United States v. Frye ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4289
LEWIS BRACKETT FRYE, SR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Samuel G. Wilson, Chief District Judge.
(CR-97-69)
Submitted: August 31, 1998
Decided: September 21, 1998
Before HAMILTON, LUTTIG, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
John N. Dalton, Jr., DALTON & MOORE, P.C., Radford, Virginia,
for Appellant. Robert P. Crouch, Jr., United States Attorney, Anthony
P. Giorno, Assistant United States Attorney, Roanoke, Virginia, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Lewis Brackett Frye, Sr., appeals from his conviction on one count
of possession of a firearm after a misdemeanor conviction for domes-
tic violence, see 18 U.S.C.A. § 922(g)(9) (West Supp. 1998). We find
no merit to his claims; consequently, we affirm.
In 1994, Frye was convicted in Virginia state court of misdemeanor
assault and battery against his wife. Nearly three years later, in Febru-
ary 1997 when police officers were questioning Frye about a com-
plaint by his ex-girlfriend that he was harassing her, Frye admitted
that he had a gun. The officers searched his car and found a loaded
Bryco Arms .380 caliber pistol. A grand jury indicted Frye on one
count of violating § 922(g)(9). Frye entered a conditional guilty plea,
reserving the right to raise on appeal challenges to the district court's
holdings that § 922(g)(9) does not violate the ex post facto clause and
that scienter is not an element of the offense. The court sentenced him
to one year of probation and, as a condition of probation, to six
months in home detention.
Frye first claims on appeal that, because his domestic violence con-
viction predates the effective date of § 922(g)(9), his conviction vio-
lates the ex post facto clause under Article 1, Section 9, clause 3 of
the United States Constitution. To violate the ex post facto clause, a
law must (1) be retrospective and (2) disadvantage a defendant by
changing the definition of criminal conduct or increasing the punish-
ment for a crime. A law is retrospective if it changes the legal conse-
quences of acts completed before the law's effective date. See United
States v. Lominac, 144 F.3d 308, 311-12 (4th Cir. 1998). We find that
Frye's conviction does not violate the ex post facto clause because the
illegal act, possession of a firearm by Frye after his misdemeanor
domestic violence conviction, was not completed until 1997, long
after the statute went into effect in September 1994.
Next, Frye argues that the government must prove scienter in order
to convict him under § 922(g)(9). The government is not required to
show that the defendant knew that the law prohibited him from pos-
sessing a firearm in order to obtain a conviction under § 922(g)(1).
2
See United States v. Langley, 62 F.3d 602, 604 (4th Cir. 1995) (no
scienter element for felon in possession of a firearm conviction under
§ 922(g)(1)). Frye has failed to show why the government should
prove scienter under § 922(g)(9) where a defendant has a prior misde-
meanor domestic violence conviction when no such proof is required
for prosecutions under § 922(g)(1).
For these reasons, we affirm Frye's conviction. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
3