PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4881
MICHAEL J. BOSTIC,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
Charles H. Haden II, Chief District Judge.
(CR-97-72)
Argued: September 25, 1998
Decided: February 17, 1999
Before WILKINSON, Chief Judge, MOTZ, Circuit Judge,
and BULLOCK, Chief United States District Judge for the
Middle District of North Carolina, sitting by designation.
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Affirmed by published opinion. Chief Judge Bullock wrote the opin-
ion, in which Chief Judge Wilkinson and Judge Motz joined.
_________________________________________________________________
COUNSEL
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.
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 pos-
session 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 Sec-
tion 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 con-
nection 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 pri-
mary 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 resi-
dence, Bostic used the child to lure Kelly to the residence by claiming
that Ryan had a fever and needed Motrin. When Kelly arrived, how-
ever, 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 pro-
tective 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
2
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 fam-
ily 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 Janu-
ary 29 through February 2, 1997. The Order did not provide that Bos-
tic 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 consti-
tute 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 imprison-
ment." 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 remov-
ing herself from the residence. Bostic was arrested later that day and
was charged with wanton 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 resi-
dence. One of the three firearms seized on February 15 was the .20
3
gauge shotgun believed to have been used during the February 1 inci-
dent.
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 Feb-
ruary 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 con-
form 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 Febru-
ary 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 presen-
tence report. With respect to the ruling he challenges on appeal, Bos-
tic 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 dis-
trict 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
4
of Section 922(g)(8). See United States v. Ham, 74 F.3d 537, 540 (4th
Cir.), cert. denied, 517 U.S. 1239 (1996).
A.
Before addressing Bostic's constitutional challenges to Sec-
tion 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 threat-
ening 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
5
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 Sec-
tion 922(g)(8). Bostic's primary contention on appeal is that Sec-
tion 922(g)(8) is unconstitutional because it violates the notice and
fair warning principles embodied in the Fifth Amendment. The dis-
trict 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 (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). See United States v. Langley, 62 F.3d 602 (4th
Cir. 1995) (en banc) (holding that proof that defendant knew he was
violating Section 922(g)(1) is not required for prosecution nor is igno-
rance of the law a defense to such prosecution), cert. denied, 516 U.S.
1083 (1996).
We agree with the district court that this court's decision in
Langley controls in this case and are not persuaded by Bostic's
attempts to distinguish Langley. Bostic first notes the holding in
Langley was based in part on the fact that "the reasonable expecta-
tions of felons are wholly distinct from the reasonable expectations of
ordinary citizens." 62 F.3d at 607. Bostic argues that, unlike the felon
in Langley, he was subject to a civil order and reasonably retained the
expectations of an ordinary citizen. We disagree, however, with Bos-
tic's premise that he remained an "ordinary citizen" after the Order
was entered against him. By engaging in abusive conduct toward
Kelly and Ryan which led to the entry of the Order, Bostic removed
himself from the class of ordinary citizens we discussed in Langley.
Like a felon, a person in Bostic's position cannot reasonably expect
to be free from regulation when possessing a firearm.
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1 Because we find that the Order contains the finding required under
subsection (C)(ii), we need not address the issue of whether the Order
satisfied subsection (C)(i) also.
6
Second, Bostic contends that Langley relied upon the fact that the
precursor statutes to Section 922(g)(1) had not required notice to the
felon of prohibitions on firearm possession resulting from felony sta-
tus. However, the discussion in Langley referred to by Bostic related
to the defendant's argument that the government should have to prove
that he knew he was a felon. Langley, 62 F.3d at 605-05. It did not
involve a discussion of the argument that Bostic advances here, i.e.,
that he is entitled to notice that his conduct was illegal. Moreover, the
relevant mens rea language for Section 922(g)(8) is located in Sec-
tion 924(a)(2), which provides that "[w]hoever knowingly violates
subsection . . . (g) . . . of section 922 shall be fined as provided in this
title, imprisoned not more than 10 years, or both." 18 U.S.C.
§ 924(a)(2). This court has held that "[b]ecause `willful' generally
connotes a conscious performance of bad acts with an appreciation of
their illegality, see Ratzlaf v. United States , 510 U.S. 135 (1994), we
can conclude that Congress intended to provide a different and lesser
standard when it used the word `knowingly.'" United States v. Wilson,
133 F.3d 251, 262 (4th Cir. 1997) (holding that"knowingly" as used
in a statute making it a crime to "knowingly violate" enumerated pro-
visions of the Clean Water Act obligated the government to prove the
defendant's knowledge of the facts meeting each element of the
offense, but not of his conduct's illegality); see also Bryan v. United
States, ___ U.S. ___, 118 S. Ct. 1939 (1998) (holding that term "will-
fully" in 18 U.S.C. § 924(a)(1)(D) requires proof that the defendant
knew his conduct was unlawful).2 Thus, statutory interpretation of the
term "knowingly" as used in analogous contexts does not include a
requirement that the defendant be aware of the illegality of his con-
duct.
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2 At oral argument, counsel for Bostic argued that the Supreme Court's
recent holding in Bryan implicitly overruled or at least limited this
court's holding in Langley. Bryan, however, involved consideration of
Section 924(a)(1)(D), in which the relevant mens rea term is "willfully."
In contrast, Langley involved consideration of Section 924(a)(2), in
which the relevant mens rea term is "knowingly." Thus, Bryan does not
limit the holding in Langley. Moreover, by emphasizing that the term
"knowingly" refers to factual knowledge and"does not necessarily have
any reference to a culpable state of mind or to knowledge of the law,"
the Supreme Court's holding in Bryan strongly supports our holding in
this case. 118 S. Ct. at 1945.
7
Bostic's reliance on the Supreme Court's decision in Staples v.
United States, 511 U.S. 600 (1994), is also misplaced. The Supreme
Court's holding in Staples, as well in the related case of United States
v. X-Citement Video, Inc., 513 U.S. 64 (1994), was directed at aware-
ness of the elements that define circumstances upon which criminality
turns, not at the illegality of the conduct. For example, Staples held
that the government had to prove that the defendant knew the firearm
was capable of automatic firing, not that it was unlawful to possess
such a firearm with such capability. X-Citement Video similarly held
that the government had to prove that the defendant knew that the
individual in the sexually explicit material being shipped was a minor,
not that it was illegal to ship such material. Here, it is undisputed that
Bostic was aware of all the circumstances surrounding his Sec-
tion 922(g)(8) conviction. Bostic was aware that he possessed a fire-
arm. Bostic was also aware that he was subject to a domestic violence
restraining order which included a finding that he represented a physi-
cal threat to Kelly and/or Ryan and prohibited him from abusing
Kelly and/or Ryan. Accordingly, we conclude that due process does
not entitle Bostic to notice that his conduct was illegal.
Next, Bostic argues that Section 922(g)(8) is unconstitutional
because Congress exceeded its authority under the Commerce Clause
in enacting the statute. Bostic relies on United States v. Lopez, 514
U.S. 549 (1995), in which the Supreme Court held that Congress
exceeded its authority under the Commerce Clause by enacting the
Gun Free School Zones Act of 1990, 18 U.S.C. § 922(q) (West Supp.
1996). The Supreme Court in Lopez relied on the fact that "[Sec-
tion] 922(q) contains no jurisdictional element which would ensure,
through a case-by-case inquiry, that the firearm possession statute in
question affects interstate commerce." Lopez , 514 U.S. 561.
Unlike the statute at issue in Lopez, Section 922(g) expressly
requires the government to prove that the firearm was "ship[ped] or
transport[ed] in interstate or foreign commerce"; was "possess[ed] in
or affect[ed] commerce"; or is received after having been "shipped or
transported in interstate or foreign commerce." 18 U.S.C. § 922(g).
This jurisdictional element applies to all nine subsections included in
Section 922(g). In United States v. Wells, 98 F.3d 808 (4th Cir. 1996),
this court found that the same jurisdictional element satisfied the
"minimal nexus required for the Commerce Clause" and held that
8
Congress did not exceed its authority under the Commerce Clause in
enacting Section 922(g)(1), the felon-in-possession statute. 98 F.3d at
811 (citing the ten courts of appeal that have considered and upheld
the constitutionality of Section 922(g)(1) since Lopez). As this court
held in Wells, because Section 922(g)(8) contains an express jurisdic-
tional element, it does not exceed Congress' authority under the Com-
merce Clause.
Finally, Bostic argues that, by regulating domestic violence, Sec-
tion 922(g)(8) interferes with West Virginia's domestic relations laws
in violation of the Tenth Amendment. Again, we disagree. The Tenth
Amendment provides that "the powers not delegated to the United
States by the Constitution, nor prohibited by it to the States, are
reserved to the States respectively or to the people." U.S. Const.
amend. X. "We ask two questions to determine whether a statute vio-
lates [the Tenth Amendment.] First, whether the regulation it
embodies is within Congress' power as being within those enumer-
ated in the Constitution. Second, whether, even if so, the means of
regulation employed yet impermissibly infringe upon state sover-
eignty." United States v. Johnson, 114 F.3d 476, 480 (4th Cir. 1997)
(citing New York v. United States, 505 U.S. 144 (1992)). As we held
in our discussion of Lopez, supra, Congress acted within its authority
under the Commerce Clause in enacting Section 922(g)(8). Therefore,
we need address only whether the means of regulation employed
impermissibly infringe on state sovereignty.
Bostic relies primarily upon the Supreme Court's recent decision
in Printz v. United States, 521 U.S. 98 (1997), to support his argu-
ment that Section 922(g)(8) violates the Tenth Amendment. Printz is
inapposite to the situation presented in this case. In Printz, the
Supreme Court held that the Brady Act's requirement that state offi-
cials perform background checks placed an unconstitutional obliga-
tion on sovereign state officials. Section 922(g)(8), in contrast, poses
no similar affirmative obligation. Instead, Section 922(g)(8) is a con-
stitutional exercise of Congress's commerce power supplementing
complementary state legislation. See United States v. Johnson, 114
F.3d 476, 480 (4th Cir. 1997) (although pre-dating Printz, holding
that Child Support Recovery Act was constitutional and noting that
"federal laws criminalizing conduct within traditional areas of state
law, whether the states criminalize the same conduct or decline to
9
criminalize it, are, of course, commonplace under the dual-sovereign
concept and involve no infringement per se of states' sovereignty in
the administration of their criminal laws"). Accordingly, Sec-
tion 922(g)(8) does not violate the Tenth Amendment.
III.
Bostic also contends the district court erred in enhancing the sen-
tence four levels pursuant to USSG § 2K2.1(b)(5) for use of a firearm
in connection with another felony offense. Mixed questions of law
and fact regarding application of the sentencing guidelines are subject
to a due-deference standard of review. United States v. Nale, 101 F.3d
1000 (4th Cir. 1996).
Section 2K2.1(b)(5) provides in relevant part:"If the defendant
used or possessed any firearm or ammunition in connection with
another felony offense; or possessed or transferred any firearm or
ammunition with knowledge, intent, or reason to believe that it would
be used or possessed in connection with another felony offense,
increase by four levels." USSG § 2K2.1(b)(5).
Bostic's basic contention is that this enhancement was inappropri-
ate because the firearm comprising his state charge for wanton endan-
germent, i.e., the .20 gauge shotgun, is not the same firearm described
in his federal count of conviction, i.e., the possession of the .22 cali-
ber revolver. This argument is misplaced because it fails to recognize
that Bostic's relevant conduct can be considered in determining
whether an enhancement under Section 2K2.1(b)(5) is appropriate.
Enhancements under Section 2K2.1(b) consistently reference the
term "offense," not merely "offense of conviction." Under USSG
§ 1B1.1, the term "offense" is defined to mean "the offense of convic-
tion and all relevant conduct under § 1B1.3 . . . unless a different
meaning is specified or is otherwise clear from the context." USSG
§ 1B1.1, comment n.1(l). As the United States notes, Bostic did not
object to all of the firearms seized at his residence being considered
as relevant conduct, nor did Bostic object to the consideration of all
such firearms in applying an enhancement for an offense that
involved three or more firearms pursuant to USSG§ 2K2.1(b)(1)(A).
J.A. at 117-19, 148, 160-61. Given that possession of the shotgun is
10
part of Bostic's offense, an enhancement under Section 2K2.1(b)(5)
was appropriate as Bostic used or possessed that shotgun in connec-
tion with the felony offense of wanton endangerment. See United
States v. Kuban, 94 F.3d 971 (5th Cir. 1996) (four-level enhancement
applied where defendant held firearm to the victim's head), cert.
denied, 519 U.S. 1070 (1997).
IV.
For the foregoing reasons, we affirm the district court's rulings
denying Bostic's motion to dismiss and applying a four-level
enhancement pursuant to USSG § 2K2.1(b)(5).
AFFIRMED
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