                                                                             FILED
                            NOT FOR PUBLICATION                               DEC 16 2010

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                         No. 09-50362

              Plaintiff - Appellee,               D.C. No. 3:08-cr-03206-DMS

  v.
                                                  MEMORANDUM *
ERVIN ALLEN DUCKETT,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                     Dana M. Sabraw, District Judge, Presiding

                           Submitted December 10, 2010**
                               Pasadena, California

Before: TROTT, WARDLAW, and IKUTA, Circuit Judges.

       Ervin Ducµett entered a conditional guilty plea to the charge of being a felon

in possession of a firearm in violation of 18 U.S.C. y 922(g)(1). He reserved the

right to challenge on appeal the constitutional validity of y 922(g)(1) in light of the


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Supreme Court's decision in District of Columbia v. Heller, ÁÁ U.S. ÁÁ, 128 S. Ct.

2783 (2008). We review the constitutionality of a federal statute de novo. United

States v. Schales, 546 F.3d 965, 971 (9th Cir. 2008).

      Ducµett puts forth three arguments in support of the unconstitutionality of y

922(g)(1): (1) as applied to him, the statute violates the Second Amendment in

light of Heller, (2) felons in different states are treated in a disparate manner in

violation of the Equal Protection Clause, and (3) the statute violates the Tenth

Amendment because regulation of firearms is not an enumerated power of the

federal government.

      Ducµett's first argument, as he concedes, is squarely foreclosed by this

court's decision in United States v. Vongxay, 594 F.3d 1111, 1114 (9th Cir. 2010).

      Ducµett's second argument is without merit. Vongxay considered a post-

Heller equal protection challenge to y 922(g)(1) brought by a felon. Though the

argument in that case was slightly different, the reasoning is dispositive here. The

defendant in Vongxay argued that y 922(g)(1) violates equal protection because

states define 'felon' differently. 594 F.3d at 1118. Ducµett asserts that the statute

violates equal protection because the states differ in the manner in which a felon's

rights may be restored. We do not discern a material difference between these




                                            2
arguments. Rational basis review, therefore, remains appropriate because, as the

Vongxay court observed, 'the right established by Heller does not apply to felons

. . . . ' 594 F.3d at 1119.

       Ducµett's third argument is also without merit. Section 922(g)(1)

permissibly regulates felons' possession of firearms by virtue of the commerce

clause without violating the Tenth Amendment. United States v. Collins, 61 F.3d

1379, 1383-84 (9th Cir. 1995).

       AFFIRMED.




                                         3
                                                                              FILED
United States v. Ducµett, No. 09-50362                                         DEC 16 2010

                                                                         MOLLY C. DWYER, CLERK
IKUTA, Circuit Judge, concurring:                                           U.S . CO U RT OF AP PE A LS




      Although I join the majority in full, were I not bound by United States v.

Vongxay, 594 F.3d 1111 (9th Cir. 2010), I would examine whether,

notwithstanding the Supreme Courtùs dicta in District of Columbia v. Heller, ---

U.S. ----, 128 S. Ct. 2783, 2816--17 (2008), the government has a substantial

interest in limiting a non-violent felon's constitutional right to bear arms. See

United States v. Williams, 616 F.3d 685, 693 (7th Cir. 2010) ('[W]e recognize that

y 922(g)(1) may be subject to an overbreadth challenge at some point because of

its disqualification of all felons, including those who are non-violent.'); United

States v. Sµoien, 614 F.3d 638, 645 (7th Cir. 2010) (en banc) (Syµes, J.,

dissenting); United States v. McCane, 573 F.3d 1037, 1047 (10th Cir. 2009)

(Tymµovich, J., concurring). Indeed, other than felon disenfranchisement laws,

which are grounded in y 2 of the Fourteenth Amendment, see Richardson v.

Ramirez, 418 U.S. 24, 54 (1974), I can thinµ of no other constitutional disability

that applies only to a 'certain category of persons . . . [who] may be excluded from

ever exercising the right.' Sµoien, 614 F.3d at 650 (Syµes, J., dissenting).
