United States v. Falzone , 1998 WL 351471, at *2 (D. Conn. June 2, 1998). Further, multiple courts have held that § 922(g)(8)(A) does not require representation or participation by counsel for the order in question to meet the statutory requirements. See United States v. Edge , 238 F. App'x 366, 369 (10th Cir. 2007) ; Young , 458 F.3d at 1001, 1009 ; United States v. Bena , 2010 WL 1418389, at *2 (N.D. Iowa Apr. 6, 2010), aff’d 664 F.3d 1180 (8th Cir. 2011).Although representation by counsel is not required to meet this standard, representation (or lack thereof) is, nevertheless, a factor that may be considered in our inquiry. Where counsel is present on behalf of the defendant, absent a direct order from the court prohibiting him or her from speaking, counsel would understand that attorneys do not need an explicit invitation to object or speak on behalf of their clients.
Indeed, we have upheld application of the enhancement in a variety of situations, including: when the state never charged the defendant for his conduct, Mozee, 405 F.3d 1082; when the state charged the defendant with a felony but ultimately dismissed the charges, United States v. Farnsworth, 92 F.3d 1001 (10th Cir. 1996); and even when the defendant was acquitted of felony charges in state court. United States v. Edge, 238 Fed.Appx. 366 (10th Cir. 2007) (unpublished decision). These cases demonstrate that whether a state felony charge is pursued or a state felony conviction is obtained does not necessarily affect a federal district court's authority to apply an enhancement under § 2K2.1(b)(6).
All three of these motions were filed after he was tried and convicted on three fire-arms and ammunition charges, and after his conviction was affirmed by this court on direct appeal. United States v. Edge, 238 Fed.Appx. 366 (10th Cir. 2007). In his two Rule 60(b) motions, Edge challenged the validity of his conviction on various grounds, including claims that (1) the government committed fraud in his criminal proceeding, (2) his constitutional rights were violated, and (3) the government withheld exculpatory evidence.