USA v. Rolando Sanchez

Filing

FILED OPINION (MARY M. SCHROEDER, SIDNEY R. THOMAS and SAMUEL CONTI) REVERSED AND REMANDED. Judge: MMS , Judge: SRT , Judge: SC Authoring. FILED AND ENTERED JUDGMENT. [7741200]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,

ROLANDO

v.
ROMAN SANCHEZ,
Defendant-Appellant.





No. 10-10229
D.C. No.
CR 09-1125-TUCFRZ
OPINION

Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, District Judge, Presiding
Argued and Submitted
February 16, 2011—San Francisco, California
Filed May 5, 2011
Before: Sidney R. Thomas and Mary M. Schroeder,
Circuit Judges, and Samuel Conti,* District Judge.
Opinion by Judge Conti

*The Honorable Samuel Conti, Senior District Judge, Northern District
of California, sitting by designation.

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COUNSEL
Scott M. McNamara, Tucson, Arizona, for the defendantappellant.
Angela W. Woolridge, Assistant U.S. Attorney, District of
Arizona, Tucson, Arizona, for the plaintiff-appellee.

OPINION
CONTI, Senior District Judge:
I.

INTRODUCTION

Defendant-Appellant Rolando Roman Sanchez appeals his
conviction, following a bench trial, for possession of a firearm
in violation of 18 U.S.C. § 922(g)(8), which places
prohibited-possessor status on individuals subject to certain
restraining orders. Sanchez was indicted and convicted for
possession of a firearm while he was subject to a Tucson City
Court order directing him to have no contact with his former

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girlfriend and her family. Sanchez asserts that the district
court committed an error of law in denying his motion for
acquittal, arguing that the no-contact order cannot satisfy
§ 922(g)(8)’s requirement that the underlying court order “by
its terms explicitly prohibit[ ] 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.” Sanchez additionally argues that the district court
erred in instructing the jury that the language of the court
order need not track the exact language of § 922(g)(8)(C). We
agree with Sanchez, and we reverse.
II.

FACTS

On March 7, 2009, the Arizona Department of Public
Safety (“DPS”), the Pima County Sherriff’s office, and the
Bureau of Alcohol, Tobacco, Firearms and Explosives
(“BATF”) were jointly patrolling the area around a gun show
occurring at Pima County Fairgrounds. DPS Detective
Charles Truitt stopped a car driven by Sanchez for failure to
use turn signals and stop at a traffic light. Sanchez consented
to a search of the passenger compartment of his vehicle,
which revealed a handgun underneath the car’s center console. Truitt notified a nearby BATF agent, Rustin Wayas, who
soon arrived on the scene. Sanchez consented to a search of
the trunk, which revealed 250 rounds of .30 carb ammunition,
three magazines holding the .30 carb ammunition, and a magazine for a Cobra CA-32 pistol. A criminal record check
revealed Sanchez’s January 29, 2009 conviction for Domestic
Violence/Disorderly
Conduct
and
Domestic
Violence/Criminal Damage under Ariz. Rev. Stat. § 13-2904.
On June 10, 2009, a Tucson federal grand jury indicted
Sanchez for one count of Possession of a Firearm and Ammunition by a Prohibited Possessor, in violation of 18 U.S.C.
§ 922(g)(9). Section 922(g)(9) makes it unlawful for a person
“convicted in any court of a misdemeanor crime of domestic
violence” to possess a firearm. Sanchez was arraigned on July

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8, 2009 and held without bond. In pre-trial proceedings, Sanchez argued that the indictment failed to state an offense
under United States v. Nobriga, 474 F.3d 561, 564-65 (9th
Cir. 2006), because the underlying domestic violence crime
lacked “as an element, the use or attempted use of physical
force, or the threatened use of a deadly weapon” against a person. 18 U.S.C. § 921(a)(33)(A)(ii). Five days later, the government filed a superseding indictment, replacing the
§ 922(g)(9) count with a count of violation of 18 U.S.C.
§ 922(g)(8). Section 922(g)(8) places prohibited-possessor
status on a person subject to a court order that, among other
requirements, either includes a finding that the individual represents a credible threat to the physical safety of an “intimate
partner or child” or “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.” 18 U.S.C. § 922(g)(8).
The superseding indictment identified the judgment and
terms of probation for Sanchez’s January 29, 2009 domestic
violence conviction as the court order satisfying § 922(g)(8)’s
requirements. The judgment, a single-page form document
signed by a Tucson City Court judge, directed Sanchez to
“VIOLATE NO LAWS” and “HAVE NO CONTACT
WITH” his former girlfriend, S.K, and her two family members, “except in court proceedings.” The conditions of probation, also a single-page form document signed by the judge,
placed the following restraints on Sanchez:
A. Do not initiate or maintain telephone contact, correspondence, personal or third party contact with the
victim without prior written approval of this court or
probation officer. Do not enter the premises, travel
or loiter near where the victim resides or works.
B. Avoid all contact with the victim’s family unless
approved by probation officer.

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Sanchez filed a motion to dismiss this superseding indictment, arguing that this order did not satisfy § 922(g)(8)
because the statute requires the triggering court order to “by
its term explicitly prohibit” the use, attempted use, or threatened use of physical force against an intimate partner. The
district court denied Sanchez’s motion, adopting the report
and recommendation of the magistrate judge that it was “a
ruling that should properly be reserved to the trier of fact.”
A two-day trial commenced on February 24, 2010. At the
conclusion of the government’s case in chief, Sanchez moved
for acquittal, renewing his argument that the no-contact order
could not satisfy § 922(g)(8).1 In response, the government
argued that because the order expressly and unambiguously
prohibited Sanchez from any contact with his former girlfriend, and because there were no conflicting or unclear terms
in the order, it satisfied § 922(g)(8).
Ruling from the bench, the district court denied Sanchez’s
motion. Noting that it was a “difficult case,” the court held
that the jury could find that the no-contact order satisfied
§ 922(g)(8), because if Sanchez had any contact with the victim, he would be in violation of probation, and thus “any sort
of harassing, stalking or threatening is prohibited clearly and
unambiguously by the no contact order.”
On February 25, 2010, the jury convicted Sanchez of possession of a firearm in violation of § 922(g)(8). He was sentenced to fifteen months of imprisonment and thirty-six
months of supervised release. This appeal followed.
III.

DISCUSSION

We review the district court’s ruling on the motion for
acquittal de novo. United States v. Sutcliffe, 505 F.3d 944,
1

Sanchez also challenged one of the government’s proposed jury
instructions, an issue we need not reach in this appeal.

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959 (9th Cir. 2007). Section 922(g) of Title 18 of the United
States Code—part of the Gun Control Act of 1968—provides
nine bases which make it unlawful for a person 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.” Violators are subject to imprisonment for up to ten years. Id. § 924(a)(2).
[1] Section 922(g)(8) places prohibited-possessor status on
any person subject to 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;

18 U.S.C. § 922(g)(8).
Sanchez does not dispute that, under § 922(g)(8), he knowingly possessed a firearm and that his possession was in or
affected interstate commerce. Instead, he contends that he was

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not subject to a court order satisfying the statute. For a court
order to meet the requirements of § 922(g)(8), it must satisfy
several distinct sub-elements. First, there must be a court
order. 18 U.S.C. § 922(g)(8). Second, this order must have
been issued after a hearing, of which the possessor received
notice. Id. § 922(g)(8)(A) (“(8)(A)”). Third, the order must
restrain the possessor from “harassing, stalking or threatening
an intimate partner or child of such intimate partner or person,
or engaging in conduct that would place an intimate partner
in reasonable fear of bodily injury to the partner or child.” Id.
§ 922(g)(8)(B) (“(8)(B)”). Fourth, the court order must also
either include a finding that the possessor represents a credible threat to the victim’s safety, id. § 922(g)(8)(C)(i)
(“(8)(C)(i)”), or, by its terms, explicitly prohibit “the use,
attempted use, or threatened use of physical force” against
such a person, id. § 922(g)(8)(C)(ii) (“(8)(C)(ii)”).
Sanchez argues that the language “explicitly by its terms”
in (8)(C)(ii) requires the underlying court order to expressly
bar the subject of the order from using, threatening to use, or
attempting to use force against an intimate partner. Sanchez
contends that the district court’s reading goes against the plain
meaning of the statute and conflicts with legislative intent.
The government argues that the evidence at trial was sufficient for a reasonable jury to find that the no-contact order
satisfied (8)(C)(ii). It claims that interpreting the statute to
cover no-contact orders follows from a “practical, commonsense reading” of the statute. The government also contends
that if court orders such as this one are excluded from
§ 922(g)(8), its purposes would be frustrated.
[2] The interpretation of § 922(g)(8) is an issue of first
impression in this circuit. The circuits that have addressed it
have reached a consensus: (8)(C)(ii) is satisfied by a court
order that includes explicit terms similar—if not identical—in
meaning to “the use of physical force that would reasonably
be expected to cause bodily injury.” United States v. DuBose,

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598 F.3d 726, 730-31 (11th Cir. 2010) (per curiam); United
States v. Coccia, 446 F.3d 233, 242 (1st Cir. 2006); United
States v. Bostic, 168 F.3d 718, 722 (4th Cir. 1999). The above
cases all involved court orders with express and specific terms
limiting the defendant’s conduct: the court order in DuBose
expressly prohibited the defendant “from intimidating, threatening, hurting, [or] harassing” his intimate partner, 598 F.3d
at 730-31, while the court orders in Coccia and Bostic
expressly directed the defendants to “refrain from abusing”
their intimate partners, 446 F.3d at 242; 168 F.3d at 722. No
court, however, has found that a court order barring “no
contact”—but containing no explicit prohibitions on physical
force, abuse, or harm—satisfies (8)(C)(ii).
[3] We hold that a conviction under 18 U.S.C. § 922(g)(8)
does not require the precise language of (8)(C)(ii) to be contained in a court order. However, a court order must contain
explicit terms substantially similar in meaning to the language
of (8)(C)(ii). Accordingly, the district court erred in denying
Sanchez’s motion for acquittal, because a no-contact order
that lacks explicit prohibitions on the use, attempted use, or
threatened use of physical force against an intimate partner or
child that would reasonably be expected to cause bodily
injury cannot satisfy (8)(C)(ii).
Our reading is consistent with the plain meaning of the
word “explicit.” “Explicit” means “not obscure or ambiguous,
having no disguised meaning or reservation.” Black’s Law
Dictionary 579 (rev. 6th ed. 1990). Lay dictionaries offer similar definitions. E.g., Merriam-Webster Collegiate Dictionary
441 (11th ed. 2003) (“fully revealed or expressed without
vagueness, implication, or ambiguity; leaving no question as
to meaning or intent.”), Oxford American Dictionary 337
(1999) (“expressly stated, leaving nothing merely implied;
stated in detail”), 5 Oxford English Dictionary 572 (2d ed.
1989) (“of knowledge, a notion, etc.; developed in detail:
hence, clear, definite.”).

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Under any of these definitions, for a court order to “by its
terms explicitly” prohibit the use, threatened use, or attempted
use of physical force, it must include terms that clearly—
without implication, vagueness, or ambiguity—prohibit the
use, threatened use, or attempted use of physical force. While
this does not require the court order to track the language of
(8)(C)(ii), it must include specific terms that clearly—and
without implication—prohibit such activity. A court order that
merely requires “no contact” does not explicitly prohibit such
activity.
This interpretation is also logical within the context of
(8)(C). When interpreting statutes, “context determines meaning.” Johnson v. United States, ___ U.S. ___, 130 S. Ct. 1265,
1270 (Mar. 2, 2010). If the words “by its terms” and “explicitly” were removed from (8)(C)(ii), the statute would be satisfied by a court order that prohibited—explicitly or otherwise
—the use, attempted use, or threatened use of physical force.
Because “[l]anguage employed in a penal statute is deemed to
have been used intentionally,” 5 Sutherland Stats. & Stat.
Constr. § 59.8, it can safely be assumed that Congress did not
intend “explicitly” to include “implicitly.”
This reading is also apparent from a reading of (8)(C)(ii)
within the context of § 922(g)(8) as a whole. Subsection
(8)(B) limits the statute to court orders that restrain persons
“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 it does not include (8)(C)(ii)’s “by its terms explicitly”
language. Context suggests that (8)(C)(i) and (8)(C)(ii)
require something more than what (8)(B) requires. In addition
to restraining an individual from harassing, stalking, or threatening an intimate partner or engaging in similar conduct, the
court order must either: (i) include a finding that such person
represents a credible threat to the physical safety of the intimate partner or child, or (ii) expressly by its terms prohibit the

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use, attempted use, or threatened use of physical force against
the intimate partner or child.
The government argues that our construction would frustrate the purpose of § 922(g)(8) and result in its “disparate
application.” This argument has little merit. A court can
ensure an order triggers § 922(g)(8) by including either a finding that the person subject to the court order represented a
credible threat to the physical safety of an intimate partner or
child or specific terms prohibiting the use, attempted use, or
threatened use of physical force.
The government further argues that it “would defy logic”
to apply § 922(g)(8) to individuals who are barred by court
order from acts of violence but are otherwise permitted some
contact with their intimate partner, but not to individuals subject to no-contact orders, because these individuals “have presumably been found to present such a threat to victims that an
absolute prohibition of any contact is necessary to protect the
victims.” With this argument, the government writes (8)(C)(i)
out of the statute. If an individual’s threat could be presumed
from the terms of the order, then there would be no need for
(8)(C)(i), which is satisfied only by an express finding that an
individual represents a credible threat. Indeed, no-contact
orders may issue where no such finding is made—an individual may voluntarily consent to a no-contact order, or have little interest in challenging one. Furthermore, a court may issue
a no-contact order for reasons unrelated to the safety of the
individual named in the order: for example, a court may issue
terms of probation barring the probationer from having contact with a co-felon, to protect the probationer from bad influences. In such a situation, there is no presumption that the
person subject to the order represents a threat of violence.
In sum, we hold that while a conviction under 18 U.S.C.
§ 922(g)(8) does not require that the precise language of
(8)(C)(ii) be contained in a court order, a court order must
contain explicit terms substantially similar in meaning to the

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language of (8)(C)(ii). This result is consistent with the holdings of the First, Fourth, and Eleventh Circuits. Under this
construction, the district court erred when it denied Sanchez’s
motion for acquittal, because even when viewing the evidence
in a light most favorable to the government, the charge fails
as a matter of law.
IV.

CONCLUSION

[4] Because the district court erred as a matter of law in
denying Sanchez’s motion for acquittal, we REVERSE the
conviction of Rolando Roman Sanchez under 18 U.S.C.
§ 922(g)(8) and REMAND to the district court with instructions to vacate the underlying indictment.
REVERSED and REMANDED.