U.S. v. Denis

• Decision Date: 23 July 2002
• Docket Number: No. 01-2544.,01-2544.
• Citation: 297 F.3d 25
• Parties: UNITED STATES of America, Appellee, v. Shawn R. DENIS, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

297 F.3d 25

UNITED STATES of America, Appellee, v. Shawn R. DENIS, Defendant, Appellee.

No. 01-2544.

United States Court of Appeals, First Circuit.

Heard April 3, 2002.

Decided July 23, 2002.

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Robert E. Sandy, Jr., with whom Sherman & Sandy was on brief, for appellant.

F. Mark Terison, Senior Litigation Counsel, with whom Paula D. Silsby, United States Attorney, was on brief, for appellee.

Before BOUDIN, Chief Judge, LYNCH and LIPEZ, Circuit Judges.

LIPEZ, Circuit Judge.

Shawn R. Denis appeals from his conviction under 18 U.S.C. § 922(g)(9), which makes it illegal for a person convicted of a misdemeanor crime of domestic violence to possess a firearm or ammunition. Denis argues that his conviction violates due process because § 922(g)(9) had not yet been enacted when he was convicted of the predicate domestic violence offense, and he had no reason to suspect that his continued possession of a firearm would someday become illegal. He also argues that the district court erred in sentencing by rejecting his claim that he possessed the firearm in question solely for legal sporting purposes. Finding no merit to either claim, we affirm.

I. BACKGROUND

The following facts are undisputed. In May of 1996, Denis was charged with assault, a misdemeanor offense under Maine law. Me.Rev.Stat. Ann. tit. 17-A, § 207. The victim was his live-in girlfriend at the time. However, because there is no separate category for domestic assault under the Maine Criminal Code, the criminal complaint did not denominate the offense as domestic in nature. Denis entered a plea of nolo contendere on July 8, 1996, and was fined $500.

Several months later, Congress added a new section to the Gun Control Act of 1968, codified at 18 U.S.C. § 922(g), which prohibits certain categories of people from possessing a firearm or ammunition. The new subsection nine extended that prohibition to any person who "has been convicted in any court of a misdemeanor crime of domestic violence." 18 U.S.C. § 922(g)(9). The amendment became effective on September 30, 1996.

On March 5, 2000, Maine State Police executed a search warrant at Denis's residence in Skowhegan, Maine, having received a tip that Denis was engaged in the sale of marijuana. During the course of their search, they found seven pounds of marijuana and — leaning in a corner of the master bedroom — a Norinco SKS rifle.

Denis was charged with violating § 922(g)(9).¹ He filed a motion to dismiss the indictment, arguing that his assault conviction was not a "misdemeanor crime of domestic violence" within the meaning § 922(g)(9) because it did not involve the requisite element of "use or attempted use of physical force," 18 U.S.C. § 921(a)(33)(A) (defining "misdemeanor crime of violence" for purposes of § 922(g)(9)). Maine's Criminal Code defines the offense of "assault" as "intentionally, knowingly or recklessly caus[ing] bodily injury or offensive physical contact." Me.Rev.Stat. Ann. tit. 17-A, § 207.1 (emphasis added). Denis argued that merely causing "offensive physical contact" would not constitute a "use ... of force," and that the wording of the Maine statute made it impossible to know which type of assault he had committed.

The district court denied the motion, reasoning that the circumstances surrounding the assault charge made clear that it involved the use of force. The court noted that the police report that served as the basis for the criminal complaint against Denis stated that the victim's "lower lip was puffed up and there was some bleeding from her mouth." Moreover, the victim's signed statement indicated that Denis "back crossed [her] in the face" and "threw [her] outside" of the house they shared. Thus, the court concluded that Denis's conviction "should be deemed an assault based on `bodily injury,' not `offensive physical contact.'"

Denis entered a conditional guilty plea, reserving the right to appeal the court's denial of his motion to dismiss. The case then proceeded to sentencing. There, Denis argued that he was entitled to a reduction in base offense level because he had used the rifle solely for lawful sporting purposes. See U.S.S.G. § 2K2.1(b)(2). He claimed to have purchased the rifle in 1992 or 1993, and to have used it for hunting and target shooting until 1996. That year, he tripped over a log when hunting and broke the stock of the rifle. Denis maintained that he had not used the rifle since 1996.

Unpersuaded that Denis had used the rifle exclusively for hunting and target shooting, the district court denied his request for a reduction in base offense level. The court concluded that "this is a classic case where the gun was used for self-protection and for the defense of a drug operation." It sentenced Denis to fifteen months in prison, followed by three years of supervised release. This appeal followed.

II. DUE PROCESS

Denis argues that his prosecution under § 922(g)(9) violates due process by denying him fair warning that his conduct was criminal. He offers two variants on that claim. First, citing the Supreme Court's decision in Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957), Denis contends that he was justifiably ignorant of the federal statute. Second, he argues that § 922(g)(9) is unconstitutional as applied to him because his conviction for the predicate misdemeanor offense occurred before subsection nine was added to the statute.

Denis concedes that he did not present either version of his due process claim to the district court. Accordingly, we review only for plain error.² See United States v. Gomez, 255 F.3d 31, 37 (1st Cir.2001).

A. Ignorance of the Law

It is a fundamental maxim of our legal system that "ignorance of the law or a mistake of law is no defense to criminal prosecution." Cheek v. United States, 498 U.S. 192, 199, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991); see also Roberts v. Maine, 48 F.3d 1287, 1300 (1st Cir.1995) (Cyr, J., concurring) ("As a general rule, of course, publication of a criminal statute affords adequate notice to the public at large."). Denis argues that his claim falls within an exception established in Lambert to that general rule. There, the Supreme Court addressed a provision of the Los Angeles Municipal Code that made it unlawful for convicted felons to remain in the city for more than five days without registering with the police. The Court concluded that the law could not constitutionally be applied to a person who was unaware of the duty to register. Although it recognized the traditional rule that "ignorance of the law will not excuse," the Court reasoned that the Los Angeles ordinance provided such insufficient notice that it fell outside the bounds of due process. 355 U.S. at 229-30, 78 S.Ct. 240 (internal quotation marks omitted).

First, the ordinance punished conduct that was "wholly passive." Id. at 228, 78 S.Ct. 240. It differed from normal registration laws, the Court explained, because "violation of its provisions [was] unaccompanied by any action whatever, mere presence in the city being the test." Id. at 229, 78 S.Ct. 240. Second, "circumstances which might move one to inquire as to the necessity of registration are completely lacking." Id. Unlike "the commission of acts, or the failure to act under circumstances that should alert the doer to the consequences of his deed," id. at 228, 78 S.Ct. 240, the fact of being in a certain city is presumptively innocent, and therefore would not lead the average person to suspect that her conduct was unlawful. Thus, the Court concluded that "[w]here a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process." Id. at 229-30, 78 S.Ct. 240.

As we have explained elsewhere, "Lambert represents one of the relatively rare instances in which the Supreme Court has concluded that, contrary to the well-established tenet, actual knowledge of the law's requirements is a precondition to criminal liability (and, therefore, ignorance of the law will excuse the defendant)." United States v. Meade, 175 F.3d 215, 225 (1st Cir.1999). It is unclear whether and how widely the Lambert exception applies beyond the particular facts of that case; the Supreme Court "has steadfastly resisted efforts to extend [its] reach." Id. At the very least, a defendant seeking to avoid prosecution on the ground of ignorance of the law must satisfy two requirements. First, his conduct must have been "wholly passive." Lambert, 355 U.S. at 228, 78 S.Ct. 240. Second, there must be an absence of "circumstances that should alert the doer to the consequences of his deed." Id.

1. Wholly passive conduct

Denis argues that, "once Congress enacted 18 U.S.C. § 922(g)(9), [he] had committed a criminal offense by taking no action at all." We disagree. As the Ninth Circuit explained in United States v. Hancock, "possession of firearms is `active' conduct, as distinct from the `wholly passive' failure to register that was at issue in Lambert." 231 F.3d 557, 564 (9th Cir. 2000); see also United States v. Allen, 699 F.2d 453, 458 (9th Cir.1982) (concluding that statute prohibiting possession of a firearm by one previously convicted of a felony "does not involve merely passive conduct: to violate the law one must knowingly possess a firearm").

2. Circumstances that should trigger inquiry

Denis fares no better under the second prong of the Lambert test. Denis "knowingly subjected himself to a host of state and federal regulations" when he purchased a firearm. Hancock, 231 F.3d at 564. The possibility of regulation increased when he was convicted of a crime of domestic violence. "[T]he possession of a gun, especially by anyone who has been convicted of violent crime, is ... a highly regulated activity, and everyone knows it." United States v. Hutzell, 217 F.3d 966, 969 (8th Cir.2000). Unlike mere presence in a certain city, possession of a firearm after a...