       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206             2    United States v. Calor                       No. 02-5099
    ELECTRONIC CITATION: 2003 FED App. 0291P (6th Cir.)
                File Name: 03a0291p.06                     UNITED STATES ATTORNEY, Lexington, Kentucky, for
                                                           Appellee.
UNITED STATES COURT OF APPEALS                                                 _________________
              FOR THE SIXTH CIRCUIT                                                OPINION
                _________________                                              _________________

 UNITED STATES OF AMERICA , X                                KENNEDY, Circuit Judge. Alexander Calor appeals the
                                                           district court’s denial of his motion to dismiss his prosecution
             Plaintiff-Appellee, -                         under 18 U.S.C. § 922(g)(8) for possession of five firearms
                                   -
                                   -   No. 02-5099         while subject to a court order, and its denial of his motion to
            v.                     -                       suppress evidence connected to his prosecution under 26
                                    >                      U.S.C. § 5861(d) for possession of an unregistered
                                   ,                       Bushmaster .223 caliber rifle with an eleven and one-half inch
 ALEXANDER CALOR,                  -
          Defendant-Appellant. -                           barrel. We AFFIRM the district court’s disposition of both
                                                           motions.
                                  N
      Appeal from the United States District Court                                        I.
    for the Eastern District of Kentucky at Lexington.
  No. 01-00063—Karl S. Forester, Chief District Judge.        On Friday, February 9, 2001, Mary Beth Calor, Alexander
                                                           Calor’s wife, sought and obtained an ex parte Emergency
                 Argued: July 31, 2003                     Protective Order (EPO). The EPO was served on Mr. Calor
                                                           at the Calors’ residence on the evening of February 9 by two
          Decided and Filed: August 15, 2003               Harrison County deputy sheriffs. The EPO restrained Mr.
                                                           Calor from contacting Mrs. Calor, ordered Mr. Calor to
 Before: KENNEDY, GILMAN, and GIBBONS, Circuit             vacate the marital residence, ordered Mr. Calor “not to
                    Judges.                                possess any firearms, turn all firearms into [Harrison County]
                                                           Sheriff’s Office,” and summoned Mr. Calor to appear at a
                  _________________                        hearing on Monday, February 12, 2001 at 11:00 a.m. to
                                                           respond to domestic violence allegations. The EPO was
                       COUNSEL                             effective through February 12, 2001. Calor allowed the
                                                           deputy sheriffs who served the EPO to retrieve a quantity of
ARGUED: Fred E. Peters, Lexington, Kentucky, for           guns, including a Bushmaster .223 caliber rifle with an eleven
Appellant. Kenneth R. Taylor, ASSISTANT UNITED             and one-half inch barrel.
STATES ATTORNEY, Lexington, Kentucky, for Appellee.
ON BRIEF: Fred E. Peters, Lexington, Kentucky, Elizabeth     On February 12, 2001, Mr. Calor retained temporary
S. Hughes, GESS, MATTINGLY & ATCHISON, Lexington,          counsel to request an adjournment of the scheduled hearing.
Kentucky, for Appellant. Kenneth R. Taylor, ASSISTANT      The court granted the request and adjourned the hearing until

                            1
No. 02-5099                              United States v. Calor          3    4      United States v. Calor                      No. 02-5099

February 21, 2001. The court did not take any testimony                       facts were not disputed, the district court did not hold an
from sworn witnesses and no other evidence was presented,                     evidentiary hearing prior to ruling on Calor’s motions. The
but it did address some collateral matters raised by Mrs.                     district court’s denial of the motion to dismiss and intertwined
Calor’s counsel and issued a second EPO that was effective                    statutory construction present questions of law that are
through February 21, 2001.1                                                   reviewed de novo. United States v. Stewart, 306 F.3d 295,
                                                                              331 (6th Cir. 2002). Likewise, the district court’s denial of
  On February 14, 2001, Mr. Calor violated the EPO by                         the motion to suppress evidence is reviewed de novo. United
returning to the marital residence. Mrs. Calor reported Mr.                   States v Pelayo-Landero, 285 F.3d 491, 494 (6th Cir. 2002).
Calor’s violation to the Harrison County Sheriff’s Office.
The deputy sheriffs who responded to Mrs. Calor’s complaint                                                   A.
observed Mr. Calor leaving the residence and arrested him.
A search of his vehicle revealed four handguns. Mr. Calor’s                     Calor argues that the district court erred when it denied his
counsel later reported the presence of a fifth handgun in the                 motion to dismiss because the court order upon which his
impounded vehicle.                                                            prosecution under § 922(g)(8) is based was not issued after a
                                                                              hearing that is within the scope of § 922(g)(8). That statutory
  On July 12, 2001, a federal grand jury indicted Defendant                   section makes it unlawful for any person:
on one count of possessing a firearm in violation of title 18 of
the United States Code, § 922(g)(8) (Count I), and one count                      (8) who is subject to a court order that–
of possessing a firearm in violation of title 26 of the United                    (A) was issued after a hearing of which such person
States Code, § 5861(d) (Count II). Calor was convicted on                         received actual notice, and at which such person had an
both counts by a jury.                                                            opportunity to participate;
                                                                                  (B) restrains such person from harassing, stalking, or
                                   II.                                            threatening an intimate partner of such person or child of
                                                                                  such intimate partner or person, or engaging in other
   Calor’s appeal presents two distinct issues. The first issue                   conduct that would place an intimate partner in
is whether the February 12 court proceeding before the state                      reasonable fear of bodily injury to the partner or child;
trial judge provided the predicate hearing necessary to render                    and
the February 12 EPO a court order within the meaning of                           (C)(i) includes a finding that such person represents a
§ 922(g)(8). The second issue is whether the deputy sheriffs                      credible threat to the physical safety of such intimate
lawfully seized the Bushmaster .223 caliber rifle for the                         partner or child; or
purposes of a criminal prosecution. Because the relevant                          (ii) by its terms explicitly prohibits the use, attempted
                                                                                  use, or threatened use of physical force against such
                                                                                  intimate partner or child that would reasonably be
    1                                                                             expected to cause bodily injury;
       In addition to the terms of the first EPO, the second EPO restrained
Mr. Calo r from com ing into the city of Cynthia na exc ept to see his
                                                                                  ...
attorney and for court appearances, required him to stay away from his            to ship or transport in interstate or foreign commerce, or
wife’s place of employm ent and his daughter’s daycare, and provided that         possess in or affecting commerce, any firearm or
a list o f Mr. Calor’s clothing and personal belongings be given to M rs.         ammunition; or to receive any firearm or ammunition
Calo r’s attorney and that Mr. Calor could retrieve these items from the
Harrison County Sheriff’s Office.
No. 02-5099                       United States v. Calor       5    6       United States v. Calor                              No. 02-5099

  which has been shipped in interstate or foreign                   participate does not does not alter his status under
  commerce.                                                         § 922(g)(8). The second EPO, which was issued at the
                                                                    conclusion of the February 12 court appearance, provided the
This Circuit has upheld the constitutionality of § 922(g)(8).       predicate court order for Calor’s prosecution for possessing
United States v. Napier, 233 F.3d 394 (6th Cir. 2000)               the five firearms in violation of §922(g)(8).
(holding that § 922(g)(8) does not violate Due Process and
Commerce clauses, or Second Amendment), United States v.               Our reading of §922(g)(8) is consistent with that of the
Baker, 197 F.3d 211 (6th Cir. 1999) (holding that § 922(g)(8)       Seventh Circuit. United States v. Wilson, 159 F.3d 280 (7th
does not violate Due Process or Commerce clauses). The              Cir. 1998), considered a due process challenge to defendant’s
construction of what is necessary to meet the hearing               conviction under §922(g)(8). The court concluded that the
requirement, however, presents a question of first impression.      state court proceeding afforded to Wilson prior to entry of the
                                                                    plenary protection order against him provided “‘an
   “In all cases of statutory construction, the starting point is   opportunity to be heard at a meaningful time and in a
the language employed by Congress. Where the statute’s              meaningful manner.’” Id. at 289-90 (quoting Mathews v.
language is plain, the sole function of the courts is enforce it    Eldridge, 424 U.S. 319, 333 (1976). Defendant had an
according to its terms.” Vergos v. Gregg’s Enters., Inc., 159.      opportunity to be heard in a meaningful manner because, even
F.3d 989, 990 (6th Cir. 1998) (internal quotation marks and         though no proof was presented, he had “‘the opportunity to
citations omitted). “The court must look beyond the language        present reasons, either in person or in writing, why proposed
of the statute, however, when the text is ambiguous or when,        action should not be taken.’” Id. at 290 (quoting Cleveland
although the statute is facially clear, a literal interpretation    Bd. of Educ. v. Loudermill, 470 U.S. 52, 546 (1985)). Given
would lead to internal inconsistencies, an absurd result, or an     that the minimum requirements of the statute comport with
interpretation inconsistent with the intent of Congress.” Id.       the requirements of due process, we follow the Seventh
                                                                    Circuit in declining to embellish the hearing requirements
  The parties contend that the term “hearing” is ambiguous.         explicitly set forth in § 922(g)(8). Consequently, we affirm
While we agree that the term has not been given a consistent        the district court denial of Calor’s motion to dismiss his
meaning in federal law and its construction has been context        prosecution under 18 U.S.C. § 922(g)(8) for possession of
dependent, the term is not ambiguous in this context. In order      five firearms while subject to a court order.2
for a court proceeding to be the predicate hearing for a court
order that triggers the § 922(g)(8) firearm disability, the                                              B.
statute straightforwardly requires that the subject of the court
order be given actual notice of the proceeding and an                 Calor next argues that the district court erred when it denied
opportunity to participate. In this case, the actual notice         his motion to suppress the evidence of his possession of an
requirement is satisfied by the summons written into the EPO        unregistered firearm because the February 9 EPO cannot
that was served on Calor on the evening of February 9. The
opportunity to participate requirement is satisfied because
                                                                        2
Calor could have presented reasons why the court should not               Calor’s reliance on Un ited States v. S pruill, 292 F.3d 207 (5 th Cir.
enter an order finding that he posed a credible threat to the       2002), is misplaced. The dom estic violence order at issue in Spruill did
safety of his wife or child at the February 12 court                not fall within the scope of § 922(g)(8) because it was entered by
                                                                    agreement of the parties, but without the parties appearing before a judge
proceeding. That Calor elected to waive his opportunity to          at a noticed hearing. Id. at 219-20.
No. 02-5099                       United States v. Calor      7    8     United States v. Calor                        No. 02-5099

constitute a valid search warrant under the Fourth                 district court’s balancing of the relative interests appropriately
Amendment and the pre-hearing seizure of the firearms              assigns greater weight to the government’s interest in
violates constitutional due process requirements.                  protecting an alleged domestic violence victim from gun
                                                                   violence and possible death after an alleged abuser has been
   With respect to Calor’s Fourth Amendment challenge to the       served an EPO than to a gun owner’s brief loss of possession.
validity of the EPO as a search warrant, the district court        Consequently, we affirm the district court’s denial of Calor’s
found that an EPO necessarily includes the authority for the       motion to suppress the evidence of his possession of an illegal
sheriff’s department to enter a residence to enforce the           rifle.
seizure-of-weapons provision. As such, the district court
found that “the deputy sheriffs were acting pursuant to a valid                                   III.
search warrant, issued by the terms of a constitutional statute,
when the Bushmaster weapon was seized.” This claim,                  For the foregoing reasons, we affirm the district court’s
however, fails on narrower grounds because Calor does not          denial of Calor’s motion to dismiss his prosecution under 18
argue that the deputy sheriffs’ entry into his residence and       U.S.C. § 922(g)(8) for possession of five firearms while
retrieval of his guns for transportation to the Harrison County    subject to a court order. We also affirm the district court’s
Sheriff’s Office was done without his permission. United           denial of Calor’s motion to suppress evidence connected to
States v. Elkins, 300 F.3d 638, 647 (6th Cir. 2002) (“‘A           his prosecution under 26 U.S.C. § 5861(d) for possession of
search may be conducted without a warrant if a person with         an unregistered Bushmaster .223 caliber rifle with an eleven
a privacy interest in the [place] to be searched gives free and    and one-half inch barrel. Calor’s conviction is affirmed.
voluntary consent.’” (quoting United States v. Riascos-
Suarez, 73 F.3d 616, 625 (6th Cir. 1996)). In fact, at trial,
Calor testified that he complied with the order, albeit
reluctantly, and that he helped the deputies pack up his
firearms. Had Calor denied the deputy sheriffs permission to
enter and the deputies relied on the EPO to search for and
seize Calor’s guns, we then would have a basis for
considering whether an EPO, which requires the removal of
an alleged domestic abuser and his firearms from the home,
is a valid search warrant under the Fourth Amendment.
  With respect to Calor’s due process challenge to the seizure
of his firearms, the district court found that Calor’s argument
failed because, under the balancing test articulated in
Mathews v. Eldridge, 408 U.S. 471, 481 (1972), Kentucky’s
interest in protecting the victims of domestic violence from
further violence, and possibly death, outweighed Calor’s
interest in maintaining possession of his firearms during the
brief period between seizure and a hearing, and that the risk
of an erroneous deprivation of property rights was small. The
