United States v. Ervin Duckett

FILED NOT FOR PUBLICATION DEC 16 2010 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 09-50362 Plaintiff - Appellee, D.C. No. 3:08-cr-03206-DMS v. MEMORANDUM * ERVIN ALLEN DUCKETT, Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Dana M. Sabraw, District Judge, Presiding Submitted December 10, 2010** Pasadena, California Before: TROTT, WARDLAW, and IKUTA, Circuit Judges.

Ervin Ducµett entered a conditional guilty plea to the charge of being a felon in possession of a firearm in violation of 18 U.S.C. y 922(g)(1). He reserved the right to challenge on appeal the constitutional validity of y 922(g)(1) in light of the

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

Supreme Court's decision in District of Columbia v. Heller, ÁÁ U.S. ÁÁ, 128 S. Ct. 2783 (2008). We review the constitutionality of a federal statute de novo. United States v. Schales, 546 F.3d 965, 971 (9th Cir. 2008).

Ducµett puts forth three arguments in support of the unconstitutionality of y 922(g)(1): (1) as applied to him, the statute violates the Second Amendment in light of Heller, (2) felons in different states are treated in a disparate manner in violation of the Equal Protection Clause, and (3) the statute violates the Tenth Amendment because regulation of firearms is not an enumerated power of the federal government.

Ducµett's first argument, as he concedes, is squarely foreclosed by this court's decision in United States v. Vongxay, 594 F.3d 1111, 1114 (9th Cir. 2010).

Ducµett's second argument is without merit. Vongxay considered a post- Heller equal protection challenge to y 922(g)(1) brought by a felon. Though the argument in that case was slightly different, the reasoning is dispositive here. The defendant in Vongxay argued that y 922(g)(1) violates equal protection because states define 'felon' differently. 594 F.3d at 1118. Ducµett asserts that the statute violates equal protection because the states differ in the manner in which a felon's rights may be restored. We do not discern a material difference between these arguments. Rational basis review, therefore, remains appropriate because, as the Vongxay court observed, 'the right established by Heller does not apply to felons . . . . ' 594 F.3d at 1119.

Ducµett's third argument is also without merit. Section 922(g)(1) permissibly regulates felons' possession of firearms by virtue of the commerce clause without violating the Tenth Amendment. United States v. Collins, 61 F.3d 1379, 1383-84 (9th Cir. 1995).

AFFIRMED.

FILED United States v. Ducµett, No. 09-50362 DEC 16 2010 MOLLY C. DWYER, CLERK IKUTA, Circuit Judge, concurring: U.S . CO U RT OF AP PE A LS

Although I join the majority in full, were I not bound by United States v. Vongxay, 594 F.3d 1111 (9th Cir. 2010), I would examine whether, notwithstanding the Supreme Courtùs dicta in District of Columbia v. Heller, --- U.S. ----, 128 S. Ct. 2783, 2816--17 (2008), the government has a substantial interest in limiting a non-violent felon's constitutional right to bear arms. See United States v. Williams, 616 F.3d 685, 693 (7th Cir. 2010) ('[W]e recognize that y 922(g)(1) may be subject to an overbreadth challenge at some point because of its disqualification of all felons, including those who are non-violent.'); United States v. Sµoien, 614 F.3d 638, 645 (7th Cir. 2010) (en banc) (Syµes, J., dissenting); United States v. McCane, 573 F.3d 1037, 1047 (10th Cir. 2009) (Tymµovich, J., concurring). Indeed, other than felon disenfranchisement laws, which are grounded in y 2 of the Fourteenth Amendment, see Richardson v. Ramirez, 418 U.S. 24, 54 (1974), I can thinµ of no other constitutional disability that applies only to a 'certain category of persons . . . [who] may be excluded from ever exercising the right.' Sµoien, 614 F.3d at 650 (Syµes, J., dissenting).