                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                              No. 03-4153
JOHN WILLIAM MILLS,
              Defendant-Appellant.
                                       
            Appeal from the United States District Court
         for the Eastern District of Virginia, at Alexandria.
                  Gerald Bruce Lee, District Judge.
                            (CR-02-449)

                  Submitted: September 29, 2003

                      Decided: November 21, 2003

       Before WILKINSON, WILLIAMS, and GREGORY,
                      Circuit Judges.



Affirmed by unpublished per curiam opinion.


                             COUNSEL

W. Edward Riley, IV, BOONE, BEALE, COSBY & LONG, Rich-
mond, Virginia, for Appellant. Paul J. McNulty, United States Attor-
ney, Ronald L. Walutes, Jr., Assistant United States Attorney,
Alexandria, Virginia, for Appellee.
2                       UNITED STATES v. MILLS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                               OPINION

PER CURIAM:

   John William Mills was convicted in a bench trial of possessing a
firearm after being convicted of a misdemeanor crime of domestic
violence (MCDV), 18 U.S.C. § 922(g)(9) (2000), and was sentenced
to a term of fifteen months imprisonment. Mills challenges his con-
viction, alleging that § 922(g)(9) is unconstitutional on several
grounds. He also maintains that the district court clearly erred in
denying him a sentence reduction for having possessed the firearm
solely for lawful sporting purposes pursuant to U.S. Sentencing
Guidelines Manual § 2K2.1(b)(2) (2002). We affirm.

   A deputy sheriff was dispatched to Mills’ home just before ten
o’clock on the evening of February 18, 2002, responding to a report
of shots being fired. The deputy spoke to Mills and to Andrew Drury,
Mills’ employee and neighbor. Both stated that Mills had consumed
several beers that evening, became angry because his girlfriend was
not present, put a stuffed teddy bear she had given him on the ground
in his back yard, and shot the bear with a revolver. The deputy
reported that Mills smelled strongly of alcohol when he was inter-
viewed. Mills was initially charged in state court with unlawful dis-
charge of a firearm, but the charge was dismissed shortly before Mills
was indicted for the instant federal offense. Before he was tried, Mills
sought dismissal of the indictment on constitutional grounds. When
his motion was denied, Mills stipulated that he had three MCDV con-
victions, that the firearm was manufactured in Massachusetts, and that
he shot the teddy bear.

                              SENTENCE

   Mills first asserts that the district court erred in refusing to reduce
his base offense level pursuant to USSG § 2K2.1(b)(2). Guideline
section 2K2.1(b)(2) provides that the offense level should be reduced
                        UNITED STATES v. MILLS                          3
to 6 if the defendant possessed the firearm and all ammunition "solely
for lawful sporting purposes or collection and [the defendant] did not
unlawfully discharge or otherwise unlawfully use such firearms or
ammunition. . . ." At his sentencing hearing, Mills sought to convince
the district court that he possessed the revolver solely for target shoot-
ing. The district court did not make a specific finding as to why Mills
possessed the firearm or whether he was engaged in target shooting
when he shot the bear. However, the court found that the incident
occurred when Mills had drunk at least three beers and was under the
influence of alcohol, if not intoxicated; that Mills fired twice at the
teddy bear; that his house was not isolated from other houses and that
his yard was not a safe place for target shooting. Under these circum-
stances, the district court found that the firearm was recklessly and
unlawfully discharged.

   The district court’s legal determinations relative to sentencing are
reviewed de novo and its factual findings are reviewed for clear error.
United States v. Daughtrey, 874 F.2d 213, 217-18 (4th Cir. 1989).
The court’s determination that Mills unlawfully discharged the fire-
arm, with which we agree, was a sufficient basis for denying him the
reduction under § 2K2.1(b)(2). That guideline section succinctly
states that a defendant who possessed a firearm solely for a lawful
sporting purpose is not eligible for the reduction if he has used the
firearm unlawfully.

                            DUE PROCESS

                          A. Lack of Notice

   Mills argues that § 922(g)(9) fails to provide adequate notice of
defendant’s change in status. This claim was not raised in the district
court. However, a challenge to the constitutionality of a statute is
reviewed de novo. United States v. Sun, 278 F.3d 302, 308 (4th Cir.
2002).

  The statute provides that: "It shall be 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 fire-
arm or ammunition. . . ." 18 U.S.C. § 922(g)(9). Mills relies primarily
on Lambert v. California, 355 U.S. 225, 229 (1957) (finding due pro-
4                        UNITED STATES v. MILLS
cess violation in conviction under Los Angeles city ordinance when
defendant had no notice that his conduct might lead to prosecution).
He notes that the penalty for a violation of § 922(g)(9) is set out in
§ 924(a)(2) as being applicable to "[w]hoever knowingly violates sub-
section . . . (g) of . . . section 922. . . ." Mills argues that the language
is ambiguous and may indicate that Congress intended to punish only
a prohibited person who was aware that his possession of a firearm
violated the statute. Thus, he contends that he may be convicted of
violating § 922(g)(9), but may not be punished for his crime. His
claim is misplaced because we have held (in circumstances similar to
Mills’) that a person who has been convicted of a MCDV has suffi-
cient notice that he may be subject to special regulation with respect
to possession of firearms. See United States v. Mitchell, 209 F.3d 319,
323 (4th Cir. 2000); see also United States v. Barnes, 295 F.3d 1354,
1367 (D.C. Cir. 2002); United States v. Hutzell, 217 F.3d 966, 968-69
(8th Cir. 2000).

   Mills also relies on Bryan v. United States, 524 U.S. 184, 193
(1998) (holding that "the term ‘knowingly’ merely requires proof of
knowledge of the facts that constitute the offense"). He maintains that
his change in status as a result of the 1996 amendment of § 922 to add
the proscription against possession of a firearm by a person convicted
of a MCDV is a factual, rather than a legal matter. However, this
court has also rejected this claim. Mitchell, 209 F.3d at 322. There-
fore, Mills’ argument fails.

                     B. Irrebuttable Presumption

   Mills contends next that § 922(g)(9) creates a permanent irrebutt-
able presumption that he is incapable of reform because it does not
provide a way for him to regain his right to possess a firearm. Thus,
because the statute allegedly forbids Mills from regaining his right to
possess a firearm, it violates due process. Vlandis v. Kline, 412 U.S.
441 (1973). However, as the district court found, 18 U.S.C. § 925(c)
(2000) provides a mechanism by which a prohibited person may
obtain relief from his disability by making application to the Attorney
General. Mills argues that § 925(c) does not afford him any practical
relief because the Attorney General has delegated the authority to
approve applications for relief under § 925(c) to the Bureau of Alco-
hol, Tobacco, and Firearms (ATF) and, since 1992, Congress has not
                       UNITED STATES v. MILLS                        5
appropriated funds to the ATF for processing such applications. Con-
sequently, the ATF has routinely returned applications without acting
on them, and judicial review of the ATF’s failure to act on an applica-
tion is not available. See United States v. Bean, 537 U.S. 71, 123
S. Ct. 584, 585-86 (2002). Thus, Mills explains, Congress has sus-
pended the ATF’s ability to act pursuant to § 925(c). Pontarelli v.
United States Dep’t of the Treasury, 285 F.3d 216, 231 (3d Cir. 2002)
(finding that Congress’ appropriations ban was intended to suspend
the ATF’s review process).

   Another provision that potentially allows Mills to regain his right
to possess a firearm is 18 U.S.C. § 921(a)(33)(B)(ii) (2000), which
provides that a conviction shall not be considered if it has been
expunged, the person’s civil rights have been restored, or the person
has been pardoned. Mills argues that he cannot benefit from this pro-
vision because (1) Virginia does not take away an offender’s civil
rights for a misdemeanor offense and, thus, he cannot have his rights
restored; (2) Virginia does not allow a MCDV offense to be
expunged, see Va. Code Ann. § 19.2-392.2 (Michie Supp. 2003) (pro-
vides only for expungement of conviction of a "crime"); and (3) the
likelihood of a pardon is very small. Nonetheless, Mills may request
a pardon to regain the right to possess a firearm. Thus, his claim that
he is subject to a permanent irrebuttable presumption that he cannot
reform must fail.

                       EQUAL PROTECTION

   Mills next argues that he was denied equal protection of the law
because § 922(g)(9) deprives a MCDV offender of the right to pos-
sess a firearm while others who have committed misdemeanors retain
this right. He concedes that § 922(g)(9) "may have" a rational basis
to a legitimate government goal. See United States v. Lewitzke, 176
F.3d 1022, 1026-27 (7th Cir. 1999) (finding rational basis for depriv-
ing MCDV offenders of firearms even though others convicted of
misdemeanors may also pose danger to society). Mills contends that
§ 922(g)(9) should be subject to strict scrutiny. However, MCDV
offenders "are not a suspect class for equal protection purposes," and
no fundamental right is implicated when such an offender is deprived
of the right to possess a firearm. Barnes, 295 F.3d at 1368. Mills has
failed to make any showing that MCDV offenders are a suspect class.
6                       UNITED STATES v. MILLS
   Mills maintains that there is no rational basis for a law that pro-
vides no realistic means of regaining the right to possess firearms in
states that do not take away civil rights for misdemeanor convictions,
but permits restoration of that right in states where a person convicted
of a misdemeanor loses his civil rights. This court and others have
confronted this issue and concluded that "Congress consciously made
the decision to accept anomalous results—like a result that favors
incarcerated misdemeanants over misdemeanants that were not incar-
cerated." United States v. Jennings, 323 F.3d 263, 274 (4th Cir.
2003), petition for cert. filed, July 2, 2003 (No. 03-5280); Barnes, 295
F.3d at 1368. Therefore, this claim lacks merit.

                COMMERCE CLAUSE AUTHORITY

   Mills contends that the enactment of § 922(g)(9) exceeded Con-
gress’ regulatory authority under the Commerce Clause and that the
current interpretation of the phrase "in and affecting commerce"
allows Congress to extend its authority to regulate any activity. He
also contends that his actions had no effect on interstate commerce
and that the government should be required to prove that his actions
had a substantial effect on interstate commerce as an element of the
offense. Mills relies on United States v. Morrison, 529 U.S. 598
(2000). However, this court has held that Morrison does not affect its
prior decisions respecting the constitutionality of § 922(g). United
States v. Gallimore, 247 F.3d 134, 138 (4th Cir. 2001). Therefore, this
claim also fails.

   Accordingly, we affirm the conviction and sentence imposed by the
district court. 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
