                                     PUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                     No. 18-4367


UNITED STATES OF AMERICA,

            Plaintiff – Appellee,

      v.

BRANDON LOCKE,

            Defendant – Appellant.



Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. T.S. Ellis, III, Senior District Judge. (1:17-cr-00210-TSE-1)


Argued: May 9, 2019                                           Decided: July 30, 2019


Before WILKINSON and KING, Circuit Judges, and Irene C. BERGER, United States
District Judge for the Southern District of West Virginia, sitting by designation.


Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge King
joined. Judge Berger wrote a dissenting opinion.


ARGUED: Mark Bodner, Fairfax, Virginia, for Appellant. Jessica Lynne Urban, OFFICE
OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON
BRIEF: G. Zach Terwilliger, United States Attorney, Maya D. Song, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia,
for Appellee.
WILKINSON, Circuit Judge:

       Brandon Locke, appellant here, seeks to attack the use of a Virginia conviction for

a misdemeanor crime of domestic violence (MCDV) as a predicate for his gun charge under

18 U.S.C. § 922(g)(9). 1 Locke argues that, in pleading guilty to the MCDV, he did not

“knowingly and intelligently” waive his right to a jury trial as required by the statute. 18

U.S.C. § 921(a)(33)(B)(i)[a](II)(bb). The District Court rejected his contention and, for the

reasons that follow, we affirm.

                                             I.

       Locke was charged with violating 18 U.S.C. § 922(g)(9), which prohibits anyone

“who has been convicted in any court of a misdemeanor crime of domestic violence

[MCDV],” from possessing a firearm. In enacting § 922(g)(9), Congress recognized that

“[f]irearms and domestic strife are a potentially deadly combination,” United States v.

Castleman, 572 U.S. 157, 159 (2014) (citation omitted). Congress also recognized that the

existing law at the time—which prohibited firearm possession by those convicted of a

felony—did little to protect victims of domestic abuse, since “many perpetrators of

domestic violence are charged with misdemeanors rather than felonies, notwithstanding

the harmfulness of their conduct.” Voisine v. United States, 136 S.Ct 2272, 2276 (2016).

Congress therefore sought to close this “dangerous loophole” and keep guns out of the




       1
        Locke also attacks the use of a similar Georgia conviction as a predicate. Since 18
U.S.C. § 922(g)(9) only requires one predicate offense, and since we find that his Virginia
conviction is a valid predicate, we do not reach issues relating to the Georgia offense.

                                             2
hands of those who might use them to victimize their families or households. Id. (citation

omitted).

       Locke does not dispute here that, when he was arrested by federal agents in August

2017, he possessed a firearm. Nor does he dispute that, some months before his arrest, he

had pleaded guilty to assault and battery against a family or household member in violation

of Virginia Code § 18.2-57.2, in the Juvenile and Domestic Relations (JDR) District Court

of Stafford County. He does not dispute either that this conviction would ordinarily serve

as a predicate offense under § 922(g)(9). Rather, Locke’s argument is based on 18 U.S.C.

§ 921(a)(33)(B)(i)(II)(bb), which states that a

    person shall not be considered to have been convicted of [an MCDV], unless, in
    the case of a prosecution for an offense described in this paragraph for which a
    person was entitled to a jury trial in the jurisdiction in which the case was tried,
    […] the person knowingly and intelligently waived the right to have the case tried
    by a jury, by guilty plea or otherwise.

Under this provision, if a person like Locke was “entitled to a jury trial” to resolve the prior

MCDV charge but did not “knowingly and intelligently waive[]” that right, the past offense

“shall not be considered” as a predicate under § 922(g)(9).

       At trial, Locke argued that the Virginia conviction could not be considered a

predicate offense under this provision. J.A. 427. He argued that Virginia law entitled him

to a jury trial in that proceeding, and that his waiver of that entitlement did not meet the

“knowingly and intelligently” standard. Id. In support of that argument, Locke asked the

court to subpoena Nicholas Kalagian, his lawyer in the Virginia proceeding. According to

Locke, Kalagian would testify that the JDR judge did not state that Locke was waiving any

right to a trial by jury at the time of his guilty plea. The district court decided not to issue

                                               3
the subpoena, ruling instead that Kalagian’s evidence was irrelevant because Virginia law

did not provide Locke with a right to a jury trial and, therefore, the defense offered by 18

U.S.C. § 921(a)(33)(B)(i)[a](II)(bb) was inapplicable. J.A. 140-45; J.A. 429. The district

court did allow Locke to submit documentary evidence pertaining to his Virginia

conviction. Opening Br. at 10.

       At trial, Locke was found guilty of possessing a firearm after being convicted of an

MCDV. Locke appeals, arguing in relevant part that the district judge erred in ruling that

the Virginia MCDV was a proper predicate in light of 18 U.S.C.

§ 921(a)(33)(B)(i)[a](II)(bb). Locke’s argument on appeal is first, that he was entitled to a

jury trial in the Virginia proceeding and second, that he did not properly waive that right.

But we now affirm the District Court because Locke cannot prevail on either step. 2

                                             II.

       The statute found at 18 U.S.C. § 921(a)(33)(B)(i)[a](II)(bb) is only applicable to

those MCDVs that the defendant was entitled to have resolved by a jury trial. Because

Locke was not entitled to a jury trial to resolve his Virginia MCDV in the Juvenile and

Domestic Relations Court, the statute is inapplicable to him.

       Locke was charged with assault and battery against a family or household member

in violation of Va. Code § 18.2-57.2 in the Stafford County Juvenile and Domestic


       2
        Locke also appeals the district court’s decision to allow various statements made
by Locke to the federal agents searching his house. We agree with the district court that
the pre-Miranda questions asked by the agents were necessary to secure their safety, see
J.A. 424E-24F, and that the post-Miranda statements cannot therefore be “fruits” of the
poisonous tree, J.A. 424F.

                                             4
Relations (JDR) District Court. As Judge Ellis noted, “[u]nder Virginia law, a defendant

tried in JDR court has no right to a jury trial; a defendant is entitled to a jury trial for his

Virginia MCDV case only if he . . . appeals his conviction to the circuit court.” J.A. 428

(citing Va. Sup. Ct. R. 3A:13(a)). Virginia therefore has a “two tiered system for the

conduct and disposition of misdemeanor offenses.” Opening Br. at 28. At the first tier,

there is no right to a jury trial. That right only attaches once the defendant takes the

affirmative step of appealing to the second tier: “The accused is entitled to a trial by jury

only in a circuit court on a plea of not guilty.” Va. Sup. Ct. R. 3A:13(a) (emphasis added).

In other words, where no appeal to the circuit court is taken, no jury trial is available in

Virginia’s JDR court.

       Locke submitted documents in the District Court that show he was made aware of

his “right to appeal a final order[.]” J.A. 222. Had he made use of this appeal, he would

have had the right to a trial by jury, and 18 U.S.C. § 921(a)(33)(B)(i)(II)(bb) would operate.

But he did not. Instead, he opted to deal with his MCDV on the “first tier,” where there is

no right to a jury trial to be had.

       Virginia’s entirely reasonable decision to provide for the expeditious resolution of

misdemeanors like this assault and battery against a family or household member puts

Locke’s conviction squarely outside the category of offenses addressed by 18 U.S.C. §

921(a)(33)(B)(i)(II)(bb). He is therefore ineligible for the defense provided by that statute.




                                               5
See also, United States v. Gordon, 264 Fed. App’x 274, 277 (4th Cir. 2008); United States

v. Artis, 132 Fed. App’x 483, 484-85 (4th Cir. 2005). 3

                                             III.

       Even assuming the right to a jury trial, Locke’s attack on the use of this prior guilty

plea faces yet another obstacle. Guilty pleas are protected by a strong presumption, one

“deeply rooted in our jurisprudence”—the presumption of regularity. Parke v. Raley, 506

U.S. 20, 29 (1992). This venerable principle holds that guilty pleas are presumed to be

valid. Id. In turn, defendants making valid guilty pleas are understood to be “intelligently

and understandingly” giving up their right to a jury trial. Boykin v. Alabama, 395 U.S. 238,

242 (1969). Thus, unless Locke can rebut the presumption of regularity that attaches to his

guilty plea, he is presumed to have waived his right to trial in a way that satisfies the

requirements of 18 U.S.C. § 921(a)(33)(B)(i)[a](II)(bb).

       This presumption is “not easily overcome[.]” Wyatt v. United States, 591 F.2d 260,

265 (4th Cir. 1979). Its origin lies in one of our legal systems oldest axioms: “that every

act of a court of competent jurisdiction shall be presumed to have been rightly done till the

contrary appears.” Voorhees v. Jackson, 35 U.S. 449, 472 (1836). As early as the 19th

century, there was “no principle of law better settled” than the presumption of regularity.

Id. The rule has stood the test of time because it vindicates “the interest in promoting the

finality of judgments,” which remains an important consideration. Daniels v. U.S., 532 U.S.


       3
        Because we agree with the district court on this point, there was no error in refusing
to subpoena Locke’s lawyer in the Virginia proceeding nor in the failure to explicitly
“admit” documentary evidence that shed light on that state court disposition.

                                              6
374, 378 (2001). If we allowed the presumption to erode we would be making “[i]nroads

on the concept of finality,” which would “tend to undermine the confidence in the integrity

of our procedures.” U.S. v. Addonizio, 442 U.S. 178, 184, n.11 (1979). “[I]nevitably,” such

a rule would “delay and impair the orderly administration of justice.” Custis v. U.S., 511

U.S. 485, 497 (1994).

       The presumption has long been understood to shield “every judgment or decree”

from searching inquiry by later courts. Voorhees v. Jackson, 35 U.S. 449, 472 (1836)

(emphasis added). It applies “even when the question is waiver of constitutional rights,”

Parke, 506 U.S. at 29 (citing Johnson v. Zerbst, 304 U.S. 458, 464, 468 (1938)). But when

it comes to guilty pleas, the principle of finality “bear[s] extra weight,” Custis, 511 U.S. at

497, and carries “special force[.]” United States v. Timmreck, 441 U.S. 780, 784 (1979).

For this reason, the presumption of regularity protects the finality of guilty pleas in a wide

variety of situations. It applies in habeas corpus actions. See e.g., Parke, 506 U.S. at 29;

Spates v. Clarke, 547 Fed. Appx. 289, n. 6 (4th Cir. 2013). It applies to proceedings under

the Armed Career Criminal Act. See e.g., Daniels v. U.S., 532 U.S. 374, 381 (2001); U.S.

v. Weston, 681 Fed. Appx. 235, 237 (4th Cir. 2017). It applies under the Sentencing

Guidelines. See e.g., U.S. v. Collins, 415 F.3d 304, 315 (4th Cir. 2005); U.S. v. Gray, 177

F.3d 86, 90 (1st Cir. 1999). And it applies under statutes like the Comprehensive Drug

Abuse Prevention and Control Act of 1970. Parke, 506 U.S. at 33-34.

       Locke argues that the presumption should not apply to his guilty plea, citing the case

of Boykin v. Alabama, 395 U.S. 238 (1969). Opening Br. at 25-26. But Boykin is not the

applicable law. The Supreme Court drove this point home in Parke v. Raley. 506 U.S. 20

                                              7
(1992). Unlike Boykin, Parke did not involve the direct review of a guilty plea. Rather, the

defendant in Parke argued against the use of a prior conviction based on a guilty plea as a

predicate to a recidivist sentencing enhancement. Id. The Court held that “[t]o import

Boykin’s presumption of invalidity into this very different context would, in our view,

improperly ignore another presumption deeply rooted in our jurisprudence: the

‘presumption of regularity’ that attaches to final judgments, even when the question is

waiver of constitutional rights.” Id. at 29 (citing Johnson v. Zerbst, 304 U.S. 458, 464

(1938)). The case before us is in the posture of Parke, not Boykin: Locke is seeking to

“deprive [his prior plea] of [its] normal force and effect” as a predicate offense in the instant

case, but this effort runs headlong into the Court’s decision in Parke. Id. at 30. The

presumption of regularity therefore applies.

       This general presumption of regularity applies with yet stronger force to the

specifics of this case because Locke’s counsel conceded at oral argument that his Virginia

conviction was valid. Oral Argument at 4:03 (“I’m not challenging the validity of the

conviction as it stands, just its use to criminalize my client’s possession of a firearm.”). If,

as Locke concedes, the conviction was valid, then the plea that formed the very basis of

that Virginia conviction must also be valid. And, as every first-year law student knows, a

valid guilty plea is a waiver of the right to a jury trial. Parke v. Raley, 506 U.S. 20, 29

(1992).

       In the face of these formidable obstacles, Locke offered only evidence from his

lawyer in the Virginia proceeding that “to the best of [the lawyer’s] recollection” the judge

did not inform Locke of his right to a trial by jury. J.A. 525. But at no point has Locke ever

                                               8
sought to withdraw his plea on this or any other basis. Any such attempt would, of course,

pose a daunting challenge in light of all the “relevant circumstances” surrounding his plea.

Brady v. U.S., 397 U.S. 742, 749 (1970). Locke was an adult, he was represented by

counsel, there was no suggestion of mental incompetence, there was no suggestion of

improper threats from the authorities, and he had prior experience with the criminal justice

system. Id. at 755-56. Under these circumstances we must hold that his guilty plea was

valid—which is to say, knowing and intelligent—in all respects, including its waiver of

Locke’s jury trial right. Parke v. Raley, 506 U.S. 20, 29 (1992). “That is so because a guilty

plea constitutes a waiver of three constitutional rights: the right to a jury trial, the right to

confront one’s accusers, and the privilege against self-incrimination.” Id. To say otherwise

is to deprive a guilty plea of its normal force and effect. This we cannot do.

                                              IV.

       In enacting 18 U.S.C. § 922(g)(9), Congress sought to protect victims of domestic

abuse from the risk of gun violence posed by their abuser. For this reason, the legislature

has forbidden anyone convicted of a misdemeanor crime of domestic violence from

possessing a firearm. Brandon Locke has admitted to committing such a crime. His

admission—made in the form of a guilty plea—was given with representation by counsel,

under no inappropriate pressure from the state, in a forum where there was no right to a

jury trial. Thus, we take Mr. Locke’s admission at his word. His guilty plea stands, his

possession of the firearm was illegal, and the judgment of the district court is

                                                                                   AFFIRMED.



                                               9
BERGER, District Judge, dissenting:

       Brandon Locke was convicted of possession of a firearm by a prohibited person in

violation of 18 U.S.C. § 922(g)(9). The United States relied on two misdemeanor domestic

violence convictions as predicates: A Georgia conviction for family battery violence in

violation of Georgia Code § 16-5-23.1(a)(f)(1) and a Virginia conviction for assault and

battery against a family or household member in violation of Virginia Code § 18.2-57.2.

Both proceedings were resolved by guilty plea. Neither proceeding involved a plea

colloquy wherein Mr. Locke was advised of his right to jury trial on the record, and neither

proceeding included an affirmative waiver of that right on the record. No records from

either proceeding included a written waiver of the right to a jury trial. Because the Majority

addressed only the Virginia conviction, this dissent will likewise primarily focus on that

conviction. The facts of the Georgia conviction, however, are equally problematic.

                                              I.

       Mr. Locke invoked 18 U.S.C. § 921(a)(33)(B)(i)(II)(bb) as an affirmative defense.

That provision states that a

    person shall not be considered to have been convicted of [an MCDV], unless, in
    the case of a prosecution for an offense described in this paragraph for which a
    person was entitled to a jury trial in the jurisdiction in which the case was tried,
    […] the person knowingly and intelligently waived the right to have the case tried
    by a jury, by guilty plea or otherwise.

The Majority now concludes that Mr. Locke did not have a right to a jury trial in Virginia

because he pled guilty in the Juvenile and Domestic Relations court (JDR).

       Mr. Locke was charged with assault and battery against a family or household

member in violation of Virginia Code § 18.2-57.2, a Class 1 misdemeanor with potential

                                             10
punishment of up to a year in jail and a fine of up to $2,500. Va. Code § 18.2-11. The

Virginia Constitution guarantees criminal defendants the right to a jury trial, but permits

laws “providing for the trial of offenses not felonious by a court not of record without a

jury, preserving the right of the accused to an appeal and a trial by jury in some court of

record having original criminal jurisdiction.” Va. Const. art. I, § 8. The Virginia Court of

Appeals has confirmed that both the United States Constitution and the Virginia

Constitution guarantee the right to a jury trial to defendants charged with offenses carrying

potential sentences of more than six months. McCormick v. City of Virginia Beach, 363

S.E.2d 124, 125 (Va. Ct. App. 1987) (Keenan, J., reversing a conviction because the

defendant “did not give express and intelligent consent to waive his right to trial by jury”

for misdemeanor charges with potential sentences of six months and twelve months).

       I agree that a jury trial is not available in the JDR court, but that fact holds little

weight here because the statutory affirmative defense (on which Mr. Locke relied)

contained in 18 U.S.C. § 921(a)(33)(B)(i)(II)(bb) asks whether a defendant “knowingly

and intelligently waived the right to have the case tried by a jury” “in the case of a

prosecution for an offense…for which a person was entitled to a jury trial in the jurisdiction

in which the case was tried.” (emphasis added). The jurisdiction is Virginia and Virginia

guaranteed Mr. Locke the right to a jury trial for his Class A misdemeanor.

       Virginia courts have concluded that Virginia’s system of providing a jury trial on

appeal for certain misdemeanors meets constitutional muster because it preserves the right

to a jury trial. Manns v. Commonwealth, 191 S.E.2d 810, 812 (Va. 1972). The Majority’s

conclusion that Mr. Locke did not have the right to a jury trial with respect to an offense

                                             11
carrying a potential sentence of twelve months of incarceration calls into question the

constitutionality of that system. Based on Virginia precedent and the language of its

Constitution, I would find that Mr. Locke had the right to a jury trial for his Virginia MCDV

conviction.

                                              II.

       In the alternative, the Majority finds that Mr. Locke must be presumed to have

knowingly and intelligently waived his right to a jury trial simply by virtue of his entry of

a guilty plea. I would apply the statute by its express terms and permit defendants to

challenge the use of a MCDV as an affirmative defense, for purposes of an 18 U.S.C. §

922(g) prosecution, without collaterally attacking the MCDV conviction. The Majority’s

reliance on the presumption of regularity renders the requirement in 18 §

921(a)(33)(B)(i)(II)(bb) of a knowing and intelligent waiver to be a practical nullity. If

Congress intended a knowing and intelligent waiver to be presumed by the existence of a

conviction by guilty plea, without the opportunity for a challenge and further inquiry, it

would have had no reason to enact that provision.

       Waiving the right to a jury trial is an affirmative act, and the judge accepting a guilty

plea requiring such a waiver must ensure that it is undertaken knowingly, intelligently, and

voluntarily. “Presuming waiver from a silent record is impermissible.” Boykin v. Alabama,

395 U.S. 238, 242 (1969) (quoting Carnley v. Cochran, 369 U.S. 506, 516 (1962)). Further

inquiry into Mr. Locke’s MCDV convictions reveals that he did not waive the right to a

jury trial in accordance with settled law regarding waiver.



                                              12
       If waiver of the right to a jury trial could ever be inferred solely from the existence

of a guilty plea, such a presumption is particularly problematic with misdemeanor

convictions. To the extent it is common knowledge that defendants enjoy the right to a

trial by jury and waive that right by entering a guilty plea, there may also be general

awareness that misdemeanors are often treated differently. The Majority notes “Virginia’s

entirely reasonable decision to provide for the expeditious resolution of misdemeanors . .

.,” and the language of the statute likewise recognizes the disparity in procedural rights

afforded to individuals charged with misdemeanors in varying jurisdictions. Maj. Op. at

5. Virginia’s procedure wherein defendants charged with misdemeanors may proceed

without a jury in the JDR court but are guaranteed the right to a jury trial via an appeal to

the circuit court, demonstrates the need for a clear, affirmative waiver to ensure that a

defendant understands his rights.      Yet the majority opinion charges unsophisticated

defendants with knowing and intelligent waiver of the right to a jury trial in the absence of

any evidence that they were informed of the right or expressly waived it during the MCDV

proceeding, on the basis that “as every first-year law student knows, a valid guilty plea is

a waiver of the right to a jury trial.” Maj. Op. at 8.

       Several courts, including a previous panel of the Fourth Circuit, have addressed

challenges to 18 U.S.C. § 922(g)(9) convictions based on assertions that an MCDV

conviction was not a valid predicate because there was no knowing and intelligent waiver

of the right to a jury trial. Those courts have engaged in a factual inquiry to determine

whether there was a knowing and intelligent waiver of the right to a jury trial in the

particular case. See, e.g. United States v. Jennings, 323 F.3d 263, 275–76 (4th Cir. 2003)

                                              13
(noting testimony from a municipal judge regarding her standard procedures to inform

defendants of their rights); United States v. Frechette, 456 F.3d 1, 7 (1st Cir. 2006); United

States v. Pfeifer, 371 F.3d 430, 434 (8th Cir. 2004) (stressing the factual inquiry in whether

a defendant waived); United States v. Bethurum, 343 F.3d 712, 716 (5th Cir. 2003).

       Since Virginia precedent and its Constitution establish that Mr. Locke had a right to

a jury trial in the jurisdiction in which he was convicted and since a sufficient factual record

was adduced before the district court to reveal that Mr. Locke was not informed of his right

to a jury trial and did not knowingly and intelligently waive that right in either the Virginia

or Georgia proceedings, I would find that neither conviction could be used as a predicate

to support a conviction under 18 U.S.C. 922(g)(9) and reverse.




                                              14
