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United States v. Locke

United States Court of Appeals, Fourth Circuit

July 30, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
BRANDON LOCKE, Defendant-Appellant.

          Argued: May 9, 2019

          Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. T.S. Ellis, III, Senior District Judge. (1:17-cr-00210-TSE-1)

         ARGUED:

          Mark Bodner, Fairfax, Virginia, for Appellant.

          Jessica Lynne Urban, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

         ON BRIEF:

          G. Zach Terwilliger, United States Attorney, Maya D. Song, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

          Before WILKINSON and KING, Circuit Judges, and Irene C. BERGER, United States District Judge for the Southern District of West Virginia, sitting by designation.

          WILKINSON, CIRCUIT JUDGE:

         Brandon Locke, appellant here, seeks to attack the use of a Virginia conviction for a misdemeanor crime of domestic violence (MCDV) as a predicate for his gun charge under 18 U.S.C. § 922(g)(9).[1] Locke argues that, in pleading guilty to the MCDV, he did not "knowingly and intelligently" waive his right to a jury trial as required by the statute. 18 U.S.C. § 921(a)(33)(B)(i)[a](II)(bb). The District Court rejected his contention and, for the reasons that follow, we affirm.

         I.

         Locke was charged with violating 18 U.S.C. § 922(g)(9), which prohibits anyone "who has been convicted in any court of a misdemeanor crime of domestic violence [MCDV]," from possessing a firearm. In enacting § 922(g)(9), Congress recognized that "[f]irearms and domestic strife are a potentially deadly combination," United States v. Castleman, 572 U.S. 157, 159 (2014) (citation omitted). Congress also recognized that the existing law at the time-which prohibited firearm possession by those convicted of a felony-did little to protect victims of domestic abuse, since "many perpetrators of domestic violence are charged with misdemeanors rather than felonies, notwithstanding the harmfulness of their conduct." Voisine v. United States, 136 S.Ct. 2272, 2276 (2016). Congress therefore sought to close this "dangerous loophole" and keep guns out of the hands of those who might use them to victimize their families or households. Id. (citation omitted).

         Locke does not dispute here that, when he was arrested by federal agents in August 2017, he possessed a firearm. Nor does he dispute that, some months before his arrest, he had pleaded guilty to assault and battery against a family or household member in violation of Virginia Code § 18.2-57.2, in the Juvenile and Domestic Relations (JDR) District Court of Stafford County. He does not dispute either that this conviction would ordinarily serve as a predicate offense under § 922(g)(9). Rather, Locke's argument is based on 18 U.S.C. § 921(a)(33)(B)(i)(II)(bb), which states that a

person shall not be considered to have been convicted of [an MCDV], unless, in the case of a prosecution for an offense described in this paragraph for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, […] the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.

         Under this provision, if a person like Locke was "entitled to a jury trial" to resolve the prior MCDV charge but did not "knowingly and intelligently waive[]" that right, the past offense "shall not be considered" ...


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