United States of America v. Russell N. Donovan Iii

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 23, 2010 *
Decided February 16, 2011
Before
MICHAEL S. KANNE, Circuit Judge
TERENCE T. EVANS, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 09‐2346
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
RUSSELL N. DONOVAN III,
Defendant‐Appellant.
Appeal from the United States District
Court for the Western District of
Wisconsin.
No. 08‐CR‐172‐C‐01
Barbara B. Crabb,
Judge.
O R D E R
Russell Donovan appeals his conviction for possessing a firearm after having been convicted
of a misdemeanor crime of domestic violence, see 18 U.S.C. § 922(g)(9). He challenges the
constitutionality of § 922(g)(9), contending that it unduly infringes on his Second Amendment right
to use firearms for hunting and sporting purposes. We affirm.
Officers of the Madison Police Department were dispatched to the residence that Donovan
shared with his girlfriend, Nicole Samplaski, after she made a 911 call relaying that they were in a
domestic altercation and that he had an AK-47 rifle under their bed. Samplaski recounted to officers
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
* After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. A PP. P.
34(a)(2)(C).

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No. 09-2346 Page 2
that Donovan arrived home drunk and aggressive, that she called 911, and that he tried the break the
phone apart. Officers recovered the AK-47. At the time, Donovan was on probation for another
episode of domestic violence against Samplaski.
Donovan was charged in a one-count indictment with violating § 922(g)(9) and pleaded
guilty. Later, in a memorandum he filed at sentencing, Donovan objected to the indictment on
grounds that § 922(g)(9) violated the Second Amendment. He cited District of Columbia v. Heller,
554 U.S. 570 (2008), which held that the Second Amendment preserves an individual’s right to keep
arms for lawful purposes. Neither Donovan nor the district court discussed this objection at the
sentencing hearing. He was sentenced to 46 months’ imprisonment and a 3-year term of supervised
release.
Donovan appealed, premising his challenge on United States v. Skoien, 587 F.3d 803 (7th
Cir. 2009) (Skoien I), vacated, 614 F.3d 638 (7th Cir. 2010) (en banc). In Skoien I, the defendant
was convicted under § 922(g)(9) for possessing a firearm after having been convicted of
misdemeanor crimes of domestic violence. The panel determined that intermediate scrutiny was the
appropriate standard to apply to the defendant’s Second Amendment challenge to § 922(g)(9). Id. at
812. In concluding that intermediate scrutiny applied, the panel remanded so that the government
could satisfy its burden of establishing a reasonable fit between its interest in reducing gun violence
and the categorical disarmament of domestic-violence misdemeanants. Id. at 816. Here Donovan
argues that § 922(g)(9) is unconstitutional because the government has not shown a reasonable fit
between his perpetual disarmament and the goal of preventing gun violence against domestic
intimates.
While Donovan’s appeal was pending, we reheard Skoien I en banc. See United States v.
Skoien, 614 F.3d 638, 642 (7th Cir. 2010) (Skoien II) (en banc), petition for cert. filed (U.S. Oct. 12,
2010) (No. 10-7005) and determined that the categorical disarmament of domestic abusers under §
922 (g)(9) was allowed, so long as justified by “some form of strong showing.” Id. at 641. Section
922(g)(9) satisfied the requisite strong showing, we determined, because both logic and data
established a substantial relation between the statute and the objective of preventing armed domestic
violence. See id.
In a statement of position we solicited after our en banc decision, Donovan concedes that
Skoien II dooms his appeal but states that he is raising the constitutional challenge to preserve it for a
petition for certiorari. For its part, the government argues that the appeal should be dismissed for
lack of jurisdiction on grounds that Donovan waived any challenge to the indictment by knowingly
and voluntarily pleading guilty. See Brady v. United States, 397 U.S. 742 (1970); United States v.
Harvey, 484 F.3d 453, 455 (7th Cir. 2007).
Although a guilty plea ordinarily waives constitutional challenges, the Supreme Court has
recognized a narrow exception when a defendant claims “the right not to be haled into court at all
upon the felony charges”–the so-called Blackledge-Menna exception. See Menna v. New York, 423
U.S. 61, 62 n.2 (1975); Blackledge v. Perry, 417 U.S. 21 (1974). We applied the narrow exception in
United States v. Bell, 70 F.3d 495, 497 (7th Cir. 1995), where we allowed a defendant who pleaded
guilty to challenge the constitutionality of § 922(g)(1). In Bell we characterized a facial attack on a
statute’s constitutionality as jurisdictional in nature. Id. As in Bell, we will consider Donovan’s

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No. 09-2346 Page 3
facial challenge to § 922(g)(9) on grounds that the government may not hale him into court on an
unconstitutional felony charge. See id; United States v. Seay, 620 F.3d 919, 922 (8th Cir. 2010).
Having determinated that Donovan’s challenge survives his guilty plea, we turn briefly to the
merits. And as Donovan concedes, Skoien II forecloses his challenge. In Skoien II, we upheld the
categorical disarmament of domestic-violence misdemeanants such as Donovan. See Skoien II, 614
F.3d at 641; see also United States v. Marzzarella, 614 F.3d 85, 98-99 (3d Cir. 2010) (interpreting §
922(k)); Seay, 620 F.3d at 925 (interpreting § 922(g)(3)); United States v. Reese, 627 F.3d 792, 803
(10th Cir. 2010) (interpreting § 922(g)(8)); United States v. White, 593 F.3d 1199, 1205-6 (11th Cir.
2010) (interpreting § 922(g)(9)). But see United States v. Chester, — F.3d —, 2010 WL 5396069
(4th Cir. Dec. 30, 2010) (interpreting § 922(g)(9), remanding for the government to satisfy its
burden).
AFFIRMED.

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