PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 10-5292
CHRISTOPHER D. MAHIN,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Anthony J. Trenga, District Judge.
(1:10-cr-00288-AJT-1)
Argued: December 6, 2011
Decided: February 3, 2012
Before WILKINSON, WYNN, and FLOYD, Circuit Judges.
Affirmed in part, reversed in part, and remanded by published
opinion. Judge Wilkinson wrote the opinion, in which Judge
Wynn and Judge Floyd joined.
COUNSEL
ARGUED: Kevin R. Brehm, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Alexandria, Virginia, for Appellant.
George Zachary Terwilliger, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.
2 UNITED STATES v. MAHIN
ON BRIEF: Michael S. Nachmanoff, Federal Public
Defender, Alexandria, Virginia, for Appellant. Neil H. Mac-
Bride, United States Attorney, Alexandria, Virginia, for
Appellee.
OPINION
WILKINSON, Circuit Judge:
Christopher D. Mahin was convicted and sentenced on two
counts of possessing a firearm or ammunition while subject to
a domestic violence protective order in violation of 18 U.S.C.
§ 922(g)(8). He appeals the district court’s determination that
his convictions under § 922(g)(8) did not violate the Second
Amendment. On this question, we affirm the judgment of the
district court. But because it was plain error to convict and
sentence Mahin on two separate counts for the simultaneous
possession of a firearm and ammunition under § 922(g)(8),
we reverse Mahin’s conviction as to count two of the indict-
ment, vacate his sentence, and remand for resentencing.
I.
A.
On April 19, 2010, the Alexandria Police Department
arrested Mahin on a warrant for the assault and battery of his
wife, PK. As PK would later explain, the arrest followed
Mahin’s aggressive behavior toward her and his threat to kill
her: "he told me that he’s going to kill me . . . . And it was
just too much for me, and I was getting more afraid." Mahin
further informed PK that when he was in combat with the
Navy "he was taught how to kill people."
Represented by counsel at a hearing in Alexandria Juvenile
and Domestic Relations Court, Mahin pled guilty to one count
UNITED STATES v. MAHIN 3
of assault and battery against a family member. As part of the
plea agreement, the court imposed a two-year domestic vio-
lence protective order, finding that PK had proven the allega-
tion of family abuse by a preponderance of the evidence.
"Family abuse" is defined in the order as "any act involving
violence, force, or threat . . . which results in bodily injury or
places one in reasonable apprehension of bodily injury and
which is committed by a person against such person’s family
or household member." The order required Mahin to "refrain
from committing further acts of family abuse" and to "have no
further contact of any type" with PK. It also granted PK pos-
session of the marital residence to the exclusion of Mahin.
The order advised that under Virginia law Mahin was pro-
hibited from purchasing or transporting any firearm while the
protective order was in effect. In addition, the order put
Mahin on notice that if he possessed a firearm during the
order’s duration he would expose himself to federal prosecu-
tion. Specifically, the order included a "warning" in bold print
and capital letters, which cautioned that "while this protective
order is in effect, you may be subject to a federal penalty
under the 1994 amendment to the Gun Control Act, 18 U.S.C.
922(g)(8), for possessing, transporting, or receiving a fire-
arm."
Just over one hour after the court issued the order and an
officer served it on Mahin, Mahin entered the Sharpshooters
firearms retail store and small arms range in Lorton, Virginia.
There, Mahin paid for a monthly membership, rented a Glock
22 handgun, and purchased two boxes of ammunition contain-
ing fifty rounds each. He proceeded to a firing lane for
approximately thirty minutes of shooting, after which he
returned the gun and left the range. Shortly thereafter, PK
contacted the police when she arrived home to find Mahin’s
Sharpshooters membership card near the door inside her
apartment.
4 UNITED STATES v. MAHIN
B.
Mahin was indicted on August 5, 2010 on two counts under
18 U.S.C. § 922(g)(8) for: (1) possession of a firearm while
subject to an active protective order; and (2) possession of
ammunition while subject to an active protective order. Mahin
moved to dismiss the indictment on constitutional grounds,
claiming that 18 U.S.C. § 922(g)(8)’s prohibition violated his
Second Amendment right to keep and bear arms under the
Supreme Court’s decision in District of Columbia v. Heller,
554 U.S. 570 (2008).
After a bench trial, the district court found that the govern-
ment had proven the elements for both counts under
§ 922(g)(8) beyond a reasonable doubt. The court rejected
Mahin’s Second Amendment challenge, finding that
"922(g)(8) is within the kind of categorical exemption that the
Supreme Court in Heller recognized as presumptively valid."
The court found that, alternatively, § 922(g)(8) survived
heightened scrutiny because:
There is clearly a compelling government interest in
protecting individuals against violence within a
domestic context, and there is clearly a tie between
prohibiting people who are subject to those orders
and who have demonstrated a disposition for vio-
lence from any access to any weapons that could be
used to harm those who have the protections of the
protective order.
With respect to the particular circumstances of Mahin’s viola-
tion, the court observed that "once in possession of a firearm,
the defendant had the ability to act in a way that may have
allowed him to use that firearm not only against others but to
leave the premises [of the shooting range] and use it against
those that sought the protections of the protective order." For
these reasons, the district court concluded that Mahin’s con-
victions were constitutionally valid.
UNITED STATES v. MAHIN 5
The district court sentenced Mahin on both counts to a
period of time served, followed by three years of supervised
release as to counts 1 and 2 to be served concurrently, and
imposed a special assessment of $100 for each count of con-
viction.
Mahin raises two questions on appeal. First, he challenges
the constitutionality of his convictions under the Second
Amendment. Second, he contends that it was plain error for
the district court to convict and sentence him on two counts
of violating 18 U.S.C. § 922(g)(8) for a single act of posses-
sion. We shall address each issue in turn.
II.
As an initial matter, we note there is no question that the
elements of 18 U.S.C. § 922(g)(8) were met in this case. Sec-
tion 922(g)(8) provides that it shall be unlawful to possess a
firearm or ammunition "in or affecting commerce" for any
person:
who is subject to 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
threatening 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 inti-
mate partner or child; or
6 UNITED STATES v. MAHIN
(ii) by its terms explicitly prohibits the use,
attempted use, or threatened use of physical force
against such intimate partner or child that would rea-
sonably be expected to cause bodily injury.
An intimate partner for purposes of § 922(g)(8)(B) and (C) is
defined as "the spouse of the person, a former spouse of the
person, an individual who is a parent of a child of the person,
and an individual who cohabitates or has cohabited with the
person." Id. § 921(a)(32).
Enacted as part of the Violent Crime Control and Law
Enforcement Act of 1994, which amended the Gun Control
Act of 1968, § 922(g)(8) attempts to reduce domestic violence
by temporarily banning firearm possession by those such as
Mahin who have been found to constitute a threat to their inti-
mate partner. Pub. L. No. 103-322, § 110401(c), 108 Stat.
1796, 2014-2015 (1994). The provision is one in a series
under § 922(g) that disarm certain individuals whom Con-
gress determined pose a heightened danger of misusing a fire-
arm, including convicted felons ((g)(1)), unlawful users of
controlled substances ((g)(3)), and domestic violence misde-
meanants ((g)(9)).
On appeal, Mahin does not dispute the underlying validity
of the protective order, which he agreed to while represented
by counsel and has never sought to overturn. Nor does he dis-
pute that his conduct while subject to that protective order
violated 18 U.S.C. § 922(g)(8). Indeed, he stipulated before
trial that PK met the definition of an intimate partner, that the
firearm and ammunition at issue had traveled in and affected
interstate commerce, and that the protective order was
imposed after a hearing of which he had received notice and
at which he had an opportunity to participate and was repre-
sented by counsel. And the district court properly concluded
that the remaining requirements under § 922(g)(8)(B) and (C)
were satisfied where the protective order instructed Mahin to
"refrain from committing further acts of family abuse,"
UNITED STATES v. MAHIN 7
defined in the order to include the use of force or the threat
of bodily injury against a family member. But although
Mahin’s use of a firearm and ammunition at Sharpshooters
falls squarely within § 922(g)(8)’s prohibition, he contends
that the Second Amendment requires that we reverse his con-
victions. For the reasons that follow, we reject Mahin’s con-
stitutional challenge.
III.
A.
The Second Amendment provides that: "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. In Heller, the Supreme
Court held that the Amendment protects "the right of law-
abiding, responsible citizens to use arms in defense of hearth
and home." 554 U.S. at 635. Heller indicated, however, that
an individual right to keep and bear arms is subject to limits,
including, for example, "longstanding prohibitions on posses-
sion of firearms by felons" which are "presumptively lawful
regulatory measures." Id. at 626-27 & n.26. It has now fallen
to the lower courts to delineate the boundaries of the Second
Amendment right recognized in Heller, including its applica-
bility to persons whose involvement with firearms Congress
has limited in the interest of public welfare and safety.
Mahin raises his Second Amendment challenge in the face
of mounting case law declining to overturn on Second
Amendment grounds criminal convictions under 18 U.S.C.
§ 922(g). Most relevant, since Mahin brought his appeal our
court in United States v. Chapman, ___ F.3d ___, No. 10-
5071, 2012 WL 11235 (4th Cir. Jan. 4, 2012), upheld an 18
U.S.C. § 922(g)(8) conviction against a Second Amendment
challenge. Other courts to have confronted Second Amend-
ment challenges to § 922(g)(8) since Heller, including both
the Eighth and Tenth Circuits, have concluded that the section
8 UNITED STATES v. MAHIN
easily passes constitutional muster. See United States v. Bena,
___ F.3d ___, No. 10-2834, 2011 WL 6376649 (8th Cir. Dec.
21, 2011); United States v. Reese, 627 F.3d 792 (10th Cir.
2010); United States v. Elkins, 780 F. Supp. 2d 473 (W.D. Va.
2011); United States v. Luedtke, 589 F. Supp. 2d 1018 (E.D.
Wis. 2008); United States v. Knight, 574 F. Supp. 2d 224 (D.
Me. 2008). Indeed, appellant has not pointed us to a single
court of appeals decision in the aftermath of Heller that has
reversed any § 922(g) conviction on Second Amendment
grounds. Rather, the courts of appeals have generally applied
intermediate scrutiny to uphold Congress’ effort under
§ 922(g) to ban firearm possession by certain classes of non-
law-abiding, non-responsible persons who fall outside the
Second Amendment’s core protections.
The great majority of these decisions have affirmed
§ 922(g) convictions outright. See Chapman, 2012 WL 11235
((§ 922(g)(8)); Bena, 2011 WL 6376649 (same); United
States v. Staten, ___ F.3d ___, No. 10-5318, 2011 WL
6016976 (4th Cir. Dec. 5, 2011) (§ 922(g)(9), domestic vio-
lence misdemeanant); United States v. Booker, 644 F.3d 12
(1st Cir. 2011) (same); United States v. Skoien, 614 F.3d 638
(7th Cir. 2010) (en banc) (same); United States v. White, 593
F.3d 1199 (11th Cir. 2010) (same); United States v. Dugan,
657 F.3d 998 (9th Cir. 2011) (§ 922(g)(3), unlawful user of
controlled substances); United States v. Yancey, 621 F.3d 681
(7th Cir. 2010) (per curiam) (same); United States v. Barton,
633 F.3d 168 (3d Cir. 2011) (§ 922(g)(1), convicted felon);
United States v. Williams, 616 F.3d 685 (7th Cir. 2010)
(same). In United States v. Chester, 628 F.3d 673 (4th Cir.
2010), our court remanded a Second Amendment challenge to
a conviction under § 922(g)(9) back to the district court for
further evidentiary development. In Staten, however, where
the government had already presented the district court with
ample evidence of a reasonable fit between § 922(g)(9) and
the goal of reducing domestic gun violence, we upheld a con-
viction under § 922(g)(9) against a Second Amendment chal-
lenge. See 2011 WL 6016976.
UNITED STATES v. MAHIN 9
We join the growing consensus in holding that Mahin’s
conviction under § 922(g)(8) is constitutionally sound. Mahin
asks that in reviewing his claim we recognize that Second
Amendment protections apply outside the home and extend to
persons subject to domestic protective orders. But the
Supreme Court has not clarified, and we have not held, that
the Second Amendment extends beyond the home or to perpe-
trators of domestic abuse. See United States v. Masciandaro,
638 F.3d 458, 474-76 (4th Cir. 2011) (declining to address
whether the Second Amendment applies outside the home);
Chapman, 2012 WL 11235, at *3 (declining to decide
whether the Second Amendment applies to those subject to
§ 922(g)(8)); Staten, 2011 WL 6016976, at *5 (same with
respect to § 922(g)(9)).
We may likewise avoid guesswork on the scope of Second
Amendment protection here—Mahin’s constitutional claim is
unavailing even if one assumes that he engaged in activity
which implicates the Second Amendment. As in Chapman,
we may apply intermediate scrutiny to uphold Mahin’s
§ 922(g)(8) conviction, assuming without deciding that his
conduct falls within the Second Amendment’s ambit. Chap-
man, 2012 WL 11235, at *3 (concluding that if Chapman’s
conduct fell within the Second Amendment, "intermediate
scrutiny is the appropriate standard of scrutiny for Chapman
and similarly situated persons [under § 922(g)(8)]"); see also
Staten, 2011 WL 6016976, at *5 (same with respect to
§ 922(g)(9)).
B.
Intermediate scrutiny requires the government to demon-
strate that the statute at issue has a "reasonable fit" with an
important government interest. See Chester, 628 F.3d at 683.
Section 922(g)(8) satisfies that standard, as does the statute’s
application to Mahin’s firearm use the same day he was
served with a protective order.
10 UNITED STATES v. MAHIN
It is well-established that "[f]irearms and domestic strife
are a potentially deadly combination nationwide," United
States v. Hayes, 555 U.S. 415, 427 (2009), and neither party
disputes that § 922(g)(8) serves a substantial government
interest in preventing domestic gun violence. Indeed, in Chap-
man we held that "[b]ased upon § 922(g)(8)’s legislative his-
tory, the relevant case law, and common sense . . . the
government has carried its burden of establishing that reduc-
ing domestic gun violence is a substantial government objec-
tive of § 922(g)(8)." Chapman, 2012 WL 11235, at *4.
Section 922(g)(8) advances that objective by building upon
the foundation of a state domestic violence protective order.
For a victim of domestic abuse, seeking refuge in the court
system may be a measure of last—or even desperate—resort.
Indeed, it may require some summoning of courage for a vic-
tim to request a protective order against an intimate partner.
But although a restraining order aims to avert a credible future
risk of domestic violence, it offers no guarantee. As Senator
Chafee, a sponsor of the § 922(g)(8) legislation, explained,
abuse victims who have secured a protective order "remain[ ]
vulnerable" to harm: "There have been far, far too many
dreadful cases in which innocent people . . . [are] wounded or
killed by a former boyfriend or girlfriend, partner, or other
intimate using a gun—despite the fact that the attacker was
subject to a restraining order." 139 Cong. Rec. 30,578-79
(1993) (statement of Sen. John Chafee).
In this context, § 922(g)(8) provides a valued safeguard. Its
prohibition reduces the likelihood that a violent partner bent
on revenge or intimidation will make use of an accessible fire-
arm and turn a threatening situation into a fatal one. In the
words of Senator Wellstone, another sponsor of the legisla-
tion: "All too often the only difference between a battered
woman and a dead woman is the presence of a gun." 140
Cong. Rec. 14998 (1994) (statement of Sen. Paul Wellstone).
Such is the human dimension of the problem that Congress
sought to address with this particular provision—to afford
UNITED STATES v. MAHIN 11
those attempting to escape from an abusive relationship a
measure of security and peace of mind. Congress was well
aware that anger management issues may arise in domestic
settings, and it sought to temper the risk that the most volatile
confrontations, including those inflamed by alcohol, would
not escalate further with easy access to a gun. As our court
concluded in Staten and Chapman, it takes no special pre-
science to understand the familiar link between domestic
abuse and gun violence. Indeed, the Staten court reached a
series of conclusions relevant here:
(1) domestic violence is a serious problem in the
United States; (2) the rate of recidivism among
domestic violence misdemeanants is substantial; (3)
the use of firearms in connection with domestic vio-
lence is all too common; (4) the use of firearms in
connection with domestic violence increases the risk
of injury or homicide during a domestic violence
incident; and (5) the use of firearms in connection
with domestic violence often leads to injury or homi-
cide.
2011 WL 6016976, at *11. Based on these findings, the
Staten court held that prohibiting domestic violence misde-
meanants from possessing firearms under § 922(g)(9) was a
tailored and reasonable method to address domestic gun vio-
lence. Again in Chapman, where the government’s "reason-
able fit proffer . . . faithfully track[ed] the one it made with
respect to § 922(g)(9)," we incorporated the Staten court’s
five conclusions into our decision that Chapman’s conviction
under § 922(g)(8) readily satisfied the intermediate scrutiny
test. Chapman, 2012 WL 11235, at *7-*8.
Before the district court in this case, the government relied
on the same evidence chronicled in Staten and credited in
Chapman. And as we already concluded in Chapman, the
Staten court’s findings support Mahin’s conviction under
§ 922(g)(8). Inasmuch as our court has already held in Staten
12 UNITED STATES v. MAHIN
that § 922(g)(9) represents a constitutionally valid approach to
prevent domestic violence, the result could hardly be any dif-
ferent under § 922(g)(8), which is even more narrowly tai-
lored to address the threat of recurring domestic abuse in two
main respects.
First, § 922(g)(8)’s prohibition on firearm possession is
temporally limited and therefore "exceedingly narrow." Chap-
man, 2012 WL 11235, at *6. Rather than imposing a lifelong
prohibition, section 922(g)(8) applies for the limited duration
of the domestic violence protective order (in this case, two
years). It is thus a temporary burden during a period when the
subject of the order is adjudged to pose a particular risk of
further abuse. See Knight, 574 F. Supp. 2d at 226 (finding that
§ 922(g)(8) is "quite narrow" in part because "the prohibition
lasts only as long as the underlying state court order is in
effect"); Elkins, 780 F. Supp. 2d at 479 (same).
Second, section 922(g)(8) applies only to persons individu-
ally adjudged to pose a future threat of domestic abuse "after
a hearing of which such person received actual notice, and at
which such person had an opportunity to participate." 18
U.S.C. § 922(g)(8)(A). We recognized in Chapman that
§ 922(g)(8)(A)’s "procedural due process" requirements are a
notable "narrowing feature" of the statute. Chapman, 2012
WL 11235, at *6. Moreover, section 922(g)(8)(C) requires
that the underlying protective order either "include[ ] a find-
ing that such person represents a credible threat to the physi-
cal safety of such intimate partner," 18 U.S.C.
§ 922(g)(8)(C)(i), or "by its terms explicitly prohibit[ ] the
use, attempted use, or threatened use of physical force against
such intimate partner," id. (C)(ii).
In Chapman, the defendant’s conviction satisfied the ele-
ments of § 922(g)(8)(A)-(B) and (C)(ii), as does Mahin’s con-
viction here. But whether a finding that the person represents
a credible threat is explicit in the order’s language or not, it
is a necessary step in the court’s decision to issue the injunc-
UNITED STATES v. MAHIN 13
tive order. As the district court in Elkins recognized, when
Congress enacted § 922(g)(8) it was "legislating against the
background of the rule of American law that for an injunction
to issue there must be a likelihood that irreparable harm will
occur." 780 F. Supp. 2d at 479. With respect to protective
orders under Virginia law, for example, "courts may only pro-
hibit contact with a petitioner . . . if the prohibition is neces-
sary to protect the health and safety of those persons." Id.
(citing Va. Code Ann. § 16.1-279.1(A)(2)). The district court
thus properly found in this case that the injunction against
Mahin to refrain from committing further acts of abuse was
necessarily based on "a finding that the defendant represents
a credible threat to the physical safety of an intimate partner."
The risk of recidivism and future gun violence is therefore
especially salient with respect to persons covered by
§ 922(g)(8), namely those personally enjoined from commit-
ting future acts of domestic abuse. In light of the sound rea-
soning in Staten as to § 922(g)(9), and the obvious fit between
§ 922(g)(8) and the substantial public interest in reducing
domestic violence, the government has met its constitutional
burden.
IV.
Mahin argues, however, that his Second Amendment chal-
lenge must succeed in view of the facts of his firearm posses-
sion in this case. We are unpersuaded by Mahin’s effort to
recast his conduct as benign—his threatening behavior and
disregard of the protective order posed precisely the danger
contemplated by § 922(g)(8).
A.
First, Mahin makes much of the fact that the underlying
protective order did not contain any specific findings that he
had previously used a firearm, that he had actually committed
any violent act against the petitioner, or that she had actually
14 UNITED STATES v. MAHIN
sustained bodily injury. The lack of such findings, he insists,
demonstrates that he was not a sufficient danger to PK to jus-
tify the burden on his Second Amendment rights.
Mahin’s contention, however, is belied by the fact that the
protective order was imposed in conjunction with his guilty
plea to assault and battery against a family member. More
troubling, such arguments trivialize the harms visited not only
by actual domestic violence but by the threat of it. The appre-
hension that an abusive partner will make good on "a credible
threat" is not a prospect the statute ignores. See 18 U.S.C.
§ 922(g)(8)(C)(i). Nor does the Constitution require an endan-
gered spouse to await the actual infliction of a serious injury.
As PK explained, "he told me that he’s going to kill me . . .
And it was just too much for me, and I was getting more
afraid."
Such threats, which place an intimate partner in "reasonable
apprehension of death . . . or bodily injury," are part of Vir-
ginia’s definition of domestic abuse. Va. Code Ann. § 16.1-
228. And § 922(g)(8) reaches not only those restrained from
acts of violence but those restrained from "engaging in other
conduct that would place an intimate partner in reasonable
fear of bodily injury to the partner." 18 U.S.C. § 922(g)(8)(B).
The Second Amendment does not disable Congress and the
states from erecting preventative measures to ensure that the
subject of a procedurally valid protective order is restricted in
his ability to carry out his threatened harms. The absence of
findings in the protective order of prior violence or prior bod-
ily injury inflicted on PK does not suffice to vitiate Mahin’s
§ 922(g)(8) conviction on Second Amendment grounds.
B.
Mahin also insists that his possession of a firearm for a lim-
ited period of time in the controlled environment of a com-
mercial shooting range is conduct that under the Second
UNITED STATES v. MAHIN 15
Amendment must be exempted from prosecution under
§ 922(g)(8). This argument is equally unavailing.
Although not required by § 922(g)(8), the protective order
served on Mahin put him on notice that "while this protective
order is in effect, you may be subject to a federal penalty
under the 1994 amendment to the Gun Control Act, 18 U.S.C.
922(g)(8), for possessing, transporting, or receiving a fire-
arm." Mahin disregarded the order’s warning almost immedi-
ately after receiving it. Just over one hour after the order was
served, Mahin had left the court in Alexandria and was using
a Glock 22 .40 caliber handgun at the Sharpshooters firing
range in Lorton, where in addition to renting the firearm, he
purchased a monthly range membership and 100 rounds of .40
caliber 165 grain full metal jacket ammunition.
Mahin contends that the rental of a firearm in the controlled
setting of a firing range is a far cry from posing any danger
to PK. But as the district court found, once Mahin possessed
the firearm he possessed the power to use the firearm against
others in the vicinity or "to leave the premises and use it
against those that sought the protections of the protective
order." The evidence showed that Mahin had unfettered
access to the handgun, that other customers were simulta-
neously using the firing range only feet away, and that the
range master supervised the firing lanes from behind a glass
window in another room. Given the layout and minimal secur-
ity of the Sharpshooters, the government established the ease
with which one might walk out of the store with a firearm to
inflict injury elsewhere, a point that was illustrated by a prior
incident when an individual shoplifted a rented firearm from
the Lorton Sharpshooters at a time of heavy customer traffic.
It is of no moment that in this particular instance Mahin did
not exit the store with the handgun in tow. Mahin had threat-
ened to kill his wife, pled guilty to assault and battery, and
was adjudged to pose a credible threat of future harm. He pro-
ceeded directly from courthouse to firing range and his pur-
16 UNITED STATES v. MAHIN
chase of a monthly range membership signaled that he would
return. He then violated the protective order by visiting the
marital residence where he deposited his Sharpshooters mem-
bership card, placing PK once again in apprehension of what
might await.
Moreover, our precedent indicates the district court is not
required to speculate on a case-by-case basis what violent acts
may have unfolded had the government failed to prosecute
under § 922(g)(8). In Chapman we noted specifically that a
conviction under § 922(g)(8)(A)-(B) and (C)(ii) is constitu-
tional even if the statute’s "prohibitory net . . . may be some-
what over-inclusive" in reaching persons who would not
misuse a firearm if permitted to possess one. Chapman, 2012
WL 11235, at *8. For intermediate scrutiny has never been
held to require a perfect end-means fit. It is sufficient that
§ 922(g)(8) rests on an established link between domestic
abuse, recidivism, and gun violence and applies to persons
already individually adjudged in prior protective orders to
pose a future threat of abuse. The obvious utility of Congress’
chosen means in advancing Congress’ indisputably important
ends relieves trial courts of the need to ruminate in every case
on what might have been if not for an indictment under
§ 922(g)(8).
V.
Finally, Mahin argues that the district court erred in con-
victing and sentencing him on two counts under § 922(g)(8)
when the two counts arose from the simultaneous possession
of a firearm and ammunition. Because Mahin raises this issue
for the first time on appeal, he must establish "that an error
occurred, that the error was plain, and that the error affected
his substantial rights." United States v. Hastings, 134 F.3d
235, 239 (4th Cir. 1998). Mahin has met that burden here, and
we shall exercise our discretion to notice the error. See United
States v. Olano, 507 U.S. 725, 732 (1993).
UNITED STATES v. MAHIN 17
In United States v. Dunford, 148 F.3d 385 (4th Cir. 1998),
we held that the defendant’s simultaneous possession of mul-
tiple firearms and ammunition supported only one count of
conviction under § 922(g). Mahin’s indictment included two
counts under §922(g)(8), one for the possession of a firearm
and the other for the simultaneous possession of ammunition
at the Sharpshooters firing range, which under Dunford con-
stitutes only one violation. In light of Dunford, we agree with
Mahin that the district court committed plain error in convict-
ing and sentencing Mahin on both counts of the indictment.
Because the court sentenced Mahin on each count and
imposed a special assessment of $100 for each conviction, its
error affected Mahin’s substantial rights. We therefore affirm
Mahin’s conviction under 18 U.S.C. § 922(g)(8) as to count
one, reverse his conviction as to count two for possession of
ammunition while subject to a protective order, vacate his
sentence, and remand for the limited purpose of resentencing
in accordance with this decision.
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED