United States v. McGinnis

Citation956 F.3d 747
Decision Date21 April 2020
Docket NumberNo. 19-10197,19-10197
Parties UNITED STATES of America, Plaintiff - Appellee v. Eric Gerard MCGINNIS, Defendant - Appellant
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Andrew Laing, U.S. Department of Justice, Criminal Division, Washington, DC, Leigha Amy Simonton, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Dallas, TX, for Plaintiff - Appellee.

Brandon Elliott Beck, Federal Public Defender's Office, Northern District of Texas, Lubbock, TX, Juan Gabriel Rodriguez, Federal Public Defender's Office, Northern District of Texas, Dallas, TX, for Defendant - Appellant.

Before HIGGINBOTHAM, JONES, and DUNCAN, Circuit Judges.

STUART KYLE DUNCAN, Circuit Judge:

We again confront a Second Amendment challenge to a federal law prohibiting individuals subject to certain domestic violence protective orders from possessing firearms or ammunition for any purpose. 18 U.S.C. § 922(g)(8). Appellant Eric McGinnis, convicted by a jury of violating § 922(g)(8), claims the statute is a facially unconstitutional restriction on his right to keep and bear arms. This court rejected a virtually identical challenge two decades ago in Judge Garwood’s landmark decision in United States v. Emerson , 270 F.3d 203 (5th Cir. 2001). Much has changed in Second Amendment jurisprudence since then, and so we consider whether § 922(g)(8) still passes muster under our contemporary framework. It does.

Separately, McGinnis argues his conviction should be vacated because his protective order does not track the requirements of § 922(g)(8). He also asserts the district court abused its discretion by imposing a written special condition of supervised release not orally pronounced at sentencing. We affirm the conviction but remand for the limited purpose of conforming McGinnis’s written judgment to the district court’s oral pronouncement.

I.

On the evening of July 28, 2017, Grand Prairie Police Department (GPPD) officers were dispatched to a wooded area upon report of a potentially suicidal subject. While searching for the subject, they heard three gunshots nearby. Hurrying toward the source of the shots, the officers spotted a dark SUV parked near the tree line. As they prepared to approach the vehicle, a man later identified as McGinnis emerged from the woods.

McGinnis’s presence ended up being unrelated to the suicide call. When questioned, however, McGinnis stated he had a gun in his backpack. McGinnis ignored commands to walk backward toward the officers, instead walking forward while claiming to be a CIA agent and asking the officers if it was illegal to shoot a gun in Texas. The officers placed McGinnis under arrest and searched his backpack, where they found a short-barrel AR-15 rifle with a collapsible stock and 3D-printed lower receiver, along with five thirty-round magazines. The backpack also held several envelopes containing documents entitled "9/11/2001 list of American Terrorist" (sic). The list included the names and addresses of several prominent politicians.

Upon running McGinnis’s driver’s license through law enforcement databases, the officers learned he was the subject of an active domestic protective order. The order had been issued by a Dallas County court on August 31, 2015, following a hearing at which Sherry Thrash, McGinnis’s former girlfriend, testified that McGinnis had physically assaulted her on two occasions, injuring her wrists, ribs, and face. McGinnis was present and participated in the hearing. At its conclusion, the judge issued a protective order that prohibited McGinnis from, among other things, "[c]ommitting family violence against" Thrash or "[e]ngaging in conduct ... reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass" Thrash or a member of her family or household. The order included a finding "that family violence has occurred and that family violence is likely to occur in the foreseeable future." It also prohibited McGinnis from possessing a firearm and separately warned him that doing so would violate 18 U.S.C. § 922(g)(8). The protective order was to stay in effect for two years, meaning that it remained active at the time of McGinnis’s 2017 arrest.

Further investigation revealed McGinnis had attempted to purchase a lower receiver from a retailer in June 2016. He answered "no" to the background check question that asked whether he was subject to any "court order restraining [him] from harassing, stalking, or threatening ... an intimate partner." The Bureau of Alcohol, Tobacco, Firearms and Explosives agent who reviewed the form caught the lie and contacted McGinnis by phone in July 2016 to inform him that he could not legally purchase the receiver. The agent also sent McGinnis a letter via certified mail explaining that McGinnis could not lawfully own a firearm or ammunition because of the active protective order. At some point after this incident, McGinnis created his own receiver using a 3D printer.

Following McGinnis’s 2017 encounter with the GPPD, he was charged in state court with illegally discharging a firearm within city limits and violating a protective order. Shortly thereafter, a federal grand jury indicted him on two additional charges. The first count charged McGinnis with illegally possessing an unregistered short-barrel rifle.1 The second count—and the only one at issue in this appeal—was for possession of ammunition by a prohibited person in violation of 18 U.S.C. § 922(g)(8). McGinnis pleaded not guilty and proceeded to trial, where a jury convicted him on both counts. The district court denied McGinnis’s post-verdict Rule 29 motion for a judgment of acquittal, rejecting the constitutional and sufficiency challenges he raises again here. The court then sentenced McGinnis to 96 months imprisonment.2 This appeal followed.

II.

McGinnis advances three arguments on appeal. First, he maintains that § 922(g)(8) is unconstitutional on its face. Second, he claims the protective order to which he was subject cannot support a conviction under § 922(g)(8) because the order’s language fails to satisfy the statute’s requirements. Third, he argues the special condition of supervised released barring him from "places frequented by Ms. Sherry Thrash" conflicts with the district court’s oral pronouncement at sentencing. We consider each argument in turn.

A.

We begin with McGinnis’s argument that § 922(g)(8) is a facially unconstitutional restriction on his Second Amendment right to keep and bear arms. "We review de novo the constitutionality of federal statutes." United States v. Portillo–Munoz , 643 F.3d 437, 439 (5th Cir. 2011). To sustain a facial challenge, "the challenger must establish that no set of circumstances exists under which the [statute] would be valid." United States v. Salerno , 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). "Facial challenges to the constitutionality of statutes should be granted sparingly and only as a last resort." Serafine v. Branaman , 810 F.3d 354, 365 (5th Cir. 2016) (quoting Hersh v. United States ex rel. Mukasey , 553 F.3d 743, 762 (5th Cir. 2008) ). Applying our contemporary framework for evaluating federal firearms regulations, we reaffirm our holding from Emerson that § 922(g)(8) is not facially unconstitutional.

1.

The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. CONST. amend. II. Our court explored the text, structure, and history of the Second Amendment nearly twenty years ago, becoming the first court of appeals to recognize that "the Second Amendment protects the right of individuals to privately keep and bear their own firearms that are suitable as individual, personal weapons ... regardless of whether the particular individual is then actually a member of a militia." Emerson , 270 F.3d at 264 (emphasis added). Even so, we recognized that the Second Amendment’s protection for individual rights "does not mean that those rights may never be made subject to any limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country." Id. at 261. Indeed, in Emerson we upheld the exact provision at issue here— 18 U.S.C. § 922(g)(8) —as just such a restriction. Id. at 264.

Several years later, the Supreme Court similarly concluded that the Second Amendment codified a pre-existing "individual right to possess and carry weapons in case of confrontation." District of Columbia v. Heller , 554 U.S. 570, 592, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) (emphasis added) (striking down a D.C. ordinance banning handgun possession in the home). After conducting exhaustive textual and historical analyses much like those Judge Garwood undertook in Emerson , the majority held the Second Amendment guarantees "the right of law-abiding, responsible citizens to use arms in defense of hearth and home." Id. at 635, 128 S.Ct. 2783. The Court repeatedly noted that the protection afforded by the individual right is at its zenith in the home, "where the need for defense of self, family, and property is most acute." Id. at 628, 128 S.Ct. 2783. However, Heller also cautioned that the individual Second Amendment right is subject to important limitations including, for instance, "longstanding prohibitions on the possession of firearms by felons and the mentally ill." Id. at 626, 128 S.Ct. 2783.

Heller "did not set forth an analytical framework with which to evaluate firearms regulations in future cases." Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms & Explosives [NRA ], 700 F.3d 185, 194 (5th Cir. 2012). Instead, the Supreme Court stated only that the ordinance at issue would fail "[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights." Heller , 554...

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