FILED
United States Court of Appeals
Tenth Circuit
July 30, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
__________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 11-2128
v. (D.C. No. 2:09-CR-03504-RB-1)
(D. N.M.)
DANIEL MOLINA,
Defendant-Appellant.
______________________________
ORDER AND JUDGMENT *
Before GORSUCH and BALDOCK, Circuit Judges, and BRORBY, Senior
Circuit Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Appellant Daniel Molina pled guilty to one count of possession of firearms
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). On
appeal, Mr. Molina challenges the district court’s denial of his motion to dismiss
his indictment on grounds he legally possessed the firearms under 18 U.S.C.
§ 921(a)(20) after his civil rights were restored by operation of New Mexico law.
Alternatively, Mr. Molina argues federal statutes 18 U.S.C. § 921(a)(20) and
§ 922(g)(1) are unreasonably vague because they fail to give adequate notice of
the prohibition of possession of a firearm by a felon. Lastly, Mr. Molina
contends his instant conviction for possession of a firearm violates his right to
bear arms under the Second Amendment of the United States Constitution. We
exercise our jurisdiction under 28 U.S.C. § 1291 and affirm.
I. Factual and Procedural Background
On June 14, 2009, local police officers responded to a domestic violence
call from a woman at Mr. Molina’s residence in Buckhorn, New Mexico; on
arrival, officers observed a black semi-automatic handgun in a shoulder holster on
a table. Following Mr. Molina’s arrest, officers obtained a search warrant for
both his home and vehicle where they found a total of three firearms, including a
9mm pistol and two rifles, as well as ammunition. A background check revealed
Mr. Molina possessed three prior New Mexico state felony convictions, including
an April 1988 aggravated assault on a peace officer and a May 1988 escape from
jail for which he received a concurrent sentence of four years and six months
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probation which was discharged on March 25, 1993. In September 1999, he also
committed a battery offense on a school official for which he received a deferred
sentence and probation of eighteen months, discharging on December 4, 2003.
Following his instant arrest, a federal grand jury issued an indictment
charging Mr. Molina with possession of firearms by a convicted felon in violation
of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Mr. Molina filed a motion and amended
motion to dismiss the indictment on grounds he legally possessed the firearms
because his civil rights had been automatically restored by operation of New
Mexico law – namely New Mexico Statutes Annotated §§ 30-7-16(C), 31-13-1,
and 38-5-1, which he claimed he researched and believed restored his rights to
carry firearms, vote, and serve on a jury. Mr. Molina also argued 18 U.S.C.
§§ 921(a)(20) and 922(g)(1) together fail to give fair notice of their prohibition of
a felon’s possession of a firearm, as evidenced by the fact any reasonable person
would not understand such a prohibition existed, including his state probation
officer, law student brother, and county sheriff, all who advised he could legally
possess a firearm. Finally, relying on the Supreme Court’s decisions in
McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), and District of Columbia v.
Heller, 554 U.S. 570 (2008), Mr. Molina argued his conviction for possession of a
firearm under 18 U.S.C. § 922(g) violated his Second Amendment right to bear
arms.
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Following the government’s response and a hearing on the matter, the
district court denied Mr. Molina’s amended motion to dismiss. It noted that while
his right to vote and serve on a jury may have been automatically restored by
operation of New Mexico law, neither Mr. Molina’s right to hold public office nor
his right to possess firearms had been restored within the meaning of federal
statute 18 U.S.C. § 921(a)(20). Hence, the district court found Mr. Molina’s civil
rights had not been fully restored for the purpose of disqualifying him as a felon
for the purposes of 18 U.S.C. § 922(g)(1).
In rejecting Mr. Molina’s other arguments, the district court found 18
U.S.C. § 922(g)(1) gives fair notice of what conduct is proscribed – namely, that
a convicted felon is prohibited from possessing firearms unless he has been
pardoned or his civil rights have been fully restored – and that Mr. Molina’s
failure to inquire into, and his ignorance of, federal law in that regard did not
excuse his commission of the instant crime. It also found the Supreme Court
cases on which Mr. Molina relied, discussing the Second Amendment right to
bear arms, did not reverse the longstanding prohibition on possession of firearms
by felons.
Following the district court’s denial of his amended motion to dismiss the
indictment, Mr. Molina entered into a conditional guilty plea to the indictment,
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reserving his right to appeal the district court’s denial of his amended motion to
dismiss. Thereafter, the district court sentenced him to thirty months
imprisonment followed by three years supervised release.
II. Discussion
A. Restoration of Civil Rights
Mr. Molina now appeals the district court’s denial of his amended motion
to dismiss his indictment on the same grounds raised before the district court. We
begin with Mr. Molina’s argument he legally possessed the firearms pursuant to
New Mexico Statutes Annotated §§ 30-7-16, 31-13-1, and 38-5-1. We review de
novo: (1) the sufficiency of an indictment, see United States v. Bryant, 664 F.3d
831, 833 (10th Cir.), cert. denied, 132 S. Ct. 1607 (2012); (2) the district court’s
legal decision as to the admissibility of a prior conviction in conjunction with 18
U.S.C. §§ 921(a)(20) and 922(g)(1), see United States v. Flower, 29 F.3d 530,
534-35 (10th Cir. 1994); and (3) the district court’s interpretation of federal
statutes, see United States v. Norman, 129 F.3d 1393, 1397 (10th Cir. 1997). We
review its underlying factual findings for clear error. See Flower, 29 F.3d at 534-
35.
Turning to the applicable federal statutes, 18 U.S.C. § 922(g)(1), under
which Mr. Molina received his instant conviction, provides “a person convicted of
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a crime punishable by more than one year in prison may not possess any firearm.”
Caron v. United States, 524 U.S. 308, 309 (1998). 1 However, as the Supreme
Court pointed out, under 18 U.S.C. § 921(a)(20) a previous conviction is not a
predicate for a felon in possession offense under § 922(g)(1) “if the offender has
had his civil rights restored ....” Id. Thus, Mr. Molina’s appeal depends on
whether his civil rights have been restored as required by § 921(a)(20), which
states, in part:
What constitutes a conviction of such a crime shall be determined in
accordance with the law of the jurisdiction in which the proceedings
were held. Any conviction which has been expunged, or set aside or
for which a person has been pardoned or has had civil rights restored
shall not be considered a conviction for purposes of this chapter,
unless such pardon, expungement, or restoration of civil rights
expressly provides that the person may not ship, transport, possess or
receive firearms.
18 U.S.C. § 921(a)(20).
We have held automatic restoration of one’s civil rights, without any
affirmative act by a state, is sufficient to prevent use of a prior offense as a
1
18 U.S.C. § 922(g)(1) states:
It shall be unlawful for any person ... who has been convicted in any
court of a crime punishable by imprisonment for a term exceeding
one year ... to ship or transport in interstate or foreign commerce, or
possess in or affecting commerce, any firearm or ammunition; or to
receive any firearm or ammunition which has been shipped or
transported in interstate or foreign commerce.
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predicate for conviction of possession of a firearm by a felon. See United States
v. Hall, 20 F.3d 1066, 1069 (10th Cir. 1994). To establish full restoration of
one’s civil rights for the purposes of § 921(a)(20), we have long held a defendant
must show restoration of his rights to: (1) vote, (2) serve on a jury, (3) hold
public office, and (4) possess firearms. See United States v. Baer, 235 F.3d 561,
563 (10th Cir. 2000); Flower, 29 F.3d at 536.
These rights are conjunctive, meaning a defendant must show restoration of
all of these rights for the purpose of restoring his federal firearm privileges. See
Flower, 29 F.3d at 536. Thus, we have determined the first three rights must be
restored before we even consider whether the state has limited the right to possess
a firearm. See United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994). “In
other words, if the defendant has been convicted of a felony under state law and
has not had his civil rights restored for that offense, then the defendant can
properly be convicted for possession ... under § 922(g)(1), regardless of whether
that same possession is prohibited under the state’s law.” Id. In turn, if a state
does not expressly limit a defendant’s possession of firearms at the time his other
civil rights are restored, we have said his conviction cannot serve as a predicate
offense under § 922(g)(1). See Norman, 129 F.3d at 1397-98. In determining if
such restoration of rights occurs by state law, “[w]e look to the whole of state law
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in evaluating the restoration of federal firearms privileges ....” Hall, 20 F.3d at
1069.
In arguing his civil rights were restored to him by operation of state law,
Mr. Molina relies primarily on New Mexico Statutes Annotated § 30-7-16, which
discusses the right to possess firearms. It states “[i]t is unlawful for a felon to
receive, transport or possess any firearm or destructive device in this state.”
N.M. Stat. Ann. § 30-7-16(A). It defines “felon” as “a person convicted of a
felony offense by a court of the United States or of any state or political
subdivision thereof and ... less than ten years have passed since the person
completed serving his sentence ... and ... the person has not received a deferred
sentence.” N.M. Stat. Ann. § 30-7-16(C)(2)(a)-(c). In this instance, at the time
of Mr. Molina’s arrest, ten years had passed since he served his sentence for his
1988 convictions and he completed the term of his deferred sentence for his 1999
conviction. For this reason, Mr. Molina asserts he reasonably believed his right
to possess firearms was fully restored for the purpose of dismissing the
indictment against him.
However, as previously indicated, in order to obtain the right to possess a
firearm for the purposes of federal law, including 18 U.S.C. §§ 921(a)(20) and
922(g)(1), a previously-convicted felon like Mr. Molina must show restoration of
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the other three requisite rights – the right to vote, serve on a jury, and hold public
office. Only when those three rights have been restored do we consider whether
the state has expressly limited a defendant’s possession of firearms for the
purpose of determining if the prior conviction serves as a felony. See Fisher, 38
F.3d at 1147.
Turning to the right to vote, New Mexico law provides a person convicted
of a felony shall not be permitted to vote in any statewide, county, municipal, or
district election unless he has completed the terms of a deferred sentence, and/or
served the entirety of his sentence imposed for a felony conviction, including a
term of probation. N.M. Stat. Ann. § 31-13-1(A)(1), (C). Because Mr. Molina
served the entirety of his 1988 sentence and completed the term of his deferred
1999 sentence, he has demonstrated reinstatement of his right to vote by operation
of New Mexico law. As previously indicated, automatic restoration of such a
civil right, without any affirmative act by a state, sufficiently restores such a
right. See Hall, 20 F.3d at 1069.
Concerning the right to serve on a jury, New Mexico law provides a person
who meets certain qualifications, including age and citizenship requirements, may
serve as a juror, unless he received a felony conviction, in which case he may
qualify as a juror only if he “has successfully completed all conditions of the
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sentence imposed for the felony, including conditions for probation or parole.”
N.M. Stat. Ann. § 38-5-1(A)-(B). Again, because Mr. Molina successfully
completed the conditions of his felony sentences, he has demonstrated restoration
of his right to serve on a jury by operation of law.
However, with regard to the right to hold public office, Mr. Molina fails to
meet his burden. New Mexico law provides “[e]very citizen of the United States
who is a legal resident of the state and is a qualified elector therein, shall be
qualified to hold any elective public office except as otherwise provided in this
constitution.” N.M. Const., art. VII, § 2(A). The New Mexico Constitution states
anyone “‘convicted of a felonious or infamous crime’ is not a qualified elector
‘unless restored to political rights.’” State ex. rel. King v. Sloan, 253 P.3d 33, 34
(N.M. 2011) (per curiam) (quoting N.M. Const., art. VII, § 1). In that regard,
New Mexico statutory law expressly provides a person convicted of a felony is
not qualified to be elected to public office or otherwise permitted to hold an
office of public trust for the state. See id. (relying on N.M. Stat. Ann. §§ 10-1-2
and 31-13-1(E)).
The only provision by which a New Mexico felon may regain his right to
seek or hold public office is by gubernatorial pardon, as provided in the state’s
constitution. See N.M. Const., art. V, § 6. However, Mr. Molina has not
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demonstrated he received such a pardon and, therefore, he has not shown his right
to hold public office has been restored. Absent restoration of this right, Mr.
Molina has not had his civil rights fully restored for the purposes of 18 U.S.C.
§ 921(a)(20). See United States v. Valerio, 441 F.3d 837, 843-44 (9th Cir. 2006)
(interpreting New Mexico law on same issue). Without restoration of this right, it
is immaterial whether New Mexico Statutes Annotated § 30-7-16 grants Mr.
Molina the right to possess firearms in the State of New Mexico. See United
States v. Maines, 20 F.3d 1102, 1104 (10th Cir. 1994). As a result, Mr. Molina’s
prior felony convictions are predicate convictions for the purpose of supporting
the instant charge and his conviction as a felon in possession under § 922(g)(1).
On these grounds, the district court properly denied Mr. Molina’s amended
motion to dismiss his indictment.
Our decision is bolstered by the Ninth Circuit’s decision in Valerio. See
441 F.3d at 843-44. Prior to our disposition in this case, only the Ninth Circuit
had considered whether a defendant’s civil rights were fully restored under New
Mexico law for the purposes of charging and convicting him as a felon in
possession under 18 U.S.C. § 922(g)(1). Id. at 838, 841-44. In Valerio, the
defendant similarly claimed his civil rights had been restored by operation of law
because he successfully completed the deferred sentence imposed for his felony
conviction. Id. at 838-39. The Ninth Circuit found his right to vote had been
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restored on completion of his sentence but that his rights to sit on a jury and hold
public office had not. Id. at 843. While it determined the defendant’s right to
possess a firearm under state law was implicated by New Mexico Statutes
Annotated § 30-7-16, it held it could not proceed to the issue of the defendant’s
right to possess a firearm under federal law because his civil rights to serve on a
jury and hold public office had not been restored. Id. at 842-43 & n.22. As a
result, it determined the district court correctly denied his motion to dismiss the
indictment against him for being a felon in possession of a firearm under 18
U.S.C. § 922(g)(1). Id. at 839, 844.
Following Valerio, the New Mexico legislature promulgated the legislation
on which we have relied, allowing a felon to sit on a jury after successful
completion of his sentence and probation. See N.M. Stat. Ann. § 38-5-1 (2006).
However, since Valerio, the New Mexico legislature has not promulgated
legislation permitting a convicted felon to hold public office absent a
gubernatorial pardon. See King, 253 P.3d at 34, 36-37 (holding under state
constitution and statutory scheme individual’s status as a qualified elector ceases
when convicted of a felony). Based on this reason alone, the district court in the
instant case properly denied Mr. Molina’s amended motion to dismiss the
indictment against him.
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B. Fair Notice Issue
We next address Mr. Molina’s alternative argument 18 U.S.C.
§§ 921(a)(20) and 922(g)(1) are unreasonably vague because they fail to give
adequate notice of the prohibition of possession of a firearm by a felon.
Concentrating primarily on § 921(a)(20), Mr. Molina contends the statute is vague
because it suggests one may keep and bear arms after a felony conviction if the
state of conviction has restored one’s civil right to keep and bear arms. He notes
§ 921(a)(20) leaves the decision of who may possess a firearm to the individual
states and does not specify what other civil rights must be restored. He also
reasserts his claim a reasonable person of ordinary intelligence would not
understand the requirements of § 921(a)(20), as evidenced by the fact he relied on
the advice of his state probation officer, county sheriff, and law student brother,
who told him his possession of firearms complied with the law. He also contends
the district court erred by responding to his vagueness claim as if he “were
making a claim of ignorance of the law,” which he contends is not the case.
Instead, he contends, his claim of vagueness goes to the issue of lack of clarity
and notice, which “isn’t fair.”
We review de novo the district court’s interpretation of federal statutes,
including 18 U.S.C. § 921(a)(20). See Norman, 129 F.3d at 1397. We also
review de novo the district court’s determination on the rule of lenity, see United
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States v. Michel, 446 F.3d 1122, 1135 (10th Cir. 2006), and whether a statute is
void for vagueness, see United States v. Hunter, 663 F.3d 1136, 1141 (10th Cir.
2011). If, as here, the “vagueness challenge does not implicate First Amendment
freedoms, our review is limited to the application of the statute to the particular
conduct charged.” Michel, 446 F.3d at 1135 (internal quotation marks omitted).
“While lenity and void-for-vagueness arguments are clearly related, whether the
rule of lenity should apply in construing a statute is a pure question of law,”
while “[a]s-applied vagueness challenges involve a factual dimension in that
vagueness is determined ‘in light of the facts of the case at hand.’” United States
v. Ochoa-Colchado, 521 F.3d 1292, 1299 (10th Cir. 2008) (quoting United States
v. Bennett, 329 F.3d 769, 777 (10th Cir. 2003)).
The void-for-vagueness doctrine raised by Mr. Molina “‘provides that a
penal statute must ‘define the criminal offense with sufficient definiteness that
ordinary people can understand what conduct is prohibited and in a manner that
does not encourage arbitrary and discriminatory enforcement.’” Michel, 446 F.3d
at 1135 (quoting Kolender v. Lawson, 461 U.S. 352, 357 (1983)). However, a
challenge for vagueness will fail if a reasonable person would have known from
the language of the statute that his or her conduct was at risk. See Maynard v.
Cartwright, 486 U.S. 356, 361 (1988). Moreover, “[t]he Constitution does not ...
impose impossible standards of specificity, and courts should remain ever mindful
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that general statements of the law are not inherently incapable of giving fair and
clear warning.” Sperry v. McKune, 445 F.3d 1268, 1271 (10th Cir. 2006)
(internal quotation marks omitted). “When considering a vagueness challenge to
a penal statute, courts begin with the presumption that the statute comports with
the requirements of federal due process and must be upheld unless satisfied
beyond all reasonable doubt that the legislature went beyond the confines of the
Constitution.” United States v. Platte, 401 F.3d 1176, 1189 (10th Cir. 2005)
(internal quotation marks omitted). Thus, “one to whose conduct a statute clearly
applies may not successfully challenge it for vagueness.” Id. at 1190 (internal
quotation marks omitted).
In turn, “[c]ourts apply the rule of lenity to resolve ambiguities in favor of
a defendant when a criminal statutory term is ambiguous and cannot be clarified
by the statute’s history or structure.” United States v. Metzener, 584 F.3d 928,
935 (2009) (internal quotation marks omitted). We have held “[i]f a statute is
ambiguous, the rule of lenity indicates that courts should interpret it in the favor
of the defendant,” but the rule “applies only in cases where there is a grievous
ambiguity or uncertainty in the language and structure of a provision.” Michel,
446 F.3d at 1135 (internal quotation marks omitted). In addition, the rule of
lenity “does not apply if the ambiguous reading relied on is an implausible
reading of the congressional purpose.” Caron, 524 U.S. at 316. The Supreme
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Court has explained the congressional purpose of § 921(a)(20) is “to keep guns
away from all offenders who, the Federal Government feared, might cause harm,
even if those persons were not deemed dangerous by States.” Id. at 315.
In this case, the penal statute under which Mr. Molina received his instant
conviction is 18 U.S.C. § 922(g)(1), and it states, in relevant part, that “it shall be
unlawful for any person ... who has been convicted in any court of a crime
punishable by imprisonment for a term exceeding one year ... to ... possess ... any
firearm or ammunition.” This court previously concluded § 922(g)(1) is clear on
its face in its prohibition of firearm and ammunition possession by a felon, so the
rule of lenity is inapplicable. See Fisher, 38 F.3d at 1147. For the same reason,
we find no need to discuss void-for-vagueness principles as applied to
§ 922(g)(1), other than to note the plain, unambiguous language of § 922(g)(1)
clearly prohibits the possession of firearms and ammunition by a felon and is not
unconstitutionally vague as applied to Mr. Molina and his conduct in possessing
firearms.
As to 18 U.S.C. § 921, the statute is entitled “Definitions,” and, as
previously noted, subsection (a)(20) states, in part:
What constitutes a conviction of such a crime shall be determined in
accordance with the law of the jurisdiction in which the proceedings
were held. Any conviction which has been expunged, or set aside or
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for which a person has been pardoned or has had civil rights restored
shall not be considered a conviction for purposes of this chapter,
unless such pardon, expungement, or restoration of civil rights
expressly provides that the person may not ship, transport, possess or
receive firearms.
18 U.S.C. § 921(a)(20) (emphasis added). This is “simply a legal definition,”
Flower, 29 F.3d at 534, and not the penal statute for which Mr. Molina received
his instant conviction.
We have not found, nor has Mr. Molina provided, case law applying the
void-for-vagueness analysis to § 921(a)(20). Even though it merely provides a
definition and is not a penal statute, 2 it arguably is determinative or substantive in
addressing whether Mr. Molina remained a “felon” for the purposes of his instant
conviction. However, even if the void-for-vagueness analysis applies to
§ 921(a)(20), it clearly tells the person holding the conviction he must have his
“civil rights” restored for the conviction not to apply for the purposes of
§ 922(g)(1). Indeed, disenfranchisement of one’s civil rights after conviction for
a felony offense is common, and the fact “civil rights” is plural would alone put a
reasonable person on fair notice that more than just his right to possess a firearm
must be restored under § 921(a)(20). Thus, a reasonable person would know from
2
See Wright v. Federal Bureau of Prisons, 451 F.3d 1231, 1236 (10th Cir.
2006) (concluding rule of lenity did not apply to statute concerning good time
credit because it is “neither a substantive criminal statute nor does it prescribe ...
punishment”).
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the language of § 921(a)(20) that his conduct in possessing firearms and
ammunition is at risk if not all the requisite civil rights have been fully restored
by the state. See Maynard, 486 U.S. at 361.
With regard to the specific civil rights required to be restored, it is apparent
Mr. Molina’s convictions in New Mexico initially resulted in disenfranchisement
of his right to vote, serve on a jury, hold office, and bear arms. See N.M. Stat.
Ann. §§ 10-1-2, 30-7-16(A), 31-13-1(A)(1), and 38-5-1(A)-(B). Indeed, the
Supreme Court has “recognized repeatedly that a legislature constitutionally may
prohibit a convicted felon from engaging in activities far more fundamental than
the possession of a firearm.” Lewis v. United States, 445 U.S. 55, 66 (1980). In
restoring one’s federal right to possess a firearm after such disenfranchisement,
§ 921(a)(20) clearly provides the civil rights previously taken away on becoming
a felon must be restored by the convicting jurisdiction. As a result, § 921(a)(20)
is not vague or ambiguous in specifying what civil rights must be restored.
This conclusion is supported by the Supreme Court, which determined the
statutory language of § 921(a)(20) is “unambiguous” in requiring restoration of
one’s civil rights through the convicting jurisdiction. See Beecham v. United
States, 511 U.S. 368, 371-74 (1994). Because it held § 921(a)(20) is
unambiguous in that regard, it held the rule of lenity is inapplicable. Id. at 374.
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Because we find the term “civil rights” also unambiguous, we similarly decline to
apply the rule of lenity to § 921(a)(20), other than to note the rule of lenity
“applies only in cases where there is a grievous ambiguity,” which is certainly not
the case here. See Michel, 446 F.3d at 1135. Moreover, Mr. Molina’s
supposition his right to bear arms should be restored by the rule of lenity without
meeting the requirements of § 921(a)(20) is an implausible reading of the
Congressional purpose of keeping guns away from offenders whom the federal
government fears are dangerous. See Caron, 524 U.S. at 315-16.
Finally, given Mr. Molina’s repeated claims he did not know he was in
violation of the law and relied on others, we find no error in the district court
treating that claim, in part, as an ignorance of the law claim. To that end, the
Supreme Court has “long recognized the common maxim, familiar to all minds,
that ignorance of the law will not excuse any person, either civilly or criminally.”
Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 130 S. Ct. 1605, 1611
(2010) (internal quotation marks omitted). “‘The general rule that ignorance of
the law ... is no defense to criminal prosecution is deeply rooted in the American
legal system.’” Id. (quoting Cheek v. United States, 498 U.S. 192, 199 (1991)).
For these reasons, the district court did not err in failing to apply the rule of lenity
or rejecting Mr. Molina’s void-for-vagueness argument when denying his
amended motion to dismiss the indictment against him.
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C. Constitutionality
As a last resort, Mr. Molina asserts his instant conviction for possession of
firearms violates his right to bear arms under the Second Amendment of the
United States Constitution. In making this assertion, Mr. Molina continues to rely
on the Supreme Court’s holdings in Heller and McDonald for the proposition the
Second Amendment protects his personal right to bear arms, as extended to the
states through the Fourteenth Amendment. He acknowledges, however, the
prohibition against felons possessing firearms is not affected by these decisions
and admits he is relying on them solely to establish a record for future appeal.
In Heller, the Supreme Court struck down prohibitions within the District
of Columbia limiting possession of handguns and firearms in a person’s home,
holding the Second Amendment provides individuals the right to possess and use
a firearm for lawful purposes such as self-defense within one’s home. See 554
U.S. at 628-29. However, it made clear the Second Amendment is not unlimited,
emphasizing “nothing in our opinion should be taken to cast doubt on
longstanding prohibitions on the possession of firearms by felons and the
mentally ill ....” Id. at 626. Based on this clarification by the Court, we soundly
rejected the same argument Mr. Molina presents here that Heller somehow makes
18 U.S.C. § 922(g) unconstitutional in its prohibition of felons possessing
firearms. See United States v. McCane, 573 F.3d 1037, 1047 (10th Cir. 2009).
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Thereafter, in McDonald, the Supreme Court extended the holding in Heller
to the states under the Fourteenth Amendment, striking down a Chicago ordinance
and city codes banning handguns within the city. See 130 S. Ct. at 3026, 3050.
In so doing, the Court reiterated that its holding in Heller did not change the
longstanding prohibition of possession of firearms by felons. Id. at 3047. Thus,
it is evident neither Heller nor McDonald changes the constitutional status of
§ 922(g) in its prohibition of firearms by felons. For this reason, the district court
did not err in rejecting Mr. Molina’s Second Amendment argument and denying
his amended motion to dismiss the indictment against him for being a felon in
possession of a firearm under 18 U.S.C. § 922(g)(1).
III. Conclusion
Accordingly, we AFFIRM Mr. Molina’s conviction.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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