United States v. Fidel Mendez ( 2014 )

FILED
NOT FOR PUBLICATION AUG 26 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30170
Plaintiff - Appellee, D.C. No. 2:12-cr-06024-FVS-1
v.
MEMORANDUM*
FIDEL ANTONIO MENDEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Fred L. Van Sickle, Senior District Judge, Presiding
Argued and Submitted June 4, 2014
Seattle, Washington
Before: McKEOWN and WATFORD, Circuit Judges, and ROTHSTEIN, Senior
District Judge.**
1. The district court properly rejected Fidel Mendez’s Second Amendment
challenge. Mendez’s prior juvenile adjudication is a conviction of a “crime
punishable by imprisonment for a term exceeding one year” under 18 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Barbara Jacobs Rothstein, Senior District Judge for the
U.S. District Court for the Western District of Washington, sitting by designation.
Page 2 of 3
§ 921(a)(20). See United States v. Mendez, – F.3d – (9th Cir. 2014). As an
individual with a prior conviction satisfying § 921(a)(20), Mendez is “categorically
different from the individuals who have a fundamental right to bear arms.” United
States v. Vongxay, 594 F.3d 1111, 1115 (9th Cir. 2010). Section 922(g)(1) is a
“presumptively lawful regulatory measure[]” and does not unconstitutionally
burden whatever Second Amendment rights Mendez may have. See id. (quoting
District of Columbia v. Heller, 554 U.S. 570, 627 n.26 (2008)).
2. Mendez also contends, citing our decision in United States v. Tighe, 266
F.3d 1187 (9th Cir. 2001), that the use of his juvenile adjudication as a predicate
offense violated his due process rights. But Tighe raised an Apprendi
issue—whether the fact of a juvenile adjudication needed to be proved beyond a
reasonable doubt to the jury—and has nothing to say about the use of a juvenile
adjudication as a predicate conviction. See id. at 1193. In this case, because a
prior conviction is an element of the offense, the government would necessarily
have borne the burden of proving the fact of Mendez’s juvenile adjudication
beyond a reasonable doubt.
3. The district court properly denied Mendez’s motion to suppress. Officer
Horn needed only reasonable suspicion to conduct a brief investigatory stop. See
United States v. Brignoni-Ponce, 422 U.S. 873, 880–82 (1975). He believed the
Page 3 of 3
shotgun had a shortened barrel and articulated reasonable and specific facts
supporting his belief, which was based on his years of training and experience as a
law enforcement officer. Once Officer Horn learned Mendez owned the gun and
had a prior felony conviction, Officer Horn had probable cause to seize the gun.
AFFIRMED.