Marquez v. Schaefer.
2025 COA 44. No. 24CA0357. Firearms—Unlawful Acts—Misdemeanor Crime of Domestic Violence—Conviction for Violating a Municipal Ordinance.
May 1, 2025
In 1997, Marquez pleaded guilty to disturbing the peace and assault, admitting that the assault charge was predicated on an act of domestic violence. The assault conviction had a potential sentence of up to one year in jail and fines up to $999, but the offense was otherwise unclassified. The court sentenced Marquez to probation; anger management and substance abuse classes; drug and alcohol testing; and useful public service. Marquez successfully completed probation. In 2021, Marquez filed a Crim. P. 35(c) petition based on newly discovered evidence and alleging an unconstitutional plea. Marquez conceded that the underlying conviction was based on a municipal ordinance violation rather than a violation of a state statute, so he converted his Crim. P. 35(c) petition into a motion to withdraw his plea under C.M.C.R. 235, and the district court transferred the matter to the county court, where it was set for a hearing. A month before the hearing, Marquez applied to purchase a firearm. The Colorado Bureau of Investigation (CBI) Firearms InstaCheck Unit denied his application due to the 1997 municipal domestic violence assault conviction. Marquez timely filed an administrative appeal to the CBI using its online portal. The county court later denied Marquez’s motion to withdraw his plea, concluding that his request to withdraw his guilty plea was time barred. The CBI subsequently denied Marquez’s appeal, citing 18 USC § 921(a)(33)(A)(i)’s definition of a “misdemeanor crime of domestic violence.” The CBI reasoned that Marquez’s municipal domestic violence assault conviction constituted a misdemeanor under local law, and therefore his purchase of a firearm was precluded by 18 USC § 922. Marquez timely filed a CRCP 106 complaint in the district court, requesting that it review and overturn the CBI’s denial of his firearm application. The CBI moved to dismiss Marquez’s claims, arguing that the plain language of § 921(a)(33)(A)(i) and § 922 includes a conviction for violating a municipal ordinance if the crime is predicated on an act of domestic violence. The district court granted the motion.
On appeal, Marquez argued that the district court erred by summarily dismissing his complaint without first certifying the administrative record because the record contained information that materially affected the outcome of his appeal. However, Marquez’s claims all depended on the interpretation and application of federal statutes and Denver municipal ordinances, so the issues presented were not of fact but of law. Accordingly, the district court properly addressed the motion to dismiss without first certifying the administrative record because the interpretation of the relevant municipal ordinances and statutes presented issues of law resolvable without reference to the administrative proceedings record.
Marquez also contended that the district court reversibly erred by concluding that his domestic violence assault conviction was a misdemeanor under §§ 921(a)(33)(A)(i) and 922. Marquez did not dispute that his conviction for assault arose out of an act of domestic violence, so the controlling question is whether this offense was a “misdemeanor” within the meaning of § 921(a)(33)(A)(i). To comply with § 922, the CBI must deny an application to purchase a firearm if the applicant has been convicted of a domestic violence misdemeanor under local law. The court of appeals concluded that § 921(a)(33)(A)(i)’s definition of a “misdemeanor crime of domestic violence” includes a conviction for domestic violence assault under a municipal ordinance that authorizes a potential sentence of up to one year in jail, even though the municipal code does not expressly classify the offense as a misdemeanor. Accordingly, the CBI did not err by denying Marquez’s application to purchase a firearm.
Marquez further asserted that even if the district court correctly construed the meaning of the federal statutes and Denver municipal ordinances, it still erred by not addressing the substance of his constitutional arguments. However, Marquez’s constitutional claims were unpreserved and undeveloped.
The order was affirmed.