United States v. Carter

• Citation: 752 F.3d 8
• Decision Date: 30 April 2014
• Docket Number: No. 12–1499.,12–1499.
• Parties: UNITED STATES of America, Appellee, v. Wayne CARTER, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

752 F.3d 8

UNITED STATES of America, Appellee,

v.Wayne CARTER, Defendant, Appellant.

No. 12–1499.

United States Court of Appeals,

First Circuit.

April 30, 2014.

J. Hilary Billings, Assistant Federal Defender, for appellant.

Renée M. Bunker, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, were on brief for appellee.

Before TORRUELLA, DYK ^* and THOMPSON, Circuit Judges.

TORRUELLA, Circuit Judge.

This criminal case comes to us on direct appeal from a final judgment entered against Defendant–Appellant Wayne Carter (“Carter”) by the United States District Court for the District of Maine. Carter was charged in a one-count indictment with possessing a firearm following a prior conviction of a misdemeanor crime of domestic violence, in violation of 18 U.S.C. §§ 922(g)(9) and 924(a). After Carter conditionally pleaded guilty and reserved his right to appeal, the district court sentenced him to be imprisoned for twelve months and one day. The execution of his sentence was stayed pending the resolution of this appeal.

Carter raises three claims on appeal. First, he raises a constitutional challenge, arguing that under the Supreme Court's decision in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), the government failed to demonstrate a “reasonably close fit” between the purpose of the restriction (reducing the frequency of deaths resulting from domestic violence) and the restriction itself (in his words, “permanently dispossessing non-violent domestic misdemeanants of their Second Amendment rights”).

Second, he brings a statutory claim, arguing that commission of simple assault by recklessly causing offensive physical contact does not constitute the “use or attempted use of physical force” as required to qualify as a “misdemeanor crime of domestic violence,” and thus his prior conviction cannot serve as a valid predicate offense for purposes of § 922(g)(9).

Third, Carter argues that under an exception to the relevant sentencing guideline, he was entitled to a lesser sentence because he possessed the firearm “solely for lawful sporting purposes or collection.” SeeUnited States Sentencing Commission, Guidelines Manual, § 2K2.1(b)(2) (Nov. 2011) (“USSG”).

We hold that Carter's constitutional claim is foreclosed by binding precedent to the contrary, but that there may be some merit to his statutory argument in light of the Supreme Court's recent decision in United States v. Castleman, ––– U.S. ––––, 134 S.Ct. 1405, 188 L.Ed.2d 426 (2014). Finding that the record is insufficiently developed on this issue, we vacate Carter's conviction and the district court's denial of his original motion to dismiss the indictment, and we remand the case for further proceedings consistent with this opinion. Accordingly, we do not reach Carter's arguments regarding the application of the relevant sentencing guidelines.

I. Background

A. Factual Background

On March 20, 2010, Carter pawned a rifle at the Waldoboro Trading Post in Waldoboro, Maine in exchange for a loan. After repaying the loan, he attempted to collect the rifle on April 16, 2010. In order to retake possession, he completed a records check form required by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”). The return of the rifle was denied due to the results of the records check, which indicated that Carter had prior criminal convictions.¹

Further investigation revealed, among other things, that in 1997 Carter had been convicted of a misdemeanor assault in Maine. Police records of the offense showed that on February 24, 1997, a police officer was called to Carter's home, where he lived with his girlfriend, Annie Eagan (“Eagan”), and her two children (at the time, one daughter was ten years old and the other daughter was four months old). Eagan told the officer that Carter had spit in her face and shoved her on her right shoulder; her account was corroborated by her ten-year-old daughter. Eagan said that she was not hurt, did not want Carter arrested, and did not want to press charges; she only wanted him removed from the house. According to the police report, Eagan recounted that Carter had struck her before “here and there.” The responding officer noted that this was the second time that she was called to the home to have Carter removed.

In an Information dated April 1, 1997, the Maine state prosecutor charged that “Wayne Carter did intentionally, knowingly or recklessly cause bodily injury or offensive physical contact to Angie Eagan,” in violation of the Maine general-purpose assault statute. SeeMe.Rev.Stat. tit. 17–A, § 207. Carter pleaded guilty in Knox County Superior Court in Rockland, Maine, and the court adjudged him guilty as charged and convicted. The court sentenced him to serve thirty days in the Knox County Jail.

On April 30, 2010, ATF agents went to Carter's home, where they interviewed him regarding his attempt to collect the pawned firearm. Carter admitted that he recalled his previous conviction for assaulting Eagan.

As the investigation continued, the pawn shop's records also revealed that Carter had pawned and redeemed three separate rifles on multiple occasions between 2007 and 2010. In total, he pawned a firearm ten times during this period.²

B. Procedural Background

On September 22, 2010, in a one-count indictment, a grand jury charged Carter with the knowing possession of a firearm following a previous conviction of a misdemeanor crime of domestic violence, in violation of 18 U.S.C. §§ 922(g)(9) and 924(a). Carter filed a motion to dismiss the indictment, arguing that the Maine assault statute is not adequate to constitute a predicate “misdemeanor crime of domestic violence” for purposes of § 922(g)(9). Carter recognized that then-current precedent was contrary to his position, but nonetheless stated that he wished to preserve his arguments on this point for purposes of appeal, citing his belief that “the law in the area is in considerable flux.”

In a one-sentence order, the district court denied Carter's motion on the basis that United States v. Booker, 644 F.3d 12 (1st Cir.2011), “serves as binding and controlling precedent for the issues presented in Defendant's Motion.” Carter then entered a conditional guilty plea, reserving his right to appeal the district court's order on his motion to dismiss.

Subsequently, Carter filed a supplemental motion to dismiss the indictment, this time arguing that “Congress exceeded its authority in enacting [§ 922(g)(9) ] in that it deprives an individual of a core right under the Second Amendment without sufficient justification to pass either strict scrutiny or even heightened scrutiny.” The district court also denied that motion, and Carter entered an amended conditional guilty plea, reserving the right to appeal from the court's denial of both of his motions to dismiss. ³

In Carter's only objection at sentencing, he argued that he was entitled to a reduced sentencing range pursuant to the “sporting purposes or collection” exception under the United States Sentencing Guidelines.⁴ The district court rejected this argument, finding that Carter failed to prove that he qualified for either prong of the exception. The court nonetheless varied from the bottom of the guidelines range—eighteen months—and sentenced Carter to a total term of imprisonment of twelve months and one day. Upon a motion by Carter, the court stayed the execution of the sentence pending resolution of this appeal.

II. Discussion

A. Second Amendment Claim

In Carter's first claim on appeal, he renews the constitutional argument he previously raised in his supplemental motion to dismiss the indictment. Carter argues that § 922(g)(9) “deprives a significant population of non-violent offenders from exercising a core constitutional right” protected by the Second Amendment. Relying on the Supreme Court's decision in Heller, 554 U.S. 570, 128 S.Ct. 2783, he asserts that the Second Amendment “is an individual right which may not be abrogated by governmental fiat without compelling interests.” Carter states that the government failed to establish any such basis here, and that given this lack of justification, § 922(g)(9) does not survive either strict scrutiny or heightened scrutiny.

Carter maintains that a restriction depriving competent non-felons of their Second Amendment rights must be narrowly tailored to a compelling governmental interest. He asserts that “[b]ecause there is no reliable information that misdemeanants are likely to misuse firearms at a rate any greater than those not convicted of such petty crimes, the law fails constitutional muster.” In Carter's view, the government has not established a substantial connection between the harm sought to be avoided (a reduction in the number of deaths due to domestic violence) and the proscription enumerated in § 922(g)(9) (barring the possession of firearms by persons previously convicted of a misdemeanor crime of domestic violence). Therefore, Carter concludes that the statute is an unconstitutional infringement of a fundamental right.

Because Carter's claim raises a constitutional challenge to a federal statute, we review this Second Amendment claim de novo. See Booker, 644 F.3d at 22.Carter's constitutional claim remains squarely foreclosed by our opinion in Booker.Id. at 25–26. Like Carter, the defendants in Booker were both convicted under § 922(g)(9) following prior convictions under the Maine general-purpose assault statute, and both “argue[d] that § 922(g)(9) unconstitutionally abridges their Second Amendment right to bear arms.” Id. at 13–15.

We resoundingly rejected this claim in Booker, reasoning that there cannot “be any question that there is a substantial relationship between § 922(g)(9)'s disqualification of domestic violence misdemeanants from gun ownership and the governmental interest in preventing gun violence in the home.” Id. at 25. We cited Justice Department statistics...