                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-5332


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

JOHN ANDREW MUDLOCK,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:10-cr-00115-WO-1)


Argued:   March 21, 2012                  Decided:     June 19, 2012


Before NIEMEYER, GREGORY, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: J. David James, SMITH, JAMES, ROWLETT & COHEN, LLP,
Greensboro, North Carolina, for Appellant.       Michael Francis
Joseph, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North
Carolina, for Appellee.    ON BRIEF: Ripley Rand, United States
Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     The grand jury indicted John Andrew Mudlock for knowingly

possessing      firearms      in     contravention        of      a     restraining      order

issued    by    a     Tennessee       court,      in    violation          of     18   U.S.C.

§§ 922(g)(8) and 924(a)(2).               Mudlock filed a motion to dismiss

the indictment, alleging that, as applied to him, § 922(g)(8)

was unconstitutional under the Second Amendment.                                The district

court    denied      the   motion.       After      trial,        the    jury    returned   a

guilty    verdict.           The    district      court       subsequently         sentenced

Mudlock   to    42    months’       imprisonment.            In   this     timely      appeal,

Mudlock     challenges         the     district        court’s          constitutionality

determination, several evidentiary rulings, and aspects of his

sentencing.       For the reasons that follow, we affirm.



                                             I.

                                             A.

     Early      in     the     morning    on       January         10,     2010,       Mudlock

telephoned      the    911     dispatcher         in   Rockingham          County,       North

Carolina,      and    hung    up.     When       the   911     operator      called      back,

Mudlock stated that he was going to kill himself and that he

would shoot any law enforcement officer who approached his home.

He stated that he had enough weapons to take out “anybody that

came through the door.”



                                             2
       After an all-day standoff, at around 8:00 p.m., officers

fired       tear     gas        into   Mudlock’s       home,     which    caused      him     to

surrender.          Officers handcuffed Mudlock, but when his hands were

temporarily freed because of a problem with the handcuffs, he

attempted to grab one of the officers’ guns.                                The government

played a video of this incident at trial.

       After        the    officers      secured       Mudlock,      Detective       Benjamin

Strader obtained a search warrant for his home.                                  The search

produced six firearms and numerous rounds of ammunition.                                   Three

of the firearms were loaded.

       On May 2, 2010, Mudlock, who remained in jail, telephoned

Justin Herr to ask that Herr remove three “fishing poles” from

Mudlock’s home.             When Herr went to the home, however, he found

firearms in place of the purported fishing poles.                             He also found

ammunition.          Herr informed ATF Special Agent Paul Johnson of his

discovery.

       Johnson       subsequently        obtained       another      search    warrant       for

Mudlock’s home.             He executed the search warrant on May 6, 2010.

During the search, he located and seized three firearms in an

open    gun    safe        in    Mudlock’s   bedroom        closet    and     approximately

4,000 rounds of ammunition.

       At     the    sentencing         hearing,      ATF   Special      Agent       David   M.

Schauble, who also participated in the May 6, 2010, search and

took    pictures          of     the    scene,       testified    about       what    he     had

                                                 3
observed.     During this testimony, he spoke about a photograph

that he took of a high-capacity magazine that accepted more than

fifteen rounds of ammunition.        According to Schauble, officers

found the magazine in a dresser that was two or three steps from

the open gun safe where they located the three guns, one of

which was capable of accepting the magazine.

       During all relevant time periods, Mudlock was subject to a

domestic     restraining   order   that    barred      him    from    lawfully

possessing    firearms.     The    restraining        order   provided     that

Mudlock “received actual notice of the hearing; that [Mudlock]

had an opportunity to participate in the hearing”; and that he

was “restrained from committing further acts of abuse, domestic

abuse, stalking or sexual assault or threats of abuse, stalking

or sexual assault against” his wife or her minor children.                  It

also    stated   that   Mudlock    had    “made   a     general      appearance

. . . and ha[d] submitted himself to the jurisdiction of [the

court.]”     The order further announced that Mudlock “represents a

credible threat to the physical safety of [Ms. Mudlock].”                 And,

it required that Mudlock “terminate [his] physical possession of

the firearms [in his possession] by any lawful means.”                     The

order states that, barring a continuation, it would be in effect

for one year.    Mudlock signed the order on August 18, 2009.




                                     4
                                          B.

      The   grand     jury    indicted    Mudlock     on    March    30,    2010,       for

possession of firearms while subject to a restraining order, in

violation     of    18   U.S.C.   §§    922(g)(8)     and    924(a)(2).          Mudlock

subsequently filed a motion to dismiss the indictment, arguing

that § 922(g)(8) was unconstitutional as applied to him.                                The

district court denied the motion.

      A jury trial commenced on July 1, 2010.                      On July 2, 2010,

the jury returned a verdict of guilty as charged.                       On September

13, 2010, Mudlock filed a motion seeking substitute counsel.

The district court held a sentencing hearing on November 17,

2010, at which time it denied Mudlock’s motion.                     It subsequently

sentenced him to 42 months’ imprisonment.                      Mudlock thereafter

filed this timely appeal.



                                          II.

      First,       Mudlock   argues     that    the   district      court       erred    in

denying his motion to dismiss the 18 U.S.C. § 922(g)(8) charge

because, as applied to him, this statute infringes on his Second

Amendment rights.            We review this question de novo.                     United

States v. Buculei, 262 F.3d 322, 327 (4th Cir. 2001).

      Section 922(g)(8) forbids those persons who are subject to

an   active    domestic      violence     protection       order    from    possessing

firearms      or     ammunition        while    the    order       is      in    effect.

                                           5
Specifically, the statute makes it unlawful for any person under

a court order that

     (A) was issued after a hearing of which such person
     received actual notice, and at which such person had
     an opportunity to participate;

     (B) restrains such person from harassing, stalking, or
     threatening an intimate partner of such person or
     child of such intimate partner or person, or engaging
     in other conduct that would place an intimate partner
     in reasonable fear of bodily injury to the partner or
     child; and

     (C)(i) includes a finding that such person represents
     a credible threat to the physical safety of such
     intimate partner or child; or

     (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 expected to cause bodily injury;

     * * * *

     to ship or transport in interstate or foreign
     commerce, or possess in or affecting commerce, any
     firearm or ammunition; or to receive any firearm or
     ammunition which has been shipped or transported in
     interstate or foreign commerce.

18 U.S.C. § 922(g)(8).

     The Supreme Court determined in District of Columbia v.

Heller, 554 U.S. 570 (2008), that the Second Amendment protects

the individual “right of law-abiding, responsible citizens to

use arms in defense of hearth and home.”   Id. at 635.   But the

Court made clear that the right is not unlimited and listed

presumptively lawful restrictions, including the prohibition on

the possession of firearms by felons and the mentally ill, as

                               6
well as the carrying of weapons in certain places.                        Id. at 626-

27.

      Our review of Mudlock’s constitutional challenge entails a

two-step inquiry.        United States v. Chester, 628 F.3d 673, 680

(4th Cir. 2010).        First, we must determine whether § 922(g)(8)

infringes     on     conduct    within         the    purview      of     the    Second

Amendment’s    guarantee,       as    that       right    has    been   historically

understood.        United States v. Chapman, 666 F.3d 220, 225 (4th

Cir. 2012) (citing Chester, 628 F.3d at 680).                     “If the answer to

this question is no, that is the end of the matter.                             If the

answer is yes, then we move on to consider the second part of

the   two-part      approach,     which        involves     application         of    the

appropriate form of means-end scrutiny.”                  Id. (citation omitted)

(citing Chester, 628 F.3d at 680).

      For   purposes     of    this    appeal,       we   assume    that    Mudlock’s

conduct falls within the purview of the Second Amendment.                            Thus,

we focus of the second step of the inquiry.                     And in doing so, we

must first determine the appropriate level of scrutiny.

      Like that of the defendant in Chapman, Mudlock’s “claim is

not within the core right identified in Heller—the right of a

law-abiding, responsible citizen to possess and carry a weapon

for self-defense.”        Id. at 226 (emphasis omitted).                   This is so

because we are hard-pressed to think of an instance in which a

responsible    citizen    would       be   (1)    “restrained      from    committing

                                           7
further     acts     of   abuse,   domestic       abuse,        stalking      or   sexual

assault or threats of abuse, stalking or sexual assault against”

another or (2) adjudged to “represent[] a credible threat to the

physical safety of [another].”                 Moreover, in view of Mudlock’s

statement to the 911 dispatcher stating that he would shoot any

law enforcement officer who approached his house, it can hardly

be said that Mudlock is law-abiding.                   “Accordingly, we conclude

that    intermediate       scrutiny       is    the    appropriate        standard     of

scrutiny for [Mudlock] and similarly situated persons.”                        Id.

       We   have    previously     held    in    considering       a    constitutional

challenge to § 922(g)(8) that the statute serves the substantial

government     objective     of    “reducing      domestic       gun    violence”     and

that   there   is     a   “reasonable      fit”       between    the    law    and   this

objective.         United States v. Mahin, 668 F.3d 119, 124-25 (4th

Cir. 2012) (internal quotation marks omitted).                         Specifically we

have held that the government has established the following:

       (1) domestic violence is a serious problem in the
       United States; (2) the rate of recidivism among
       domestic violence misdemeanants is substantial; (3)
       the use of firearms in connection with domestic
       violence is all too common; (4) the use of firearms in
       connection with domestic violence increases the risk
       of injury or homicide during a domestic violence
       incident; and (5) the use of firearms in connection
       with domestic violence often leads to injury or
       homicide.

Chapman, 666 F.3d at 229.




                                           8
      We have reviewed the record and find nothing that would

render the application of the statute unconstitutional in this

case.    As the district court found, § 922(g)(8) provides for a

time-limited     restriction,              which        is    applicable       only      while        the

restraining order is in effect.                         It also requires that specific

procedural safeguards be present at the restraining order stage

before   that   order       can       trigger           the    firearm      restriction.              The

forbidden conduct entails serious or other conduct that would

cause reasonable fear of bodily injury.                                 Lastly, the statute

requires that the restraining order contain a finding that the

defendant    has    been     adjudged           to       be    a    specific       and    “credible

threat to the physical safety” of another or that it explicitly

prohibit     the      use        of        force         or     threatened          force        “that

would    reasonably         be        expected            to       cause     bodily        injury.”

§ 922(g)(8).       In that we agree with the district court that all

of   these   factors        are       present           in     this    case,      we     adopt    the

reasoning of the district court.

      Consequently,         in    that         we       have       found    that       there     is    a

reasonable      fit    between             §    922(g)(8)             and    the        substantial

governmental     objective            of    reducing          domestic      gun     violence,          we

affirm the district court’s decision to deny Mudlock’s motion to

dismiss.




                                                    9
                                         III.

     Next, Mudlock contends that the district court erred in

sentencing him based upon an incorrect base offense level.

     We review sentences for reasonableness under an abuse-of-

discretion standard.       Gall v. United States, 552 U.S. 38, 51

(2007).    Pursuant to this review, we must consider both the

procedural and substantive reasonableness of a sentence.                           Id.;

see also United States v. Lynn, 592 F.3d 572, 575 (4th Cir.

2010).     Properly    preserved         claims    of    procedural        error    are

subject to harmless-error review.                Lynn, 592 F.3d at 576.               If

the sentence is free of significant procedural error, we then

review the substantive reasonableness of the sentence.                           Id. at

575; United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).

When judging the reasonableness of a sentence, we “review the

district   court’s    legal    conclusions         de    novo    and   its    factual

findings for clear error.”           United States v. Hampton, 441 F.3d

284, 287 (4th Cir. 2006).

     Pursuant    to   U.S.S.G.       §     2K2.1(a)(4)(B),         Mudlock’s        base

offense level was set at twenty.                For this guideline to apply,

it requires, among other things, that the offense involved a

“semiautomatic   firearm      that   is        capable   of     accepting    a     large

capacity   magazine.”         Id.         The    application       notes     to     this

guideline define this term to include the following:



                                          10
        a semiautomatic firearm that has the ability to fire
        many rounds without reloading because at the time of
        the offense (A) the firearm had attached to it a
        magazine or similar device that could accept more than
        15 rounds of ammunition; or (B) a magazine or similar
        device that could accept more than 15 rounds of
        ammunition was in close proximity to the firearm.

Id. § 2K2.1 cmt. n.2.

     Mudlock     first    argues   that   the   district   court     erred   in

concluding that he possessed a firearm capable of accepting a

large    capacity   magazine   and   that    the    magazine   was   in   close

proximity to the firearm on January 10, 2010, the date of the

alleged offense.         But our review of the record shows that the

evidence does not comport with these contentions.

     At    the   sentencing    hearing,     Agent   Schauble   testified     as

follows:

     Q:     Agent Schauble, do you know if what is described
            as a high capacity magazine was seized from the
            residence that day?
     A:     Yes, ma’am.
     Q:     Could you explain to the Court what a high
            capacity magazine is exactly?
     A:     It’s a magazine that will fit—can carry more than
            15 rounds.      In this particular case, that
            magazine would carry 30 rounds.
     Q:     And you actually saw that magazine yourself and
            have determined that it will accommodate more
            than 15 rounds of ammunition?
     A:     Yes, ma’am.

     * * * *

     Q.     And there are two—actually two firearms in this
            photograph. Which is which in the photograph?
     A:     There’s actually three firearms.  There’s an SKS
            7.62 by 39 here, which is a double-barreled
            shotgun. To the left of the gun—in the left-hand

                                     11
            corner of the gun safe, and there’s another rifle
            in the right-hand corner of the gun safe.

     * * * *

     Q:     All right. And Government’s No. 5?
     A:     That is the magazine for the SKS that was found
            in the top dress—top right-hand dresser drawer in
            the bedroom.

     * * * *

     Q:     And   proximity wise, how many steps would you have
            had   to have taken from the dresser to get to the
            gun   safe?
     A:     Two   or three.

     * * * *

     Q:     Would you estimate that’s about 10 feet?
     A:     Yes, sir, six to eight—six to 10 feet.

     Given this undisputed testimony, we cannot say that the

district    court      erred   in   finding     that    Mudlock     possessed    a

firearm, in this instance an SKS, capable of accepting a large

capacity    magazine     and   that      such   a    magazine     was    in   close

proximity to the firearm at the time of the alleged offense.

Hence, Mudlock’s claim to the contrary fails.

    Second, Mudlock claims that the ban on firearms capable of

accepting      large     capacity        magazines     has      been     repealed.

Therefore, according to Mudlock, the increased punishment under

the Sentencing Guidelines for possession of such a firearm is

unreasonable.       But we have already considered this issue and

decided    that   “the    repeal    of   the    assault-weapon     ban    did   not

operate as a repeal of the 2005 enhancement.”                United States v.

                                         12
Myers, 553 F.3d 328, 330 (4th Cir. 2009).                            Accordingly, this

claim must fail as well.



                                              IV.

       Mudlock also maintains that the district court committed

reversible error in its refusal to allow him to present evidence

concerning     the       Tennessee         court     hearing      that    led   to    the

imposition of the restraining order.                   Our review of the district

court’s admission of evidence is for an abuse of discretion.

United States v. Wilson, 624 F.3d 640, 649 (4th Cir. 2010).

       “[T]he overwhelming weight of federal case law precludes 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

(10th Cir. 2010).              In fact, the Fifth Circuit has noted that

“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).                  Mudlock has not presented, and we

have    not   found,      any       reason     to    diverge      from    the   majority

approach.     As such, we find no error in the district court’s

disallowance       of    any       evidence    concerning      the    Tennessee      court

hearing.



                                              13
                                              V.

      According       to     Mudlock,    the       district    court    also    erred    in

admitting certain evidence at his trial that was not charged in

the indictment and was irrelevant to the charges contained in

the indictment.            Specifically, Mudlock objects to the district

court’s admission of (1) evidence concerning his request to Herr

that Herr remove firearms from Mudlock’s home and (2) evidence

regarding his attempt to grab one of the officers’ guns.                                 As

noted   above,        we     review     the    district       court’s    admission      of

evidence for abuse of discretion.                   Wilson, 624 F.3d at 649.

      At trial, the government was required to prove beyond a

reasonable    doubt         that   Mudlock     “knowingly”       possessed     firearms.

See § 924(a)(2).            And, as the district court observed, Mudlock’s

statements      and    conduct        “that    reflect     his    knowledge      of     the

firearms that were present in his home and, to a certain degree,

his   control    of        those   firearms,”       including     his   statements       to

Herr, relate to his “knowing possession.”                        Therefore, we hold

that this evidence was “admitted as to acts intrinsic to the

crime charged, and . . . not admitted solely to demonstrate bad

character.”      United States v. Chin, 83 F.3d 83, 88 (4th Cir.

1996) (citing United States v. Allen, 960 F.2d 1055, 1058 (D.C.

Cir. 1992)).      Moreover, to assure that the jury did not consider

the   evidence    for        anything    but       Mudlock’s   state    of     mind,    the



                                              14
district court gave a limiting instruction to the jury.                            Thus,

the district court properly admitted this evidence.                    See id.

      Mudlock’s       assignment       of   error    to    the   district     court’s

admission       of    evidence    concerning        Mudlock’s    grabbing         of   an

officer’s gun fares no better.                    The district court noted, “I

think here this is some evidence of a knowing possession of

firearms, . . . continued even after he was placed into custody.

. . . I think it’s part of the transaction, and I also think

it’s probative of that knowledge and intent on his part.”                              To

ameliorate      any    unfair    prejudice,        the    district    court   gave     a

limiting instruction as to this evidence as well.                      Accordingly,

we find no abuse of discretion.



                                            VI.

      Finally, Mudlock states that the district court erred in

refusing to appoint substitute counsel prior to his sentencing.

Our   review     of    a   district     court’s      decision    on   a   motion       to

substitute counsel is for abuse of discretion.                   United States v.

Reevey, 364 F.3d 151, 156 (4th Cir. 2004).

      It   is    axiomatic      that   an    indigent     defendant    has    a    Sixth

Amendment right to counsel.             Gideon v. Wainwright, 372 U.S. 335,

343-45 (1963).         But the exercise of this right “cannot ‘deprive

courts of the exercise of their inherent power to control the

administration of justice.’”                United States v. Perez, 661 F.3d

                                            15
189, 191 (4th Cir. 2011) (quoting United States v. Gallop, 838

F.2d 105, 108 (4th Cir. 1988)).                    Thus, an indigent defendant is

entitled to substitute appointed counsel only for good reason.

Id.

      “Our review of denial-of-substitution claims has focused on

three    inquiries:       (1)     the   timeliness      of     the    motion;      (2)    the

adequacy of the court’s subsequent inquiry; and (3) ‘whether the

attorney/client conflict was so great that it had resulted in

total lack of communication preventing an adequate defense.’”

United     States    v.    Smith,       640   F.3d    580,   588      (4th    Cir.     2011)

(quoting Gallop, 838 F.2d at 108).                     There is no dispute that

Mudlock’s     motion       was    timely.          Therefore,        we    consider      only

factors two and three.

      As    to     the    adequacy-of-the-inquiry              prong,       according     to

Mudlock, the district court failed adequately to inquire into or

consider     the    following       alleged        shortcomings       of    his   counsel:

counsel’s        failure     to     obtain         documentation           regarding     the

Tennessee        proceedings,       despite        Mudlock’s     request;         counsel’s

failure to review Mudlock’s objections to the Presentence Report

with him; counsel’s instruction to Mudlock that he should write

directly to the probation office regarding his objections; and

counsel’s failure to accept or return Mudlock’s telephone calls.

Contrary to Mudlock’s contention, the record shows the district



                                              16
court    made     an       extensive      inquiry    into     Mudlock’s         complaints.

There was more than sufficient discussion to satisfy this prong.

       All said, from our review of the record, it appears that

Mudlock’s       chief        complaint      about     his    counsel          concerns    the

validity of the restraining order and the gun enhancement.                                But,

as     discussed        above,        Mudlock’s        arguments          regarding        the

restraining order lack merit.                     And we have never held that an

attorney who declines to make unmeritorious claims demanded by a

client risks being replaced.                  Mudlock’s counsel made arguments

regarding       the     gun     enhancement,         which        the    district        court

properly rejected.              Thus, as the district court observed, “I

don’t see that there’s any reason to believe that it [would have

been] any better by substituting counsel.”

       Concerning the communication prong, Mudlock complains that

there was a complete breakdown of communication between him and

his    counsel       and     that    the    district       court    erred       in    holding

otherwise.        Mudlock states that he detailed for the district

court the alleged unacceptable length of time that his counsel

failed to communicate with him.                     Moreover, Mudlock avows that,

even    when    he     was    able   to     communicate      with       his    counsel,   his

counsel failed to take action on his behalf or explain to him

the    reason    or     reasons      that    he    could    not    take       the   requested

action.         Instead,       according      to    Mudlock,       his    counsel     merely

instructed him to contact court officials himself.

                                              17
     The district court aptly summarized the record before us,

however,   by   stating   that    Mudlock    and    his    counsel   had     “been

discussing the case,” but “there [was] disagreement over what

constitutes a meritorious objection and what doesn’t.”                 In light

of the fact that these discussions were occurring, we are unable

to say that there was a total breakdown of communication.

     Accordingly,     the    district       court    did     not     abuse     its

discretion in refusing to appoint substitute counsel prior to

sentencing.



                                    VII.

     Wherefore,     for     the   reasons     stated       above,     Mudlock’s

conviction and sentence are

                                                                      AFFIRMED.




                                     18
