                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-5061


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

GREGORY ROLAND PRUESS,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.         Richard L.
Voorhees, District Judge. (5:08-cr-00054-RLV-DSC-1)


Submitted:   February 15, 2011            Decided:   March 14, 2011


Before KING, DUNCAN, and KEENAN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Claire J. Rauscher, Executive Director, Ann L. Hester, Peter
Adolf, Assistant Federal Defenders, Charlotte, North Carolina,
for Appellant. Anne M. Tompkins, United States Attorney, Amy E.
Ray,   Assistant  United  States   Attorney,  Asheville,  North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Gregory Roland Pruess pleaded guilty to possession of

ammunition after having been convicted of a crime punishable by

a term of imprisonment exceeding one year, in violation of 18

U.S.C. § 922(g)(1) (2006).          His guilty plea was conditioned on

his retaining his right to appeal the district court’s denial of

his   motion   to   dismiss   the    indictment.         The   district    court

sentenced Pruess to twenty-one months of imprisonment and he now

appeals.      For the reasons that follow, we vacate the district

court’s judgment and remand for further proceedings.

           Pruess first argues that the conviction violated his

rights under the Second and Fifth Amendments because his initial

predicate felony conviction is invalid.                 However, we need not

reach   the     constitutional       question     as     we    conclude    that,

regardless of whether his initial felony conviction was invalid

or is invalidated, Pruess had several other felony convictions

not based on his status as a felon at the time of the commission

of the instant offense that qualify as predicate offenses under

§ 922(g)(1).     Those offenses included convictions for dealing in

firearms and explosives without a license and unlawful transport

and possession of machineguns.

           Pruess    next   argues    that,     after   the    Supreme    Court’s

decision in District of Columbia v. Heller, 554 U.S. 570 (2008),

the prohibition in § 922(g)(1) on non-violent felons possessing

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firearms     is    unconstitutional             as     violative           of     the    Second       and

Fifth Amendments.                  Again, we do not reach the constitutional

question at this point.                   In United States v. Chester, 628 F.3d

673 (4th Cir. 2010), this court outlined a two-prong analysis to

determine    whether           a    regulation        violates         a   defendant’s             Second

Amendment    right        to       bear   arms.        A   district          court       must       first

determine whether the right sought to be regulated is within the

scope   of   the        Second       Amendment’s        protection           —    that        is    “[i]n

accordance with the historical understanding of the scope of the

right    .   .     .     [whether         the   regulation             extends          to]    weapons

typically         possessed          by     law-abiding           citizens              for        lawful

purposes.”         Id. at 676 (internal quotation marks and citation

omitted).         If     the       district     court          finds       that    the        right    is

protected by the Second Amendment, the court must then determine

whether the regulation is valid under the appropriate means-end

level of scrutiny.                 Id. at 678.        In applying this prong of the

analysis     to     a    regulation         that       prohibits           the     possession          of

firearms by felons, a district court should apply intermediate

scrutiny to determine whether “there is a reasonable fit between

the     challenged         regulation           and        a     substantial              government

objective.”        Id. at 683 (internal quotation marks and citation

omitted).

             Here,       the        district      court        concluded,          based       on     the

statement in Heller that “nothing in [the] opinion should be

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taken   to   cast      doubt   on   longstanding      prohibitions    on    the

possession   of   firearms     by   felons,”   that    § 922(g)(1)    was    not

unconstitutional.       See Heller, 554 U.S. at 571.          However, as we

have determined that a district court must conduct an analysis

of a challenged regulation in light of Heller, we remand to the

district court with instructions to make this determination in

accordance with our decision in Chester.

             Accordingly, we vacate the district court’s judgment

and remand for further proceedings consistent with this opinion.

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.



                                                       VACATED AND REMANDED




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