                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        NOV 3 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

BARRY MICHAELS,                                 No. 17-15279

                Plaintiff-Appellant,            D.C. No. 2:16-cv-00578-JAD-PAL

 v.
                                                MEMORANDUM**
JEFFERSON B. SESSIONS III*, Attorney
General; THOMAS E. BRANDON, Deputy
Director, Head of the Bureau of ATF,

                Defendants-Appellees.

                   Appeal from the United States District Court
                             for the District of Nevada
                   Jennifer A. Dorsey, District Judge, Presiding

                           Submitted October 23, 2017***

Before:      LEAVY, WATFORD, and FRIEDLAND, Circuit Judges.

      Barry Michaels appeals from the district court’s judgment dismissing his



      *
             Jefferson B. Sessions III has been substituted for his predecessor,
Loretta E. Lynch, as United States Attorney General under Fed. R. App. P.
43(c)(2).
      **
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
action challenging the constitutionality of 18 U.S.C. § 922(g)(1) under the Second

Amendment. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a

dismissal under Federal Rule of Civil Procedure 12(b)(6). Skilstaf, Inc. v. CVS

Caremark Corp., 669 F.3d 1005, 1014 (9th Cir. 2012). We affirm.

      The district court properly dismissed Michaels’s action because prior

precedent forecloses Michaels’s as-applied challenge to § 922(g)(1). See United

States v. Vongxay, 594 F.3d 1111, 1115 (9th Cir. 2010) (stating that “felons are

categorically different from the individuals who have a fundamental right to bear

arms,” and upholding § 922(g)(1) against a Second Amendment challenge); see

also United States v. Phillips, 827 F.3d 1171, 1174-75 (9th Cir. 2016) (rejecting as

foreclosed by precedent the argument that imposing § 922(g)(1) on non-violent

felons violates the Second Amendment).

      We reject as meritless Michaels’s contention that the district court

committed reversible error by failing to apply strict scrutiny. See United States v.

Chovan, 735 F.3d 1127, 1136-38 (9th Cir. 2013) (holding that a statute “does not

implicate this core Second Amendment right [if] it regulates firearm possession for

individuals with criminal convictions”).

      We do not consider matters not specifically and distinctly raised and argued

                                           2                                  17-15279
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

      AFFIRMED.




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