                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   _____________

                                    No. 99-3097SI
                                   _____________

United States of America,                *
                                         *
             Appellee,                   * On Appeal from the United
                                         * States District Court
      v.                                 * for the Southern District
                                         * of Iowa.
Daniel Jay Lewis,                        *
                                         *
             Appellant.                  *
                                    ___________

                            Submitted: December 5, 2000
                                Filed: January 10, 2001
                                    ___________

Before RICHARD S. ARNOLD, BEAM, and LOKEN, Circuit Judges.
                           ___________

RICHARD S. ARNOLD, Circuit Judge.


       Daniel Jay Lewis pleaded guilty to possessing a firearm transported in interstate
commerce after having been convicted of a misdemeanor crime of domestic violence,
in violation of 18 U.S.C. § 922(g)(9). The District Court1 sentenced him to thirty-seven
months (three years and one month) imprisonment and two years supervised release.




      1
       The Hon. Robert W. Pratt, United States District Judge for the Southern District
of Iowa.
       Defendant challenges the constitutionality of Section 922(g)(9). First, defendant
asserts that the statute violates the equal-protection component of the Due Process
Clause of the Fifth Amendment. Under Section 922(g)(9), a person convicted of a
domestic-violence misdemeanor loses the right to carry a gun, while people convicted
of other misdemeanors do not. The two groups, as defendant argues, are differently
treated, but we cannot agree that the difference is sufficiently arbitrary to violate due
process. One might think that other misdemeanors are just as serious as domestic-
violence misdemeanors, but this is the sort of judgment that must be made by
legislators, not judges. Congress could legitimately believe that the problem of
domestic violence is sufficiently serious to deserve separate treatment, and it could also
reasonably believe that persons convicted of a domestic-violence offense are likely to
commit such an offense again. Thus, it is entirely rational to keep firearms out of the
hands of such persons. See Gillespie v. City of Indianapolis, 185 F.3d 693, 708-09
(7th Cir. 1999) (Section 922(g)(9) passes the rational-basis test).

        An analogous case is United States v. Smith, 171 F.3d 617, 623-26 (8th Cir.
1999). Smith involved Section 921(a)(33)(B)(ii), which provides an exception to the
prohibition of Section 922(g)(9) if the person convicted of a domestic-violence
misdemeanor has had his civil rights restored. In Smith, the defendant had been
convicted of a domestic-violence misdemeanor in Iowa, but had never lost his civil
rights, because civil rights are not stripped from individuals convicted of misdemeanors
in Iowa. Thus, a felon who had had his civil rights removed, could come within the
Section 921(a)(33) exception by having them restored, but a misdemeanant, never
having lost his civil rights in the first place, could not. Mr. Smith argued that this
distinction was irrational. It gave a preferred position to a felon who had had his civil
rights taken away, in contrast to a less serious offender who had never lost his civil
rights. We rejected an equal-protection argument based on this distinction, applying
the rational-basis standard.




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       Defendant also argues that the statute exceeds the power granted to Congress by
the Commerce Clause. The answer is clear and simple: Section 922(g)(9) expressly
requires a nexus with interstate commerce. In the present case, it is not disputed that
the firearm which Mr. Lewis possessed had traveled in interstate commerce. This
specific interstate-commerce connection suffices to validate the statute. E.g., United
States v. Myers, 187 F.3d 644 (Table), 1999 WL 475571 at *1 (8th Cir. June 29, 1999)
(per curiam); United States v. Shelton, 66 F.3d 991, 992 (8th Cir. 1995) (per curiam)
(upholding, on a similar basis, the prohibition in Section 922(g) against possession of
firearms by a felon). Our holding that the statute is within the commerce power
suffices also to dispose of defendant's Tenth Amendment argument. Gillespie, supra,
185 F.3d at 706-07. Accord, United States v. Myers, supra, 1999 WL 475571 at *1
(Tenth Amendment challenge to statute "necessarily" fails where statute was valid
exercise of Congress's commerce power).

       The argument that the statute violates the Second Amendment is also without
merit. E.g., United States v. Smith, supra, 171 F.3d at 624; United States v. Turcotte,
558 F.2d 893, 895 (8th Cir. 1977) (per curiam). We also reject any argument based
on the Cruel and Unusual Punishment Clause of the Eighth Amendment. See United
States v. Jester, 139 F.3d 1168, 1170-71 (7th Cir. 1998) (punishment is not based
solely on status as a convict, but also on voluntary act of possession of a firearm).

      Defendant also argues that he should not have received a two-level sentencing
enhancement under U.S.S.G. § 2K2.1(b)(1)(B) for possessing multiple firearms,
because he did not actually or constructively possess them, and they were not relevant
to his offense. We reject this argument. Sentencing testimony from defendant’s father,
and from an agent involved in the search of defendant’s apartment, established that the
firearms found in the apartment were under defendant’s control; in fact, two of the
firearms were found in a safe to which defendant alone had the combination. See
United States v. Boykin, 986 F.2d 270, 274 (8th Cir.) (conviction for violating § 922(g)


                                          -3-
may be based on constructive possession of firearm, which can be shown by seizure
of firearm at defendant’s residence), cert. denied, 510 U.S. 888 (1993).

      Finally, defendant argues that the District Court violated Apprendi v. New
Jersey, 120 S. Ct. 2348 (2000), when it used the firearms seized during the search to
enhance his Guidelines offense range. This argument is misplaced, because the
enhancement did not affect the statutory maximum for violating Section 922(g)(9). See
18 U.S.C. § 924(a)(2) (statutory maximum for violating § 922(g)(9) is ten years
imprisonment); cf. United States v. Aguayo-Delgado, 220 F.3d 926, 933 (8th Cir.
2000) (discussing Apprendi; judge-found fact permissibly may alter defendant’s
sentence within statutory range for offense).

      We find no other nonfrivolous issues.

      Accordingly, we affirm.

      A true copy.

             Attest:

             CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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