United States of America v. Alexander Calor

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0291P (6th Cir.)
File Name: 03a0291p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALEXANDER CALOR,
Defendant-Appellant.
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No. 02-5099
Appeal from the United States District Court
for the Eastern District of Kentucky at Lexington.
No. 01-00063—Karl S. Forester, Chief District Judge.
Argued: July 31, 2003
Decided and Filed: August 15, 2003
Before: KENNEDY, GILMAN, and GIBBONS, Circuit
Judges.
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COUNSEL
ARGUED: Fred E. Peters, Lexington, Kentucky, for
Appellant. Kenneth R. Taylor, ASSISTANT UNITED
STATES ATTORNEY, Lexington, Kentucky, for Appellee.
ON BRIEF: Fred E. Peters, Lexington, Kentucky, Elizabeth
S. Hughes, GESS, MATTINGLY & ATCHISON, Lexington,
Kentucky, for Appellant. Kenneth R. Taylor, ASSISTANT
2 United States v. Calor No. 02-5099
UNITED STATES ATTORNEY, Lexington, Kentucky, for
Appellee.
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OPINION
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KENNEDY, Circuit Judge. Alexander Calor appeals the
district court’s denial of his motion to dismiss his prosecution
under 18 U.S.C. § 922(g)(8) for possession of five firearms
while subject to a court order, and its denial of his motion to
suppress evidence connected to his prosecution under 26
U.S.C. § 5861(d) for possession of an unregistered
Bushmaster .223 caliber rifle with an eleven and one-half inch
barrel. We AFFIRM the district court’s disposition of both
motions.
I.
On Friday, February 9, 2001, Mary Beth Calor, Alexander
Calor’s wife, sought and obtained an ex parte Emergency
Protective Order (EPO). The EPO was served on Mr. Calor
at the Calors’ residence on the evening of February 9 by two
Harrison County deputy sheriffs. The EPO restrained Mr.
Calor from contacting Mrs. Calor, ordered Mr. Calor to
vacate the marital residence, ordered Mr. Calor “not to
possess any firearms, turn all firearms into [Harrison County]
Sheriff’s Office,” and summoned Mr. Calor to appear at a
hearing on Monday, February 12, 2001 at 11:00 a.m. to
respond to domestic violence allegations. The EPO was
effective through February 12, 2001. Calor allowed the
deputy sheriffs who served the EPO to retrieve a quantity of
guns, including a Bushmaster .223 caliber rifle with an eleven
and one-half inch barrel.
On February 12, 2001, Mr. Calor retained temporary
counsel to request an adjournment of the scheduled hearing.
The court granted the request and adjourned the hearing until

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No. 02-5099 United States v. Calor 3
1In addition to the terms of the first EPO, the second EPO restrained
Mr. Calor from coming into the city of Cynthia na exc ept to see his
attorney and for court appearances, required him to stay away from his
wife’s place of employm ent and his daughter’s daycare, and provided that
a list of Mr. Calor’s clothing and personal belongings be given to M rs.
Calo r’s attorney and that Mr. Calor could retrieve these items from the
Harrison County Sheriff’s Office.
February 21, 2001. The court did not take any testimony
from sworn witnesses and no other evidence was presented,
but it did address some collateral matters raised by Mrs.
Calor’s counsel and issued a second EPO that was effective
through February 21, 2001.1
On February 14, 2001, Mr. Calor violated the EPO by
returning to the marital residence. Mrs. Calor reported Mr.
Calor’s violation to the Harrison County Sheriff’s Office.
The deputy sheriffs who responded to Mrs. Calor’s complaint
observed Mr. Calor leaving the residence and arrested him.
A search of his vehicle revealed four handguns. Mr. Calor’s
counsel later reported the presence of a fifth handgun in the
impounded vehicle.
On July 12, 2001, a federal grand jury indicted Defendant
on one count of possessing a firearm in violation of title 18 of
the United States Code, § 922(g)(8) (Count I), and one count
of possessing a firearm in violation of title 26 of the United
States Code, § 5861(d) (Count II). Calor was convicted on
both counts by a jury.
II.
Calor’s appeal presents two distinct issues. The first issue
is whether the February 12 court proceeding before the state
trial judge provided the predicate hearing necessary to render
the February 12 EPO a court order within the meaning of
§ 922(g)(8). The second issue is whether the deputy sheriffs
lawfully seized the Bushmaster .223 caliber rifle for the
purposes of a criminal prosecution. Because the relevant
4 United States v. Calor No. 02-5099
facts were not disputed, the district court did not hold an
evidentiary hearing prior to ruling on Calor’s motions. The
district court’s denial of the motion to dismiss and intertwined
statutory construction present questions of law that are
reviewed de novo. United States v. Stewart, 306 F.3d 295,
331 (6th Cir. 2002). Likewise, the district court’s denial of
the motion to suppress evidence is reviewed de novo. United
States v Pelayo-Landero, 285 F.3d 491, 494 (6th Cir. 2002).
A.
Calor argues that the district court erred when it denied his
motion to dismiss because the court order upon which his
prosecution under § 922(g)(8) is based was not issued after a
hearing that is within the scope of § 922(g)(8). That statutory
section makes it unlawful for any person:
(8) who is 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;
. . .
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

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No. 02-5099 United States v. Calor 5
which has been shipped in interstate or foreign
commerce.
This Circuit has upheld the constitutionality of § 922(g)(8).
United States v. Napier, 233 F.3d 394 (6th Cir. 2000)
(holding that § 922(g)(8) does not violate Due Process and
Commerce clauses, or Second Amendment), United States v.
Baker, 197 F.3d 211 (6th Cir. 1999) (holding that § 922(g)(8)
does not violate Due Process or Commerce clauses). The
construction of what is necessary to meet the hearing
requirement, however, presents a question of first impression.
“In all cases of statutory construction, the starting point is
the language employed by Congress. Where the statute’s
language is plain, the sole function of the courts is enforce it
according to its terms.” Vergos v. Gregg’s Enters., Inc., 159.
F.3d 989, 990 (6th Cir. 1998) (internal quotation marks and
citations omitted). “The court must look beyond the language
of the statute, however, when the text is ambiguous or when,
although the statute is facially clear, a literal interpretation
would lead to internal inconsistencies, an absurd result, or an
interpretation inconsistent with the intent of Congress.” Id.
The parties contend that the term “hearing” is ambiguous.
While we agree that the term has not been given a consistent
meaning in federal law and its construction has been context
dependent, the term is not ambiguous in this context. In order
for a court proceeding to be the predicate hearing for a court
order that triggers the § 922(g)(8) firearm disability, the
statute straightforwardly requires that the subject of the court
order be given actual notice of the proceeding and an
opportunity to participate. In this case, the actual notice
requirement is satisfied by the summons written into the EPO
that was served on Calor on the evening of February 9. The
opportunity to participate requirement is satisfied because
Calor could have presented reasons why the court should not
enter an order finding that he posed a credible threat to the
safety of his wife or child at the February 12 court
proceeding. That Calor elected to waive his opportunity to
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2Calor’s reliance on Un ited States v. S pruill, 292 F.3d 207 (5 th Cir.
2002), is misplaced. The dom estic violence order at issue in Spruill did
not fall within the scope of § 922(g)(8) because it was entered by
agreement of the parties, but without the parties appearing before a judge
at a noticed hearing. Id. at 219-20.
participate does not does not alter his status under
§ 922(g)(8). The second EPO, which was issued at the
conclusion of the February 12 court appearance, provided the
predicate court order for Calor’s prosecution for possessing
the five firearms in violation of §922(g)(8).
Our reading of §922(g)(8) is consistent with that of the
Seventh Circuit. United States v. Wilson, 159 F.3d 280 (7th
Cir. 1998), considered a due process challenge to defendant’s
conviction under §922(g)(8). The court concluded that the
state court proceeding afforded to Wilson prior to entry of the
plenary protection order against him provided “‘an
opportunity to be heard at a meaningful time and in a
meaningful manner.’” Id. at 289-90 (quoting Mathews v.
Eldridge, 424 U.S. 319, 333 (1976). Defendant had an
opportunity to be heard in a meaningful manner because, even
though no proof was presented, he had “‘the opportunity to
present reasons, either in person or in writing, why proposed
action should not be taken.’” Id. at 290 (quoting Cleveland
Bd. of Educ. v. Loudermill, 470 U.S. 52, 546 (1985)). Given
that the minimum requirements of the statute comport with
the requirements of due process, we follow the Seventh
Circuit in declining to embellish the hearing requirements
explicitly set forth in § 922(g)(8). Consequently, we affirm
the district court denial of Calor’s motion to dismiss his
prosecution under 18 U.S.C. § 922(g)(8) for possession of
five firearms while subject to a court order.2
B.
Calor next argues that the district court erred when it denied
his motion to suppress the evidence of his possession of an
unregistered firearm because the February 9 EPO cannot

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No. 02-5099 United States v. Calor 7
constitute a valid search warrant under the Fourth
Amendment and the pre-hearing seizure of the firearms
violates constitutional due process requirements.
With respect to Calor’s Fourth Amendment challenge to the
validity of the EPO as a search warrant, the district court
found that an EPO necessarily includes the authority for the
sheriff’s department to enter a residence to enforce the
seizure-of-weapons provision. As such, the district court
found that “the deputy sheriffs were acting pursuant to a valid
search warrant, issued by the terms of a constitutional statute,
when the Bushmaster weapon was seized.” This claim,
however, fails on narrower grounds because Calor does not
argue that the deputy sheriffs’ entry into his residence and
retrieval of his guns for transportation to the Harrison County
Sheriff’s Office was done without his permission. United
States v. Elkins, 300 F.3d 638, 647 (6th Cir. 2002) (“‘A
search may be conducted without a warrant if a person with
a privacy interest in the [place] to be searched gives free and
voluntary consent.’” (quoting United States v. Riascos-
Suarez, 73 F.3d 616, 625 (6th Cir. 1996)). In fact, at trial,
Calor testified that he complied with the order, albeit
reluctantly, and that he helped the deputies pack up his
firearms. Had Calor denied the deputy sheriffs permission to
enter and the deputies relied on the EPO to search for and
seize Calor’s guns, we then would have a basis for
considering whether an EPO, which requires the removal of
an alleged domestic abuser and his firearms from the home,
is a valid search warrant under the Fourth Amendment.
With respect to Calor’s due process challenge to the seizure
of his firearms, the district court found that Calor’s argument
failed because, under the balancing test articulated in
Mathews v. Eldridge, 408 U.S. 471, 481 (1972), Kentucky’s
interest in protecting the victims of domestic violence from
further violence, and possibly death, outweighed Calor’s
interest in maintaining possession of his firearms during the
brief period between seizure and a hearing, and that the risk
of an erroneous deprivation of property rights was small. The
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district court’s balancing of the relative interests appropriately
assigns greater weight to the government’s interest in
protecting an alleged domestic violence victim from gun
violence and possible death after an alleged abuser has been
served an EPO than to a gun owner’s brief loss of possession.
Consequently, we affirm the district court’s denial of Calor’s
motion to suppress the evidence of his possession of an illegal
rifle.
III.
For the foregoing reasons, we affirm the district court’s
denial of Calor’s motion to dismiss his prosecution under 18
U.S.C. § 922(g)(8) for possession of five firearms while
subject to a court order. We also affirm the district court’s
denial of Calor’s motion to suppress evidence connected to
his prosecution under 26 U.S.C. § 5861(d) for possession of
an unregistered Bushmaster .223 caliber rifle with an eleven
and one-half inch barrel. Calor’s conviction is affirmed.

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