AGEE, Circuit Judge:
Police officers searched convicted felon George Lamont Moore incident to an arrest and found a nine-millimeter handgun. After being indicted as a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), Moore moved to dismiss on the grounds that the statute violated his Second Amendment rights. The district court denied the motion and Moore entered a conditional guilty plea reserving the right to raise the Second Amendment defense on appeal. As part of Moore's sentence on the § 922(g)(1) conviction, the district court ordered that he repay the incurred court-appointed attorneys' fees pursuant to 18 U.S.C. § 3006A(f). For the reasons stated herein, we affirm the district court's denial of the motion to dismiss, but vacate the attorneys' fees order and remand for resentencing in part.
Prior to Moore's arrest in this case, he had prior felony convictions for selling or delivering cocaine, three common law robberies, and two assaults with a deadly weapon on a government official.
Moore filed a motion to dismiss on various constitutional grounds, which the district court denied. At that point, Moore entered a conditional guilty plea, preserving for appeal the issue of whether § 922(g)(1) violates the Second Amendment in light of the Supreme Court's ruling in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008).
The district court sentenced Moore under the ACCA to the statutory minimum, fifteen years' imprisonment, to be followed
On appeal, Moore assigns error both to imposition of the attorneys' fee reimbursement and the underlying § 922(g)(1) conviction. We have jurisdiction of this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
We first consider, de novo, whether Moore's conviction under § 922(g)(1) violates the Second Amendment.
Moore argues that the Supreme Court held in Heller that the Second Amendment guarantees an individual the right to bear arms in self-defense irrespective of his status as a convicted felon. Moore contends that § 922(g)(1) is unconstitutional on its face because it infringes on the basic right of self-defense.
In response, the government contends that the Second Amendment right to bear arms, like all other constitutional rights, is not absolute. Emphasizing the violent nature of Moore's criminal record, the government points to language in Heller characterizing felon dispossession laws as presumptively lawful. See Heller, 554 U.S. at 626-27 & n. 26, 128 S.Ct. 2783 (identifying the "longstanding prohibition[] on the possession of firearms by felons" as a "presumptively lawful regulatory measure[]"). Based on this language, the government posits that Moore's challenges to § 922(g)(1), as facially invalid, fail. As to Moore's as-applied challenge, the government argues that if the Congress has sufficient interest in prohibiting any person from possessing a firearm, it is a person like Moore, a violent felon.
We begin our analysis by noting the unanimous result reached by every court of appeals that § 922(g)(1) is constitutional, both on its face and as applied. The basis for the various decisions by our
Since the Supreme Court's decision in Heller, we have come to address claims of the constitutional invalidity of a firearms possession statute under the framework set out in Chester. See United States v. Staten, 666 F.3d 154 (4th Cir.2011) (§ 922(g)(9)); United States v. Chapman, 666 F.3d 220 (4th Cir.2011) (§ 922(g)(8)). These cases, unlike the case at bar, challenged statutory restrictions on domestic violence misdemeanants (Chester and Staten), and certain persons subject to domestic violence protective orders (Chapman) which the Supreme Court did not specifically identify as presumptively lawful regulatory measures in Heller. Our analysis in those cases thus had no reason to denote any specific difference in analysis between firearms restrictions which were specifically mentioned in Heller as presumptively lawful regulatory measures and those that were not.
As we noted in Chester, the Supreme Court explicitly stated in Heller that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons. . . ." 628 F.3d at 679 (citing Heller, [554 U.S. at 626, 128 S.Ct. 2783]). The Supreme Court
To the extent that Moore, or any similarly situated defendant, raises a facial challenge to the validity of § 922(g)(1), the clear declaration in Heller that such felon in possession laws are a presumptively lawful regulatory measure resolves that challenge fairly quickly. As we noted in Chester:
Id. at 679.
Chester, 628 F.3d at 679.
Whichever meaning the Supreme Court had in mind negates a facial challenge to a felon in possession statute like § 922(g)(1). If such restrictions were outside the scope of Second Amendment coverage at ratification, then obviously it is not within Second Amendment protection now. On the other hand, if a § 922(g)(1)-type statute has some Second Amendment coverage, the fact it is "presumptively lawful" indicates it must "pass muster under any standard of scrutiny." Under the well recognized standard for assessing a facial challenge to the constitutionality of a statute, the Supreme Court has long declared that a statute cannot be held unconstitutional if it has constitutional application. Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008) ("[A] facial challenge
Determining that § 922(g)(1) is valid on its face, however, does not resolve Moore's as-applied challenge. As we recognized in Chester, Heller seemed to leave this issue open. "In fact, the phrase `presumptively lawful regulatory measures' suggests the possibility that one or more of these `longstanding' regulations `could be unconstitutional in the face of an as-applied challenge.' United States v. Williams, 616 F.3d 685, 692 (7th Cir. 2010)." 628 F.3d at 679 (emphasis in Chester).
In asserting his as-applied challenge, of course, Moore cannot "obtain relief based on arguments that a differently situated person might present," United States v. Skoien, 614 F.3d 638, 645 (7th Cir.2010) (en banc), or based on "other situations not before the Court." Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). Moreover, the Supreme Court's declaration in Heller that felon in possession statutes are "presumptively lawful regulatory measures" reinforces the fact that a litigant claiming an otherwise constitutional enactment is invalid as applied to him must show that his factual circumstances remove his challenge from the realm of ordinary challenges.
Moore's as-applied challenge relies heavily on his assertion that he was carrying a firearm on the day he was arrested to protect himself from being robbed in his sketchy neighborhood. He contends that the conduct underlying his conviction thus implicates the core right of the Second Amendment: the right of a "law-abiding, responsible citizen to possess and carry a weapon for self-defense." Chester, 628 F.3d at 683 (citing Heller, [554 U.S. at 635, 128 S.Ct. 2783] (emphasis in Chester)).
We cannot agree with Moore's argument that, because he was carrying the weapon for protection,
Indeed, Moore acknowledges that his argument is "weaken[ed]" by his "prior convictions, including several convictions for assaults and robberies." Br. of Appellant at 11. Particularly in light of his extensive and violent criminal history, Moore's conduct here is plainly outside the scope of the Second Amendment. See, e.g., Torres-Rosario, 658 F.3d at 113 (rejecting an as-applied challenge to § 922(g)(1) by a convicted felon with no violent felony convictions, and concluding that his two prior serious drug convictions were sufficient to support the ban against his possession of firearms, especially in light of the established connection between drug dealing and violence); Williams, 616 F.3d at 693 ("Williams, as a violent felon, is not the ideal candidate to challenge the constitutionality of § 922(g)(1)."); Barton, 633 F.3d at 175 ("18 U.S.C. § 922(g)(1) is . . . constitutional as applied to Barton because he has presented no facts distinguishing his circumstances from those of other felons who are categorically unprotected by the Second Amendment.") In short, Moore has presented nothing to rebut the presumptive lawfulness of § 922(g)(1) as applied to him.
We do not foreclose the possibility that a case might exist in which an as-applied Second Amendment challenge to § 922(g)(1) could succeed. But while we acknowledge such a showing theoretically could be made, Moore is not remotely close. As we just noted, Moore undoubtedly flunks the "law-abiding responsible citizen" requirement. Moreover, Moore's proffered reason for possessing a firearm, "his fear of being robbed, such robberies being prevalent in the neighborhood in which he lived" is far too vague and unsubstantiated to remove his case from the typical felon in possession case. Accordingly, Moore has not rebutted the presumption that the presumptively lawful regulatory measure of the long standing prohibition on felon firearm possession is unconstitutional as applied to him.
Therefore, we hold that § 922(g)(1) is constitutional as applied to Moore and the district court did not err in denying Moore's motion to dismiss.
We next consider whether the district court erred in ordering Moore to repay his court-appointed attorneys' fees under 18 U.S.C. § 3006A. The interpretation of a statute, like the meaning of § 3006A(c) and (f) in the case at bar, is reviewed de novo. United States v. Weaver, 659 F.3d 353, 356 (4th Cir.2011) ("[An] issue of statutory interpretation is one that we review de novo.") (citation omitted). In the context of sentencing, we review the district court's legal determinations de novo, and its factual findings for clear error. United States v. Osborne, 514 F.3d 377, 387 (4th Cir.2008). In reviewing the district court's application of the factual findings, as in the reimbursement order here, we apply an abuse of discretion standard. See, e.g., United States v. Holman, 532 F.3d 284, 288 (4th Cir.2008) (conditions of supervised release are reviewed for an abuse of discretion); cf. United States v. Leftwich, 628 F.3d 665, 667 (4th Cir.2010) (district court's restitution order is reviewed for abuse of discretion). In actual practice, this division of standards of review is not always easy to differentiate and is of limited practical import where the
The Criminal Justice Act, 18 U.S.C. § 3006A ("CJA"), requires the government to provide adequate legal representation for criminal defendants unable to pay for such services when, like Moore, they are charged with a federal felony offense. 18 U.S.C. § 3006A(a)(1)(A). There is no issue in this case that Moore was, in fact, indigent and qualified for a court appointed attorney under the CJA.
That statute also provides that "[i]f, at any time after the appointment of counsel. . . the court finds that the person is financially able to obtain counsel or to make partial payment for the representation, it may . . . authorize payment as provided in subsection (f), as the interests of justice may dictate." 18 U.S.C. § 3006A(c). Subsection (f) further authorizes a court to order repayment of attorneys' fees under certain circumstances:
18 U.S.C. § 3006A(f).
Moore argues that the order requiring him to repay his attorneys' fees during his supervised release term is unlawful because § 3006A(f) only allows a court to order reimbursement when it determines the defendant has funds that are currently available for payment. He points to the use of the present tense ("funds are available") in the statute's language to support that argument, as well as to out-of-circuit authority. Because the district court's order was based on a speculative ability to pay in the future, Moore argues that the order violates § 3006(A)(f).
The government concedes that, in this circuit, there are no published cases upholding a reimbursement order based on future payments from assets not currently accessible. It relies on two unpublished cases, however, which upheld such forward-looking reimbursement orders. See United States v. Jackson, 1998 WL 386109 (4th Cir. June 19, 1998) (unpublished); United States v. Moore, 1998 WL 85296 (4th Cir. Mar. 2, 1998) (unpublished). In neither of these cases was there an explicit finding that funds were then available to the defendant for a reimbursement payment. The government also argues that forward-looking reimbursement orders are authorized because the CJA generally vests significant discretion in district courts for sentencing purposes. Thus, the government concludes, the order here should not be overturned.
In analyzing the district court's order, we start with the plain language of the statute. Weaver, 659 F.3d at 356 ("The starting point for any issue of statutory interpretation is the language of the statute itself. It is well established that
Our holding requiring a specific finding of ability to pay and identification of the source of payment is in accord with similar conclusions of our sister circuits. See, e.g., United States v. Wilson, 597 F.3d 353, 358 (6th Cir.2010) ("A thorough inquiry into the defendant's finances, though not a full adversarial hearing, should precede" any order requiring a repayment of attorneys' fees); United States v. Danielson, 325 F.3d 1054, 1076-77 (9th Cir.2003) (affirming order denying reimbursement of fees where district court could not "make any definitive finding as to [the defendant's] ability to pay"); United States v. McGiffen, 267 F.3d 581, 589 (7th Cir.2001) ("requir[ing] that a district court make appropriate findings of availability[,]" such as "whether the contribution would impose an extreme hardship on the defendant, whether it would interfere with his obligations to his family, and whether there were third parties with valid claims to the funds[,]" and noting that "[o]ur sister circuits similarly require that there be evidence that the district court made specific inquiries into the defendant's financial circumstances and obligations" before requiring a defendant to repay funds pursuant to § 3006A(f)); United States v. Evans, 155 F.3d 245, 252 n. 8 (3d Cir.1998) (before entering a reimbursement order, a district court has a "responsibility to inquire into the defendant's current financial status"); United States v. Fraza, 106 F.3d 1050, 1056 (1st Cir.1997) (reversing order of reimbursement where the district court failed to make findings as to defendant's "financial viability").
The Sixth Circuit's decision in Wilson is a case in which the district court made the required CJA findings. In Wilson, the
In contradistinction to the thorough inquiry conducted by the district court in Wilson, the de minimis findings by the district court regarding Moore's financial capacity and ability to pay are stark.
The record, to the extent there is one, showed Moore had virtually no income over a period of years and had no assets or other things of value. The mere fact that he has a GED and some work training (although no steady work history) does not support a finding that "funds are available." Unlike the income stream in Wilson, which was a readily identifiable asset, the theoretical income stream here, years down the road after completion of a fifteen-year sentence, was based purely on speculation with no basis in fact.
Of particular note in the case at bar is that the district court specifically found that Moore, who was clearly eligible for a court-appointed attorney, did "not have the ability to pay a fine or interest." J.A. 75. Nonetheless, the court accepted the apparently standard and factually unsupported recommendation of the probation office that Moore's GED and training meant he would be able to earn an amount of money sufficient to repay $50 per month,
Because the district court failed to make the specific findings required by § 3006A(c) or (f) to support an order of reimbursement, its judgment at sentencing, insofar as it required a reimbursement of attorneys' fees, was in error.
To provide additional direction to district courts, we caution that our holding should not be interpreted as imposing an overly restrictive definition of "available," such as one that only permits an order of reimbursement if a defendant has cash or funds in a bank account which are immediately available to him to be withdrawn. Put differently, availability is not limited only to currently liquid assets at the time reimbursement is ordered. Instead, a repayment order may be based on identified funds and assets, even if those assets will not become liquid until a future date, such as the escrow payment from an upcoming sale of real property, the scheduled disbursement of proceeds from a trust, or continuing payments under a promissory note or contract. See Wilson, 597 F.3d at 360 ("A court . . . might find a defendant `financially able' to pay based on money pending in escrow even though those funds will not become `available for payment' until some future date."); see also Br. of Appellant at 15 (Moore acknowledging a reimbursement order can be based on a defendant's "income stream"). The crucial factor in complying with the statutory mandates in § 3006A(c) ("the court finds that the person is financially able") and § 3006A(f) ("the court finds the funds are available for payment") is that the sentencing court indeed make a finding on the record identifying the specific assets "available" for reimbursement of attorneys' fees and how those assets qualify the defendant as financially eligible to pay.
Because the district court did not comply with the statutory mandate here, we vacate that portion of the district court's judgment requiring Moore to repay his court-appointed attorneys' fees, and remand for resentencing consistent with this opinion,
Our holding on the validity of the reimbursement order here is a narrow one; it is not intended to address or resolve all issues of when a defendant's "funds are available for payment" as that will require a fact-specific analysis in each case. Neither do we address whether the repayment of attorneys' fees as a condition of supervised release is a permitted condition. That issue, one which has led to a split of authority among the United States Courts of Appeals,
Similarly, we do not decide today whether the district court in Moore's case could impose repayment of fees at a later date, such as while Moore is actually serving his supervised release term, either as a condition of release or as a separate § 3006A(f) order, assuming it makes the requisite finding that Moore has funds or assets available for repayment. We limit our holding here to the following: on the current record, the district court erred by failing to make the mandatory statutory findings that "funds are available" to Moore for repayment as required to order reimbursement under the CJA.
For the reasons stated above, the judgment of the district court is affirmed in part and vacated in part. This case is remanded to the district court for resentencing consistent with this opinion.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
628 F.3d at 680-81.