                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 06-4087


UNITED STATES OF AMERICA,

                  Plaintiff − Appellee,

             v.

RANDY EDWARD HAYES,

                  Defendant − Appellant.



     On Remand from the Supreme Court of the United States.
                       (S. Ct. No. 07-608)


Submitted:    March 30, 2009                    Decided:    June 18, 2009


Before WILLIAMS,     Chief   Judge,   and   MICHAEL   and   KING,   Circuit
Judges.


Affirmed by unpublished per curiam opinion.


Troy Nino Giatras, Charleston, West Virginia, for Appellant.
Rita R. Valdrini, Acting United States Attorney, Shawn Angus
Morgan, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Clarksburg, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     A    federal   grand    jury    in    the       Northern    District     of   West

Virginia indicted Randy Edward Hayes for three violations of 18

U.S.C.A. § 922(g)(9) (West 2000), which makes it “unlawful for

any person . . . who has been convicted in any court of a

misdemeanor crime of domestic violence . . . [to] possess in or

affecting    commerce,      any    firearm      or    ammunition.”       After     the

district court denied Hayes’s motion to dismiss the indictment,

Hayes entered a conditional guilty plea and appealed to this

court.    We reversed, concluding that the district court should

have granted the motion to dismiss.                  United States v. Hayes, 482

F.3d 749 (4th Cir. 2007).           Thereafter, the Supreme Court granted

certiorari,      United   States    v.    Hayes,      128   S.   Ct.   1702   (2008),

reversed our decision, United States v. Hayes, 129 S. Ct. 1079

(2009),    and   remanded    the    case       for    further    proceedings.        On

remand, we now conclude that Hayes’s conviction and sentence

must be affirmed.

                                          I.

     On February 24, 1994, Hayes was convicted in Marion County,

West Virginia, Magistrate Court of misdemeanor battery.                            The

victim was Hayes’s then-wife Mary Ann Hayes (now Mary Carnes),

with whom he cohabitated and had a child.                   Hayes was represented

by counsel during that prosecution, and his conviction remains

valid.

                                          2
     On July 25, 2004, deputies from the Marion County Sheriff’s

Department responded to a 911 call from Mary Carnes reporting

domestic violence at Hayes’s home.                With Hayes’s consent, the

deputies searched the home and recovered a Winchester rifle.

Further investigation by the Bureau of Alcohol, Tobacco, and

Firearms (“ATF”) revealed that Hayes had possessed several other

rifles throughout 2004.

     Based upon the ATF’s investigation, on January 4, 2005,

Hayes was charged in a three-count indictment with violating

§ 922(g)(9)    and    18     U.S.C.A.    § 924(a)(2)      (West    2000).       Hayes

moved to dismiss his indictment, arguing that his prior battery

conviction     was     neither       a   “misdemeanor      crime      of     domestic

violence” (“MCDV”) under 18 U.S.C.A. § 921(a)(33)(A) (West 2000

&   Supp.    2009),        nor   a   qualifying     predicate      offense      under

§ 922(g)(9).         The    Government    filed    a   superseding         indictment

alleging the same substantive counts but including a “Notice of

Additional    Factors”       detailing    Hayes’s      battery     conviction     and

arguing     that     the     conviction       qualified    as     a   MCDV      under

§ 921(a)(33)(A). 1          The “Notice of Additional Factors” alleged




     1
         That statute provides:

     (33)(A) Except as provided in subparagraph (C), the
     term “misdemeanor crime of domestic violence” means an
     offense that-

(Continued)
                                          3
that the victim in the battery conviction was Hayes’s spouse

with whom he shared a child and cohabitated.

     Hayes again moved to dismiss, arguing principally that his

battery conviction was not a MCDV because it did not require, as

an   element    of    the    offense,       the    existence     of   a   domestic

relationship.        Relatedly, Hayes contended that the “Notice of

Additional Factors” was void because the domestic relationship

between him and the victim did not appear on the face of any

judicial documents in the battery conviction.                    Hayes contended

that, under Shepard v. United States, 544 U.S. 13 (2005), the

Government     was    prohibited   from      proving   that      relationship   by

means of extrinsic evidence.            The district court denied Hayes’s

motion and, on July 5, 2005, Hayes entered a conditional guilty

plea to Count One of the superseding indictment, reserving his

right   to   appeal    the   denial   of     his   motion   to    dismiss.      The



     (i) is a misdemeanor under Federal, State, or Tribal
     law; and

     (ii) has, as an element, the use or attempted use of
     physical force, or the threatened use of a deadly
     weapon, committed by a current or former spouse,
     parent, or guardian of the victim, by a person with
     whom the victim shares a child in common, by a person
     who is cohabiting with or has cohabited with the
     victim as a spouse, parent, or guardian, or by a
     person similarly situated to a spouse, parent, or
     guardian of the victim[.]

18 U.S.C.A. § 921(a)(33)(A) (West 2000 & Supp. 2009).



                                        4
district court later sentenced Hayes to five years of probation,

with    the     first      six     months      served     as       home    confinement.           On

appeal, we reversed, concluding that Hayes’s battery conviction,

which    did        not    “have    as    an     element       a     domestic       relationship

between       the    offender       and   the     victim,”         did     not   qualify     as    a

predicate offense under § 922(g)(9).                           Hayes, 482 F.3d at 751.

The Supreme Court granted certiorari and reversed, concluding

that “Congress defined ‘misdemeanor crime of domestic violence’

to    include        an    offense       ‘committed       by’        a    person    who    had    a

specified domestic relationship with the victim, whether or not

the     misdemeanor          statute           itself      designates            the    domestic

relationship as an element of the crime.”                                Hayes, 129 S. Ct. at

1089.        Thus, under § 922(g)(9), “it suffices for the Government

to charge and prove a prior conviction that was, in fact, for an

offense committed by the defendant against a spouse or other

domestic victim.”            Hayes, 129 S. Ct. at 1084 (internal quotation

marks and alterations omitted).                      The Court remanded the case for

further proceedings consistent with its opinion.



                                                 II.

        On    remand,       we     are    left    to     address          Hayes’s      additional

argument       that        the     Government          lacked        judicially        noticeable

evidence of a domestic relationship for the battery conviction

and     should       not     have    been        allowed        to       prove   the      domestic

                                                 5
relationship with extrinsic evidence.                 We     review     de    novo    the

district court’s denial of a motion to dismiss an indictment.

United States v. Hatcher, 560 F.3d 222, 224 (4th Cir. 2009).

     According to Hayes, permitting the Government to prove the

domestic       relationship   by     means     of   “extrinsic    evidence”           runs

afoul     of    Shepard     and     our    decision     in     United        States     v.

Washington, 404 F.3d 834 (4th Cir. 2005).                     Hayes argues that,

consistent with these decisions, the domestic relationship must

be proven only by looking to the charging documents, the terms

of the plea agreement, the transcript of the plea colloquy, and

any explicit factual finding by the trial judge to which the

defendant       assented.         Thus,    argues     Hayes,     the     “Notice       of

Additional Factors” is invalid and the indictment against him

defective.

        We disagree.        Hayes overlooks the fact that Shepard and

Washington apply only to judicial fact-finding; those decisions

operate as a safeguard for the defendant’s Sixth Amendment right

“to have a jury determine, beyond a reasonable doubt, his guilt

of every element of the crime with which he is charged,”                         United

States     v.    Gaudin,    515    U.S.    506,     522-23    (1995)     and          “any

particular fact that the law makes essential to his punishment,”

United    States    v.    Booker,    543   U.S.     220,   232   (2005)       (internal

quotation marks omitted).             As the Shepard plurality explained,

“the Sixth and Fourteenth Amendments guarantee a jury standing

                                           6
between    a    defendant     and   the   power      of   the    State,    and   they

guarantee a jury’s finding of any disputed fact essential to

increase the ceiling of a potential sentence.”                    544 U.S. at 25.

Hayes points to no case law 2 supporting an extension of Shepard

and Washington to limit the Government’s ability to prove its

case to a jury at trial, and for good reason—no Sixth Amendment

concerns       are   raised   by    the   Government’s          use   of   extrinsic

evidence to prove a prior conviction to the jury.                      Indeed, the

Supreme    Court’s      decision     in       this    case      presages    such   a

conclusion; the Court explained:

          To   obtain   a  conviction   in  a   § 922(g)(9)
     prosecution, the Government must prove beyond a
     reasonable doubt that the victim of the predicate
     offense was the defendant’s current or former spouse
     or was related to the defendant in another specified
     way.     But that relationship, while it must be
     established, need not be denominated an element of the
     predicate offense.

Hayes, 129 S. Ct. at 1087.




     2
       In his opening brief, Hayes relies principally on United
States v. Nobriga, 408 F.3d 1178 (9th Cir. 2005), withdrawn by
433 F.3d 1090 (9th Cir. 2006) for the proposition that the
Government must prove the domestic relationship by means of
judicially noticeable facts. In its later opinion, however, the
Ninth Circuit specified that the Government was permitted to
“prove[] the necessary domestic relationship at trial” and that,
like here, any “mismatch between the Hawaii and federal domestic
violence   statutes  is   not  a  basis   for  invalidating  the
indictment.”   United States v. Nobriga, 474 F.3d 561, 564 (9th
Cir. 2006).



                                          7
        Presumably, if the Court had Sixth Amendment concerns with

the Government’s means of proving the victim of the predicate

offense, it would have mentioned them. 3

        Shepard   and        Washington    do     not   limit    the    Government’s

ability to prove its case in a § 922(g)(9) prosecution to a

jury.       We thus agree with the district court that the Government

was     permitted       to     prove      the     existence     of     the    domestic

relationship with extrinsic evidence and that the indictment,

with its “Notice of Additional Factors,” was valid on its face.



                                           III.

        For the foregoing reasons, Hayes’s conviction and sentence

are

                                                                             AFFIRMED.




        3
       Chief Justice Roberts, in dissent, did discuss Shepard v.
United States, 544 U.S. 13 (2005), and its predecessor, Taylor
v. United States, 495 U.S. 575 (1990), for the proposition that
the majority’s approach would “often” make it “necessary to go
beyond the fact of conviction and engage in an elaborate
factfinding process regarding the defendant’s prior offense.”
Hayes v. United States, 129 S. Ct. 1079, 1092 (2009) (Roberts,
C.J., dissenting) (internal quotation marks and alterations
omitted). Tellingly, Chief Justice Roberts alluded only to the
“practical difficulties and potential unfairness of a factual
approach,” not to any potential Sixth Amendment concerns.    Id.
(internal quotation marks omitted).



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