UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4936

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

CARL EVAN TOOLEY, II,

Defendant - Appellant.

Appeal from the United States District Court for the Southern 

District of West Virginia, at Huntington. Robert C. Chambers, 

District Judge. (3:09-cr-00194-1)

Submitted: January 17, 2012 Decided: March 6, 2012

Before NIEMEYER, GREGORY, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne, 

Appellate Counsel, Lex A. Coleman, Assistant Federal Public 

Defender, Charleston, West Virginia, for Appellant. R. Booth 

Goodwin, II, United States Attorney, Lisa G. Johnston, Assistant 

United States Attorney, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Carl Evan Tooley pleaded guilty to possessing a 

firearm, in and affecting commerce, after having been convicted 

of a misdemeanor crime of domestic violence, in violation of 18 

U.S.C. §§ 922(g)(9), 924(a)(2) (2006). He had previously been 

convicted of two misdemeanor crimes of domestic violence, as 

defined by 18 U.S.C.A. § 921(a)(33) (West 2006 & Supp. 2011). 

Tooley reserved the right to appeal the denial of his motion to 

dismiss the indictment based on the argument that his conviction 

is invalid in light of his as-applied and facial constitutional 

challenge under the Second Amendment of the Constitution. We 

affirm.

The sole issue on appeal is whether the prohibition 

under 18 U.S.C. § 922(g)(9) impermissibly burdens Tooley’s 

Second Amendment right to keep and bear arms. This court 

reviews de novo the district court’s denial of Tooley’s asapplied Second Amendment challenge to § 922(g)(9). United 

States v. Malloy, 568 F.3d 166, 171 (4th Cir. 2009). Section 

922(g)(9) prohibits a person who has been convicted of a 

misdemeanor crime of domestic violence from possessing, 

shipping, or receiving a firearm in or affecting interstate 

commerce. 18 U.S.C. § 922(g)(9). Tooley did not contest that 

he had been convicted of a misdemeanor crime of domestic 

violence. 
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This appeal was placed in abeyance pending the 

decision in United States v. Staten, No. 10-5318, 2011 WL 

6016976 (4th Cir. Dec. 5, 2011). In Staten, the court addressed 

an as-applied challenge to § 922(g)(9). Analysis of such a 

challenge requires a two-part approach. See Staten, 2011 WL 

6016976, at *3; United States v. Chapman, No. 10-5071, 2012 WL 

11235, at *3 (4th Cir. Jan. 4, 2012) (reviewing the 

constitutionality of 18 U.S.C. § 922(g)(8) (2006)); United 

States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010) (Chester 

II). The first question is “whether the challenged law imposes 

a burden on conduct falling within the scope of the Second 

Amendment’s guarantee” as historically understood. Staten, 2011 

WL 6016976, at *3, citing Chester II, 628 F.3d at 680. 

If the challenged law is deemed to impose a burden, 

the court continues to the second part of the analysis. The 

second part applies intermediate scrutiny to determine whether 

the government has shown “a reasonable fit between the 

challenged regulation and a substantial government objective.” 

Chester II, 628 F.3d at 683 (internal quotation marks omitted).

Staten did not resolve whether § 922(g)(9) imposes a 

burden on conduct falling within the scope of the Second 

Amendment’s guarantee as historically understood, but, instead, 

assumed arguendo that it did. Staten, 2011 WL 6016976, at *5. 

Proceeding to the second part of the analysis, the court held 
4

that the government carried its burden of defending the statute 

as applied to Staten under intermediate scrutiny. Id. at *11.

We conclude that Staten controls the outcome in 

Tooley’s appeal. As in Staten, Tooley argues that his right to 

self-defense is conduct that falls within the scope of the 

Second Amendment. Tooley thus argues that strict scrutiny is 

the appropriate form of means-end scrutiny to test the 

constitutionality of § 922(g)(9). Staten also strenuously 

argued that strict scrutiny should apply, but we held that the 

appropriate inquiry under Chester II is intermediate scrutiny. 

Staten, 2011 WL 6016976 at *4. 

In Staten, we concluded that the government “carried 

its burden of establishing a reasonable fit between the 

substantial government objective of reducing domestic gun 

violence and keeping firearms out of the hands of” persons who 

have been convicted of domestic violence or threatened the use 

of a deadly weapon against a person with whom the defendant had 

a domestic relationship. Id. at *11. Accordingly, we held that 

§ 922(g)(9) satisfies the intermediate scrutiny standard and the 

as-applied challenge under the Second Amendment failed. Id. In 

Tooley’s case, the government offered empirical support 

establishing a reasonable fit and in denying Tooley’s motion to 

dismiss, the district court relied on this evidence. Thus, 

Tooley’s challenge on this same basis also fails.
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Tooley also made a facial challenge to § 922(g)(9) in 

his motion to dismiss the indictment and continues the argument 

on appeal. However, to prevail on a facial challenge, Tooley 

“must establish that no set of circumstances exists under which 

the Act would be valid. By finding the statute valid as applied 

to th[is] plaintiff[], the facial challenge fails as well.” 

Urofsky v. Gilmore, 216 F.3d 401, 427 n.1 (4th Cir. 2000) 

(internal quotation marks and citation omitted); see also United 

States v. Timms, Nos. 11-6886, 11-6941, 2012 WL 34477, at n.12 

(4th Cir. Jan. 9, 2012). 

Accordingly, we affirm the judgment. We dispense with 

oral argument because the facts and legal contentions are 

adequately presented in the materials before the court and 

argument would not aid the decisional process. 

AFFIRMED