UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-5332

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

JOHN ANDREW MUDLOCK,

Defendant - Appellant.

Appeal from the United States District Court for the Middle

District of North Carolina, at Greensboro. William L. Osteen, 

Jr., District Judge. (1:10-cr-00115-WO-1)

Argued: March 21, 2012 Decided: June 19, 2012

Before NIEMEYER, GREGORY, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: J. David James, SMITH, JAMES, ROWLETT & COHEN, LLP, 

Greensboro, North Carolina, for Appellant. Michael Francis 

Joseph, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North 

Carolina, for Appellee. ON BRIEF: Ripley Rand, United States 

Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

The grand jury indicted John Andrew Mudlock for knowingly 

possessing firearms in contravention of a restraining order

issued by a Tennessee court, in violation of 18 U.S.C. 

§§ 922(g)(8) and 924(a)(2). Mudlock filed a motion to dismiss 

the indictment, alleging that, as applied to him, § 922(g)(8) 

was unconstitutional under the Second Amendment. The district

court denied the motion. After trial, the jury returned a 

guilty verdict. The district court subsequently sentenced 

Mudlock to 42 months’ imprisonment. In this timely appeal, 

Mudlock challenges the district court’s constitutionality 

determination, several evidentiary rulings, and aspects of his 

sentencing. For the reasons that follow, we affirm.

I.

A.

Early in the morning on January 10, 2010, Mudlock 

telephoned the 911 dispatcher in Rockingham County, North 

Carolina, and hung up. When the 911 operator called back, 

Mudlock stated that he was going to kill himself and that he 

would shoot any law enforcement officer who approached his home. 

He stated that he had enough weapons to take out “anybody that 

came through the door.”
3

After an all-day standoff, at around 8:00 p.m., officers 

fired tear gas into Mudlock’s home, which caused him to 

surrender. Officers handcuffed Mudlock, but when his hands were 

temporarily freed because of a problem with the handcuffs, he 

attempted to grab one of the officers’ guns. The government 

played a video of this incident at trial.

After the officers secured Mudlock, Detective Benjamin 

Strader obtained a search warrant for his home. The search 

produced six firearms and numerous rounds of ammunition. Three 

of the firearms were loaded. 

On May 2, 2010, Mudlock, who remained in jail, telephoned 

Justin Herr to ask that Herr remove three “fishing poles” from 

Mudlock’s home. When Herr went to the home, however, he found 

firearms in place of the purported fishing poles. He also found 

ammunition. Herr informed ATF Special Agent Paul Johnson of his 

discovery. 

Johnson subsequently obtained another search warrant for 

Mudlock’s home. He executed the search warrant on May 6, 2010. 

During the search, he located and seized three firearms in an 

open gun safe in Mudlock’s bedroom closet and approximately 

4,000 rounds of ammunition. 

At the sentencing hearing, ATF Special Agent David M. 

Schauble, who also participated in the May 6, 2010, search and 

took pictures of the scene, testified about what he had 
4

observed. During this testimony, he spoke about a photograph 

that he took of a high-capacity magazine that accepted more than 

fifteen rounds of ammunition. According to Schauble, officers 

found the magazine in a dresser that was two or three steps from 

the open gun safe where they located the three guns, one of 

which was capable of accepting the magazine. 

During all relevant time periods, Mudlock was subject to a 

domestic restraining order that barred him from lawfully 

possessing firearms. The restraining order provided that 

Mudlock “received actual notice of the hearing; that [Mudlock] 

had an opportunity to participate in the hearing”; and that he 

was “restrained from committing further acts of abuse, domestic 

abuse, stalking or sexual assault or threats of abuse, stalking 

or sexual assault against” his wife or her minor children. It 

also stated that Mudlock had “made a general appearance 

. . . and ha[d] submitted himself to the jurisdiction of [the 

court.]” The order further announced that Mudlock “represents a 

credible threat to the physical safety of [Ms. Mudlock].” And, 

it required that Mudlock “terminate [his] physical possession of 

the firearms [in his possession] by any lawful means.” The 

order states that, barring a continuation, it would be in effect 

for one year. Mudlock signed the order on August 18, 2009.
5

B.

The grand jury indicted Mudlock on March 30, 2010, for 

possession of firearms while subject to a restraining order, in 

violation of 18 U.S.C. §§ 922(g)(8) and 924(a)(2). Mudlock 

subsequently filed a motion to dismiss the indictment, arguing 

that § 922(g)(8) was unconstitutional as applied to him. The 

district court denied the motion.

A jury trial commenced on July 1, 2010. On July 2, 2010, 

the jury returned a verdict of guilty as charged. On September 

13, 2010, Mudlock filed a motion seeking substitute counsel. 

The district court held a sentencing hearing on November 17, 

2010, at which time it denied Mudlock’s motion. It subsequently 

sentenced him to 42 months’ imprisonment. Mudlock thereafter 

filed this timely appeal. 

II.

First, Mudlock argues that the district court erred in 

denying his motion to dismiss the 18 U.S.C. § 922(g)(8) charge 

because, as applied to him, this statute infringes on his Second 

Amendment rights. We review this question de novo. United 

States v. Buculei, 262 F.3d 322, 327 (4th Cir. 2001).

Section 922(g)(8) forbids those persons who are subject to 

an active domestic violence protection order from possessing 

firearms or ammunition while the order is in effect. 
6

Specifically, the statute makes it unlawful for any person under 

a court order that 

(A) was issued after a hearing of which such person 

received actual notice, and at which such person had 

an opportunity to participate; 

(B) restrains such person from harassing, stalking, or 

threatening an intimate partner of such person or 

child of such intimate partner or person, or engaging 

in other conduct that would place an intimate partner

in reasonable fear of bodily injury to the partner or 

child; and 

(C)(i) includes a finding that such person represents 

a credible threat to the physical safety of such 

intimate partner or child; or

(ii) by its terms explicitly prohibits the use, 

attempted use, or threatened use of physical force 

against such intimate partner or child that would 

reasonably be expected to cause bodily injury;

* * * *

to ship or transport in interstate or foreign 

commerce, or possess in or affecting commerce, any 

firearm or ammunition; or to receive any firearm or 

ammunition which has been shipped or transported in 

interstate or foreign commerce.

18 U.S.C. § 922(g)(8).

The Supreme Court determined in District of Columbia v. 

Heller, 554 U.S. 570 (2008), that the Second Amendment protects 

the individual “right of law-abiding, responsible citizens to 

use arms in defense of hearth and home.” Id. at 635. But the 

Court made clear that the right is not unlimited and listed

presumptively lawful restrictions, including the prohibition on 

the possession of firearms by felons and the mentally ill, as 
7

well as the carrying of weapons in certain places. Id. at 626-

27. 

Our review of Mudlock’s constitutional challenge entails a 

two-step inquiry. United States v. Chester, 628 F.3d 673, 680 

(4th Cir. 2010). First, we must determine whether § 922(g)(8) 

infringes on conduct within the purview of the Second 

Amendment’s guarantee, as that right has been historically 

understood. United States v. Chapman, 666 F.3d 220, 225 (4th 

Cir. 2012) (citing Chester, 628 F.3d at 680). “If the answer to 

this question is no, that is the end of the matter. If the 

answer is yes, then we move on to consider the second part of 

the two-part approach, which involves application of the 

appropriate form of means-end scrutiny.” Id. (citation omitted) 

(citing Chester, 628 F.3d at 680).

For purposes of this appeal, we assume that Mudlock’s 

conduct falls within the purview of the Second Amendment. Thus, 

we focus of the second step of the inquiry. And in doing so, we 

must first determine the appropriate level of scrutiny. 

Like that of the defendant in Chapman, Mudlock’s “claim is 

not within the core right identified in Heller—the right of a 

law-abiding, responsible citizen to possess and carry a weapon 

for self-defense.” Id. at 226 (emphasis omitted). This is so 

because we are hard-pressed to think of an instance in which a 

responsible citizen would be (1) “restrained from committing 
8

further acts of abuse, domestic abuse, stalking or sexual 

assault or threats of abuse, stalking or sexual assault against” 

another or (2) adjudged to “represent[] a credible threat to the 

physical safety of [another].” Moreover, in view of Mudlock’s 

statement to the 911 dispatcher stating that he would shoot any 

law enforcement officer who approached his house, it can hardly 

be said that Mudlock is law-abiding. “Accordingly, we conclude 

that intermediate scrutiny is the appropriate standard of 

scrutiny for [Mudlock] and similarly situated persons.” Id.

We have previously held in considering a constitutional 

challenge to § 922(g)(8) that the statute serves the substantial 

government objective of “reducing domestic gun violence” and 

that there is a “reasonable fit” between the law and this 

objective. United States v. Mahin, 668 F.3d 119, 124-25 (4th 

Cir. 2012) (internal quotation marks omitted). Specifically we 

have held that the government has established the following:

(1) domestic violence is a serious problem in the 

United States; (2) the rate of recidivism among 

domestic violence misdemeanants is substantial; (3) 

the use of firearms in connection with domestic 

violence is all too common; (4) the use of firearms in 

connection with domestic violence increases the risk 

of injury or homicide during a domestic violence 

incident; and (5) the use of firearms in connection 

with domestic violence often leads to injury or 

homicide.

Chapman, 666 F.3d at 229.
9

We have reviewed the record and find nothing that would 

render the application of the statute unconstitutional in this 

case. As the district court found, § 922(g)(8) provides for a 

time-limited restriction, which is applicable only while the 

restraining order is in effect. It also requires that specific 

procedural safeguards be present at the restraining order stage 

before that order can trigger the firearm restriction. The 

forbidden conduct entails serious or other conduct that would 

cause reasonable fear of bodily injury. Lastly, the statute 

requires that the restraining order contain a finding that the 

defendant has been adjudged to be a specific and “credible 

threat to the physical safety” of another or that it explicitly

prohibit the use of force or threatened force “that 

would reasonably be expected to cause bodily injury.” 

§ 922(g)(8). In that we agree with the district court that all 

of these factors are present in this case, we adopt the 

reasoning of the district court.

Consequently, in that we have found that there is a 

reasonable fit between § 922(g)(8) and the substantial 

governmental objective of reducing domestic gun violence, we 

affirm the district court’s decision to deny Mudlock’s motion to 

dismiss. 
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III.

Next, Mudlock contends that the district court erred in 

sentencing him based upon an incorrect base offense level.

We review sentences for reasonableness under an abuse-ofdiscretion standard. Gall v. United States, 552 U.S. 38, 51 

(2007). Pursuant to this review, we must consider both the 

procedural and substantive reasonableness of a sentence. Id.; 

see also United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 

2010). Properly preserved claims of procedural error are 

subject to harmless-error review. Lynn, 592 F.3d at 576. If 

the sentence is free of significant procedural error, we then 

review the substantive reasonableness of the sentence. Id. at 

575; United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). 

When judging the reasonableness of a sentence, we “review the 

district court’s legal conclusions de novo and its factual 

findings for clear error.” United States v. Hampton, 441 F.3d 

284, 287 (4th Cir. 2006).

Pursuant to U.S.S.G. § 2K2.1(a)(4)(B), Mudlock’s base 

offense level was set at twenty. For this guideline to apply, 

it requires, among other things, that the offense involved a 

“semiautomatic firearm that is capable of accepting a large 

capacity magazine.” Id. The application notes to this 

guideline define this term to include the following: 
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a semiautomatic firearm that has the ability to fire 

many rounds without reloading because at the time of 

the offense (A) the firearm had attached to it a 

magazine or similar device that could accept more than 

15 rounds of ammunition; or (B) a magazine or similar 

device that could accept more than 15 rounds of 

ammunition was in close proximity to the firearm. 

Id. § 2K2.1 cmt. n.2.

Mudlock first argues that the district court erred in 

concluding that he possessed a firearm capable of accepting a 

large capacity magazine and that the magazine was in close 

proximity to the firearm on January 10, 2010, the date of the 

alleged offense. But our review of the record shows that the 

evidence does not comport with these contentions.

At the sentencing hearing, Agent Schauble testified as 

follows:

Q: Agent Schauble, do you know if what is described 

as a high capacity magazine was seized from the 

residence that day?

A: Yes, ma’am.

Q: Could you explain to the Court what a high 

capacity magazine is exactly?

A: It’s a magazine that will fit—can carry more than 

15 rounds. In this particular case, that

magazine would carry 30 rounds.

Q: And you actually saw that magazine yourself and 

have determined that it will accommodate more 

than 15 rounds of ammunition?

A: Yes, ma’am.

* * * *

Q. And there are two—actually two firearms in this 

photograph. Which is which in the photograph?

A: There’s actually three firearms. There’s an SKS 

7.62 by 39 here, which is a double-barreled 

shotgun. To the left of the gun—in the left-hand 
12

corner of the gun safe, and there’s another rifle 

in the right-hand corner of the gun safe.

* * * *

Q: All right. And Government’s No. 5?

A: That is the magazine for the SKS that was found 

in the top dress—top right-hand dresser drawer in 

the bedroom.

* * * *

Q: And proximity wise, how many steps would you have 

had to have taken from the dresser to get to the 

gun safe?

A: Two or three.

* * * *

Q: Would you estimate that’s about 10 feet?

A: Yes, sir, six to eight—six to 10 feet.

Given this undisputed testimony, we cannot say that the 

district court erred in finding that Mudlock possessed a 

firearm, in this instance an SKS, capable of accepting a large 

capacity magazine and that such a magazine was in close 

proximity to the firearm at the time of the alleged offense. 

Hence, Mudlock’s claim to the contrary fails. 

Second, Mudlock claims that the ban on firearms capable of 

accepting large capacity magazines has been repealed. 

Therefore, according to Mudlock, the increased punishment under 

the Sentencing Guidelines for possession of such a firearm is 

unreasonable. But we have already considered this issue and 

decided that “the repeal of the assault-weapon ban did not

operate as a repeal of the 2005 enhancement.” United States v. 
13

Myers, 553 F.3d 328, 330 (4th Cir. 2009). Accordingly, this 

claim must fail as well.

IV.

Mudlock also maintains that the district court committed 

reversible error in its refusal to allow him to present evidence 

concerning the Tennessee court hearing that led to the 

imposition of the restraining order. Our review of the district 

court’s admission of evidence is for an abuse of discretion. 

United States v. Wilson, 624 F.3d 640, 649 (4th Cir. 2010). 

“[T]he overwhelming weight of federal case law precludes a 

defendant in a § 922(g)(8) prosecution from mounting a 

collateral attack on the merits of the underlying state 

protective order.” United States v. Reese, 627 F.3d 792, 804 

(10th Cir. 2010). In fact, the Fifth Circuit has noted that 

“nothing in the language of 18 U.S.C. § 922(g)(8) indicates that 

it applies only to persons subject to a valid, as opposed to an 

invalid, protective order.” United States v. Hicks, 389 F.3d 

514, 535 (5th Cir. 2004). Mudlock has not presented, and we 

have not found, any reason to diverge from the majority 

approach. As such, we find no error in the district court’s 

disallowance of any evidence concerning the Tennessee court 

hearing.
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V.

According to Mudlock, the district court also erred in 

admitting certain evidence at his trial that was not charged in 

the indictment and was irrelevant to the charges contained in 

the indictment. Specifically, Mudlock objects to the district 

court’s admission of (1) evidence concerning his request to Herr 

that Herr remove firearms from Mudlock’s home and (2) evidence 

regarding his attempt to grab one of the officers’ guns. As 

noted above, we review the district court’s admission of 

evidence for abuse of discretion. Wilson, 624 F.3d at 649.

At trial, the government was required to prove beyond a 

reasonable doubt that Mudlock “knowingly” possessed firearms. 

See § 924(a)(2). And, as the district court observed, Mudlock’s 

statements and conduct “that reflect his knowledge of the 

firearms that were present in his home and, to a certain degree, 

his control of those firearms,” including his statements to 

Herr, relate to his “knowing possession.” Therefore, we hold 

that this evidence was “admitted as to acts intrinsic to the 

crime charged, and . . . not admitted solely to demonstrate bad 

character.” United States v. Chin, 83 F.3d 83, 88 (4th Cir. 

1996) (citing United States v. Allen, 960 F.2d 1055, 1058 (D.C. 

Cir. 1992)). Moreover, to assure that the jury did not consider 

the evidence for anything but Mudlock’s state of mind, the 
15

district court gave a limiting instruction to the jury. Thus, 

the district court properly admitted this evidence. See id.

Mudlock’s assignment of error to the district court’s 

admission of evidence concerning Mudlock’s grabbing of an 

officer’s gun fares no better. The district court noted, “I 

think here this is some evidence of a knowing possession of 

firearms, . . . continued even after he was placed into custody. 

. . . I think it’s part of the transaction, and I also think 

it’s probative of that knowledge and intent on his part.” To 

ameliorate any unfair prejudice, the district court gave a 

limiting instruction as to this evidence as well. Accordingly, 

we find no abuse of discretion.

VI.

Finally, Mudlock states that the district court erred in 

refusing to appoint substitute counsel prior to his sentencing. 

Our review of a district court’s decision on a motion to 

substitute counsel is for abuse of discretion. United States v. 

Reevey, 364 F.3d 151, 156 (4th Cir. 2004).

It is axiomatic that an indigent defendant has a Sixth 

Amendment right to counsel. Gideon v. Wainwright, 372 U.S. 335, 

343-45 (1963). But the exercise of this right “cannot ‘deprive 

courts of the exercise of their inherent power to control the 

administration of justice.’” United States v. Perez, 661 F.3d 
16

189, 191 (4th Cir. 2011) (quoting United States v. Gallop, 838 

F.2d 105, 108 (4th Cir. 1988)). Thus, an indigent defendant is 

entitled to substitute appointed counsel only for good reason. 

Id.

“Our review of denial-of-substitution claims has focused on 

three inquiries: (1) the timeliness of the motion; (2) the 

adequacy of the court’s subsequent inquiry; and (3) ‘whether the 

attorney/client conflict was so great that it had resulted in 

total lack of communication preventing an adequate defense.’” 

United States v. Smith, 640 F.3d 580, 588 (4th Cir. 2011) 

(quoting Gallop, 838 F.2d at 108). There is no dispute that 

Mudlock’s motion was timely. Therefore, we consider only 

factors two and three.

As to the adequacy-of-the-inquiry prong, according to 

Mudlock, the district court failed adequately to inquire into or 

consider the following alleged shortcomings of his counsel: 

counsel’s failure to obtain documentation regarding the 

Tennessee proceedings, despite Mudlock’s request; counsel’s 

failure to review Mudlock’s objections to the Presentence Report 

with him; counsel’s instruction to Mudlock that he should write 

directly to the probation office regarding his objections; and 

counsel’s failure to accept or return Mudlock’s telephone calls. 

Contrary to Mudlock’s contention, the record shows the district 
17

court made an extensive inquiry into Mudlock’s complaints. 

There was more than sufficient discussion to satisfy this prong.

All said, from our review of the record, it appears that 

Mudlock’s chief complaint about his counsel concerns the 

validity of the restraining order and the gun enhancement. But, 

as discussed above, Mudlock’s arguments regarding the 

restraining order lack merit. And we have never held that an 

attorney who declines to make unmeritorious claims demanded by a 

client risks being replaced. Mudlock’s counsel made arguments 

regarding the gun enhancement, which the district court 

properly rejected. Thus, as the district court observed, “I 

don’t see that there’s any reason to believe that it [would have 

been] any better by substituting counsel.” 

Concerning the communication prong, Mudlock complains that 

there was a complete breakdown of communication between him and 

his counsel and that the district court erred in holding 

otherwise. Mudlock states that he detailed for the district 

court the alleged unacceptable length of time that his counsel 

failed to communicate with him. Moreover, Mudlock avows that, 

even when he was able to communicate with his counsel, his 

counsel failed to take action on his behalf or explain to him 

the reason or reasons that he could not take the requested 

action. Instead, according to Mudlock, his counsel merely 

instructed him to contact court officials himself.
18

The district court aptly summarized the record before us, 

however, by stating that Mudlock and his counsel had “been 

discussing the case,” but “there [was] disagreement over what 

constitutes a meritorious objection and what doesn’t.” In light 

of the fact that these discussions were occurring, we are unable

to say that there was a total breakdown of communication.

Accordingly, the district court did not abuse its 

discretion in refusing to appoint substitute counsel prior to 

sentencing.

VII.

Wherefore, for the reasons stated above, Mudlock’s 

conviction and sentence are 

AFFIRMED.