                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                     No. 12-3130
                                    _____________

                          UNITED STATES OF AMERICA

                                           v.

                               RALPH E. HAUCK, JR.,

                                                Appellant
                                    _____________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                             (D.C. No. 4-11-cr-00130-001)
                       District Judge: Honorable Yvette Kane
                                  _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 17, 2013

             Before: SMITH, FISHER, and CHAGARES, Circuit Judges.

                                 (Filed: July 24, 2013)

                                  _______________

                                     OPINION
                                  _______________

CHAGARES, Circuit Judge.

      Ralph Hauck pled guilty to one count of being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1) and was sentenced to twenty-four months of

imprisonment. On appeal, he argues that the District Court should have dismissed his
indictment on the grounds that § 922(g)(1) is an unconstitutional exercise of

Congressional power, that he should have benefitted from an offense level reduction

under section 2K2.1(b)(2) of the advisory United States Sentencing Guidelines, and that

his sentence was substantively unreasonable. For the reasons discussed below, we will

affirm.

                                                I.

          We write solely for the benefit of the parties and so we will recount only those

facts necessary to our disposition.

          In December 2010, two correctional officers responded to reports of an individual

hunting in the environs of the Allenwood Federal Correctional Complex and found

Hauck, along with a rifle in the front seat of his vehicle. In the course of his conversation

with them, Hauck informed the officers that he had spent time in federal prison. The

officers contacted the Federal Bureau of Investigation (“FBI”) after the encounter to

notify it of the incident.

          Because Hauck had previously been convicted of a federal felony offense, he was

not permitted to possess a firearm and the FBI began an investigation. The FBI learned

from an officer of the Pennsylvania State Game Commission a little over a week later

that Hauck had been cited and taken into custody for several game violations as well as

for firing his weapon over a public highway. When FBI agents questioned Hauck, he

admitted that he possessed three weapons and that he had fired his weapon that day.

          Hauck was subsequently indicted on three counts of being a felon in possession of

a firearm in violation of 18 U.S.C. § 922(g)(1) and a single count of trespassing at the

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Allenwood Federal Correctional Complex in violation of 18 U.S.C. § 1793. Hauck filed

a motion to dismiss the firearms offenses based on the Commerce Clause and the Second

Amendment. The District Court denied his motion, and Hauck then pled guilty to Count

Three of the indictment, which was one of the felon-in-possession charges. The plea was

a conditional plea pursuant to Federal Rule of Criminal Procedure 11(a)(2) preserving the

constitutional challenge raised in Hauck‟s motion to dismiss his indictment.

       At his sentencing hearing, Hauck challenged the application of section

2K2.1(b)(2) of the United States Sentencing Guidelines, but the District Court overruled

his objection. The District Court determined that Hauck‟s offense level was thirteen and

criminal history category was IV, which produced an advisory Guidelines range of

twenty-four to thirty months. After consideration of the 18 U.S.C. § 3553(a) factors, the

District Court imposed a twenty-four month sentence. Hauck timely appealed.

                                             II.

       The District Court had jurisdiction over this case under 18 U.S.C. § 3231, and this

Court has jurisdiction over the appeal pursuant to 28 U.S.C. § 1291. In reviewing a

motion to dismiss an indictment, we exercise plenary review over the District Court‟s

legal conclusions, but review factual findings for clear error. United States v. Huet, 665

F.3d 588, 594 (3d Cir. 2012). In reviewing legal questions regarding the application of

the United States Sentencing Guidelines, we similarly review a District Court‟s

interpretation of the Guidelines de novo, but review its factual findings for clear error.

United States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007) (en banc). Finally, we review

the substantive reasonableness of a sentence under an abuse-of-discretion standard, and

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will not reverse a sentence unless no reasonable court could have imposed such a

sentence. United States v. Tomko, 562 F.3d 558, 567-68 (3d Cir. 2009) (en banc).

                                             A.

       Hauck raised two constitutional challenges to § 922(g)(1), the felon-in-possession

statute, arguing that the prohibition on gun ownership by those convicted of a federal

felony violates the Second Amendment and exceeds Congress‟ authority under the

Commerce Clause. Our precedent, however, clearly explains why this is not the case.

       First, this Court has rejected Hauck‟s argument that the Supreme Court‟s decision

in District of Columbia v. Heller, 554 U.S. 570 (2008), demonstrates that the felon-in-

possession statute is a facially unconstitutional law. United States v. Barton, 633 F.3d

168, 172 (3d Cir. 2011) (“[B]ecause Heller requires that we „presume,‟ under most

circumstances, that felon dispossession statutes regulate conduct which is unprotected by

the Second Amendment, [a] facial challenge must fail.”). Hauck‟s as-applied challenge

fails as well because Hauck, who has a long list of past convictions including witness

tampering and harassment as well as a 2008 violation of an order of protection taken out

by his estranged wife, has not shown that his circumstances place him outside of the

intended scope of § 922(g)(1) such that the statute is unconstitutional as applied to him.

See id. at 174.

       Second, in United States v. Gateward, 84 F.3d 670 (3d Cir. 1996), we joined eight

other courts of appeals in “upholding the constitutionality of § 922(g)(1) as a valid

exercise of the commerce power.” Id. at 672 (citing cases). Contrary to Hauck‟s

suggestion, nothing in the Supreme Court‟s decision in Heller casts any doubt on this

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conclusion. Hauck‟s constitutional challenges are therefore without merit, and we will

affirm the District Court‟s denial of Hauck‟s motion to dismiss his indictment.

                                             B.

       The District Court overruled Hauck‟s objection and declined to reduce his offense

level under U.S.S.G. § 2K2.1(b)(2), which provides that a defendant‟s offense level shall

be reduced to level six if he “possessed all ammunition and firearms solely for lawful

sporting purposes or collection, and did not unlawfully discharge or otherwise unlawfully

use such firearms or ammunition.” To qualify for a reduction under this subsection, a

defendant must show by a preponderance of the evidence that his possession was for

lawful sporting purposes or collection and that his discharge or use was lawful. United

States v. Miller, 224 F.3d 247, 251 (3d Cir. 2000). We will focus, as did the District

Court, on the second requirement.

       It is undisputed that Hauck was cited for firing his rifle across a public highway, in

violation of section 9504 of the Pennsylvania Game and Wildlife Code. While this

citation may be a de minimis violation for purposes of calculating Hauck‟s criminal

history category under the Sentencing Guidelines, see U.S.S.G. § 4A1.2(c)(2), it does not

follow that Hauck‟s actions in firing his rifle across a public highway were “lawful.”

Pennsylvania has understandably passed legislation to protect motorists from errant

bullets; that legislation makes Hauck‟s discharge unlawful. Hauck‟s citation to United

States v. Mendoza-Alvarez, 79 F.3d 96 (8th Cir. 1996), is unconvincing because the court

in that case simply held that the transportation of a firearm in violation of auto safety

laws did not constitute an unlawful use under § 2K2.1(b)(2) because the defendant did

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not make “use” of the firearm as that term is employed in the enhancement when he

drove with a loaded rifle in his vehicle. Id. at 98-99. Here, though, it is evident that

Hauck‟s relevant conduct involved the use of a firearm. Accordingly, we find no error in

the District Court‟s conclusion that Hauck was not qualified to receive a sentence

reduction under § 2K2.1(b)(2).

                                             C.

       The final issue presented in this appeal is whether the District Court‟s sentence

was substantively reasonable. “Ultimately, the touchstone of reasonableness is whether

the record as a whole reflects rational and meaningful consideration of the factors

enumerated in 18 U.S.C. § 3553(a),” and we will affirm a sentence unless no reasonable

sentencing court would have imposed the same sentence for the reasons the District Court

relied on. Tomko, 562 F.3d at 568 (quotation marks omitted). At Hauck‟s sentencing,

the District Court considered the § 3553 factors, including his history of prior offenses,

the need for deterrence, and the need to protect the public, and determined that a twenty-

four month sentence was appropriate. We cannot say that this within-Guidelines

sentence was an abuse of the District Court‟s discretion.

                                             III.

       For the foregoing reasons, we will affirm the District Court‟s judgment of

conviction and sentence.




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