UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5156
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANA ALEXANDER KLINE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Anthony J. Trenga,
District Judge. (1:11-cr-00275-AJT-1)
Submitted: August 16, 2012 Decided: September 12, 2012
Before AGEE, DAVIS, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Alan H. Yamamoto, Alexandria, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Robert J. Heberle, Scott B.
Nussbum, Special Assistant United States Attorneys, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Dana Alexander Kline on one count of
possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g)(1) (2006). He was sentenced to twenty-six
months’ imprisonment. On appeal, Kline raises the
constitutional challenges he asserted unsuccessfully below,
namely, that his conviction under § 922(g)(1) as applied
violates the Second Amendment and that § 922(g)(1) violates the
Commerce Clause and Tenth Amendment. We review de novo a
defendant’s constitutional challenge to a criminal statute.
United States v. Moore, 666 F.3d 313, 316 (4th Cir. 2012). We
affirm.
In Moore, we joined our sister circuits in holding
that “§ 922(g)(1) [is] a constitutionally valid statute.” 666
F.3d at 316-17. While we left open the possibility of a
successful as-applied challenge, we concluded that the Moore
defendant did not fall within the category of “law-abiding
responsible” citizens that the Second Amendment protects. Id.
(citing District of Columbia v. Heller, 554 U.S. 570, 635
(2008)). We further held that the potential for being robbed in
a bad neighborhood was “far too vague and unsubstantiated to
remove his case from the typical felon in possession case.”
Moore, 666 F.3d at 320.
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Under Moore, in order for Kline to rebut the
presumption of lawfulness regarding § 922(g)(1) as applied to
him, he “must show that his factual circumstances remove his
challenge from the realm of ordinary challenges.” Id. at 319.
We reaffirmed this standard in our more recent decision, United
States v. Smoot, ___ F.3d ___, 2012 WL 3264387 (4th Cir. Aug.
13, 2012), in which we rejected yet another as-applied challenge
to § 922(g)(1). Referencing Moore, we found Smoot’s criminal
history “remarkably egregious,” observing that Smoot could
hardly be considered a “law-abiding responsible citizen.”
Smoot, ___ F.3d at ___, 2012 WL 3264387 at *4.
We acknowledge Kline’s criminal history is not as
egregious as those of the defendants in Moore or Smoot.
However, Kline’s criminal record includes a 2008 Virginia state
felony conviction for eluding a law enforcement officer, in
violation of Va. Code § 46.2-817, which resulted from an
incident in which Kline led police on a high-speed car chase
over a distance of several miles before fleeing on foot and
ultimately being apprehended by officers using a canine and
taser. We conclude Kline’s prior conviction for eluding a law
enforcement officer is sufficient to find the statute
constitutional as applied.
Kline urges us to consider that there is no reason to
believe he intended to do anything but take home the firearm he
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purchased from an undercover agent (resulting in the instant
offense) and use it for self-protection, thereby removing him
from “the realm of ordinary challenges.” We find this assertion
“far too vague and unsubstantiated to remove his case from the
typical felon in possession case.” Moore, 666 F.3d at 320.
Thus, Kline’s Second Amendment as-applied challenge to
§ 922(g)(1) fails.
Kline’s second argument that his conviction under
§ 922(g) is unconstitutional because it violates the Commerce
Clause and the Tenth Amendment is also unavailing. Kline relies
on United States v. Lopez, 514 U.S. 549 (1995), in which the
Supreme Court held that Congress exceeded its Commerce Clause
authority by enacting a federal statute prohibiting possession
of a firearm in a school zone. However, as noted by the
district court, this court has previously considered and
rejected a challenge to the constitutionality of § 922(g)(1)
based on Lopez. In United States v. Wells, 98 F.3d 808, 810–11
(4th Cir. 1996), this court determined that “[u]nlike the
statute at issue in Lopez, § 922(g) expressly requires the
Government to prove the firearm was shipped or transported in
interstate or foreign commerce; was possessed in or affected
commerce; or was received after having been shipped or
transported in interstate or foreign commerce.” Wells, 98 F.3d
at 811 (internal quotation marks omitted). Thus, “[t]he
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existence of this jurisdictional element, requiring the
Government to show that a nexus exists between the firearm and
interstate commerce to obtain a conviction under § 922(g),
distinguishes Lopez and satisfies the minimal nexus required for
the Commerce Clause.” Id.; see also United States v. Williams,
445 F.3d 724, 740 (4th Cir. 2006); United States v. McQueen, 445
F.3d 757, 759 (4th Cir. 2006); United States v. Gallimore, 247
F.3d 134, 136 (4th Cir. 2001).
In this regard, Kline also raises an as-applied
challenge to his § 922(g)(1) conviction, arguing all matters in
question took place in Virginia. This argument is without
merit. At trial, the Government presented evidence that the gun
Kline purchased from the ATF agent was manufactured in Austria
and imported into the United States by a Glock facility in
Smyrna, Georgia.
In a broader argument, Kline also asserts that Heller
alters the analysis related to the scope of the Commerce Clause
by strengthening the individual interest in possessing a
firearm. As noted by the Government, whether Congress has power
to enact such a prohibition under the Commerce Clause and
whether such a prohibition would run afoul of the Second
Amendment are separate and distinct questions. See also United
States v. Rene E., 583 F.3d 8, 18 (1st Cir. 2009) (stating that
the Supreme Court’s decision in Heller did not have any effect
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on the analysis undertaken to evaluate the extent of Congress’
power under the Commerce Clause). Last, we reject Kline’s
challenge to the constitutionality of § 922(g)(1) on Tenth
Amendment grounds. See United States v. Bostic, 168 F.3d 718
(4th Cir. 1999) (determining that § 922(g)(8) is a
constitutional exercise of Congress’ Commerce Clause power
supplementing complementary state legislation).
Accordingly, we affirm Kline’s conviction and
sentence. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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