2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-24-2013

USA v. Ralph Hauck, Jr.

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-3130

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 12-3130

_____________

UNITED STATES OF AMERICA

v.

RALPH E. HAUCK, JR., 

 Appellant 

_____________

On Appeal from the United States District Court 

for the Middle District of Pennsylvania

(D.C. No. 4-11-cr-00130-001)

District Judge: Honorable Yvette Kane

_______________

Submitted Under Third Circuit LAR 34.1(a)

May 17, 2013

Before: SMITH, FISHER, and CHAGARES, Circuit Judges.

(Filed: July 24, 2013)

_______________

OPINION

_______________

CHAGARES, Circuit Judge.

Ralph Hauck pled guilty to one count of being a felon in possession of a firearm in 

violation of 18 U.S.C. § 922(g)(1) and was sentenced to twenty-four months of 

imprisonment. On appeal, he argues that the District Court should have dismissed his 
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indictment on the grounds that § 922(g)(1) is an unconstitutional exercise of 

Congressional power, that he should have benefitted from an offense level reduction 

under section 2K2.1(b)(2) of the advisory United States Sentencing Guidelines, and that 

his sentence was substantively unreasonable. For the reasons discussed below, we will 

affirm.

I.

We write solely for the benefit of the parties and so we will recount only those 

facts necessary to our disposition.

In December 2010, two correctional officers responded to reports of an individual 

hunting in the environs of the Allenwood Federal Correctional Complex and found 

Hauck, along with a rifle in the front seat of his vehicle. In the course of his conversation

with them, Hauck informed the officers that he had spent time in federal prison. The 

officers contacted the Federal Bureau of Investigation (“FBI”) after the encounter to 

notify it of the incident. 

Because Hauck had previously been convicted of a federal felony offense, he was 

not permitted to possess a firearm and the FBI began an investigation. The FBI learned 

from an officer of the Pennsylvania State Game Commission a little over a week later 

that Hauck had been cited and taken into custody for several game violations as well as 

for firing his weapon over a public highway. When FBI agents questioned Hauck, he 

admitted that he possessed three weapons and that he had fired his weapon that day. 

Hauck was subsequently indicted on three counts of being a felon in possession of 

a firearm in violation of 18 U.S.C. § 922(g)(1) and a single count of trespassing at the 
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Allenwood Federal Correctional Complex in violation of 18 U.S.C. § 1793. Hauck filed 

a motion to dismiss the firearms offenses based on the Commerce Clause and the Second 

Amendment. The District Court denied his motion, and Hauck then pled guilty to Count 

Three of the indictment, which was one of the felon-in-possession charges. The plea was 

a conditional plea pursuant to Federal Rule of Criminal Procedure 11(a)(2) preserving the 

constitutional challenge raised in Hauck‟s motion to dismiss his indictment. 

At his sentencing hearing, Hauck challenged the application of section 

2K2.1(b)(2) of the United States Sentencing Guidelines, but the District Court overruled

his objection. The District Court determined that Hauck‟s offense level was thirteen and 

criminal history category was IV, which produced an advisory Guidelines range of 

twenty-four to thirty months. After consideration of the 18 U.S.C. § 3553(a) factors, the 

District Court imposed a twenty-four month sentence. Hauck timely appealed.

II.

The District Court had jurisdiction over this case under 18 U.S.C. § 3231, and this

Court has jurisdiction over the appeal pursuant to 28 U.S.C. § 1291. In reviewing a 

motion to dismiss an indictment, we exercise plenary review over the District Court‟s 

legal conclusions, but review factual findings for clear error. United States v. Huet, 665 

F.3d 588, 594 (3d Cir. 2012). In reviewing legal questions regarding the application of 

the United States Sentencing Guidelines, we similarly review a District Court‟s 

interpretation of the Guidelines de novo, but review its factual findings for clear error. 

United States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007) (en banc). Finally, we review 

the substantive reasonableness of a sentence under an abuse-of-discretion standard, and 
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will not reverse a sentence unless no reasonable court could have imposed such a 

sentence. United States v. Tomko, 562 F.3d 558, 567-68 (3d Cir. 2009) (en banc).

A.

Hauck raised two constitutional challenges to § 922(g)(1), the felon-in-possession 

statute, arguing that the prohibition on gun ownership by those convicted of a federal 

felony violates the Second Amendment and exceeds Congress‟ authority under the 

Commerce Clause. Our precedent, however, clearly explains why this is not the case. 

First, this Court has rejected Hauck‟s argument that the Supreme Court‟s decision 

in District of Columbia v. Heller, 554 U.S. 570 (2008), demonstrates that the felon-inpossession statute is a facially unconstitutional law. United States v. Barton, 633 F.3d 

168, 172 (3d Cir. 2011) (“[B]ecause Heller requires that we „presume,‟ under most 

circumstances, that felon dispossession statutes regulate conduct which is unprotected by 

the Second Amendment, [a] facial challenge must fail.”). Hauck‟s as-applied challenge 

fails as well because Hauck, who has a long list of past convictions including witness 

tampering and harassment as well as a 2008 violation of an order of protection taken out 

by his estranged wife, has not shown that his circumstances place him outside of the 

intended scope of § 922(g)(1) such that the statute is unconstitutional as applied to him. 

See id. at 174. 

Second, in United States v. Gateward, 84 F.3d 670 (3d Cir. 1996), we joined eight 

other courts of appeals in “upholding the constitutionality of § 922(g)(1) as a valid 

exercise of the commerce power.” Id. at 672 (citing cases). Contrary to Hauck‟s 

suggestion, nothing in the Supreme Court‟s decision in Heller casts any doubt on this 
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conclusion. Hauck‟s constitutional challenges are therefore without merit, and we will 

affirm the District Court‟s denial of Hauck‟s motion to dismiss his indictment. 

B.

The District Court overruled Hauck‟s objection and declined to reduce his offense 

level under U.S.S.G. § 2K2.1(b)(2), which provides that a defendant‟s offense level shall 

be reduced to level six if he “possessed all ammunition and firearms solely for lawful 

sporting purposes or collection, and did not unlawfully discharge or otherwise unlawfully 

use such firearms or ammunition.” To qualify for a reduction under this subsection, a 

defendant must show by a preponderance of the evidence that his possession was for 

lawful sporting purposes or collection and that his discharge or use was lawful. United 

States v. Miller, 224 F.3d 247, 251 (3d Cir. 2000). We will focus, as did the District 

Court, on the second requirement.

It is undisputed that Hauck was cited for firing his rifle across a public highway, in 

violation of section 9504 of the Pennsylvania Game and Wildlife Code. While this 

citation may be a de minimis violation for purposes of calculating Hauck‟s criminal 

history category under the Sentencing Guidelines, see U.S.S.G. § 4A1.2(c)(2), it does not 

follow that Hauck‟s actions in firing his rifle across a public highway were “lawful.” 

Pennsylvania has understandably passed legislation to protect motorists from errant 

bullets; that legislation makes Hauck‟s discharge unlawful. Hauck‟s citation to United 

States v. Mendoza-Alvarez, 79 F.3d 96 (8th Cir. 1996), is unconvincing because the court 

in that case simply held that the transportation of a firearm in violation of auto safety 

laws did not constitute an unlawful use under § 2K2.1(b)(2) because the defendant did 
6

not make “use” of the firearm as that term is employed in the enhancement when he 

drove with a loaded rifle in his vehicle. Id. at 98-99. Here, though, it is evident that 

Hauck‟s relevant conduct involved the use of a firearm. Accordingly, we find no error in 

the District Court‟s conclusion that Hauck was not qualified to receive a sentence 

reduction under § 2K2.1(b)(2).

C.

The final issue presented in this appeal is whether the District Court‟s sentence 

was substantively reasonable. “Ultimately, the touchstone of reasonableness is whether 

the record as a whole reflects rational and meaningful consideration of the factors 

enumerated in 18 U.S.C. § 3553(a),” and we will affirm a sentence unless no reasonable

sentencing court would have imposed the same sentence for the reasons the District Court 

relied on. Tomko, 562 F.3d at 568 (quotation marks omitted). At Hauck‟s sentencing, 

the District Court considered the § 3553 factors, including his history of prior offenses, 

the need for deterrence, and the need to protect the public, and determined that a twentyfour month sentence was appropriate. We cannot say that this within-Guidelines 

sentence was an abuse of the District Court‟s discretion.

III.

For the foregoing reasons, we will affirm the District Court‟s judgment of 

conviction and sentence.