UNITED STATES of America, Appellee, v. Cody Jeremiah HUTZELL, Appellant, 217 F.3d 966

MORRIS SHEPPARD ARNOLD, Circuit Judge. Six months before Congress enacted 18 U.S.C. § 922(g)(9), which makes it unlawful for anyone “who has been convicted in any court of a misdemeanor crime of domestic violence, to ... possess ... any firearm,” Cody Hutzell pleaded guilty to a state charge of “domestic abuse assault,” a misdemeanor. More than two years later, during an argument with his girlfriend, Mr. Hutzell fired a gun and was subsequently charged with violating § 922(g)(9). Mr. Hutzell entered a conditional guilty plea to the charge, and moved to dismiss the indictment. The district court denied the motion.

On appeal from the district court’s refusal to dismiss the indictment, Mr. Hut-zell maintains that his conviction was improper, first, because he personally was unaware of § 922(g)(9) at the time of the argument with his girlfriend and, further, because no one could be presumed to have had notice that the conduct described in the statute was in fact unlawful. He challenges as well the district court’s refusal to grant a downward departure at sentencing. We affirm the district court in all respects. I.

The government asserts that 18 U.S.C. § 924(a)(2), which provides the penalties for those who “knowingly” violate § 922(g), requires it to prove only that Mr. Hutzell knew of the facts constituting the offense, not that he knew that it was illegal for him to possess a gun. We can find no fault with the government’s proposed construction of the statute. See Bryan v. United States, 524 U.S. 184, 192-93, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998). As we held in United States v.

Farrell, 69 F.3d 891, 893 (8th Cir.1995), cert. denied, 516 U.S. 1181, 116 S.Ct. 1283, 134 L.Ed.2d 228 (1996), § 924(a)(2) does not “require knowledge of the law nor an intent to violate it.” The government’s exclusive focus on statutory language, however, fails to address Mr. HutzelPs primary argument, namely, that neither he nor anyone else could be presumed to have had notice that the conduct described in the statute was in fact unlawful, as the fifth amendment’s due process clause requires before the government may prosecute for that conduct. Mr.

Hutzell contends that there is nothing intuitively unlawful about the conduct that § 922(g)(9) proscribes, and therefore that his conviction for a misdemeanor involving domestic violence did not give him notice that his ability to own a gun might be subject to restrictions after such a conviction. Mr. Hutzell acknowledges, as he must, that his position is in direct conflict with the “common maxim, familiar to all minds, that ignorance of the law will not excuse any person, either civilly or criminally,” Barlow v.

United States, 32 U.S. (7 Pet.) 404, 411, 8 L.Ed. 728 (1833), but asserts that the Supreme Court’s decision in Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957), provides in his case an exception to the rule. We agree that our decision must be guided by the principles set forth in Lambert, but we do not think that Mr. Hutzell is in a position similar to the one in which the defendant in Lambert found herself.

Lambert, 355 U.S. at 226, 78 S.Ct. 240, involved a Los Angeles city ordinance that imposed criminal penalties on felons who remained in the city for more than five days without registering with the police. The Supreme Court held that the defendant’s conviction violated the due process clause of the fourteenth amendment because the city failed to establish that the defendant, who had resided in Los Angeles for more than seven years, had any notice that her “wholly passive” conduct (staying in Los Angeles for more than 'five days without registering) could result in criminal prosecution.

Lambert carves out a very limited exception to the general rule that ignorance of the law is no excuse. The Lambert principle applies, for instance, only to prohibitions on activities that are not per se blameworthy. See generally United States v. Freed, 401 U.S. 601, 608, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971); see also United States v. Meade, 175 F.3d 215, 225-26 (1st Cir.1999), and United States v. Engler, 806 F.2d 425, 435 (3d Cir.1986), cert. denied, 481 U.S. 1019, 107 S.Ct. 1900, 95 L.Ed.2d 506 (1987). Even assuming that this requirement is met here, Lambert is nevertheless unavailing to Mr.

Hutzell if his lack of awareness of the prohibition was objectively unreasonable. See Lambert, 355 U.S. at 229, 78 S.Ct. 240, holding that “proof of the probability of ... knowledge [of the prohibition’s content] and subsequent failure to comply are necessary before a conviction under the [applicable law] can stand.” The district court observed (correctly, we believe) that an individual’s domestic violence conviction should itself put that person on notice that subsequent possession of a gun might well be subject to regulation. See generally United States v. Mitchell, 209 F.3d 319, 323-24 (4th Cir.2000).

We also agree with the observation in United States v. Beavers, 206 F.3d 706, 710 (6th Cir.2000), cert. denied, — U.S. -, 120 S.Ct. 1989, 146 L.Ed.2d 815 (2000), that “it should not surprise anyone that the government has enacted legislation in an attempt to limit the means by which persons who have a history of domestic violence might cause harm in the future.” Although an individual’s right to bear arms is constitutionally protected, see United States v.

Miller, 307 U.S. 174, 178-79, 59 S.Ct. 816, 83 L.Ed. 1206 (1939), the possession of a gun, especially by anyone who has been convicted of a violent crime, is nevertheless a highly regulated activity, and everyone knows it. No one can reasonably claim, we think, to be unaware of the current level of concern about domestic violence; it is the subject of daily news reports and other media attention. There is evidence, in addition, that § 922(g)(9) was the subject of considerable public scrutiny and discussion both before and after its enactment.

At any rate, in the present social circumstances, we believe that it is simply disingenuous for Mr. Hutzell to claim that his conviction under § 922(g)(9) involved the kind of unfair surprise that the fifth amendment prohibits. II. At sentencing, Mr. Hutzell moved for a downward departure from the applicable federal guidelines range on the ground that he had no reason to believe that his conduct constituted a crime.

His contention was that his alleged lack of notice left him with an “incomplete defense” analogous to the “imperfect defenses” that are sometimes present when a defendant pleads coercion or duress as a defense. Such circumstances may be the basis for a downward departure. See U.S.S.G. § 5K2.12 (policy statement). Assuming, without deciding, that the proposed analogy is apt, we see no abuse of discretion in the district court’s refusal to depart. See Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996).

It was well within the district court’s discretion to decide that there was nothing about the facts’ of this case that take it outside the heartland of § 922(g)(9) cases. Indeed, the present case appears to us to be entirely run-of-the-mill. Nothing about the circumstances of Mr. Hut-zell’s offense afforded him less notice than any other offender would have had with respect to the lawfulness of the conduct in question. Mr. Hutzell’s case is by definition, therefore, not outside the heartland of such offenses. III. For the foregoing reasons, we affirm the judgment of the district court. . The Honorable Ronald E.

Longstaff, United States District Judge for the Southern District of Iowa.