                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 04-13808
                                                                  FILED
                          Non-Argument Calendar          U.S. COURT OF APPEALS
                        ________________________           ELEVENTH CIRCUIT
                                                                May 31, 2005
                   D. C. Docket No. 03-00299-CR-CO-NE       THOMAS K. KAHN
                                                                CLERK

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

EDWARD GYN HAMM,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Alabama
                       _________________________
                              (May 31, 2005)


Before TJOFLAT, ANDERSON, and CARNES, Circuit Judges.

PER CURIAM:

     Edward Gyn Hamm pleaded guilty to one count of possession of a firearm
by an unlawful user of a controlled substance, in violation of 18 U.S.C.

§ 922(g)(3), and one count of possession of a firearm while subject to a protection

order, in violation of 18 U.S.C. § 922(g)(8). Hamm appeals the district court’s

denial of his motion to dismiss the violation of 18 U.S.C. § 922(g)(8) on the

grounds that the Alabama statute under which the restraining order was issued is

unconstitutional.1

       Under Alabama’s Protection From Abuse Act, Ala. Code § 30-5-1 et seq., a

court can issue “such temporary orders as it deems necessary to protect the plaintiff

or minor children from abuse, or the immediate and present danger of abuse to the

plaintiff or minor children, upon good cause shown in an ex parte proceeding.”

Ala. Code § 30-5-6(b). Within fourteen days of the filing of a petition for a

protection order, the court must hold a hearing where “the plaintiff shall prove the

allegations of abuse by a preponderance of the evidence.” Id. § 30-5-6(a). The

court must advise the defendant that he may be represented by counsel at that

hearing. Id.

       “A willful violation of [a protection] order is a Class A misdemeanor which

is punishable by a fine not to exceed two thousand dollars ($2,000) or

imprisonment for up to a year in jail, or both, and is also punishable for civil

       1
         In pleading guilty to the violation of 18 U.S.C. § 922(g)(8), Hamm reserved the right to
appeal the district court’s denial of his motion to dismiss.

                                                2
contempt.” Id. § 30-5-8(b); see also id. § 30-5-9. However, a defendant is subject

to state imprisonment for up to one year only if “an indictment or a complaint

giving . . . notice of the criminal charges” is issued and a hearing is held. Batey v.

State, 755 So. 2d 593, 595 (Ala. Crim. App. 1999). Without notice and a hearing

on the alleged violation of the protection order, a defendant can only be held in

contempt of court. Id.

       Hamm contends that Alabama’s Protection From Abuse Act violates due

process because it allows for the issuance of a protection order without affording

the defendant notice and an opportunity to be heard. According to Hamm, the ex

parte protection order is void from its inception, and the fact that a later hearing at

which the defendant is afforded notice and an opportunity to be represented by

counsel does not make the protection order valid. Hamm asserts that, in order for a

protection order not to offend due process, the defendant must have notice and a

hearing in front of a jury before it is issued.

       Hamm’s contentions are without merit. The Act allows for the issuance of

an ex parte protection order only as “necessary to protect the plaintiff or minor

children from abuse, or the immediate and present danger of abuse to the plaintiff

or minor children, upon good cause shown in an ex parte proceeding.” Ala. Code

§ 30-5-6(b). The Act also provides that a hearing must occur within fourteen days


                                            3
of the filing of a petition for a protection order and that the defendant must be

advised that he may be represented by counsel at that hearing. Id. § 30-5-6(a).

Based on these procedures, the issuance of an ex parte protection order pursuant to

the Act does not offend due process. Cf. Ex parte Williams, 474 So. 2d 707, 710

(Ala. 1985).

      Hamm also argues that the Act violates both his due process rights and his

right to bear arms because, according to Hamm, the Act enables a federal

prosecution pursuant to 18 U.S.C. § 922(g)(8) based on a state protection order that

was issued without notice and a hearing. Hamm misunderstands § 922(g)(8).

According to the explicit terms of that federal statute itself, a defendant is subject

to federal prosecution pursuant to § 922(g)(8) only if the state protection order was

issued “after a hearing of which [the defendant] received actual notice, and at

which such person had the opportunity to participate.” 18 U.S.C. § 922(g)(8)(A).

The Act does not violate due process or the right to bear arms on the grounds

asserted by Hamm because a defendant cannot be prosecuted pursuant to

§ 922(g)(8) where the state protection order was issued without notice and a

hearing. Moreover, Hamm conceded during the plea hearing that, in his case,

“[t]he protection order was issued after a hearing of which [he] had received actual

notice and had the opportunity to participate.”


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AFFIRMED.




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