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Federal gun charge based on state domestic violence conviction

Although the defendant claimed his federal gun charge could not be based on his Virginia conviction for domestic violence because he did not knowingly and intelligently waive his right to a jury trial in Virginia as required under federal statute, he was not entitled to a jury trial in the Virginia Juvenile and Domestic Relations Court and took no steps to appeal.


Brandon Locke seeks to attack the use of a Virginia conviction for a misdemeanor crime of domestic violence, or MCDV, as a predicate for his gun charge under 18 U.S.C. § 922(g)(9). Locke argues that, in pleading guilty to the MCDV, he did not “knowingly and intelligently” waive his right to a jury trial as required by the statute. The district court rejected his contention.


The statute found at 18 U.S.C. § 921(a)(33)(B)(i)[a](II)(bb) is only applicable to those MCDVs that the defendant was entitled to have resolved by a jury trial. Because Locke was not entitled to a jury trial to resolve his Virginia MCDV in the Juvenile and Domestic Relations Court, the statute is inapplicable to him.

Virginia has a “two tiered system for the conduct and disposition of misdemeanor offenses.” At the first tier, there is no right to a jury trial. That right only attaches once the defendant takes the affirmative step of appealing to the second tier. Locke submitted documents in the district court that show he was made aware of his “right to appeal a final order[.]” Had he made use of this appeal, he would have had the right to a trial by jury, and 18 U.S.C. § 921(a)(33)(B)(i)(II)(bb) would operate. But he did not. Instead, he opted to deal with his MCDV on the “first tier,” where there is no right to a jury trial to be had.

Even assuming the right to a jury trial, Locke’s attack on the use of this prior guilty plea faces yet another obstacle. Unless Locke can rebut the presumption of regularity that attaches to his guilty plea, he is presumed to have waived his right to trial in a way that satisfies the requirements of 18 U.S.C. § 921(a)(33)(B)(i)[a](II)(bb). This general presumption of regularity applies with yet stronger force to the specifics of this case because Locke’s counsel conceded at oral argument that his Virginia conviction was valid. If, as Locke concedes, the conviction was valid, then the plea that formed the very basis of that Virginia conviction must also be valid. A valid guilty plea is a waiver of the right to a jury trial.

In the face of these formidable obstacles, Locke offered only evidence from his lawyer in the Virginia proceeding that “to the best of [the lawyer’s] recollection” the judge did not inform Locke of his right to a trial by jury. But at no point has Locke ever sought to withdraw his plea on this or any other basis. Moreover, Locke was an adult, he was represented by counsel, there was no suggestion of mental incompetence, there was no suggestion of improper threats from the authorities and he had prior experience with the criminal justice system. Under these circumstances we must hold that his guilty plea was valid in all respects, including its waiver of Locke’s jury trial right.


Dissenting opinion

Berger, J., dissenting:

Since Virginia precedent and its Constitution establish that Mr. Locke had a right to a jury trial in the jurisdiction in which he was convicted and since a sufficient factual record was adduced before the district court to reveal that Mr. Locke was not informed of his right to a jury trial and did not knowingly and intelligently waive that right in either the Virginia or Georgia proceedings, I would find that neither conviction could be used as a predicate to support a conviction under 18 U.S.C. 922(g)(9) and reverse.

United States v. Locke, Appeal No. 18-4367, July 30, 2019. 4th Cir. (Wilkinson), from EDVA at Alexandria (Ellis). Mark Bodner for Appellant. Jessica Lynne Urban for Appellee. VLW No. 019-2-217. 14 pp.

VLW 019-2-217

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