                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4098


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

CORY CHAFIN,

                Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.  John T. Copenhaver,
Jr., District Judge. (2:08-cr-00129-1)


Argued:   March 22, 2011                  Decided:   April 13, 2011


Before SHEDD and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


ARGUED: Nicholas S. Preservati, PRESERVATI LAW OFFICES, PLLC,
Charleston, West Virginia, for Appellant.    Steven Robert Ruby,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia,
for Appellee.    ON BRIEF: Joseph L. Jenkins, PRESERVATI LAW
OFFICES,   PLLC,  Charleston,   West  Virginia,   for  Appellant.
Charles T. Miller, R. Booth Goodwin II, United States Attorneys,
Samuel D. Marsh, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Cory Chafin appeals his conviction for selling a firearm to

a person knowing or having reasonable cause to believe that such

person is an unlawful user of drugs, 18 U.S.C. § 922(d)(3).                                We

affirm.

       On February 6, 2008, Chafin, at the time an unlawful user

of drugs, purchased an AK-47 rifle from Graybeal Firearms, a

federally licensed firearms dealer in Peytona, West Virginia.

Before purchasing the rifle, Chafin completed an ATF Form 4473

in which he answered “NO” to the question that asked if he was

an   unlawful          user   of    drugs.      On    February     11,       2008,   Chafin

returned to Graybeal Firearms and purchased another AK-47 rifle.

Again, on the Form 4473, he falsely stated that he was not an

unlawful user of drugs.                On February 22, 2008, Chafin sold the

AK-47 he had purchased on February 6 to his friend, Juan Chic,

who, at the time of the sale, was also an unlawful user of

drugs.

       On   June       10,    2008,   a    federal    grand    jury     sitting      in   the

Southern     District          of     West    Virginia       returned        a   four-count

indictment against Chafin.                   Counts One and Two charged Chafin

with     making         a     false       statement     on     a      Form       4473,    id.

§ 924(a)(1)(A).               Count   Three    charged       Chafin    with      selling    a

firearm     to     a    person      knowing    or     having   reasonable         cause    to

believe that such person was an unlawful user of drugs, id.

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§ 922(d)(3).        Count    Four   charged       Chafin   with    possession     of

firearms while being an unlawful user of drugs, id. § 922(g)(3).

      On July 31, 2008, Chafin filed a motion to dismiss the

indictment,     contending     that       each    count    in     the    indictment

violated his Second Amendment right to bear arms.                      On August 7,

2008,    the   district     court   denied       the   motion.         Subsequently,

Chafin entered a conditional plea of guilty to Count Three of

the   indictment,    reserving      his   right    to   raise     on    appeal   that

“§ 922(d)(3) is unconstitutional . . . in light of” the Supreme

Court’s decision in District of Columbia v. Heller, 554 U.S. 570

(2008).     The district court accepted Chafin’s conditional plea

and found him guilty of the § 922(d)(3) offense charged in Count

Three.     On January 26, 2009, Chafin was sentenced to thirty-

seven months’ imprisonment.         He noted a timely appeal.

      On appeal, Chafin contends that his § 922(d)(3) conviction,

per Heller, is unconstitutional under the Second Amendment.                       We

disagree.

      The Second Amendment provides: “A well regulated Militia,

being necessary to the security of a free State, the right of

the people to keep and bear Arms, shall not be infringed.”                       U.S.

Const. amend. II.      This amendment protects an individual’s right

to possess arms without regard to militia service.                      Heller, 554

U.S. at 595.     However, an individual’s right to bear arms is not

“unlimited, just as the First Amendment’s right of free speech

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[is] not.”         Id.     Moreover, because the Second Amendment, like

the First Amendment, codifies a pre-existing right, the scope of

the    protection         afforded       by    the       amendment       is    a     matter      of

historical inquiry.              United States v. Chester, 628 F.3d 673, 678

(4th Cir. 2010).

       As   a    result,        in    evaluating      Second       Amendment       claims,      we

apply a two-part test.                  First, we ask “whether the challenged

law imposes a burden on conduct falling within the scope of the

Second      Amendment’s          guarantee.”             Id.     at     680   (citation         and

internal     quotation          marks    omitted).             “This    historical        inquiry

seeks to determine whether the conduct at issue was understood

to     be   within        the        scope    of     the       right     at    the    time       of

ratification.”           Id.         If the conduct is not within such scope,

then the challenged law is valid.                          Id.     If the challenged law

“burdens        conduct    that        was    within       the     scope      of   the    Second

Amendment as historically understood, then we move to the second

step of applying an appropriate form of means-end scrutiny.”

Id.

       Here,     Chafin        contends       that    his        conduct—the       sale    of    a

firearm to an unlawful user of drugs—falls within the historical

scope of the Second Amendment.                     However, Chafin has not pointed

this    court     to     any    authority,         and     we    have    found     none,      that

remotely suggests that, at the time of its ratification, the

Second Amendment was understood to protect an individual’s right

                                              - 4 -
to   sell   a    firearm.      Indeed,      although     the    Second       Amendment

protects    an    individual’s      right    to   bear    arms,    it    does     not

necessarily      give   rise   to    a    corresponding        right    to    sell   a

firearm.    Cf. United States v. 12 200-Foot Reels of Super 8mm.

Film, 413 U.S. 123, 128 (1973) (“We have already indicated that

the protected right to possess obscene material in the privacy

of one’s home does not give rise to a correlative right to have

someone sell or give it to others.”).                    Accordingly, Chafin’s

argument that § 922(d)(3) is unconstitutional under Heller must

be rejected. ∗

                                                                              AFFIRMED




      ∗
       Chafin raises two additional arguments that are outside
the scope of the argument he reserved for appeal as part of his
conditional guilty plea.     More specifically, he argues that
§ 922(d)(3) violates the Second Amendment, because § 922(g)(3)
violates the Second Amendment.   He also argues that his Second
Amendment right to bear arms “cannot be deprived without prior
notice and an opportunity to be heard.” Appellant’s Br. at 10.
We decline to address these arguments because they fall outside
the scope of the issue Chafin reserved for appeal as part of his
conditional guilty plea.   Cf. United States v. Bundy, 392 F.3d
641, 650 n.3 (4th Cir. 2004) (“Where a defendant who pled guilty
presents on appeal an issue that he did not even attempt to
preserve by means of a conditional plea, we decline to entertain
the appeal on the ground that the defendant’s unconditional plea
waived that issue altogether.”).




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