                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        April 4, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,                     No. 04-5161
          v.                                            N.D. Oklahoma
 DEM ETRIUS LAW ON AR LEDG E,                     (D.C. No. 04-CR -39-01-P)

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before KELLY, O’BRIEN, and TYM KOVICH, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Demetrius Lawon Arledge was convicted by a jury of possession of a

firearm and ammunition while subject to a protective order in violation of 18

U.S.C. §§ 922(g)(8) and 924(a)(2). He was sentenced to 24 months


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
imprisonment. His counsel filed a brief pursuant to Anders v. California and a

motion for leave to withdraw as counsel. 1 386 U.S. 738 (1967). Arledge and the

government responded to the Anders brief. The government mentioned a

potential sentencing issue based upon United States v. Booker, 543 U.S. 220

(2005). W e directed Arledge’s counsel to file a reply brief addressing Booker,

which was done. After fully examining the proceedings and considering all of the

briefs, we agree with Arledge’s counsel that no non-frivolous grounds for appeal

appear on this record. Therefore, we GRANT the motion to withdraw and

DISM ISS the appeal.

                                   I. Background

      At one time, Arledge lived in the same residence with LaShawna Donley,

the mother of his child. On September 29, 2000, Donley filed a petition for a

protective order against Arledge, alleging he was endangering her. On that same

day, an emergency protective order was issued, restraining Arledge from abusing,

injuring or contacting Donley. It was served on Arledge the next day. The



      1
         Anders holds “if counsel finds [his client’s] case to be wholly frivolous,
after a conscientious examination of it, he should so advise the court and request
permission to w ithdraw .” 386 U.S. at 744. Counsel must submit to both the court
and his client a “brief referring to anything in the record that might arguably
support the appeal.” Id. The client may then “raise any points he chooses.” Id.
Thereafter, the court must completely examine all the proceedings to determine
the frivolity of the appeal. “If it so finds it may grant counsel’s request to
withdraw and dismiss the appeal . . . . [I]f it finds any of the legal points arguable
on their merits (and therefore not frivolous) it must, prior to decision, afford the
indigent the assistance of counsel to argue the appeal.” Id.

                                         -2-
emergency protective order notified Arledge that a hearing would be held on

October 12, 2000, to allow him the opportunity to show cause why the order

ought not be made permanent. It warned Arledge that if he failed to appear at the

hearing, the emergency protective order would become permanent without further

notice. It further informed Arledge: “Please note, it may be a violation of federal

law to carry a firearm pursuant to 18 USC 8922(g)(8) [sic].” (A ppellee’s

Addendum of Exhibits at Ex. 12.)

      Arledge did not attend the October 12 hearing. Therefore, the emergency

protective order w as made permanent, i.e., extended for three years (unless

subsequently modified). 2 The permanent protective order cautioned:

“PO SSESSIO N O F A FIR EA RM OR AM M UNITION BY A DEFENDANT

W HILE THIS ORD ER IS IN EFFECT M AY SUBJECT THE D EFENDA NT TO

PROSECUTION FOR A VIOLATION OF FEDERAL LAW EVEN IF THIS

O RD ER DO ES N O T SPEC IFIC ALLY PROHIBIT THE DEFENDANT FROM

PO SSESSING A FIREARM OR AM M UNITION.” (Id. at Ex. 13.) On June 16,

2003, while the permanent protective order was still in effect, Arledge was

arrested. Officers found a loaded handgun in his possession.

      On M arch 4, 2004, Arledge was indicted for knowingly possessing a

firearm and ammunition “while subject to a protective order restraining him from



      2
      Although Arledge was incarcerated when he was served with the
emergency protective order, he was not incarcerated at the time of the hearing.

                                        -3-
harassing, stalking, or threatening an intimate partner, issued after a hearing of

which he had actual notice and an opportunity to participate” in violation of 18

U.S.C. §§ 922(g)(8) and 924(a)(2). (R. Vol. I, Doc. 1.) Arledge proceeded to

trial; the jury found him guilty. He was sentenced to 24 months imprisonment.

                                   II. Discussion

      In his pro se brief, Arledge raises several arguments concerning his trial

and sentencing. He also claims ineffective assistance of counsel. W e address

each in turn.

      A. Due Process

      In her petition for a protective order, Donley alleged Arledge broke her jaw

and cut her neck and hand with a knife. Based on these allegations, Arledge was

charged with domestic assault and maiming in Oklahoma state court. He was

acquitted of those charges. At Arledge’s federal trial, the government filed a

motion in limine seeking to exclude evidence concerning the state court acquittal

as irrelevant. The record does not reflect the district court’s ruling.

Nevertheless, when Arledge mentioned his state court acquittal several times

while testifying, the court sustained the government’s objections.

      Arledge argues the district court violated his due process rights by

preventing him from presenting a defense, i.e., informing the jury he was

acquitted of the allegations underlying the permanent protective order. W e

disagree. Regardless of the ultimate outcome of the criminal charges brought

                                          -4-
based on the allegations underlying the protective order, the order was in effect at

the time Arledge possessed the firearm and ammunition. Arledge cites no

authority for the proposition that an acquittal on state criminal charges brought

based on the conduct underlying a protective order constitutes an affirmative

defense to a § 922(g)(8) charge. Indeed, defendants prosecuted under § 922(g)(8)

are generally not permitted to collaterally attack the validity of the underlying

protective order. See United States v. Young, 458 F.3d 998, 1004-05 (9th Cir.

2006) (so long as the protective order resulted from a hearing of which the

defendant had actual notice and an opportunity to participate, the defendant may

not collaterally attack the order in a § 922(g)(8) prosecution); United States v.

Hicks, 389 F.3d 514, 534 (5th Cir. 2004) (“[A] defendant may not collaterally

attack a predicate order in a [§] 922(g)(8) prosecution, at least so long as the

order is not so transparently invalid as to have only a frivolous pretense to

validity.”) (quotations omitted); see also Lewis v. United States, 445 U.S. 55, 60-

65 (1980) (finding defendant, who was charged under 18 U.S.C. § 1202,

§ 922(g)’s predecessor, could not collaterally attack the prior felony conviction in

his federal prosecution; nothing on the face of § 1202 (as compared to other

federal statutes) suggested a congressional intent to limit its coverage to persons

whose prior felony convictions are not subject to collateral attack). Therefore,

Arledge’s state court acquittal was not relevant to the issue at hand – whether

Arledge possessed a firearm and ammunition while subject to a protective order.

                                          -5-
The district court properly prohibited Arledge from informing the jury of his

acquittal. See Fed. R. Evid. 401.

      B. Insufficient Evidence

      Arledge contends the government presented insufficient evidence to support

his conviction. “W e review de novo whether the prosecution presented sufficient

evidence to support a conviction.” United States v. Avery, 295 F.3d 1158, 1177

(10th Cir. 2002). In advancing such a challenge, Arledge is “faced with a high

hurdle.” United States v. Voss, 82 F.3d 1521, 1524 (10th Cir. 1996).

      In evaluating a sufficiency of the evidence challenge, [w e] ask only
      whether taking the evidence - both direct and circumstantial, together
      with the reasonable inferences to be drawn therefrom - in the light
      most favorable to the government, a reasonable jury could find the
      defendant guilty beyond a reasonable doubt.

United States v. Zabriskie, 415 F.3d 1139, 1144 (10th Cir. 2005) (quotations

omitted).

      To prove a violation of § 922(g)(8), the government must show: “1) the

defendant was subject to a restraining order issued after a hearing, 2) the

defendant thereafter knowingly possessed a firearm, and 3) the possession was in

or affecting interstate commerce.” 3 United States v. Reddick, 203 F.3d 767, 771

      3
          The statute provides:

      (g) It shall be unlawful for any person– . . . .

              (8) w ho is subject to a court order that--

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

                                           -6-
(10th Cir. 2000). The jury was so instructed. Arledge does not challenge the

second or third elements and rightly so. At trial, Arledge admitted he was

carrying a loaded firearm when he was arrested and Special Agent Jeffrey

Cochran of the Bureau of Alcohol, Tobacco, Firearms and Explosives testified

this firearm, and the ammunition inside, were manufactured outside Oklahoma.

Therefore, we turn to Arledge’s main argument – the government presented

insufficient evidence showing he was aware he was subject to a protective order

because he was never served with the emergency protective order notifying him




                   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 comm erce, 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 comm erce.

                                         -7-
of the hearing at which the emergency order became permanent. 4 He is wrong.

      At trial, Deputy Sheriff Chris Harkey testified he served Arledge with the

petition for protective order and the emergency protective order while Arledge

was incarcerated at the county jail. Harkey also stated his normal practice when

serving a protective order on an individual is to explain its contents to the

individual, including the opportunity to appear at the indicated hearing. The

government also introduced the emergency protective order, as well as the

“Sheriff’s Return” showing it was served on Arledge. W hile Harkey admitted on

cross-examination that he did not specifically remember serving Arledge with the

emergency protective order and Arledge testified he did not recall being served,

Harkey testified he remembered Arledge’s face. The jury apparently believed

Harkey. See United States v. Nieto, 60 F.3d 1464, 1469 (10th Cir. 1995) (it is the

prerogative of the jury as factfinder to resolve conflicting testimony, weigh the

evidence, and draw reasonable inferences from the facts presented). Based on

Harkey’s testimony, the jury could have reasonably concluded Arledge was

properly served and therefore adequately made aware of the protective order


      4
         In his pro se brief, Arledge correctly clarifies he “is not claiming that he
did not know of the existence of [§] 922(g)(8), which is not a defense to the law.”
(Appellant’s Response to Anders Br. at 5.) “A fundamental principle of our
justice system recognizes that ignorance of the law is no excuse.” Reddick, 203
F.3d at 771. Indeed, as John Selden aptly observed nearly three hundred years
ago: “‘Ignorance of the law excuses no man; not that all men know the law, but
because it is an excuse every man will plead, and no man can tell how to confute
him.’” United States v. Barker, 514 F.2d 208, 232 (D .C. Cir. 1975) (Bazelon, J.,
concurring) (quoting J. S ELDEN , T ABLE T ALK -L AW 61 (3d ed. 1716)).

                                         -8-
including the warning about possession of firearms and ammunition.

      The evidence was sufficient to support Arledge’s conviction. 5

      C. Second Amendment

      Arledge argues his conviction under § 922(g)(8) violates the Second

Amendment. As both Arledge’s counsel and the government correctly note,

§ 922(g)(8) does not violate the Second Amendment. United States v. Bayles, 310

F.3d 1302, 1306-07 (10th Cir. 2002); see also United States v. Baer, 235 F.3d

561, 564 (10th Cir. 2000) (concluding defendant’s § 922(g)(1) conviction (felon-

in-possession of a firearm) did not violate the Second Amendment).

      D. Use of Prior Uncounseled M isdemeanor Convictions

      Arledge contests the use of his prior uncounseled misdemeanor convictions

to calculate his criminal history category. The pre-sentence report (PSR ) listed

nine offenses. Arledge objected to the use of two of the offenses. The court

noted one of the objectionable offenses did not affect Arledge’s criminal history

category and deleted the other. Arledge concedes he did not object to the use of


      5
         Arledge also contends his prosecution and conviction violated his due
process rights because he w as not aware he was subject to a protective order. H e
cites the general principle that due process requires notice of a court order to
parties who will be directly affected by it. See, e.g., M ullane v. Cent. Hanover
Bank & Trust Co., 339 U.S. 306, 314 (1950) (“An elementary and fundamental
requirement of due process in any proceeding which is to be accorded finality is
notice reasonably calculated, under all the circumstances, to apprise interested
parties of the pendency of the action and afford them an opportunity to present
their objections.”). In light of our conclusion that the government provided
sufficient evidence from which the jury could reasonably find Arledge was in fact
served with the emergency protective order, his argument fails.

                                        -9-
the remaining offenses included in the PSR to calculate his criminal history

category. Therefore, our review is for plain error. United States v. Easter, 981

F.2d 1549, 1557 (10th Cir. 1992). “Plain error occurs when there is (1) error, (2)

that is plain, which (3) affects substantial rights, and which (4) seriously affects

the fairness, integrity, or public reputation of judicial proceedings.” United

States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005) (en banc), cert.

denied, 126 S.Ct. 495 (2006). W e find no error.

      Arledge does not identify the misdemeanor convictions he claims were

inappropriately used to compute his criminal history. Of the three non-objected

to misdemeanor convictions which contributed to Arledge’s criminal history

category, the PSR indicates one was counseled. The PSR is silent as to whether

A rledge was represented by counsel or waived his right to counsel in the two

remaining convictions. Nevertheless, “[o]nce the prosecution establishes the

existence of a conviction, the defendant must prove by a preponderance of the

evidence that the conviction was constitutionally infirm.” United States v.

Windle, 74 F.3d 997, 1001 (10th Cir. 1996); see United States v. Johnson, 973

F.2d 857, 862 (10th Cir. 1992). Arledge did not attempt to satisfy this burden; his

argument fails.

      E. Booker

      Arledge objected to an enhancement in the PSR under Blakely v.

Washington, 542 U.S. 296 (2004). The probation officer removed the


                                         -10-
enhancement prior to sentencing, rendering his objection moot. On appeal,

neither A rledge nor his counsel challenged his sentence under United States v.

Booker, 543 U.S. 220 (2005). However, the government raised the issue,

acknowledging the district court committed non-constitutional Booker error at

sentencing by applying the sentencing guidelines in a mandatory fashion. It

claims the error was harmless because Arledge was sentenced in the middle of the

sentencing range and “there is no reason to think the court would impose a

different sentence on remand.” (A ppellee’s Br. at 19.) W e required Arledge’s

counsel to reply to the Booker issue. In the reply brief, counsel agrees with the

government’s assessment.

      Because A rledge objected in the district court under Blakely, we review for

harmless error under Rule 52(a) of the Federal Rules of Criminal Procedure.

United States v. M arshall, 432 F.3d 1157, 1160 (10th Cir. 2005); United States v.

Dowell, 430 F.3d 1100, 1112 (10th Cir. 2005), cert. denied, 127 S.Ct. 44 (2006);

see also United States v. M ontgomery, 439 F.3d 1260, 1263 (10th Cir. 2006)

(“[W]e review whether the error was harmless by a preponderance of the

evidence. Harmless error is that which did not affect the district court’s selection

of the sentence imposed. The burden of proving the error is harmless is on the

beneficiary of the error.”) (citations and quotations omitted). Rule 52(a)

provides: “Any error . . . that does not affect substantial rights must be

disregarded.”


                                         -11-
      “[T]here are two distinct types of error that a court sentencing prior to

Booker could make.” Gonzalez-Huerta, 403 F.3d at 731.

      [C]onstitutional Booker error occurs when a district court errs by
      relying upon judge-found facts, other than those of prior convictions,
      to enhance a defendant’s sentence mandatorily . . . .
      [N]on-constitutional Booker error occurs when a district court err[s]
      by applying the Guidelines in a mandatory fashion, as opposed to a
      discretionary fashion, even though the resulting sentence was
      calculated solely upon facts that were admitted by the defendant,
      found by the jury, or based upon the fact of a prior conviction.

United States v. Delacruz-Soto, 414 F.3d 1158, 1161-62 (10th Cir. 2005) (citation

and quotations omitted).

      Because Arledge’s sentence was based solely upon facts found by the jury,

the district court committed non-constitutional Booker error by applying the

guidelines in a mandatory fashion. W hile the district court did not impose an

alternative sentence, we nevertheless conclude the court’s non-constitutional

Booker error w as harmless. See, e.g., United States v. Serrano-Dominguez, 406

F.3d 1221, 1222 (10th Cir. 2005) (alternative sentencing pending Booker

decision). Arledge’s guideline range w as 21-27 months imprisonment. The court

carefully considered the factors set forth in 18 U.S.C. § 3553(a), as required by

Booker. 6 543 U.S. at 259-60. It then sentenced Arledge to 24 months, the middle


      6
          Specifically, the court stated:

               The sentence imposed is within the guideline range, and that
               range does not exceed 24 months, and the Court finds no
               reason to depart from the sentence called for by application of
               the guidelines.

                                            -12-
of the range. Unlike in cases where the sentence imposed was at the bottom of

the guideline range leading us to question if the court would have imposed the

same sentence after Booker, see, e.g., United States v. Labastida-Segura, 396 F.3d

1140, 1143 (10th Cir. 2005), here we have a sentence in the middle of the range,

imposed after careful consideration of the relevant sentencing factors and

argument from counsel. M oreover, the court refused a requested downward

departure. There is no reason to think the district court would impose a lighter

sentence on remand. The court’s non-constitutional Booker error w as harmless.

See Dowell, 430 F.3d at 1112 (where the district court had discretion to impose a

lower sentence but instead imposed a sentence in the middle of the guideline

range, “its decision not to exercise discretion and impose a low er sentence renders

any non-constitutional Booker error harmless.”) (quotations omitted).

      F. Ineffective Assistance of Counsel

      Arledge contends his trial counsel was ineffective for failing to (1) contest

the government’s motion in limine precluding him from testifying that he was

acquitted of the state court charges arising from the allegations underlying the




             In formulating the sentence imposed in this case the Court has
             considered the nature and circumstances of the offense and the
             characteristics of the defendant. A sentence at the middle of
             the guideline range was imposed to provide just punishment, to
             promote respect for the law, and to protect the public.

(R . Second Supp. App. Vol. I at 8.)

                                        -13-
protective order and (2) attack the validity of his prior uncounseled misdemeanor

convictions used to calculate his criminal history category. “Ineffective

assistance of counsel claims should be brought in collateral proceedings, not on

direct appeal. Such claims brought on direct appeal are presumptively

dismissible, and virtually all will be dismissed.” United States v. Galloway, 56

F.3d 1239, 1240 (10th Cir. 1995) (en banc). Arledge has failed to show his case

is one of those “rare instances” in which we should hear an ineffective counsel

challenge on direct review. Id. W e decline to review this issue.

      Counsel’s motion to withdraw is GRANTED. This case presents no “legal

points arguable on their merits (and therefore not frivolous)” 7 ; the appeal is

D ISM ISSED . A rledge’s request for appointment of new counsel is DENIED.

                                                 ENTERED FOR THE COURT


                                                 Terrence L. O’Brien
                                                 Circuit Judge




      7
          Anders, 386 U.S. at 744.

                                          -14-
