusing [Kelly]," J.A. at 55, unambiguously satisfies subsection (C)(ii)'s requirement that the court order prohibit the use, attempted use, or threatened use of physical force. ¹

B.

We now turn to Bostic's constitutional challenges to Section 922(g)(8). Bostic's primary contention on appeal is that Section 922(g)(8) is unconstitutional because it violates the notice and fair warning principles embodied in the Fifth Amendment. The district court rejected this claim based on the "fundamental principle" that ignorance of the law is no excuse. See Cheek v. United States, 498 U.S. 192, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991). In addition, the district court emphasized that every court of appeals, including this one, that has considered this issue has rejected similar challenges to the felon-in-possession statute, 18 U.S.C. § 922(g)(1)...