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United States v. Chovan

United States Court of Appeals, Ninth Circuit

November 18, 2013

UNITED STATES of America, Plaintiff-Appellee,
Daniel Edward CHOVAN, Defendant-Appellant.

Argued and Submitted Feb. 15, 2012.

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[Copyrighted Material Omitted]

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Laura E. Duffy, United States Attorney, Bruce R. Castetter, Assistant United States Attorney, Chief, Appellate Section, Criminal Division, Caroline P. Han (briefed and argued), Assistant United States Attorney, and Kyle W. Hoffman (briefed), Assistant United States Attorney, San Diego, CA, for Plaintiff-Appellee.

Devin Burstein, Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California, John A. Houston, District Judge, Presiding. D.C. No. 3:10-cr-01805-JAH-1.



PREGERSON, Circuit Judge:

Following the entry of a conditional guilty plea, Daniel Chovan appeals the district court's denial of his motion to dismiss an indictment against him for violation of 18 U.S.C. § 922(g)(9). Section 922(g)(9) prohibits persons convicted of domestic violence misdemeanors from possessing firearms for life. Chovan contends that § 922(g)(9) is unconstitutional both on its

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face and as applied to him because it violates his Second Amendment right to bear arms. In the alternative, he argues that § 922(g)(9) does not apply to him because his civil rights have been restored within the meaning of 18 U.S.C. § 921(a)(33)(B)(ii). We have jurisdiction pursuant to 28 U.S.C. § 1291. We reject Chovan's " civil rights restored" argument, hold that intermediate scrutiny applies to his Second Amendment claim, and uphold § 922(g)(9) under intermediate scrutiny.


In 1996, Daniel Chovan was convicted in California state court of the misdemeanor of inflicting corporal injury on a spouse in violation of California Penal Code § 273.5(a). The victim, Cheryl Fix,[1] was living with Chovan at the time.[2] Chovan was sentenced to 120 days in jail and three years of supervised release.

Because of this conviction, Chovan was prohibited from possessing firearms under both state and federal law. Under California Penal Code § 12021(c)(1), which at the time applied to misdemeanants generally, Chovan was barred from owning, purchasing, receiving, or having in his possession or under his custody or control, any firearm for a ten-year period following his conviction. But under 18 U.S.C. § 922(g)(9), a federal statute that applies only to persons convicted of misdemeanor domestic violence crimes, Chovan was barred from possessing any firearm for life.

Section 922(g)(9) establishes two exceptions under which the statute will no longer apply: (1) " if the conviction has been expunged or set aside" ; or (2) if the offender " has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense)." 18 U.S.C. § 921(a)(33)(B)(ii). These exceptions are not met if " the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms." Id.

In 2009, Chovan applied to purchase a firearm from a San Diego area gun dealer. He completed a required application form and answered " no" to the question whether he had ever been convicted of a misdemeanor crime of domestic violence. His purchase application was denied after a background check revealed his 1996 misdemeanor conviction of domestic violence. At the time of his application, Chovan could legally possess a firearm under California law because ten years had passed since his 1996 conviction, but § 922(g)(9) continued to bar him from possessing a firearm.

The FBI received information about Chovan's attempted purchase and began investigating Chovan. During their investigation, FBI agents found videos on the Internet depicting Chovan and others shooting rifles and conducting " border patrols" near the U.S.-Mexico border.

The FBI also learned that in March 2010, San Diego County Sheriff deputies responded to a domestic dispute at Chovan's residence. Fix, Chovan's then-estranged wife, told the officers that Chovan had become violent, hit her with a cell phone, and threatened to hunt her down and shoot her if she ever left him. Fix

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said that she believed Chovan's threats because he had weapons inside his house.

On April 15, 2010, FBI and Bureau of Alcohol, Tobacco, Firearms and Explosives agents executed a search warrant of Chovan's house. In the course of their search they found and confiscated four firearms, including a High Standard .22 caliber handgun that belonged to Chovan, and 532 rounds of assorted ammunition. Federal agents arrested Chovan the day after the search. During his arrest, Chovan admitted that he had possessed and fired the firearms several times since his 1996 domestic violence conviction. A two-count indictment was brought against Chovan. Count One alleged that Chovan had knowingly possessed firearms in violation of § 922(g), and Count Two alleged that he had made a false statement in the acquisition of a firearm in violation of 18 U.S.C. § 924(a)(1)(A).

Chovan moved to dismiss Count One, contending that (1) § 922(g)(9) is an unconstitutional violation of the Second Amendment; (2) his civil rights were " restored" within the meaning of § 921(a)(33)(B)(ii), and therefore § 922(g)(9) did not apply to him; and (3) § 922(g)(9)'s application to him was a violation of equal protection. The district court denied Chovan's motion to dismiss, concluding that § 922(g)(9) " is a presumptively lawful prohibition and represents an exemption from the right to bear arms under the Second Amendment as articulated in [ District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) ]."

Chovan pled guilty to Count One of the indictment, pursuant to a conditional plea agreement that preserved his right to appeal the denial of his motion to dismiss.[3] Chovan was sentenced to five years probation. Chovan timely appealed the denial of his motion to dismiss.


We review de novo the constitutionality of a statute. United States v. Vongxay, 594 F.3d 1111, 1114 (9th Cir.2010). We also review de novo constitutional challenges to a district court's denial of a motion to dismiss. Id.


Chovan argues on appeal that § 922(g)(9) violates the Second Amendment because it is an impermissible restriction on the individual and fundamental right to bear arms. He alternatively argues that § 922(g)(9) does not apply to him because his civil rights were restored when his ten-year ban on owning firearms under California state law expired, and thus that his conviction should be vacated. We disagree with both arguments.

I. Civil Rights Restored

We start by addressing Chovan's non-constitutional argument that § 922(g)(9) does not apply to him because his civil rights have been restored. [4]Section 921(a)(33)(B)(ii) prevents the application of § 922(g)(9) in situations where a defendant's " civil rights" have been restored. Chovan contends that his civil

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rights were restored within the meaning of § 921(a)(33)(B)(ii) when his right to own firearms was restored under California law ten years after his 1996 conviction.

Section 921(a)(33)(B)(ii) does not define the term " civil rights." In United States v. Brailey, however, we addressed how to interpret the term. 408 F.3d 609, 611-13 (9th Cir.2005). In 1997, James David Brailey was convicted in Utah of a misdemeanor crime of domestic violence. Id. at 610-11. As a result of this conviction, he was barred from possessing firearms under then-existing Utah state law. Id. at 611. In 2000, however, Utah amended its statutes such that Brailey and other misdemeanants were no longer prevented from possessing firearms. Id. at 610-11. Brailey was subsequently charged with firearm possession in violation of § 922(g)(9). Id. at 610. He appealed the § 922(g)(9) conviction, maintaining that his civil rights had been restored within the meaning of § 921(a)(33)(B)(ii) because his right to possess a gun had been restored under Utah law. Id.

We rejected Brailey's argument, concluding that his civil rights had never been " lost" because his misdemeanor conviction had not taken away his " core civil rights" : the right to vote, to sit as a juror, or to hold public office. Id. at 613. Because Brailey's civil rights had never been lost, we reasoned that they could not have been restored. We noted that most other circuits had also concluded that, " where civil rights are not divested for misdemeanor convictions, a person convicted of a misdemeanor crime of domestic violence cannot benefit from the federal restoration exception." Id. at 612 (citing United States v. Jennings, 323 F.3d 263 (4th Cir.2003); United States v. Barnes, 295 F.3d 1354 (D.C.Cir.2002); United States v. Smith, 171 F.3d 617 (8th Cir.1999)); see also Logan v. United States, 552 U.S. 23, 37, 128 S.Ct. 475, 169 L.Ed.2d 432 (2007) (holding that a different " civil rights restored" exception did not apply to " an offender who lost no civil rights" ). Thus, we concluded that Brailey failed to meet § 922(g)(9)' s civil rights restored exception.

Chovan argues that Brailey 's reading of the civil rights restored exception is too narrow and " create[s] an equal protection problem." According to Chovan it is unfair that under Brailey, individuals who lose the right to vote, serve on a jury, or hold public office because of their convictions but later have these rights restored can possess firearms, while individuals like Chovan who never lost these rights cannot.

Chovan's equal protection argument is foreclosed by our decision in United States v. Hancock, 231 F.3d 557 (9th Cir.2000). In 1994 and 1995, Gary Hancock was convicted of four Arizona state misdemeanors involving violence or threats of violence against his wife. Id. at 560. In 1999, Hancock was convicted of possessing a firearm in violation of § 922(g)(9). Id. On appeal, Hancock argued that his indictment should have been dismissed on equal protection grounds. Id. at 565. He argued that in Arizona, domestic violence misdemeanants are treated more harshly under § 922(g)(9) than felons because Arizona misdemeanants, unlike felons, are not deprived of their civil rights and as a result can never have their civil rights restored. Id. at 566.

Applying rational basis review, we rejected Hancock's equal protection claim. Id. at 566-67. First, we explained that when Congress enacted § 922(g)(9), it " was aware of the discrepancies in state procedures for revoking and restoring civil rights.... [D]isparate treatment of some offenders was the inevitable result of Congress' decision to ‘ look to state law to define the restoration exception.’ " Id.

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(citing United States v. Smith, 171 F.3d 617, 625 (8th Cir.1999)). Second, we noted that in addition to the civil rights restored exception, § 922(g)(9) provides " several adequate legal mechanisms" for which both misdemeanants and felons can qualify: " pardon, expungement, and setting aside of convictions." Id. at 567. Viewing the two exceptions together, we found that " Congress reasonably could conclude that felons who had been through a state's restoration process and had regained their civil rights ... were more fit to own firearms than domestic-violence misdemeanants who had not had their convictions expunged or been pardoned." Id. We therefore upheld the civil rights restored exception under rational basis review as at least " minimally rational." Id.

Here, we apply Brailey and conclude that Chovan's 1996 misdemeanor domestic violence conviction did not divest him of civil rights because it did not divest him of the right to vote, the right to serve on a jury, or the right to hold public office. Because Chovan never lost these " core" civil rights, he cannot qualify for the civil rights restored exception to § 922(g)(9). Further, we reject Chovan's argument that the civil rights restored exception violates the Equal Protection Clause for the same reasons we articulated in Hancock. Id. at 566-67.

II. Second Amendment Challenge

Having concluded that Chovan does not qualify for the " civil rights restored" exception, we turn to his Second Amendment challenge to § 922(g)(9). Chovan's Second Amendment argument is predicated on the Supreme Court's holding in District of Columbia v. Heller that the Second Amendment protects " an individual right to keep and bear arms." 554 U.S. 570, 595, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008).

In Heller, the Supreme Court struck down District of Columbia laws banning handgun possession in the home and requiring all firearms in homes to be unloaded and disassembled or " bound by a trigger lock or similar device." Id. at 630, 635, 128 S.Ct. 2783. While the Heller Court declined to " undertake an exhaustive historical analysis ... of the full scope of the Second Amendment," it did establish that the individual right guaranteed by the amendment is " not unlimited." Id. at 626-27, 128 S.Ct. 2783.

The Heller Court suggested that the core of the Second Amendment right is to allow " law-abiding, responsible citizens to use arms in defense of hearth and home." Id. at 635, 128 S.Ct. 2783. The Court indicated that determining the scope of the Second Amendment's protections requires a textual and historical analysis of the amendment. See id. at 576-605, 128 S.Ct. 2783. Finally, the Court established that " weapons not typically possessed by law-abiding citizens for lawful purposes" are not protected by the Second Amendment, id. at 625, 128 S.Ct. 2783, and that certain " longstanding prohibitions" are " presumptively lawful regulatory measures" :

[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Id. at 626-27, 128 S.Ct. 2783; see also id. at 627 n. 26, 128 S.Ct. 2783; McDonald v. City of Chicago, 561 U.S. ----, 130 S.Ct. 3020, 3047, 177 L.Ed.2d 894 (2010).

The constitutionality of § 922(g)(9) is a question of first impression in this circuit, although a number of other circuits have upheld the statute using varying rationales. We briefly summarize the different approaches taken by these circuits.

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A. Approaches Taken By Other Circuits

1. Upheld as a " Presumptively Lawful Longstanding Prohibition" : Eleventh Circuit

The Eleventh Circuit considered the constitutionality of § 922(g)(9) and upheld it as a " presumptively lawful longstanding prohibition[ ]." United States v. White, 593 F.3d 1199, 1205 (11th Cir.2010). That court analogized § 922(g)(9) to the felon-in-possession ban the Heller Court listed as a presumptively lawful restriction, noting that " although passed relatively recently, § 922(g)(9) addresses the thorny problem of domestic violence, a problem Congress recognized as not remedied by ‘ longstanding’ felon-in-possession laws." Id. at 1206. Concluding that " Heller does not cast doubt" on § 922(g)(9)'s constitutionality because § 922(g)(9) is a presumptively lawful prohibition, and without further constitutional analysis, the Eleventh Circuit upheld the statute. Id.

Two other circuits have criticized White 's approach. In United States v. Chester, the Fourth Circuit stated that " for all practical purposes" White treats " Heller 's listing of presumptively lawful measures" as a sort of " safe harbor for unlisted regulatory measures, such as 28 U.S.C. § 922(g)(9)" that are " analogous to those measures specifically listed in Heller. " 628 F.3d 673, 679 (4th Cir.2010). The Chester court criticized the approach as " approximat[ing] rational-basis review, which has been rejected by Heller. " Id. In United States v. Skoien, the Seventh Circuit sitting en banc declined to address whether § 922(g)(9) is presumptively lawful, stating, " We do not think it profitable to parse the [ ] passages of Heller [that list presumptively lawful measures] as if they contained an answer to the question whether § 922(g)(9) is valid." 614 F.3d 638, 640 (7th Cir.2010) (en banc).

2. Remanded to District Court to Apply Intermediate Scrutiny: Fourth Circuit

In Chester, the Fourth Circuit considered William Samuel Chester's argument that his § 922(g)(9) conviction abridged his right to keep and bear arms under the Second Amendment. 628 F.3d at 674. The court held first that a two-part inquiry applies to Second Amendment claims:

The first question is " whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment's guarantee." ... If the challenged regulation burdens conduct that was within the scope of the Second Amendment as historically understood, then we move to the second step of applying an appropriate form of means-end scrutiny.

Id. at 680 (quoting United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir.2010)). After canvassing the historical evidence on the Second Amendment rights of domestic violence misdemeanants and finding it " inconclusive," the court stated, " We must assume, therefore, that Chester's Second Amendment rights are intact and that he is entitled to some measure of Second Amendment protection to keep and possess firearms in his home for self-defense." Id. at 681-82.

In its discussion of the second step— whether the challenged regulation survives the appropriate level of scrutiny— the Fourth Circuit noted that the Heller Court left open the question of what level of scrutiny applies to a law burdening Second Amendment-protected conduct, although the Court made clear that rational basis review was not sufficient. Id. at 682. The Chester court went on to state:

Although Chester asserts his right to possess a firearm in his home for the purpose of self-defense, we believe his claim is not ...

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