Argued: May 9, 2019
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)
Bodner, Fairfax, Virginia, for Appellant.
Jessica Lynne Urban, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee.
Zach Terwilliger, United States Attorney, Maya D. Song,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee.
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:
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). 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.
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).
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
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.
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"