*1 Before HIGGINBOTHAM, JONES, and DUNCAN, Circuit Judges.
STUART KYLE DUNCAN, Circuit Judge:
We again confront a Second Amendment challenge to a federal law prohibiting individuals subject to certain domestic violence protective orders from possessing firearms or ammunition for any purpose. 18 U.S.C. § 922(g)(8). Appellant Eric McGinnis, convicted by a jury of violating § 922(g)(8), claims the statute is a facially unconstitutional restriction on his right to keep and bear arms. This court rejected a virtually identical challenge two decades ago in Judge Garwood’s landmark decision in United States v. Emerson , 270 F.3d 203 (5th Cir. 2001). Much has changed in Second Amendment jurisprudence *2 since then, and so we consider whether § 922(g)(8) still passes muster under our contemporary framework. It does.
Separately, McGinnis argues his conviction should be vacated because his protective order does not track the requirements of § 922(g)(8). He also asserts the district court abused its discretion by imposing a written special condition of supervised release not orally pronounced at sentencing. We affirm the conviction but remand for the limited purpose of conforming McGinnis’s written judgment to the district court’s oral pronouncement.
I.
On the evening of July 28, 2017, Grand Prairie Police Department (GPPD) officers were dispatched to a wooded area upon report of a potentially suicidal subject. While searching for the subject, they heard three gunshots nearby. Hurrying toward the source of the shots, the officers spotted a dark SUV parked near the tree line. As they prepared to approach the vehicle, a man later identified as McGinnis emerged from the woods.
McGinnis’s presence ended up being unrelated to the suicide call. When questioned, however, McGinnis stated he had a gun in his backpack. McGinnis ignored commands to walk backward toward the officers, instead walking forward while claiming to be a CIA agent and asking the officers if it was illegal to shoot a gun in Texas. The officers placed McGinnis under arrest and searched his backpack, where they found a short-barrel AR-15 rifle with a collapsible stock and 3D-printed lower receiver, along with five thirty-round magazines. The backpack also held several envelopes containing documents entitled “9/11/2001 list of American Terrorist” (sic). The list included the names and addresses of several prominent politicians.
Upon running McGinnis’s driver’s license through law enforcement databases, the officers learned he was the subject of an active domestic protective order. The order had been issued by a Dallas County court on August *3 31, 2015, following a hearing at which Sherry Thrash, McGinnis’s former girlfriend, testified that McGinnis had physically assaulted her on two occasions, injuring her wrists, ribs, and face. McGinnis was present and participated in the hearing. At its conclusion, the judge issued a protective order that prohibited McGinnis from, among other things, “[c]ommitting family violence against” Thrash or “[e]ngaging in conduct . . . reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass” Thrash or a member of her family or household. The order included a finding “that family violence has occurred and that family violence is likely to occur in the foreseeable future.” It also prohibited McGinnis from possessing a firearm and separately warned him that doing so would violate 18 U.S.C. § 922(g)(8). The protective order was to stay in effect for two years, meaning that it remained active at the time of McGinnis’s 2017 arrest.
Further investigation revealed McGinnis had attempted to purchase a lower receiver from a retailer in June 2016. He answered “no” to the background check question that asked whether he was subject to any “court order restraining [him] from harassing, stalking, or threatening . . . an intimate partner.” The Bureau of Alcohol, Tobacco, Firearms and Explosives agent who reviewed the form caught the lie and contacted McGinnis by phone in July 2016 to inform him that he could not legally purchase the receiver. The agent also sent McGinnis a letter via certified mail explaining that McGinnis could not lawfully own a firearm or ammunition because of the active protective order. At some point after this incident, McGinnis created his own receiver using a 3D printer.
Following McGinnis’s 2017 encounter with the GPPD, he was charged in state court with illegally discharging a firearm within city limits and violating a protective order. Shortly thereafter, a federal grand jury indicted him on two additional charges. The first count charged McGinnis with illegally possessing *4 an unregistered short-barrel rifle. [1] The second count—and the only one at issue in this appeal—was for possession of ammunition by a prohibited person in violation of 18 U.S.C. § 922(g)(8). McGinnis pleaded not guilty and proceeded to trial, where a jury convicted him on both counts. The district court denied McGinnis’s post-verdict Rule 29 motion for a judgment of acquittal, rejecting the constitutional and sufficiency challenges he raises again here. The court then sentenced McGinnis to 96 months imprisonment. [2] This appeal followed.
II.
McGinnis advances three arguments on appeal. First, he maintains that § 922(g)(8) is unconstitutional on its face. Second, he claims the protective order to which he was subject cannot support a conviction under § 922(g)(8) because the order’s language fails to satisfy the statute’s requirements. Third, he argues the special condition of supervised released barring him from “places frequented by Ms. Sherry Thrash” conflicts with the district court’s oral pronouncement at sentencing. We consider each argument in turn.
A.
We begin with McGinnis’s argument that § 922(g)(8) is a facially
unconstitutional restriction on his Second Amendment right to keep and bear
arms. “We review
de novo
the constitutionality of federal statutes.”
United
States v. Portillo–Munoz
,
1.
The Second Amendment provides: “A well regulated Militia, being
necessary to the security of a free State, the right of the people to keep and
bear Arms, shall not be infringed.” U.S. C ONST . amend. II. Our court explored
the text, structure, and history of the Second Amendment nearly twenty years
ago, becoming the first court of appeals to recognize that “the Second
Amendment protects the right of
individuals
to privately keep and bear their
own firearms that are suitable as individual, personal weapons . . . regardless
of whether the particular individual is then actually a member of a militia.”
Emerson
,
Several years later, the Supreme Court similarly concluded that the Second Amendment codified a pre-existing “ individual right to possess and carry weapons in case of confrontation.” District of Columbia v. Heller , 554 U.S. 570, 592 (2008) (emphasis added) (striking down a D.C. ordinance banning handgun possession in the home). After conducting exhaustive textual and historical analyses much like those Judge Garwood undertook in Emerson , the *6 majority held the Second Amendment guarantees “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Id. at 635. The Court repeatedly noted that the protection afforded by the individual right is at its zenith in the home, “where the need for defense of self, family, and property is most acute.” Id. at 628. However, Heller also cautioned that the individual Second Amendment right is subject to important limitations including, for instance, “longstanding prohibitions on the possession of firearms by felons and the mentally ill.” Id. at 626.
Heller
“did not set forth an analytical framework with which to evaluate
firearms regulations in future cases.”
Nat’l Rifle Ass’n of Am., Inc. v. Bureau of
Alcohol, Tobacco, Firearms & Explosives
[
NRA
], 700 F.3d 185, 194 (5th Cir.
2012). Instead, the Supreme Court stated only that the ordinance at issue
would fail “[u]nder any of the standards of scrutiny that we have applied to
enumerated constitutional rights.”
Heller
,
2.
The statute at issue in this appeal, 18 U.S.C. § 922(g)(8), prohibits individuals subject to certain domestic protective orders from “possess[ing] in or affecting commerce, any firearm or ammunition.” To convict a defendant under § 922(g)(8), the Government must establish that the protective order:
(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)(A)–(C).
At the first step of the inquiry, McGinnis argues that § 922(g)(8) burdens the Second Amendment right by “criminaliz[ing] the possession of any firearm or ammunition,” including the possession of weapons in the home for self-defense. As to the second step, McGinnis urges us to apply strict rather than intermediate scrutiny because “a blanket disarmament, for any length of time, goes to the core of the Second Amendment.” Moreover, he maintains that even under intermediate scrutiny the statute must fail because it is “not reasonably adapted to reducing domestic gun abuse.” McGinnis candidly acknowledges the absence of case law support for his position, but urges this court to “blaze its own trail” in hopes we will “be the court vindicated by the Supreme Court.”
As an initial matter, we must consider whether McGinnis’s claim is
foreclosed by circuit precedent. As discussed above, the 2001 decision in which
our court articulated an individual-rights theory of the Second Amendment,
Emerson
, involved facial and as-applied challenges to the precise law at issue
here: § 922(g)(8).
See Emerson
,
McGinnis contends we are not bound by
Emerson
because the Supreme
Court’s subsequent
Heller
decision “effectively hit the reset button for all
Second Amendment jurisprudence.” We are not so sure. McGinnis does not
identify, nor are we aware of, any holding or principle in
Heller
that casts doubt
on
Emerson
. To the contrary, Justice Breyer’s dissent in
Heller
cited
Emerson
as the lone example of a circuit court holding the Second Amendment protects
the right to possess firearms for private, civilian purposes.
Heller
, 554 U.S. at
638 n.2 (2008) (Breyer, J., dissenting). Indeed, in
United States v. Anderson
,
McGinnis nevertheless maintains that
Emerson
is not controlling
because it did not apply the two-step analytical framework we later adopted in
NRA
, and provided no discussion of the appropriate level of means-end
scrutiny. It is true that the
Emerson
court did not expressly implement a two-
part inquiry à la , yet it was guided by the same concerns.
Emerson
first
considered the scope of the Second Amendment right “as historically
understood,” and then determined—presumably by applying some form of
means-end scrutiny
sub silentio
—that § 922(g)(8) is “narrowly tailored” to the
*10
goal of minimizing “the threat of lawless violence.”
Emerson
,
Be that as it may, in an abundance of caution we proceed to re-analyze the constitutionality of § 922(g)(8) under the two-step NRA framework.
3.
a. At step one, we examine “whether the conduct at issue falls within the scope of the Second Amendment right.” NRA , 700 F.3d at 194. We have explained that “a longstanding, presumptively lawful regulatory measure— whether or not it is specified on Heller ’s illustrative list—would likely fall outside the ambit of the Second Amendment; that is, such a measure would likely be upheld at step one of our framework.” Id. at 196.
In this facial challenge, the conduct at issue is the keeping and possessing of firearms by individuals subject to domestic protective orders as defined in § 922(g)(8). McGinnis argues that this conduct, insofar as it includes keeping and possessing firearms at home for self-defense purposes, falls within the scope of the Second Amendment. The Government responds that restricting this conduct harmonizes with historical “limitations on firearms possession by individuals based on the risk they pose to others” and therefore falls outside the Second Amendment’s ambit.
We need not and do not resolve this issue. Even assuming
arguendo
that
the conduct burdened by § 922(g)(8) falls within the Second Amendment right,
McGinnis’s facial challenge fails.
Cf. United States v. Mahin
,
b.
Proceeding to step two, we must “determine whether to apply
intermediate or strict scrutiny to the law, and then . . . determine whether the
law survives the proper level of scrutiny.”
NRA
,
i.
“[T]he appropriate level of scrutiny depends on the nature of the conduct being regulated and the degree to which the challenged law burdens the right.” Id. at 195. “A law that burdens the core of the Second Amendment guarantee . . . would trigger strict scrutiny, while a less severe law would be proportionately easier to justify.” Id. at 205 (cleaned up).
Extending his step-one argument, McGinnis maintains that § 922(g)(8)
strikes the core of the Second Amendment because it completely disarms
individuals subject to qualifying protective orders while offering no exception
for home-defense or self-defense. McGinnis therefore urges us to apply strict
scrutiny. The Government argues that the Second Amendment, at its core, only
protects gun possession by peaceable, responsible citizens, and “any person
who falls within § 922(g)(8)’s scope cannot be considered ‘peaceable’ or
‘responsible.’” The Government further points out that § 922(g)(8), like the
statute in prohibiting 18-to-20-year-olds from buying firearms, disarms
only a discrete category, not the entire community.
See NRA
,
According to the Supreme Court, “whatever else [the Second
Amendment] leaves to future evaluation, it surely elevates above all other
interests the right of law-abiding, responsible citizens to use arms in defense
of hearth and home.”
Heller
,
In sum, intermediate scrutiny applies because § 922(g)(8) is sufficiently
bounded both as to “the nature of the conduct being regulated” (it regulates
gun possession by persons judicially determined to pose a real threat or
danger) and “the degree to which [it] burdens the [Second Amendment] right”
(it prohibits possession only after an adversarial hearing and only for the
duration of the resulting protective order). ,
*13
Our analysis in
NRA
supports applying intermediate scrutiny here. In
NRA
, we considered a challenge to statutory provisions “prohibit[ing] federally
licensed firearms dealers from selling handguns to persons under the age of
21.” 700 F.3d at 188;
see
18 U.S.C. §§ 922(b)(1) & (c)(1). We determined
intermediate scrutiny was “[u]nquestionably” appropriate because the laws did
“not disarm an entire community, but instead prohibit[ed] commercial
handgun sales to 18-to-20-year-olds—a discrete category.”
Id.
at 205. We
credited Congress’s finding that 18-to-20-year-olds “tend to be relatively
irresponsible and can be prone to violent crime, especially when they have easy
access to handguns.”
Id.
at 206 (quoting Pub. L. No. 90–351, § 901(a)(6), 82
Stat. 197, 226 (1968)). While we were “inclined to uphold the challenged federal
laws at step one of our analytical framework,”
id.
at 204, we went on to explain
that even if the laws burdened the core of the Second Amendment right, the
burden was not severe because (1) the laws only affected handgun sales, not
use; (2) 18-to-20-year-olds could still purchase long-guns or “acquire handguns
from responsible parents or guardians;” and (3) the restrictions were only
temporary, ending when a person turns 21.
Id.
at 206–07. Similarly, § 922(g)(8)
restricts gun possession for a discrete class and for a limited time. To be sure,
§ 922(g)(8) works a total ban on gun possession for persons subject to qualifying
protective orders, but it does so “against the background of the almost
universal rule of American law that for a temporary injunction to issue . . .
[a]
presently existing actual threat must be shown.
”
Emerson
, 270 F.3d at 262
(cleaned up). In other words, whereas 18-to-20-year-olds only “tend to be
relatively irresponsible,” , 700 F.3d at 206, individuals subject to the
protective orders described in § 922(g)(8) have been adjudged a “real threat.”
Emerson
,
ii.
Having determined intermediate scrutiny applies, we consider whenever § 922(g)(8), on its face, survives. We ask “whether there is a reasonable fit between the law and an important government objective.” , 700 F.3d at 207. Stated differently, the Government must demonstrate that the statute is “reasonably adapted to an important government interest.” Id. The parties agree that reducing domestic gun abuse is not just an important government interest, but a compelling one. They only dispute whether § 922(g)(8) is reasonably adapted to that interest. We hold that it is.
As the Fourth Circuit stated, Ҥ 922(g)(8) rests on an established link
between domestic abuse, recidivism, and gun violence and applies to persons
already individually adjudged in prior protective orders to pose a future threat
of abuse.”
Mahin
,
This conclusion is supported, if not dictated, by our holding in
Emerson
.
There we found a sufficient “nexus” between “the threat of lawless violence”
and § 922(g)(8)’s prohibition on gun possession for persons subject to domestic
protective orders—even orders lacking express judicial findings of future
danger.
Emerson
,
In sum, we hold § 922(g)(8) passes constitutional muster under our two- step NRA framework and therefore reject McGinnis’s facial challenge. We note, however, that our holding today does not foreclose the possibility of a successful as-applied challenge to § 922(g)(8). See , e.g. , City of El Cenzio v. Texas , 890 F.3d 164, 191 (5th Cir. 2018) (post-enforcement “as-applied challenges . . . are the basic building blocks of constitutional adjudication” (cleaned up)).
B.
Next, we consider McGinnis’s claim that his conviction must be reversed
because the language of the underlying domestic protective order fails to
satisfy the conditions of § 922(g)(8)(C)(i) or (C)(ii). Since McGinnis raised this
sufficiency-of-the-evidence claim in a Rule 29 motion at trial, our review is
de
novo
yet “highly deferential to the verdict.”
United States v. Bowen
, 818 F.3d
179, 186 (5th Cir. 2016) (quoting
United States v. Beacham
,
As noted above, § 922(g)(8) contains three elements, the third of which may be satisfied in the alternative. Subsections (C)(i) and (C)(ii) require that the underlying protective order either:
(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. The protective order in this case included a finding “that family violence has occurred and that family violence is likely to occur in the foreseeable future.” The order also prohibited McGinnis from (1) “committing family violence against” Sherry Thrash; (2) “communicating directly with [Thrash] in a threatening or harassing manner”; (3) “[c]ommunicating a threat through any person to” Thrash; or (4) “[e]ngaging in conduct directed specifically toward” Thrash “that is reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass” her.
McGinnis contends there was insufficient evidence to support his conviction because his protective order meets neither of the requirements in § 922(g)(8)(C). He argues the order is inadequate under (C)(i) because it does not incorporate a finding that McGinnis “represents a credible threat” to Thrash’s “physical safety.” He relies on the fact that Texas’s statutory definition of “family violence” includes assault, an offense that does not necessarily involve the threat of physical harm. See T EX . F AM . C ODE § 71.004; T EX . P ENAL C ODE § 22.01(a). Essentially, McGinnis’s position is that if a state’s *17 definition of family violence includes any conduct that does not “represent[] a credible threat to . . . physical safety,” then a state court’s generalized finding of family violence cannot support a federal conviction under § 922(g)(8)(C)(i).
As to § 922(g)(8)(C)(ii), McGinnis argues that the language in his protective order is not “substantially similar” to the statutory language as mandated by (C)(ii)’s requirement that the order “ by its terms explicitly prohibit[] the use, attempted use, or threatened use of physical force . . .” (emphasis added). McGinnis invokes the surplusage canon of statutory interpretation to argue that Congress would not have included the phrase “by its terms explicitly” if Congress did not wish to impose a literal requirement that any qualifying protective order clearly and without implication prohibit the use, attempted use, or threatened use of physical force. He also cites the legislative history of § 922(g)(8), arguing the language of (C)(ii) was intended to satisfy “more conservative” House members by keeping the statute narrow.
We find McGinnis’s arguments unavailing, and hold that, at the very
least, the protective order at issue satisfies the requirements of subsection
(C)(ii). As McGinnis himself observes, other courts of appeals have squarely
held that similar or even broader language suffices under (C)(ii). For example,
the Fourth Circuit has held that a protective order requiring its subject to
“refrain from abusing” his wife “unambiguously satisfies subsection (C)(ii)’s
requirement that the court order prohibit the use, attempted use, or
threatened use of physical force.”
United States v. Bostic
, 168 F.3d 718, 722
(4th Cir. 1999). Similarly, the First Circuit held that a protective order
prohibiting its subject from “abusing, harassing, or threatening his wife or
children” was sufficient under (C)(ii) even though it “d[id] not use the same
verbiage as the statute.”
United States v. Coccia
,
Consistent with these cases, we hold that if the commonly understood definitions of terms in the protective order include acts involving “physical force,” the protective order is sufficient to support a conviction under § 922(g)(8)(C)(ii). Here, McGinnis’s protective order prohibited him from “[c]omitting family violence” against Thrash or engaging in conduct likely to “abuse” her. The commonly understood definitions of these terms include acts involving physical force. Thus, the jury plausibly found that the order satisfied (C)(ii), and so we decline to reverse McGinnis’s conviction on this basis. [7]
C.
Finally, we address McGinnis’s contention that the district court erred
by including a condition of supervised release in its written judgement—
namely, restraining McGinnis from visiting “places frequented by Ms. Sherry
Thrash”—that the court did not pronounce orally at sentencing. Our standard
of review for oral-pronouncement claims varies depending on whether the
*19
defendant had opportunity to object. If he had no such opportunity, we review
for abuse of discretion.
United States v. Mudd
, 685 F.3d 473, 480 (5th Cir.
2012). If the defendant had opportunity but failed to object, we review for plain
error.
United States v. Huor
,
The district court’s obligation to orally pronounce its sentence is
grounded in the defendant’s right to be present at sentencing, which in turn is
derived from the Sixth Amendment and the Due Process Clause.
See United
States v. Morin
,
At sentencing, the district court orally granted the Government’s request to impose a special condition barring McGinnis from having “any direct or indirect contact with Ms. Thrash during [his] term of supervised release.” McGinnis did not object to this condition. However, the language appearing on McGinnis’s written judgment provides not only that McGinnis may not contact Thrash but also that he “shall not enter onto the premises, travel passed [sic], or loiter near Ms. Sherry Thrash’s residence, place of employment, or other places frequented by Ms. Sherry Thrash.”
McGinnis argues that the condition in his written judgment prohibiting him from entering or traveling past “other places frequented by Ms. Sherry Thrash” directly conflicts with the district court’s oral pronouncement. Further, because he “could not have objected to the [later-added language] at *20 sentencing,” McGinnis submits that the conflict should be reviewed for abuse of discretion rather than plain error. The Government concedes this issue, offering no objection “to a remand for the limited purpose of allowing the district court to delete that short phrase from the rest of the condition.”
Because McGinnis received no notice of the extra terms included in his
written judgment, we review for abuse of discretion.
Mudd
,
* * *
For the foregoing reasons, we AFFIRM McGinnis’s conviction but REMAND for the limited purpose of amending McGinnis’s written judgment to conform to the district court’s oral pronouncement at sentencing.
STUART KYLE DUNCAN, Circuit Judge, joined by EDITH H. JONES, Circuit Judge, concurring:
While our opinion today dutifully applies our court’s two-step framework
for post-
Heller
Second Amendment challenges, I write separately to reiterate
the view that we should retire this framework in favor of an approach focused
on the Second Amendment’s text and history.
[1]
Not only would this approach
provide firmer ground for evaluating restrictions on the right to bear arms, but
it would also further cabin judicial application of the “tiers-of-scrutiny
approach to constitutional adjudication,” an exercise which “is increasingly a
meaningless formalism.”
Whole Woman’s Health v. Hellerstedt
,
Notes
[1] See 26 U.S.C. §§ 5841 & 5861(d).
[2] McGinnis’s sentence is well above his Guidelines range of 33 to 41 months. The district court varied upward out of regard for the “extremely serious” nature of his crimes, the multiple prior warnings he had received about his prohibited-person status, and the “danger [he posed] to the community.”
[3] McGinnis urges us to jettison this two-step inquiry in favor of the “historical-
traditional analysis described by then-Judge Kavanaugh in his impressive dissent in
Heller
II
.”
See Heller v. Dist. Of Columbia
[
Heller II
], 670 F.3d 1244, 1271 (D.C. Cir. 2011)
(Kavanaugh, J., dissenting) (“In my view,
Heller
and
McDonald
leave little doubt that courts
are to assess gun bans and regulations based on text, history, and tradition, not by a
balancing test such as strict or intermediate scrutiny.”). Seven members of our court recently
expressed support for an approach of that nature.
See Mance v. Sessions
,
[4] McGinnis asserts that § 922(g)(8), by its terms, “allow[s] for a criminal conviction against a citizen who is altogether law-abiding and responsible so long as the court order prohibits and restrains certain criminal conduct.” Essentially, he takes issue with the fact that § 922(g)(8)’s text does not require a finding that a respondent pose a credible threat. See § 922(g)(8)(C)(ii). This argument, however, is foreclosed by Emerson , which recognized that Congress enacted § 922(g)(8) “on the assumption” that state laws authorizing protective orders require “evidence credited by the court reflect[ing] a real threat or danger of injury to the protected party by the party enjoined.” 270 F.3d at 262; cf. Mahin , 668 F.3d at 126 (“[W]hether a finding that the person represents a credible threat is explicit in the order’s language or not, it is a necessary step in the court’s decision to issue the injunctive order.”).
[5] We note that each of our sister courts to have reached step two of the post-
Heller
framework has applied intermediate scrutiny to § 922(g)(8).
See Reese
, 627 F.3d at 802;
Chapman
,
[6] Congress’ tailoring is further revealed by comparing the prohibitions imposed by
§ 922(g)(8) with those imposed by § 922(g)(9). The former, at issue here, prohibits gun
possession only while a court-issued domestic protective order is in effect. The latter, which
applies to individuals “convicted in any court of a misdemeanor crime of domestic violence,”
imposes a lifetime ban on gun possession (or until the conviction is expunged).
See United
States v. Skoien
,
[7] Because we hold that McGinnis’s underlying protective order satisfies § 922(g)(8)(C)(ii), we need not and do not reach the question whether it also satisfies (C)(i).
[1]
See Mance v. Sessions
,
[2]
United States v. Virginia
,