                            UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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       as-

applied     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.

                                                  2
             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

                                               3
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.

                                         4
              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




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