Appeal from the United States District Court for the Eastern District of California Lawrence J. O'Neill, District Judge, Presiding, D.C. No. 1:08-CR-00030-LJO.
The opinion of the court was delivered by: Milan D. Smith, Jr., Circuit Judge
Argued and Submitted January 12, 2010 -- San Francisco, California
Before: Myron H. Bright,*fn1 Michael Daly Hawkins, and Milan D. Smith, Jr., Circuit Judges.
Defendant-Appellant Peter Vongxay appeals his conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He challenges his conviction on three grounds. First, he argues that § 922(g)(1) violates the Second Amendment. Next, he asserts that § 922(g)(1) violates his right to equal protection under the Due Process Clause of the Fifth Amendment. Finally, he claims that the arresting officer's search violated his Fourth Amendment right to be free from unreasonable searches and seizures. We affirm the judgment of the district court on all Vongxay's claims.
FACTUAL AND PROCEDURAL BACKGROUND
Vongxay was arrested outside the After Dark Nightclub, a known venue of gang activity and violence, which was located within the area patrolled by Officer Alfred Campos of the Fresno Police Department. The club was a known hangout for at least two gangs: the Asian Crips and the Tiny Rascals. Based on his experience and training, Campos knew that these gang members typically dressed in blue L.A. Dodgers clothing. Campos testified that the two gangs engaged in "constant shootings at each other, armed with guns" and that they caused "disturbances."
On the night of Vongxay's arrest, Campos approached the After Dark Nightclub in a marked vehicle. He saw a group of Asian males loitering in front of the club dressed in the blue athletic apparel commonly worn by members of the gangs. As soon as the group noticed him they began to retreat out of the parking lot and funnel into the club. After calling for backup, Campos drove around the block and re-approached the club on foot. By that time, the same group of males had once again gathered outside the club. The first person Campos encountered was Vongxay. Campos "engaged in a conversation with him and asked him if he was leaving, or if he was going to go into the nightclub."
While Campos asked Vongxay about his presence at the club, he noticed that Vongxay appeared to be attempting to conceal something under his waistband. Specifically, Vongxay "turned his body to the left and kept his waist area away from [Campos] . . . [a]nd . . . he placed his left hand down towards his waist area as if he was covering something." Thinking that Vongxay was armed, Campos positioned himself behind Vongxay and asked him if he had any weapons. Vongxay said that he did not. Campos then asked Vongxay if he could search him for weapons. Vongxay did not verbally respond, but "placed his hands on his head." Campos began the search by feeling Vongxay's waistband and immediately felt the frame of a large handgun. As soon as Campos felt the gun, Vongxay attempted to pull away. A struggle ensued, and a loaded semiautomatic handgun fell from Vongxay's waistband. Vongxay continued to fight, bringing Campos down to the ground. It took the assistance of additional officers and a Taser gun to overpower Vongxay and arrest him.
Vongxay was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Vongxay had three previous, non-violent felony convictions: two for car burglary and one for drug possession. Vongxay filed a motion to dismiss the indictment on the ground that § 922(g)(1) violates the Second Amendment. He also argued that § 922(g)(1) violates his right to equal protection under the Fifth Amendment Due Process Clause. Finally, he moved to suppress the gun that was seized from him, asserting that he did not consent to the search, and that Campos had violated his Fourth Amendment right to be free from unreasonable searches and seizures. The district court denied Vongxay's motions in an oral ruling, finding that Vongxay had consented to the search and that § 922(g)(1) does not violate either the Second or Fifth Amendments. After a two-day trial, a jury found Vongxay guilty of being a felon in possession of a firearm.
JURISDICTION AND STANDARD OF REVIEW
We review the constitutionality of a statute de novo. United States v. Jones, 231 F.3d 508, 513 (9th Cir. 2000). We also review constitutional challenges to the district court's denial of a motion to dismiss de novo. United States v. Palmer, 3 F.3d 300, 305 (9th Cir. 1993). We review a district court's finding of consent to a search for clear error. United States v. Shaibu, 920 F.2d 1423, 1425 (9th Cir. 1990). We have jurisdiction under 28 U.S.C. § 1291.
Vongxay appeals his conviction for being a felon in possession of a firearm. He argues that 18 U.S.C. § 922(g)(1) violates the Second Amendment, and the equal protection component of the Fifth Amendment Due Process Clause. He also argues that he was searched without his consent in violation of ...