NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 18-2571 _____________

TIMOTHY KING, Appellant

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA; DIRECTOR BUREAU OF ALCOHOL TOBACCO FIREARMS & EXPLOSIVES _____________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (No. 5-17-cv-00884) District Judge: Honorable Jeffrey L. Schmehl

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) June 27, 2019

Before: CHAGARES, GREENAWAY, JR., and GREENBERG, Circuit Judges.

(Filed: July 25, 2019)

___________

OPINION * ____________

CHAGARES, Circuit Judge.

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Timothy King alleges that

(g)(1), which bars felons from

possessing firearms, is unconstitutional under the Second Amendment as applied to him.

The District Court dismissed King’s complaint, and we will affirm.

I.

Section 922(g)(1) prohibits anyone “who has been convicted in any court of, a

crime punishable by imprisonment for a term exceeding one year” from “possess[ing] in

or affecting commerce, any firearm or ammunition.”

That provision currently

prevents Timothy King from owning a gun, due to crimes he committed on two

occasions.

First, in 1982, King was convicted under Pennsylvania law of selling a firearm

without the requisite Pennsylvania license. He was convicted, specifically, of (1)

carrying firearms without a license, in violation of

; (2) carrying

firearms in a public street or place, in violation of

; (3)

unlawfully selling firearms, in violation of

; (4) selling firearms

as a retail dealer without a license, in violation of

; (5)

committing unlawful lending practices with respect to a firearm, in violation

; and (6) engaging in criminal conspiracy, in violation of

. King was ultimately sentenced to two years of probation and a fine, but, because his

crimes carried a maximum sentence of five years, see

, he

became subject to the restrictions of § 922(g)(1).

Second, in 1992, King pled guilty to three federal crimes: (1) making a false

statement in the acquisition of a firearm, in violation of

(a)(6); (2)

2 receiving a firearm as a convicted felon, in violation of

(g)(1); and (3)

possessing firearms as a convicted felon, also in violation of § 922(g)(1). He was

sentenced to three years of probation and a fine. But because violations of § 922(a)(6)

and (g)(1) are punishable by imprisonment of up to ten years,

(a)(2),

King’s federal crimes also subject him to the gun ownership restrictions of § 922(g)(1).

In 2017, King sued the Attorney General of the United States, claiming that

§ 922(g)(1), as applied, violates his right under the Second Amendment to keep and bear

arms. The Attorney General moved to dismiss, and the District Court granted the motion.

The District Court, applying the framework we announced in United States v.

Marzzarella,

(2010), held that King had not provided evidence sufficient to

sustain an as-applied to challenge to § 922(g)(1). King timely appealed. 1

II.

The Supreme Court, in District of Columbia v. Heller,

(2008),

held that “the Second Amendment conferred an individual right to keep and bear arms.”

But the Court in Heller also explained that “the right secured by the Second Amendment

is not unlimited,” and that “nothing in [its] opinion should be taken to cast doubt on

longstanding prohibitions on the possession of firearms by felons and the mentally ill.”

1 The District Court had jurisdiction under

, and we have jurisdiction under

. Our review of an as-applied constitutional challenge is plenary. Marzzarella,

n.2.

3 Id. at 626. Such “regulatory measures,” among others, are “presumptively lawful.” Id. at

627 n.26.

Following Heller, we considered an as-applied Second Amendment challenge in

Marzzarella. There, we read Heller as suggesting a two-step approach to assessing as-

applied Second Amendment challenges.

. At the first step, we ask

“whether the challenged law imposes a burden on conduct falling within the scope of the

Second Amendment’s guarantee.”

If it does not, the as-applied challenge fails. If it

does, we proceed to step two, which involves “evaluat[ing] the law under some form of

means-end scrutiny.”

We clarified that two-step approach in Binderup v. Att’y Gen.,

(3d

Cir. 2016) (en banc). There, as here, we faced an as-applied Second Amendment

challenge to § 922(g)(1). Id. at 339. Judge Ambro’s controlling opinion 2 explained that,

under step one of Marzzarella, the challenger “must (1) identify the traditional

justifications for excluding from Second Amendment protections the class of which he

appears to be a member . . . and then (2) present facts about himself and his background

that distinguish his circumstances from those of persons in the historically barred class.”

Id. at 347. To meet those requirements “in the context of an as-applied challenge to §

2 Our decision in Binderup was fractured. A majority of the en banc Court agreed that the as-applied Second Amendment challenge succeeded, but “no single rationale explaining the result enjoy[ed] the support of a majority of the Court.” Id. at 356. Accordingly, the holding in Binderup “may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Id. (quoting Marks v. United States,

(1977)). In Binderup, Judge Ambro’s opinion provided the narrowest ground supporting the result in that case. We therefore treat Judge Ambro’s opinion as controlling and apply it here. See id. at 356. 4 922(g)(1),” the challenger must “prove that he was not previously convicted of a serious

crime.” Id. at 356.

King fails to meet that requirement because his federal convictions under

(a)(6) and (g)(1) were for serious crimes. To begin with, each is classified

as a felony under federal law, see

(a)(2), 3559(a), and the controlling

opinion in Binderup noted that such a classification is significant, see

n.6. Indeed, “[w]hen the legislature designates a crime as a felony, it signals to the world

the highest degree of societal condemnation for the act, a condemnation that a

misdemeanor does not convey.” Medina v. Whitaker,

(D.C. Cir.

2019); see also Hamilton v. Pallozzi,

(4th Cir. 2017) (same).

The controlling opinion in Binderup, to be sure, did note that “it is possible to read

Heller to leave open the possibility, however remote, of a successful as-applied

challenge” to a conviction for a crime labeled as a felony.

n.6. But the

controlling opinion also explained that in such a situation “the individual’s burden would

be extraordinarily high –– and perhaps even insurmountable.”

King cannot meet that difficult burden here. King argues that his actual sentence

(three years of probation) relative to the maximum potential sentences for violating

(a)(6) and (g)(1) (ten years for both, see

(a)(2)) belies the

seriousness of his federal felony convictions. And, King points out, his federal crimes

were not violent. It is true that the challenger’s actual sentence and the non-violent

nature of the crimes were relevant factors in Binderup. See

. But we do

not think they alter the outcome here. The controlling opinion in Binderup explicitly

5 limited its ruling to “state-law misdemeanants,” explaining that “when a legislature

chooses to call a crime a misdemeanor, we have an indication of non-seriousness that is

lacking when it opts instead to use the felony label.”

at 353 n.6. Unlike the

defendants in Binderup, King was convicted of crimes labeled as felonies, not

misdemeanors, which makes his burden all the higher. See

We are not persuaded that

King’s actual sentence and the non-violent nature of his crimes outweigh the fact that

Congress chose to classify his crimes as felonies, punishable by up to ten years in prison.3

King’s other arguments are unpersuasive. King argues that his convictions under

§ 922(a)(6) and (g)(1) were based on “underlying state convictions [that] are not

sufficiently serious to justify preventing him from exercising his Second Amendment

rights.” King Br. 27. We need not decide whether King’s state convictions were for

“serious crimes” themselves because, even assuming they were not, the non-seriousness

of King’s state crimes would not make his federal crimes any less serious. Regardless of

the seriousness of his state crimes, King was still prohibited under federal law from

possessing a firearm, and from making false statements in acquiring one. And King pled

guilty to violating those laws. The seriousness of King’s state-law convictions is thus

immaterial; he still committed serious crimes under federal law.

King also challenges the seriousness of his federal crimes by pointing to the

circumstances surrounding them. He claims that he just “improperly indicated that he

3 Not to mention that King has not shown that the final factor discussed in Binderup –– “cross-jurisdictional consensus regarding the seriousness of the . . . crimes” –– helps him here. Id. at 352.

6 had not been convicted of an offense punishable by over a year incarceration.” King Br.

29. He further claims that he did not realize that § 922(g) applied to him, given that he

was enrolled in the military at the time. But to the extent that those individualized

circumstances are relevant, we think that the particular circumstances of King’s crimes

are adequately reflected in the actual sentence he received. See Binderup,

(“[P]unishments are selected by judges who have firsthand knowledge of the facts

and circumstances of the cases and who likely have the benefit of pre-sentence reports

prepared by trained professionals.”). And as explained, King’s relatively light sentence

does not change our conclusion that he was convicted here for serious crimes.

Finally, King argues that he “poses no more a threat to society than any other

ordinary citizen,” and that his convictions are “distant history.” King Br. 30. But the

controlling opinion in Binderup rejected the “claim that the passage of time or evidence

of rehabilitation will restore the Second Amendment rights of people who committed

serious crimes.” Binderup,

.

III.

For the foregoing reasons, we will affirm the judgment of the District Court.

7