United States v. Wansolo Hughley , 691 F. App'x 278 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-1936
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Wansolo B. Hughley, also known as Winslow B. Hughley
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: February 6, 2017
Filed: June 14, 2017
[Unpublished]
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Before RILEY, Chief Judge,1 SMITH and BENTON, Circuit Judges.
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PER CURIAM.
1
The Honorable William Jay Riley stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 10,
2017. He has been succeeded by the Honorable Lavenski R. Smith.
In the mid-1990s, Wansolo Hughley was convicted of possessing a user
amount of crack cocaine and unlawfully using a weapon. These were felonies. In
2014, Hughley illegally possessed two pistols and was charged with violating
18 U.S.C. § 922(g)(1). He pleaded guilty and was sentenced to 20 months’
imprisonment, but he reserved the right to appeal the district court’s2 refusal to
dismiss his indictment. On appeal, Hughley seeks reversal of his conviction,
contending that § 922(g)(1) violates the Second Amendment as applied to him. We
affirm.
We review this constitutional question de novo. United States v. Bena, 664
F.3d 1180, 1181 (8th Cir. 2011). The Second Amendment guarantees “the right of the
people to keep and bear Arms.” U.S. Const. amend. II. In District of Columbia v.
Heller, the Supreme Court affirmed this right by holding unconstitutional a law
prohibiting citizens from having guns in their homes. 554 U.S. 570, 635 (2008).
Heller expressly avoided casting doubt on “presumptively lawful regulatory
measures,” id. at 627 n.26, such as the “longstanding prohibitions on the possession
of firearms by felons,” id. at 626. The contours of this presumptive lawfulness,
however, remain undefined. See, e.g., Bena, 664 F.3d at 1182 (“The analytical basis
for the presumptive constitutionality of these regulatory measures was not thoroughly
explained.”).
We have upheld § 922(g)(1) against facial challenges. See, e.g., United States
v. Woolsey, 759 F.3d 905, 909 (8th Cir. 2014). Hughley, though, does not argue that
§ 922(g)(1) is facially unconstitutional. Such an argument would require showing that
no set of circumstances exists under which it would be valid. United States v. Seay,
620 F.3d 919, 922 (8th Cir. 2010). Rather, Hughley argues that despite Heller’s
reference to the continuing validity of certain firearms regulations, § 922(g)(1) is
2
The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.
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unconstitutional as applied to him because his felonies were nonviolent and happened
years ago.
We have rejected as-applied challenges to § 922(g)(1) when the challenger had
a violent felony or was otherwise among those historically not entitled to Second
Amendment protections. See, e.g., Woolsey, 759 F.3d at 909 (rejecting an as-applied
challenge because defendant’s prior felony convictions were violent and because he
did not show that he was “no more dangerous than a typical law-abiding citizen”
(quoting United States v. Brown, 436 F. App’x 725, 726 (8th Cir. 2011)).3
Although Hughley’s prior felonies were nonviolent, he has not shown that he
is no more dangerous than a typical law-abiding citizen. Hughley has been convicted
of multiple felonies and has repeatedly violated his probation terms. In 1995, Hughley
carried a concealed shotgun while possessing illegal drugs. In 2014, Hughley was
arrested for trespassing, and police found two firearms, including one with a 30-round
magazine, in his car along with illegal drugs. Hughley’s conduct has not been typical
of a law-abiding citizen. Restricting gun possession by felons—even nonviolent
ones—differs meaningfully from restricting citizens who have not been convicted of
serious offenses from having guns in their home for self-defense. Hughley’s efforts
to protect himself while possessing illegal drugs stand in stark contrast.
3
Other courts seem to favor a so-called “two-step approach.” See, e.g.,
Schrader v. Holder, 704 F.3d 980, 988 (D.C. Cir. 2013); Ezell v. City of Chicago, 651
F.3d 684, 703 (7th Cir. 2011). Step one asks whether the challenged law burdens
conduct within the scope of the Second Amendment; if so, then step two asks whether
the government’s justification for the law holds up under a particular level of
scrutiny—usually intermediate scrutiny. Ezell, 651 F.3d at 703. We have not adopted
this approach and decline to do so here.
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Section 922(g)(1)’s purpose reaches beyond felons who have proven
themselves violent—that is, those who have already committed violent felonies. In
enacting this statute, “Congress sought to keep guns out of the hands of those who
have demonstrated that they may not be trusted to possess a firearm without
becoming a threat to society.” Small v. United States, 544 U.S. 385, 393 (2005)
(internal quotation marks omitted). “[T]he principal purpose of the federal gun
control legislation . . . was to curb crime by keeping firearms out of the hands of those
not legally entitled to possess them because of age, criminal background, or
incompetency.” Schrader, 704 F.3d at 989–90 (ellipsis in original) (quoting
Huddleston v. United States, 415 U.S. 814, 824 (1974)). The statute’s objective
therefore includes keeping firearms from “persons, such as those convicted of serious
crimes, who might be expected to misuse them.” Id. at 990 (quoting Dickerson v. New
Banner Inst., Inc., 460 U.S. 103, 119 (1983)). Indeed, the statute does not mention
violent crimes, but rather serious ones—those deserving punishment of more than a
year in prison. 18 U.S.C. § 922(g)(1).
Finally, we are not persuaded by Hughley’s points about the age of his felonies
and the practically permanent nature of his ban. He has not shown that the age of his
felonies takes him outside the statute’s legitimate objectives. Hughley also has not
shown that avenues for restoration of gun rights are unreasonable or futile. Hughley
must show that the ban’s permanent nature poses unique constitutional concerns for
him. He has not done so.
Accordingly, we affirm the district court’s judgment.
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