                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 12-4276


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

JIMMY SCOTT ELKINS,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap.      James P. Jones,
District Judge. (2:10-cr-00017-JPJ-PMS-1)


Submitted:   October 5, 2012                 Decided:   October 15, 2012


Before SHEDD, DUNCAN, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Dana R. Cormier, DANA R. CORMIER, P.L.C., Staunton, Virginia,
for Appellant. Timothy J. Heaphy, United States Attorney,
Zachary T. Lee, Assistant United States Attorney, Abingdon,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                Jimmy    Scott     Elkins       pled    guilty     to     one    count     of

possessing a firearm, in and affecting commerce, while subject

to   a   domestic       violence    protective         order,     in    violation   of     18

U.S.C. § 922(g)(8) (2006).              Elkins was sentenced to twenty-seven

months in prison.          Elkins’s plea was a conditional one, Fed. R.

Crim. P. 11(a)(2), and on appeal, he raises the constitutional

challenge        he     asserted     unsuccessfully          below,       namely,        that

§ 922(g)(8), as applied to him, violates the Second Amendment.

We review de novo a defendant’s constitutional challenge to a

criminal statute.           United States v. Moore, 666 F.3d 313, 316

(4th Cir. 2012).

                The Supreme Court, in District of Columbia v. Heller,

554 U.S. 570 (2008), identified an individual right to keep and

bear     arms    embodied     in    the     Second      Amendment.         Subsequently,

in United States v. Chester, 628 F.3d 673 (4th Cir. 2010), we

established a two-pronged test for assessing a Second Amendment

challenge to a criminal statute.                       The first prong requires an

evaluation of whether Second Amendment rights are “burden[ed] or

regulat[ed]” by the statute in question.                        Id. at 680.         If so,

under the second prong, the statute must pass constitutional

muster    in     accordance      with     the       appropriate    level    of    judicial

scrutiny.        Id.



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            We have not yet decided whether “the Second Amendment

extends     beyond      the    home       or       to    perpetrators          of    domestic

abuse.”     United States v. Mahin, 668 F.3d 119, 124 (4th Cir.

2012); see United States v. Chapman, 666 F.3d 220, 225 (4th Cir.

2012); United States v. Staten, 666 F.3d 154, 159 (4th Cir.

2011),    cert.     denied,    132    S.       Ct.      1937    (2012).         However,    in

both    Mahin     and   Chapman,     we    applied           intermediate       scrutiny    to

evaluate     an     as-applied       challenge          to     § 922(g)(8),          assuming,

without    deciding,      that      the   relevant           conduct    fell     within    the

Second Amendment’s protection.                 Mahin, 668 F.3d at 124; Chapman,

666 F.3d at 226.         Elkins’s claim does not fall “within the core

right     identified      in     Heller—the             right     of    a       law-abiding,

responsible        citizen     to     possess           and     carry     a     weapon     for

self-defense.”          Chapman, 666 F.3d at 226 (emphasis omitted).

Accordingly, we evaluate Elkins’s challenge using intermediate

scrutiny.

            Intermediate         scrutiny          requires      that     the       government

bear the burden of establishing a reasonable fit between the

challenged          statute         and            a         substantial            government

objective.        Chester, 628 F.3d at 683.                  We have decided, “[b]ased

upon § 922(g)(8)’s legislative history, the relevant case law,

and common sense, . . . [that] the government has carried its

burden of establishing that reducing domestic gun violence is a

substantial       governmental       objective          of    § 922(g)(8).”           Chapman,

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666    F.3d    at    227.     Accordingly,        we    conclude       that   § 922(g)(8)

satisfies the intermediate scrutiny standard.

               In   order     for   Elkins       to    prevail    on    his    as-applied

challenge, he must show that his factual circumstances remove

his challenge from the realm of ordinary challenges.                           Moore, 666

F.3d at 319.          In Chapman, we held that there was a reasonable

fit       between   the     substantial    government       interest          of   reducing

domestic gun violence and disarming an individual who is subject

to    a    court    order    that   (1)   satisfies       procedural      due      process;

(2) restrains him from “harassing, stalking or threatening” his

intimate partner or a child of that partner, or engaging in

other actions that would place the partner in reasonable fear of

bodily injury to self or child; and (3) prohibits the “use,

attempted use, or threatened use” of such physical force against

the partner or child that “would reasonably be expected to cause

bodily injury.”           Chapman, 666 F.3d at 230.

               Although Elkins concedes that his protective order was

nearly identical to that at issue in Chapman, he contends that

§ 922(g)(8) is unconstitutional as applied to him because there

is not a reasonable fit between preventing domestic gun violence

and disarming him, specifically.                      Elkins urges us to consider

that he presented no threat of future harm to the woman who

obtained      the    protective     order,       noting    that    she    continued      to

maintain her relationship with him after the protective order

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was    issued.     We   find      this    assertion          insufficient     to    remove

Elkins’s case from the ambit of similar cases decided by this

court.

              We held in Chapman that § 922(g)(8)(A)-(B) and (C)(ii)

“may be somewhat over-inclusive given that not every person who

falls within . . . it would misuse a firearm.”                             Chapman, 666

F.3d at 231.       However, we do not believe that this undermines

the     constitutionality         of     the       statute     because      intermediate

scrutiny requires only a reasonable fit, rather than a perfect

one.    Id.

              We also reject Elkins’s next argument that § 922(g)(8)

is unconstitutional as applied to him because the protective

order issued against him does not specifically articulate that

he is a “credible threat.”                 Although Elkins relies on Mahin,

that    opinion   actually     rejects         the    notion    that   to    survive      an

as-applied     challenge     to    § 922(g)(8),         a     protective     order    must

recite a talismanic incantation that the subject of the order

poses a “credible threat.”             As we concluded in Mahin, “whether a

finding that the person represents a credible threat is explicit

in the order’s language or not, it is a necessary step in the

court’s decision to issue the injunctive order.”                       Id.

              Elkins also seeks to challenge the validity of the

underlying state-court protective order, asserting that it was

based    on   inadequate   hearsay        evidence       and    that   there       were   no

                                               5
conclusive       findings     that      he     represented         a     credible      future

threat.         However,     as   the      Government        correctly         argues,      the

validity     of       the    underlying        order        is     irrelevant         to     the

determination          of    whether         Elkins’s       conduct           falls    within

§ 922(g)(8).          “Nothing in the language of 18 U.S.C. § 922(g)(8)

indicates that it applies only to persons subject to a valid, as

opposed    to    an    invalid,      protective       order.”          United     States      v.

Hicks, 389 F.3d 514, 535 (5th Cir. 2004) (emphasis omitted).

Other courts have reached the same conclusion, and we agree with

“the   overwhelming         weight    of     federal    case       law      preclud[ing]       a

defendant       in     a    § 922(g)(8)           prosecution          from     mounting       a

collateral       attack      on   the      merits      of    the       underlying          state

protective order.”          United States v. Reese, 627 F.3d 792, 804-05

(10th Cir. 2010), cert. denied, 131 S. Ct. 2476 (2011).

            Finally,          Elkins         argues         that        § 922(g)(8)           is

unconstitutional as applied to him because his protective order

was not being “enforced.”               Elkins bases this assertion on our

decision in Chapman, which held that § 922(g)(8) only applies

“to persons under a [domestic violence protective order] then

‘currently      in     force’.”       Chapman,       666     F.3d      at     228.     Elkins

contends that our decision in Chapman stands for the proposition

that if a protective order is not “enforced” then there is no

violation of § 922(g)(8), because the order was not “in force.”

We are unpersuaded.

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            We        have     held       that    “[w]hen        engaging   in      statutory

interpretation,          we     first       and       foremost     strive   to      implement

congressional         intent     by       examining      the     plain   language       of   the

statute.”        United States v. Abdelshafi, 592 F.3d 602, 607 (4th

Cir.     2010)        (internal       quotation          marks     omitted).         Section

922(g)(8) states that its restrictions apply to an individual

“who is subject to” a domestic violence protective order.                                     18

U.S.C.    § 922(g)(8).            Elkins         encourages       an   entirely     different

interpretation,          one    that       requires      a     protective   order       to   be

“enforced”       in    order     for      § 922(g)(8)        to    apply.      We    find    no

support for this position within the language of the statute.

At the time that Elkins possessed the firearms in question, he

was    subject     to    a     domestic       violence         protective   order;       thus,

§ 922(g)(8) was properly applied to him.

            Accordingly,             we    affirm      the   district     court     judgment.

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




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