1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2003 FED App . 0291P (6th C ir.) File Name: 03a02 91p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
U NITED S TAT ES OF A MERICA ,

Plaintiff-Appellee,

v.

A LEXANDER C ALOR , Defenda nt-Appel

lant. X - - - -
> , - - N No. 02-5099

Appeal from the United States District Court for the Eastern District of Kentucky at Lexington. No. 01-00063—Karl S. Forester, Chief District Judge.

Argued: July 31, 2003 Decided and Filed: August 15, 2003

Befor e: KENNEDY, GI

LMAN , and GI

BBONS, Circuit Judges.

_________________ COUNSEL

ARGUED: Fred E. Peters, Le xington, K entu cky, for Appellan t. Kenneth R. Taylor, A SSISTA NT UNITED STATES ATTORNEY, Lexington, Kentucky , for Appellee. ON BRIE F: Fred E. Peters, Le xington, Ke nt uc ky, Elizabeth S. Hughes , GESS, MATTINGL Y & ATCHISON, L exington, Ke nt uc ky, for Appe llant. Ke nneth R. Taylor, ASSI STANT 2 United States v. Calor No. 02-5099

UNITE D STATES ATTORNEY, Lexington, Kentucky , for Appellee.

_________________

OPINION

_________________ KENNEDY, Circuit Judge. Alexander Calor a ppeal s the districtcourt’s denial of his motion to dismiss his prosecution under 18 U.S.C. § 922(g)(8) fo r possess ion of fiv e firea rms while subject to

a court order, a

nd its deni al of his mo tion to suppress evidence connected to hi s prosecution under 26 U.S. C. § 5861(d) for possession of an unregistere d Bushmaster

.223 cali ber rifl e with aneleven and one-half inch barrel

. We AFFIRM

the district court’s disposition of both motions.

I.

OnFriday, F ebruary

9, 2001, Mary

Beth Calor, Alexander Calor’s wife, sought and obtained an ex p art e Emergency Protective Order (EPO). The EPO was served on Mr. Calor at the Calors’ residence on the evening of F ebruary 9 by two H arrison County deputy

sheriffs. The EPO restrained Mr. Calor from con

tacting Mr s . Calor, ordered

Mr. Calor

to vacate the marital residence, ordered Mr. Calor “ no t to possess an y fi re ar ms , t ur n a ll fi re ar ms in to [H ar ri so n C ou nt y] Sheriff’s Off

ic e,” and summoned M

r. Calor t o appea r at a hearing on Monday, Fe

bruary 1 2, 2001 at

11:00 a.m. to respond to domestic violence allegations. The EPO was effective through February 12, 2001. Calor allowed the deputy sheriffs who served the EPO to retrieve a quantity of guns, including a Bushmaster .223 caliber riflewith an eleven and one- half inch barre l.

OnFebruary

12, 2001, Mr. Calor retained temporary counsel to reque st

an adjournment of the scheduled hearin g. The court granted therequest and adjourned the hearing untilNo. 02-5099 United States v. Calor 3

1 In addit ion to the terms of the fi rst EPO, the second EPO restrai ned Mr. Calo r from com ing into the city o f Cynthia na exc ept to see his attor ney and f

or cour t appe aranc es, requi red hi m to stay awa y from h is wife’s place of em ploym ent and his dau ghter’s daycare, and provided t hat

a l i s t of Mr . Calor’ s clothing and p ersonal be longings be give n to M rs. Calo r’s att orney and t

hat Mr. Calor

could retrieve t

hese items f

rom the Harrison Count

y Sheri ff’ s Offi ce. February 21, 2001. The court did not tak e any tes timony fromsw orn wi tnesses and no other evidence was presente d, butit did address some collateral matters raised b y Mrs

. Calor’s coun s el and issued a second EPO that was effective through February

21, 2001. 1

OnFebruary

14, 2001, Mr. C alor violated the EPO by returningto the marital residence. Mrs. Calor repor ted Mr. Calor’s vi ol at io n t o t he Ha rr is on Co un ty S h eriff’s Office. The deputy sheriff

s who responded to Mrs. Calor’s complaint observed Mr. Calor

leaving the resid ence an d arres ted him. A search of

his vehic le reve aled fou

r handg uns. Mr. Calor’s counsel later reported the presence of a fi fth handgun in the impounded vehicle. On July 12, 2001, a federal grand jury indicted Defendant
on one count of possessing a firearm in violation of title 18 of the United States Code, § 922(g)(8) (Count I ), and one count of possessing a firearm in violation o f titl e 26 of the United States Code, § 5861(d) (Count II ). Calor was c onvicted on bo th co un ts by a ju ry.
II.
Calor’s appeal presents

two distinc

t issues. T

he first issue is whether

the February

12 court pr

oceedin g before the sta

te trial judge provided

the pred icate he aring necessa

ry to render the February

12 EPO a court order within the meaning of § 922(g)(8). Thesecond is sue is whe ther the deputy sheriffs l awfully seized the Bushmaster .223 caliber rifle for the purposes of a criminal prosecution. Because the r elevant 4 United States v. Calor No. 02-5099

facts were no t disputed , the dist rict court did not hold an evide ntiary

hearing prior to ruling on Calor’s motions. Th e districtcourt’s

denial of the motion t

o dismis s and intertwined statuto ry construction present questions of law that are reviewed de novo

. United Sta tes v. Ste wart , 306 F.3d 2 95, 331 ( 6th Cir. 2002). Likewise, the district court’s denial of the motion to suppress

evidence is reviewed de novo

. United States v Pelayo -Landero , 285 F.3d 491, 494 (6th Cir. 2002).

A.
Calor argues that

the district court erred when it denied his motion to dismiss be cause the court order upon which hi s prosecution

under § 922(g)(8) is based was not issued after

a hearing that is within the scope of § 922(g)(8). That statutory section makes it unlawful for any person: (8) who is

subject to

a court order tha

t– (A) was issued after a hearing of whic h such person received actual notice, and at which such person had an opportunity to participate; (B) restrains such

p erson from harassing, stalking, or threatening

an intimat

e partner of such person or child of suchint imat e partner or person, or eng aging in other conduct that would place an intimate partne rin
reasona ble fear of bodily

injury to t he partner or child; and (C)(i) i ncludes a

finding that such

person r eprese nts a credibl e threat to

the phy sical s a fety

of such in

timate partner or child; or (ii) by its terms explicitly prohibits the use, attemp ted use, or threatened us e of physical forc e against such intimat e par tner or child that would reasonably be
ex pe ct ed to ca us e b od il y in ju ry;

. . . to ship or transport in interstate or foreign commerc e, or pos s ess in or affecting commerce, a ny firea rm or ammunition; or to receive any firearm or ammunitionNo. 02-5099 United States v. Calor 5

whichhas been shipped in interstate o r for eign
commerce.
Th is Circuit has upheld the constitutionality of § 922(g )(8)

. United States v. Napier , 233 F. 3d 3 94 (6th Cir. 2000) (holding that § 922( g)(8)does not vi olate D ue Process and Commerce clauses, or Second Amendment), United States v. Baker , 197 F.3d 211 (6th

Cir. 1999) (holding that § 922(g)(8) does not violate Due Process or Commerce clauses). The constr uction of what is necessary to meet the hearing require ment, however, present s a questi on of fir st impression.

“In all cases of statutory

construction, the starting point is the langua

ge empl oye d by

Congre ss. Where

th e s tatute’s langua ge is plain, the sole fu nction of the cour ts is enfor ce it according to its terms.” Vergos v. Gregg’s Enters., Inc. , 159. F.3d 989, 990 (6th Cir. 1998) (internal quotation marks and citations omitted). “The court must look beyond the la nguage of the statute, however, when the text is ambiguous or when, altho ugh the statute is facially c lear, a literal interpretation would lead to in ternal in consiste ncies, an absurd

result, or an interpretation inconsistent with the intent of Congress.” Id.
The parties contend t

hat the te rm “hea ring” i s ambiguo

us. While we agree that the term has not been g ivena consistent meaning infederal law and its constru

ction has b een c onte xt depende nt, the term is not ambiguous in th is con tex t. Inorder for a co urt proc eeding

to be the predica

te hearing for a court order that t rigger s the § 922(g)(8) firearm disability, the statute straig htforwa rdly requires that the subject

of the court order be given actual notice of the pro ceed ing and an opportu nity to participate. In this case, the actual notice requirement

is satisfied by the summons written into the EPO that was served on Calor on the evening of February

9. The opportuni ty to partic ipate re quireme nt is satisf

ied beca use Calor could have presented reasons why the court sho

uld not enter an orde r find ing that he posed a credible threat to the safety of his wife or child at the February 12 court procee ding. That C a lor elected to wai ve his oppo

rtunity to 6 United States v. Calor No. 02-5099

2 Calor’s reli ance on Un ited S tates v. S pru ill , 292 F.3d 207 (5 th Cir. 2002), i s mis place d. The dom estic vi olence order at issue i n Spr uill did not fal l wit

hin t he scope o f § 922(g )(8) becaus e it was e nter ed by agreement of

the part ies, but wi thout the part ies appear ing bef ore a judge at a no ticed h earing

. Id. at 219- 20. particip ate does not does not alter his status under § 922(g )(8). The second EPO, which was issued at the conclusionof the February 12 court appearance, provided the predica te court orde r for

Calor’s prosecution for possessing the five firearms in violation of §922(g)(8).

Our reading of § 9 22(g)(8) is consistent with that of the Seventh Circuit. United

States v. Wilson , 159 F.3d 2 80 (7th Cir. 1998), considered

a due process challenge to def endant’s convictionunder §922 (g)(8 ). The court concluded that the state court proceeding afforde d to Wilson priorto entry of the plenary protect io n o rder against him provided “‘an oppo rtunity

to be heard at a meaningful time and in a meaningful manner.’” Id. at 289-90 (quoting M athews v. Eldridge , 424 U.S. 319, 333 (1976). Defen dant had an opportuni ty to be hea rd in a meaningful manner because , even thou gh no proof was presented, h e had “‘the op portunity to present reasons , either

inperson or in writing, why

proposed actionshould not be tak en.’” Id. at 290 (quot ing Cleveland Bd. of Educ. v. Loudermil

l , 470 U.S. 52, 546 (1985)). Given that the minimum

require ments of the statute

comport w

ith the requirements of due process, we fol l ow the Sev enth Circui tin declin

ing to em bellish the

hearing require ments exp licitly set forth in § 922(g)(8). Consequently , we aff ir m the district court denial of Calor’ s motion to di smiss his prosecution

under 18 U.S.C. § 922(g)(8) for possession of five firearms while subject to a court order. 2

B.
Calor next argues that the district court erred when it denied his m otion to suppress the evidence of his possession of an unregistered

firearm because the Febr uary 9 EPO c an notNo. 02-5099 United States v. Calor 7

constitute a vali d sear ch warr ant under

the Four

th Amendment

and the pre-hearing seizure of the f irearms violates c onstitutional due pr ocess re quireme

nts.
Withrespec t t o Calor ’s Fourth Amendment challenge to the validity of the EPO as a search warrant, the district c ourt found that an EPO necessarily

includes the authority for the sheriff’s department to enter a residence to enfor ce the seizure-of-weapons provision . As such, th e dis trict court found that “the deputy sher

iffs were acting

pursuant to a valid search warrant, issued

by t he terms of a constitutional statute, when the Bushmaster weapon wa s seiz ed.” Thi s claim, however, fails on narrower grounds beca use Calor does not argue that the deputy sheriff s’ entry into his residenc e an d retrieval of

his guns for

transpor tation to th e Harri son County Sheriff’s Office was done without his perm i ssion. United States v. Elkins , 300 F.3d 63 8, 6 47 (6th Cir. 2002) (“‘A search may be condu cted without a war

rant if a person with
a privacy interest inthe [place] to be searched gives free and voluntary conse nt.’” (quot ing United Sta tes v . R iascosSuarez , 73 F. 3d 616, 625 ( 6th Cir. 199 6)). I n fact, a t trial, Calor testified that he com

pli ed with the

order, a

lbeit
re lu ct an tl y, and that he he lped the d eputies p ack up his firear ms. Had Calor denied the deputy sheriffs permission

to enter and the deputies relied on t he EPO to search for and seize Calor’s guns, we then wou ld h ave a basis for consideringw h ether an EPO, which requires the removal of
analleged domestic abuser and his firea rms fro m the ho me, is a valid s earch warrant

under the Fourth A mendment

. Withrespect

to Calor’ s due proc ess challenge to the seizure of his firea rms, the district court found that Calor’s argument failed because, under the ba lanc ing test articula ted in Mathews v. Eldridge , 408 U.S. 471, 481 (1972), Kentucky’s interest i n prote cting the victims of domestic violence from further violence , and poss i bly

death, outweighed Calor’s interest in m a intaining possession of his firearms during the brief period be

tween se izure and

a heari ng, and that the r isk of an erroneous deprivation of propert y r ights was small. The 8 United States v. Calor No. 02-5099

districtcourt’s balancing of the relative interests a ppropria tely assigns great

er weig ht to th e gov ernment ’s intere st in protectingan alleged domestic violence vict im from gun violence and

possible death after an

alleged abuser has been served an EPO tha

n to a gun owner’s brief loss of possession. Co ns eq ue nt ly, we affirm the district court’s denialof Calor’s motion to suppress the evidence of his possession of an illegal rifle.

III.

For the foregoing rea so ns, we affirm the district court’s denial of Calor’s motion to dismiss his prosecution under 18 U.S.C. § 922(g)(8) for possession of five fi rearms w

hile subject to a cour t o rder. We also affirm the district court’s denial of Calor’ s motion to su ppress evide nce con

nected t o his prosecutionunder 26 U.S.C. § 5861(d) for possession of an unreg istered B ushmaste

r .223 ca liber rif le with an eleven and one-half inch barrel. Calor’s conviction is aff irmed.