Petition for Writ of Certiorari — Eric Gerard McGinnis, Petitioner v. United States

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APPENDIX A

United States v. McGinnis

United States Court of Appeals for the Fifth Circuit

April 21, 2020, Filed

No. 19-10197

Reporter

956 F.3d 747 *; 2020 U.S. App. LEXIS 12731 **

UNITED STATES OF AMERICA, Plaintiff - Appellee v.

ERIC GERARD MCGINNIS, Defendant - Appellant

Prior History: [**1] Appeal from the United States District

Court for the Northern District of Texas.

Counsel: For United States of America, Plaintiff - Appellee:

Andrew Laing, U.S. Department of Justice, Criminal

Division, Washington, DC; Leigha Amy Simonton, Assistant

U.S. Attorney, U.S. Attorney's Office, Northern District of

Texas, Dallas, TX.

For Eric Gerard Mcginnis, Defendant - Appellant: Brandon

Elliott Beck, Federal Public Defender's Office, Northern

District of Texas, Lubbock, TX; Juan Gabriel Rodriguez,

Federal Public Defender's Office, Northern District of Texas,

Dallas, TX.

Case Summary

Judges: Before HIGGINBOTHAM, JONES, and DUNCAN,

Circuit Judges.

Overview

HOLDINGS: [1]-If the commonly understood definitions of

terms in the protective order included acts involving "physical

force," the protective order was sufficient to support a

conviction under 18 U.S.C.S. § 922(g)(8)(C)(ii); [2]Defendant's protective order prohibited him from committing

family violence against the victim or engaging in conduct

likely to abuse her, and the commonly understood definitions

of these terms included acts involving physical force; [3]Thus, the jury plausibly found that the order satisfied (C)(ii),

and so the appellate court declined to reverse defendant's

conviction on this basis; [4]-By imposing a more burdensome

requirement than the special condition recited at sentencing,

his written judgment created a conflict with the court's oral

pronouncement, and it had to be returned to the district court

and reformed to conform to the oral sentence.

Outcome

Judgment affirmed in part and remanded in part.

Opinion by: STUART KYLE DUNCAN

Opinion

[*751] STUART KYLE DUNCAN, Circuit Judge:

We again confront a Second Amendment challenge to a

federal law prohibiting individuals subject to certain domestic

violence protective orders from possessing firearms or

ammunition for any purpose. 18 U.S.C. § 922(g)(8).

Appellant Eric McGinnis, convicted by a jury of violating §

922(g)(8), claims the statute is a facially unconstitutional

restriction on his right to keep and bear arms. This court

rejected a virtually identical challenge two decades ago in

Judge Garwood's landmark decision in United States v.

Emerson, 270 F.3d 203 (5th Cir. 2001). Much has changed in

Second Amendment jurisprudence since then, and so we

consider whether § 922(g)(8) still [**2] passes muster under

our contemporary framework. It does.

Brandon Beck

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Separately, McGinnis argues his conviction should be vacated

because his protective order does not track the requirements

of § 922(g)(8). He also asserts the district court abused its

discretion by imposing a written special condition of

supervised release not orally pronounced at sentencing. We

affirm the conviction but remand for the limited purpose of

conforming McGinnis's written judgment to the district court's

oral pronouncement.

On the evening of July 28, 2017, Grand Prairie Police

Department (GPPD) officers were dispatched to a wooded

area upon report of a potentially suicidal subject. While

searching for the subject, they heard three gunshots nearby.

Hurrying toward the source of the shots, the officers spotted a

dark SUV parked near the tree line. As they prepared to

approach the vehicle, a man later identified as McGinnis

emerged from the woods.

McGinnis's presence ended up being unrelated to the suicide

call. When questioned, however, McGinnis stated he had a

gun in his backpack. McGinnis ignored commands to walk

backward toward the officers, instead walking forward while

claiming to be a CIA agent and asking the officers if [**3] it

was illegal to shoot a gun in Texas. The officers placed

McGinnis under arrest and searched his backpack, where they

found a short-barrel AR-15 rifle with a collapsible stock and

3D-printed lower receiver, along with five thirty-round

magazines. The backpack also held several envelopes

containing documents entitled "9/11/2001 list of American

Terrorist" (sic). The list included the names and addresses of

several prominent politicians.

Upon running McGinnis's driver's license through law

enforcement databases, the officers learned he was the subject

of an active domestic protective order. The order had been

issued by a Dallas County court on August 31, 2015,

following a hearing at which Sherry Thrash, McGinnis's

former girlfriend, testified that McGinnis had physically

assaulted her on two occasions, injuring her wrists, ribs, and

face. McGinnis was present and participated in the hearing.

At its conclusion, the judge issued a protective order that

prohibited McGinnis from, among other things, "[c]ommitting

family violence against" Thrash or "[e]ngaging in conduct . . .

reasonably [*752] likely to harass, annoy, alarm, abuse,

torment, or embarrass" Thrash or a member of her family or

household. [**4] The order included a finding "that family

violence has occurred and that family violence is likely to

occur in the foreseeable future." It also prohibited McGinnis

from possessing a firearm and separately warned him that

doing so would violate 18 U.S.C. § 922(g)(8). The protective

order was to stay in effect for two years, meaning that it

remained active at the time of McGinnis's 2017 arrest.

Further investigation revealed McGinnis had attempted to

purchase a lower receiver from a retailer in June 2016. He

answered "no" to the background check question that asked

whether he was subject to any "court order restraining [him]

from harassing, stalking, or threatening . . . an intimate

partner." The Bureau of Alcohol, Tobacco, Firearms and

Explosives agent who reviewed the form caught the lie and

contacted McGinnis by phone in July 2016 to inform him that

he could not legally purchase the receiver. The agent also sent

McGinnis a letter via certified mail explaining that McGinnis

could not lawfully own a firearm or ammunition because of

the active protective order. At some point after this incident,

McGinnis created his own receiver using a 3D printer.

Following McGinnis's 2017 encounter with the GPPD, he

was [**5] charged in state court with illegally discharging a

firearm within city limits and violating a protective order.

Shortly thereafter, a federal grand jury indicted him on two

additional charges. The first count charged McGinnis with

illegally possessing an unregistered short-barrel rifle.1 The

second count—and the only one at issue in this appeal—was

for possession of ammunition by a prohibited person in

violation of 18 U.S.C. § 922(g)(8). McGinnis pleaded not

guilty and proceeded to trial, where a jury convicted him on

both counts. The district court denied McGinnis's post-verdict

Rule 29 motion for a judgment of acquittal, rejecting the

constitutional and sufficiency challenges he raises again here.

The court then sentenced McGinnis to 96 months

imprisonment.2 This appeal followed.

II.

McGinnis advances three arguments on appeal. First, he

maintains that § 922(g)(8) is unconstitutional on its face.

Second, he claims the protective order to which he was

subject cannot support a conviction under § 922(g)(8) because

the order's language fails to satisfy the statute's requirements.

Third, he argues the special condition of supervised released

barring him from "places frequented by Ms. Sherry Thrash"

conflicts with the district court's [**6] oral pronouncement at

sentencing. We consider each argument in turn.

We begin with McGinnis's argument that § 922(g)(8) is a

facially unconstitutional restriction on his Second Amendment

1 See 26 U.S.C. §§ 5841 & 5861(d).

2 McGinnis's sentence is well above his Guidelines range of 33 to 41

months. The district court varied upward out of regard for the

"extremely serious" nature of his crimes, the multiple prior warnings

he had received about his prohibited-person status, and the "danger

[he posed] to the community."

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right to keep and bear arms. "We review de novo the

constitutionality of federal statutes." United States v. PortilloMunoz, 643 F.3d 437, 439 (5th Cir. 2011). To sustain a facial

challenge, "the challenger must establish that no set of

circumstances exists under which the [statute] would be

valid." United States v. Salerno, 481 U.S. 739, 745, 107 S. Ct.

2095, 95 L. Ed. 2d 697 (1987). "Facial challenges to the

constitutionality of statutes should be [*753] granted

sparingly and only as a last resort." Serafine v. Branaman,

810 F.3d 354, 365 (5th Cir. 2016) (quoting Hersh v. United

States ex rel. Mukasey, 553 F.3d 743, 762 (5th Cir. 2008)).

Applying our contemporary framework for evaluating federal

firearms regulations, we reaffirm our holding from Emerson

that § 922(g)(8) is not facially unconstitutional.

The Second Amendment provides: "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. Our court explored the text, structure, and

history of the Second Amendment nearly twenty years ago,

becoming the first court of appeals to recognize that "the

Second Amendment protects the right of individuals to

privately keep and bear their own firearms that are suitable as

individual, personal weapons . . . regardless of whether the

particular individual [**7] is then actually a member of a

militia." Emerson, 270 F.3d at 264 (emphasis added). Even

so, we recognized that the Second Amendment's protection for

individual rights "does not mean that those rights may never

be made subject to any limited, narrowly tailored specific

exceptions or restrictions for particular cases that are

reasonable and not inconsistent with the right of Americans

generally to individually keep and bear their private arms as

historically understood in this country." Id. at 261. Indeed, in

Emerson we upheld the exact provision at issue here—18

U.S.C. § 922(g)(8)—as just such a restriction. Id. at 264.

individual Second Amendment right is subject to important

limitations including, for instance, "longstanding prohibitions

on the possession of firearms by felons and the mentally ill."

Id. at 626.

Heller "did not set forth an analytical framework with which

to evaluate firearms regulations in future cases." Nat'l Rifle

Ass'n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms &

Explosives [NRA], 700 F.3d 185, 194 (5th Cir. 2012). Instead,

the Supreme Court stated only that the ordinance at issue

would fail "[u]nder any of the standards of scrutiny that we

have applied to enumerated constitutional rights." Heller, 554

U.S. at 628. Post-Heller, we—like our sister circuits—have

"adopted a two-step inquiry for analyzing laws that might

impact the Second Amendment." Hollis v. Lynch, 827 F.3d

436, 446 (5th Cir. 2016).3 [*754] First, we ask "whether the

conduct at issue falls within the scope of the Second

Amendment right." NRA, 700 F.3d at 194. To make that

determination, "we look to whether the law harmonizes with

the historical traditions associated with the Second

Amendment guarantee." Id. If the burdened conduct falls

outside the scope of the Second Amendment, then the law is

constitutional and the inquiry is over. Otherwise, we proceed

to step two, where we must determine and "apply the

appropriate level of means-ends scrutiny"—either strict [**9]

or intermediate. Id. at 195. "[T]he appropriate level of

scrutiny 'depends on the nature of the conduct being regulated

and the degree to which the challenged law burdens the

[individual Second Amendment] right.'" Id. (quoting United

States v. Chester, 628 F.3d 673, 682 (4th Cir. 2010)). Under

this framework, a "regulation that threatens a right at the core

of the Second Amendment"—i.e., the right to possess a

firearm for self-defense in the home—"triggers strict

scrutiny," while "a regulation that does not encroach on the

3 McGinnis urges us to jettison this two-step inquiry in favor of the

Several years later, the Supreme Court similarly concluded

that the Second Amendment codified a pre-existing

"individual right to possess and carry weapons in case of

confrontation." District of Columbia v. Heller, 554 U.S. 570,

592, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008) (emphasis

added) (striking down a D.C. ordinance banning handgun

possession in the home). After conducting exhaustive textual

and historical analyses much like those Judge Garwood

undertook in Emerson, the majority held the Second

Amendment guarantees "the right of law-abiding, responsible

citizens to use arms in defense of hearth and home." Id. at

635. The Court repeatedly noted that the protection afforded

by the individual right is at its zenith in the home, "where the

need for defense of self, family, and [**8] property is most

acute." Id. at 628. However, Heller also cautioned that the

"historical-traditional analysis described by then-Judge Kavanaugh

in his impressive dissent in Heller II." See Heller v. Dist. Of

Columbia [Heller II], 670 F.3d 1244, 1271, 399 U.S. App. D.C. 314

(D.C. Cir. 2011) (Kavanaugh, J., dissenting) ("In my view, Heller

and McDonald leave little doubt that courts are to assess gun bans

and regulations based on text, history, and tradition, not by a

balancing test such as strict or intermediate scrutiny."). Seven

members of our court recently expressed support for an approach of

that nature. See Mance v. Sessions, 896 F.3d 390, 394-95 (5th Cir.

2018) (Elrod, J., dissenting from denial of en banc rehearing). In

NRA, however, a panel of our court adopted the two-step inquiry and

we are therefore not at liberty to apply a different standard. See

Mercado v. Lynch, 823 F.3d 276, 279 (5th Cir. 2016) (per curiam)

("Under our rule of orderliness, one panel of our court may not

overturn another panel's decision, absent an intervening change in

the law, such as by a statutory amendment, or the Supreme Court, or

our en banc court." (cleaned up)).

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core of the Second Amendment" is evaluated under

intermediate scrutiny. Id. Strict scrutiny "requires that the

challenged statute be narrowly drawn to provide the least

restrictive means of furthering a compelling state interest."

Dart v. Brown, 717 F.2d 1491, 1498 (5th Cir. 1983).

Intermediate scrutiny requires the lesser showing of "a

reasonable fit between the challenged regulation and an

important government objective." NRA, 700 F.3d at 195

(cleaned up).

The statute at issue in this appeal, 18 U.S.C. § 922(g)(8),

prohibits individuals subject to certain domestic protective

orders from "possess[ing] in or affecting commerce, any

firearm or ammunition." To convict a defendant under §

922(g)(8), the Government must establish that the protective

order:

(A) was issued after a hearing of which such person

received actual [**10] 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 intimate

partner or child; or

(ii) by its terms explicitly prohibits the use, attempted

use, or threatened use of physical force against such

intimate partner or child that would reasonably be

expected to cause bodily injury.

18 U.S.C. § 922(g)(8)(A)-(C).

At the first step of the NRA inquiry, McGinnis argues that §

922(g)(8) burdens the Second Amendment right by

"criminaliz[ing] the possession of any firearm or

ammunition," including the possession of weapons in the

home for self-defense. As to the second step, McGinnis urges

us to [*755] apply strict rather than intermediate scrutiny

because "a blanket disarmament, for any length of time, goes

to the core of the Second Amendment." Moreover, he

maintains that even under intermediate scrutiny the statute

must fail because it is "not reasonably adapted to reducing

domestic

gun [**11]

abuse."

McGinnis

candidly

acknowledges the absence of case law support for his

position, but urges this court to "blaze its own trail" in hopes

we will "be the court vindicated by the Supreme Court."

As an initial matter, we must consider whether McGinnis's

claim is foreclosed by circuit precedent. As discussed above,

the 2001 decision in which our court articulated an individualrights theory of the Second Amendment, Emerson, involved

facial and as-applied challenges to the precise law at issue

here: § 922(g)(8). See Emerson, 270 F.3d at 210, 212. Like

McGinnis, Timothy Emerson was found in possession of a

firearm while subject to a domestic protective order issued by

a Texas state court, although in Dr. Emerson's case the

protective order lacked any express finding he posed a future

danger to his intimate partner. Id. at 211. After setting forth

our subsequently-vindicated individual-rights interpretation,

we nevertheless held that "section 922(g)(8), as applied to

Emerson, does not infringe his individual rights under the

Second Amendment." Id. at 260. Although we were

"concerned with the lack of express findings in the order, and

with the absence of any requirement for the same in clause

(C)(ii) of section 922(g)(8)," we nevertheless rejected

Emerson's constitutional challenge. Id. at 261. We reasoned

that because [**12] protective orders like the one at issue

could be set aside by the issuing court or subject to review by

an appellate court, "the nexus between firearm possession by

the party so enjoined and the threat of lawless violence, is

sufficient, though likely barely so, to support the deprivation,

while the order remains in effect, of the enjoined party's

Second Amendment right to keep and bear arms." Id. at 264.

McGinnis contends we are not bound by Emerson because the

Supreme Court's subsequent Heller decision "effectively hit

the reset button for all Second Amendment jurisprudence." We

are not so sure. McGinnis does not identify, nor are we aware

of, any holding or principle in Heller that casts doubt on

Emerson. To the contrary, Justice Breyer's dissent in Heller

cited Emerson as the lone example of a circuit court holding

the Second Amendment protects the right to possess firearms

for private, civilian purposes. Heller, 554 U.S. at 638 n.2

(2008) (Breyer, J., dissenting). Indeed, in United States v.

Anderson, 559 F.3d 348 (5th Cir. 2009), we explicitly held

that a constitutional challenge to § 922(g)(1)—the federal

statute barring convicted felons from possessing firearms—

was foreclosed by our pre-Heller but post-Emerson precedent,

which Heller "provide[d] no basis for reconsidering." Id. at

352.

McGinnis nevertheless maintains that Emerson is not

controlling [**13] because it did not apply the two-step

analytical framework we later adopted in NRA, and provided

no discussion of the appropriate level of means-end scrutiny.

It is true that the Emerson court did not expressly implement a

two-part inquiry à la NRA, yet it was guided by the same

concerns. Emerson first considered the scope of the Second

Amendment right "as historically understood," and then

determined—presumably by applying some form of meansend scrutiny sub silentio—that § 922(g)(8) is "narrowly

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tailored" to the goal of minimizing "the threat of lawless

violence." Emerson, 270 F.3d at 261, 264. It is difficult to see

how the result in Emerson would be different under the laterdeveloped NRA approach.

[*756] Be that as it may, in an abundance of caution we

proceed to re-analyze the constitutionality of § 922(g)(8)

under the two-step NRA framework.

3. a.

At step one, we examine "whether the conduct at issue falls

within the scope of the Second Amendment right." NRA, 700

F.3d at 194. We have explained that "a longstanding,

presumptively lawful regulatory measure—whether or not it

is specified on Heller's illustrative list—would likely fall

outside the ambit of the Second Amendment; that is, such a

measure would likely be upheld at step one of our

framework." Id. at 196.

In this facial challenge, the conduct at issue is [**14] the

keeping and possessing of firearms by individuals subject to

domestic protective orders as defined in § 922(g)(8).

McGinnis argues that this conduct, insofar as it includes

keeping and possessing firearms at home for self-defense

purposes, falls within the scope of the Second Amendment.

The Government responds that restricting this conduct

harmonizes with historical "limitations on firearms possession

by individuals based on the risk they pose to others" and

therefore falls outside the Second Amendment's ambit.

We need not and do not resolve this issue. Even assuming

arguendo that the conduct burdened by § 922(g)(8) falls

within the Second Amendment right, McGinnis's facial

challenge fails. Cf. United States v. Mahin, 668 F.3d 119, 124

(4th Cir. 2012) (assuming arguendo that § 922(g)(8)

implicates Second Amendment); see also Mance v. Sessions,

896 F.3d 699, 704 (5th Cir. 2018) (assuming arguendo that

statutes prohibiting interstate gun sales are not longstanding

or presumptively lawful measures under NRA step one).

challenged law burdens the right." Id. at 195. "A law that

burdens the core of [**15] the Second Amendment guarantee

. . . would trigger strict scrutiny, while a less severe law

would be proportionately easier to justify." Id. at 205 (cleaned

up).

Extending his step-one argument, McGinnis maintains that §

922(g)(8) strikes the core of the Second Amendment because

it completely disarms individuals subject to qualifying

protective orders while offering no exception for homedefense or self-defense. McGinnis therefore urges us to apply

strict scrutiny. The Government argues that the Second

Amendment, at its core, only protects gun possession by

peaceable, responsible citizens, and "any person who falls

within § 922(g)(8)'s scope cannot be considered 'peaceable' or

'responsible.'" The Government further points out that §

922(g)(8), like the statute in NRA prohibiting 18-to-20-yearolds from buying firearms, disarms only a discrete category,

not the entire community. See NRA, 700 F.3d at 205.

Consequently, the Government says intermediate scrutiny

applies. While this is a close question—and while choosing

the appropriate level of scrutiny involves some degree of

arbitrariness—we agree with the Government.

According to the Supreme Court, "whatever else [the Second

Amendment] leaves to future evaluation, it surely elevates

above all other interests the right of law-abiding, [*757]

responsible citizens to use [**16] arms in defense of hearth

and home." Heller, 554 U.S. at 635; cf. NRA, 700 F.3d at 206

("The Second Amendment, at its core, protects law-abiding,

responsible citizens" (cleaned up)). While § 922(g)(8) is

broad in that it prohibits possession of all firearms, even those

kept in the home for self-defense, it is nevertheless narrow in

that it applies only to a discrete class of individuals for limited

periods of time. Critically, the discrete class affected by §

922(g)(8) is comprised of individuals who, after an actual

hearing with prior notice and an opportunity to participate,

have been found by a state court to pose a "real threat or

danger of injury to the protected party." Emerson, 270 F.3d at

262.4 Put differently, individuals subject to such judicial

4 McGinnis

Proceeding to step two, we must "determine whether to apply

intermediate or strict scrutiny to the law, and then . . .

determine whether the law survives the proper level of

scrutiny." NRA, 700 F.3d at 194.

"[T]he appropriate level of scrutiny depends on the nature of

the conduct being regulated and the degree to which the

asserts that § 922(g)(8), by its terms, "allow[s] for a

criminal conviction against a citizen who is altogether law-abiding

and responsible so long as the court order prohibits and restrains

certain criminal conduct." Essentially, he takes issue with the fact

that § 922(g)(8)'s text does not require a finding that a respondent

pose a credible threat. See § 922(g)(8)(C)(ii). This argument,

however, is foreclosed by Emerson, which recognized that Congress

enacted § 922(g)(8) "on the assumption" that state laws authorizing

protective orders require "evidence credited by the court reflect[ing]

a real threat or danger of injury to the protected party by the party

enjoined." 270 F.3d at 262; cf. Mahin, 668 F.3d at 126 ("[W]hether

a finding that the person represents a credible threat is explicit in the

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findings are not the "responsible citizens" protected by the

core of the Second Amendment. United States v. Chapman,

666 F.3d 220, 226 (4th Cir. 2012); cf. United States v. Reese,

627 F.3d 792, 802 (10th Cir. 2010) (stating § 922(g)(8)

"prohibit[s] the possession of firearms by [a] narrow class[] of

persons who, based on their past behavior, are more likely to

engage in domestic violence"). Additionally, the restrictions

imposed by § 922(g)(8) apply only for the duration of the

protective order.

In sum, intermediate scrutiny applies because § 922(g)(8) is

sufficiently bounded both as to "the nature of the conduct

being regulated" (it regulates gun possession by persons

judicially determined [**17] to pose a real threat or danger)

and "the degree to which [it] burdens the [Second

Amendment] right" (it prohibits possession only after an

adversarial hearing and only for the duration of the resulting

protective order). NRA, 700 F.3d at 195.

Our analysis in NRA supports applying intermediate scrutiny

here. In NRA, we considered a challenge to statutory

provisions "prohibit[ing] federally licensed firearms dealers

from selling handguns to persons under the age of 21." 700

F.3d at 188; see 18 U.S.C. §§ 922(b)(1) & (c)(1). We

determined intermediate scrutiny was "[u]nquestionably"

appropriate because the laws did "not disarm an entire

community, but instead prohibit[ed] commercial handgun

sales to 18-to-20-year-olds—a discrete category." Id. at 205.

We credited Congress's finding that 18-to-20-year-olds "tend

to be relatively irresponsible and can be prone to violent

crime, especially when they have easy access to handguns."

Id. at 206 (quoting Pub. L. No. 90-351, § 901(a)(6), 82 Stat.

197, 226 (1968)). While we were "inclined to uphold the

challenged federal laws at step one of our analytical

framework," id. at 204, we went on to explain that even if the

laws burdened the core of the Second Amendment right, the

burden was not severe because (1) the laws only affected

handgun sales, not use; (2) 18-to-20-year-olds could still

purchase long-guns or "acquire handguns [**18] from

responsible parents or guardians;" and (3) the restrictions

were only temporary, ending when a person turns 21. Id. at

206-07. [*758] Similarly, § 922(g)(8) restricts gun

possession for a discrete class and for a limited time. To be

sure, § 922(g)(8) works a total ban on gun possession for

persons subject to qualifying protective orders, but it does so

"against the background of the almost universal rule of

American law that for a temporary injunction to issue . . . [a]

presently existing actual threat must be shown." Emerson,

270 F.3d at 262 (cleaned up). In other words, whereas 18-to20-year-olds only "tend to be relatively irresponsible," NRA,

order's language or not, it is a necessary step in the court's decision

to issue the injunctive order.").

700 F.3d at 206, individuals subject to the protective orders

described in § 922(g)(8) have been adjudged a "real threat."

Emerson, 270 F.3d at 262. The net result is that neither

restriction severely burdens Second Amendment rights and so,

under the controlling analysis our circuit has adopted, both

call for intermediate scrutiny.5

ii.

Having determined intermediate scrutiny applies, we consider

whenever § 922(g)(8), on its face, survives. We ask "whether

there is a reasonable fit between the law and an important

government objective." NRA, 700 F.3d at 207. Stated

differently, the Government must demonstrate that the statute

is "reasonably adapted to an important government interest."

Id. The [**19] parties agree that reducing domestic gun

abuse is not just an important government interest, but a

compelling one. They only dispute whether § 922(g)(8) is

reasonably adapted to that interest. We hold that it is.

As the Fourth Circuit stated, "§ 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."

Mahin, 668 F.3d at 128. The statute's procedural

requirements, as discussed above, ensure that any predicate

protective order was issued only after an adversarial hearing

where the respondent was entitled to present his own account

of the alleged abuse. Moreover, § 922(g)(8)'s prohibition is

temporary, applying only for the duration of the domestic

protective order (in McGinnis's case, two years).6 These

features assure us that § 922(g)(8) is "reasonably adapted" to

the goal of reducing domestic gun abuse, whether or not it is

the least restrictive means for doing so.

This conclusion is supported, if not dictated, by our holding in

Emerson. There we found a sufficient "nexus" between "the

threat of lawless violence" and § 922(g)(8)'s prohibition on

gun possession for persons subject to domestic protective

5 We note that each of our sister courts to have reached step two of

the post-Heller framework has applied intermediate scrutiny to §

922(g)(8). See Reese, 627 F.3d at 802; Chapman, 666 F.3d at 226;

Mahin, 668 F.3d at 124.

6 Congress'

tailoring is further revealed by comparing the

prohibitions imposed by § 922(g)(8) with those imposed by §

922(g)(9). The former, at issue here, prohibits gun possession only

while a court-issued domestic protective order is in effect. The latter,

which applies to individuals "convicted in any court of a

misdemeanor crime of domestic violence," imposes a lifetime ban on

gun possession (or until the conviction is expunged). See United

States v. Skoien, 614 F.3d 638, 644-45 (7th Cir. 2010).

Brandon Beck

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956 F.3d 747, *758; 2020 U.S. App. LEXIS 12731, **19

orders—even [**20] orders lacking express judicial findings

of future danger. Emerson, 270 F.3d at 264. That is, we

concluded § 922(g)(8) was one of the "limited, narrowly

tailored specific exceptions or restrictions for particular cases

that are reasonable and not inconsistent with the right of

Americans generally to individual keep and bear their private

arms as historically understood in this country." Id. at 261. At

minimum,

Emerson

applied

heightened—i.e.,

intermediate—scrutiny, and some have suggested [*759] it

applied strict scrutiny. See, e.g., United States v. Elkins, 780

F. Supp. 2d 473, 478 (W.D. Va. 2011) (describing Emerson as

applying "strict scrutiny"). Regardless, we see no reason to

depart from Emerson's means-end analysis in this case.

In sum, we hold § 922(g)(8) passes constitutional muster

under our two-step NRA framework and therefore reject

McGinnis's facial challenge. We note, however, that our

holding today does not foreclose the possibility of a

successful as-applied challenge to § 922(g)(8). See, e.g., City

of El Cenizo v. Texas, 890 F.3d 164, 191 (5th Cir. 2018)

(post-enforcement "as-applied challenges . . . are the basic

building blocks of constitutional adjudication" (cleaned up)).

Next, we consider McGinnis's claim that his conviction must

be reversed because the language of the underlying domestic

protective order fails to satisfy the conditions of §

922(g)(8)(C)(i) or (C)(ii). Since McGinnis [**21] raised this

sufficiency-of-the-evidence claim in a Rule 29 motion at trial,

our review is de novo yet "highly deferential to the verdict."

United States v. Bowen, 818 F.3d 179, 186 (5th Cir. 2016)

(quoting United States v. Beacham, 774 F.3d 267, 272 (5th

Cir. 2014)). We must affirm as long as "a reasonable jury

could conclude that the evidence presented, viewed in the

light most favorable to the government, established the

defendant's guilt beyond a reasonable doubt." United States v.

Buluc, 930 F.3d 383, 387 (5th Cir. 2019) (quoting United

States v. Duncan, 164 F.3d 239, 242 (5th Cir. 1999)).

As noted above, § 922(g)(8) contains three elements, the third

of which may be satisfied in the alternative. Subsections (C)(i)

and (C)(ii) require that the underlying protective order either:

(i) includes a finding that such person represents a

credible threat to the physical safety of such intimate

partner or child; or

(ii) by its terms explicitly prohibits the use, attempted

use, or threatened use of physical force against such

intimate partner or child that would reasonably be

expected to cause bodily injury.

The protective order in this case included a finding "that

family violence has occurred and that family violence is likely

to occur in the foreseeable future." The order also prohibited

McGinnis from (1) "committing family violence against"

Sherry Thrash; (2) "communicating directly with [Thrash] in

a threatening or harassing manner"; (3) "[c]ommunicating

a [**22] threat through any person to" Thrash; or (4)

"[e]ngaging in conduct directed specifically toward" Thrash

"that is reasonably likely to harass, annoy, alarm, abuse,

torment, or embarrass" her.

McGinnis contends there was insufficient evidence to support

his conviction because his protective order meets neither of

the requirements in § 922(g)(8)(C). He argues the order is

inadequate under (C)(i) because it does not incorporate a

finding that McGinnis "represents a credible threat" to

Thrash's "physical safety." He relies on the fact that Texas's

statutory definition of "family violence" includes assault, an

offense that does not necessarily involve the threat of physical

harm. See TEX. FAM. CODE § 71.004; TEX. PENAL CODE

§ 22.01(a). Essentially, McGinnis's position is that if a state's

definition of family violence includes any conduct that does

not "represent[] a credible threat to . . . physical safety," then

a state court's generalized finding of family violence cannot

support a federal conviction under § 922(g)(8)(C)(i).

As to § 922(g)(8)(C)(ii), McGinnis argues that the language in

his protective order is not "substantially similar" to the

statutory language as mandated by (C)(ii)'s requirement

[*760] that the order "by its terms explicitly prohibit[] the

use, attempted use, or threatened [**23] use of physical force

. . ." (emphasis added). McGinnis invokes the surplusage

canon of statutory interpretation to argue that Congress would

not have included the phrase "by its terms explicitly" if

Congress did not wish to impose a literal requirement that any

qualifying protective order clearly and without implication

prohibit the use, attempted use, or threatened use of physical

force. He also cites the legislative history of § 922(g)(8),

arguing the language of (C)(ii) was intended to satisfy "more

conservative" House members by keeping the statute narrow.

We find McGinnis's arguments unavailing, and hold that, at

the very least, the protective order at issue satisfies the

requirements of subsection (C)(ii). As McGinnis himself

observes, other courts of appeals have squarely held that

similar or even broader language suffices under (C)(ii). For

example, the Fourth Circuit has held that a protective order

requiring its subject to "refrain from abusing" his wife

"unambiguously satisfies subsection (C)(ii)'s requirement that

the court order prohibit the use, attempted use, or threatened

use of physical force." United States v. Bostic, 168 F.3d 718,

722 (4th Cir. 1999). Similarly, the First Circuit held that a

protective order prohibiting its subject from "abusing,

harassing, or threatening [**24] his wife or children" was

sufficient under (C)(ii) even though it "d[id] not use the same

verbiage as the statute." United States v. Coccia, 446 F.3d

Brandon Beck

Page 8 of 9

956 F.3d 747, *760; 2020 U.S. App. LEXIS 12731, **24

233, 235, 241 (1st Cir. 2006). The court took a common-sense

approach, recognizing that "the commonly understood

definition of 'abuse' includes violent acts involving physical

force within the [statutory] definition." Id. at 242. The

Eleventh Circuit reached the same conclusion as to a

protective order enjoining its subject from "intimidating,

threatening, hurting, harassing, or in any way putting the

plaintiff, . . . her daughters and/or her attorney in fear of their

lives, health, or safety." United States v. DuBose, 598 F.3d

726, 731 (11th Cir. 2010) (per curiam). The court reasoned

that because "the definition of 'hurt' as a verb includes 'to

inflict with physical pain,' . . . the order's language restraining

[the subject] from 'hurting' his wife . . . satisfies subsection

(C)(ii)'s requirement." Id. (cleaned up). The court added that

"[a] narrower interpretation would defeat what we conceive to

be the obvious and general purpose of the statute." Id.

Consistent with these cases, we hold that if the commonly

understood definitions of terms in the protective order include

acts involving "physical force," the protective order is

sufficient to support a conviction under § 922(g)(8)(C)(ii).

Here, McGinnis's [**25] protective order prohibited him

from "[c]omitting family violence" against Thrash or

engaging in conduct likely to "abuse" her. The commonly

understood definitions of these terms include acts involving

physical force. Thus, the jury plausibly found that the order

satisfied (C)(ii), and so we decline to reverse McGinnis's

conviction on this basis.7

Finally, we address McGinnis's contention that the district

court erred by including a condition of supervised release in

its written judgement—namely, restraining McGinnis from

visiting "places frequented by Ms. Sherry Thrash"—that the

court did not pronounce orally at sentencing. Our standard of

review for oral-pronouncement claims varies depending on

whether the defendant had opportunity to object. If he had no

such opportunity, we review for abuse of discretion. United

[*761] States v. Mudd, 685 F.3d 473, 480 (5th Cir. 2012). If

the defendant had opportunity but failed to object, we review

for plain error. United States v. Huor, 852 F.3d 392, 398 (5th

Cir. 2017).

The district court's obligation to orally pronounce its sentence

is grounded in the defendant's right to be present at

sentencing, which in turn is derived from the Sixth

Amendment and the Due Process Clause. See United States v.

Morin, 832 F.3d 513, 519 (5th Cir. 2016); United States v.

7 Because

we hold that McGinnis's underlying protective order

satisfies § 922(g)(8)(C)(ii), we need not and do not reach the

question whether it also satisfies (C)(i).

Bigelow, 462 F.3d 378, 381 (5th Cir. 2006). "[W]hen there is

a conflict between a written sentence and an oral

pronouncement, the oral pronouncement controls." [**26]

United States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001).

In such cases, the written judgment must be returned to the

district court and "reformed to conform to the oral sentence."

Huor, 852 F.3d at 404. If the difference between the orally

pronounced sentence and the written judgment "is only an

ambiguity," however, "we look to the sentencing court's intent

to determine the sentence." Bigelow, 462 F.3d at 381.

At sentencing, the district court orally granted the

Government's request to impose a special condition barring

McGinnis from having "any direct or indirect contact with

Ms. Thrash during [his] term of supervised release."

McGinnis did not object to this condition. However, the

language appearing on McGinnis's written judgment provides

not only that McGinnis may not contact Thrash but also that

he "shall not enter onto the premises, travel passed [sic], or

loiter near Ms. Sherry Thrash's residence, place of

employment, or other places frequented by Ms. Sherry

Thrash."

McGinnis argues that the condition in his written judgment

prohibiting him from entering or traveling past "other places

frequented by Ms. Sherry Thrash" directly conflicts with the

district court's oral pronouncement. Further, because he

"could not have objected to the [later-added language] at

sentencing," McGinnis [**27] submits that the conflict

should be reviewed for abuse of discretion rather than plain

error. The Government concedes this issue, offering no

objection "to a remand for the limited purpose of allowing the

district court to delete that short phrase from the rest of the

condition."

Because McGinnis received no notice of the extra terms

included in his written judgment, we review for abuse of

discretion. Mudd, 685 F.3d at 480. McGinnis is correct that

by imposing "a more burdensome requirement" than the

special condition recited at sentencing, his written judgment

creates a conflict with the court's oral pronouncement, not

merely an ambiguity. Bigelow, 462 F.3d at 383. Thus, as the

Government acknowledges, McGinnis's judgment must be

returned to the district court and "reformed to conform to the

oral sentence." Huor, 852 F.3d at 404.

***

For the foregoing reasons, we AFFIRM McGinnis's

conviction but REMAND for the limited purpose of amending

McGinnis's written judgment to conform to the district court's

oral pronouncement at sentencing.

Concur by: STUART KYLE DUNCAN

Brandon Beck

Page 9 of 9

956 F.3d 747, *761; 2020 U.S. App. LEXIS 12731, **27

United States v. Virginia, 518 U.S. 515, 568, 116 S. Ct. 2264,

135 L. Ed. 2d 735 (1996) (Scalia, J., dissenting). I would

support en banc review in this case or any appropriate future

case to reassess our Second Amendment analysis.

Concur

End of Document

STUART KYLE DUNCAN, Circuit Judge, joined by EDITH

H. JONES, Circuit Judge, concurring:

While our opinion today dutifully applies our court's two-step

framework for post-Heller Second Amendment challenges, I

write separately [**28] to reiterate the view that we should

retire this framework in favor of an approach focused on the

Second Amendment's text and history.1 Not only [*762]

would this approach provide firmer ground for evaluating

restrictions on the right to bear arms, but it would also further

cabin judicial application of the "tiers-of-scrutiny approach to

constitutional adjudication," an exercise which "is

increasingly a meaningless formalism." Whole Woman's

Health v. Hellerstedt, 136 S. Ct. 2292, 2326-27, 195 L. Ed. 2d

665 (2016) (Thomas, J., dissenting).2 "[W]hatever abstract

tests [courts] may choose to devise, they cannot supersede . . .

those constant and unbroken national traditions that embody

the people's understanding" of constitutional guarantees.

1 See Mance v. Sessions, 896 F.3d 390, 394-95 (5th Cir. 2018) (en

banc) (mem.) (Elrod, J., dissenting from denial of en banc rehearing,

joined by Jones, Smith, Willett, Ho, Duncan, and Engelhardt, JJ.)

("Simply put, unless the Supreme Court instructs us otherwise, we

should apply a test rooted in the Second Amendment's text and

history—as required under Heller and McDonald—rather than a

balancing test like strict or intermediate scrutiny."); see also Nat'l

Rifle Ass'n, Inc. v. Bureau of Alcohol, Tobacco, Firearms, &

Explosives, 714 F.3d 334, 338 (5th Cir. 2013) (Jones, J., dissenting)

("[W]e should presuppose"—based [**29] on Heller's analogy to

First Amendment rights—"that the fundamental right to keep and

bear arms is not itself subject to interest balancing."); Heller v. Dist.

Of Columbia [Heller II], 670 F.3d 1244, 1271, 399 U.S. App. D.C.

314 (D.C. Cir. 2011) (Kavanaugh, J., dissenting) ("In my view,

Heller and McDonald leave little doubt that courts are to assess gun

bans and regulations based on text, history, and tradition, not by a

balancing test such as strict or intermediate scrutiny.").

2 United States v. Virginia, 518 U.S. 515, 567, 116 S. Ct. 2264, 135

L. Ed. 2d 735 (1996) (Scalia, J., dissenting) ("These [tiers of

scrutiny] are no more scientific than their names suggest, and a

further element of randomness is added by the fact that it is largely

up to us which test will be applied in each case."); see also Eugene

Volokh, Implementing the Right to Keep and Bear Arms for SelfDefense: An Analytical Framework and a Research Agenda, 56

UCLA L. REV. 1443, 1464-70 (2009) (arguing the intermediate/strict

scrutiny distinction is less helpful in Second Amendment cases than

might appear).

Brandon Beck

APPENDIX B