Opinion
CR-23-02363-001-TUC-RCC (MSA)
07-29-2024
United States of America, Plaintiff, v. Herbert Wilson Coleman, Jr., Defendant.
REPORT AND RECOMMENDATION
Honorable Maria S. Aguilera, United States Magistrate Judge
Pending before the Court is Defendant Herbert Coleman, Jr.'s motion to dismiss the indictment. The motion has been fully briefed and is suitable for decision without oral argument. For the following reasons, the Court will recommend that the motion be denied.
The following allegations are taken from the complaint and bail report. (Docs. 1, 4.).
Last year, police officers stopped Defendant's vehicle based on an expired registration, and a search of the vehicle turned up a handgun in the center console. A records check showed that Defendant had previously been convicted of a felony, and a federal agent determined that the firearm had traveled in interstate or foreign commerce, so Defendant was charged with being a felon in possession of a firearm. Defendant's criminal history includes felony convictions for driving under the influence, trafficking in stolen property, drug possession, forgery, and possession of a deadly weapon by a prohibited possessor. ....
Discussion
Defendant argues that the felon-in-possession statute, 18 U.S.C. § 922(g)(1), is unconstitutional both on its face and as applied to him. The Court disagrees.
I. Section 922(g)(1) is constitutional on its face.
A facial challenge “is the ‘most difficult challenge to mount successfully,' because it requires a defendant to ‘establish that no set of circumstances exists under which the [law] would be valid.' That means that to prevail, the Government need only demonstrate that [the law] is constitutional in some of its applications.” United States v. Rahimi, 144 S.Ct. 1889, 1898 (2024) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)).
The caselaw, starting with District of Columbia v. Heller, 554 U.S. 570 (2008), establishes that § 922(g)(1) is facially constitutional. There, the United States Supreme Court explained that “longstanding prohibitions on the possession of firearms by felons” are “presumptively lawful.” Id. at 626-27 & n.26; see United States v. Vongxay, 594 F.3d 1111, 1115 (9th Cir. 2010) (finding that the foregoing language is an “integral” part of Heller's holding and is therefore not dicta). The Supreme Court has never receded from its statements in Heller. To the contrary, in McDonald v. City of Chicago, it “repeat[ed its] assurances” about the lawfulness of “prohibitions on the possession of firearms by felons.” 561 U.S. 742, 786 (2010) (plurality opinion) (quoting Heller, 554 U.S. at 626-27). In New York State Rifle & Pistol Ass'n v. Bruen, it made clear that its new test was “[i]n keeping with Heller,” and six justices agreed in separate writings that Heller's statements about longstanding gun prohibitions remain valid. 597 U.S. 1, 17 (2022) (majority opinion); id. at 72 (Alito, J., concurring); id. at 80-81 (Kavanaugh, J., joined by Roberts, C.J., concurring); id. at 129 (Breyer, J., joined by Sotomayor and Kagan, JJ., dissenting). And in Rahimi, it reiterated that prohibitions “like those on the possession of firearms by ‘felons and the mentally ill[]' are ‘presumptively lawful.'” 144 S.Ct. at 1902 (quoting Heller, 554 U.S. at 626-27 & n.26). As the United States Court of Appeals for the Ninth Circuit recently observed (albeit in an unpublished opinion), “[b]ecause such a prohibition remains presumptively constitutional, § 922(g)(1) cannot be said to be facially unconstitutional.” United States v. Whitney, No. 22-10326, 2024 WL 1429461, at *2 (9th Cir. Apr. 3, 2024).
Moreover, there plainly are some constitutional applications of § 922(g)(1). “Since the founding, our Nation's firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms.” Rahimi, 144 S.Ct. at 1896; see United States v. Perez-Garcia, 96 F.4th 1166, 1191 (9th Cir. 2024) (“[T]he historical evidence, when considered as a whole, shows a long and broad history of legislatures exercising authority to disarm people whose possession of firearms would pose an unusual danger, beyond the ordinary citizen, to themselves or others.”). “Take people who have been convicted of a drive-by-shooting, carjacking, armed bank robbery, or even assassinating the President of the United States”; it is beyond dispute that such people pose a grave threat to public safety and that “the government may constitutionally forbid [them] from continuing to possess firearms. That ends this facial challenge.” United States v. Canada, 103 F.4th 257, 258-59 (4th Cir. 2024) (rejecting a facial challenge to § 922(g)(1)).
II. Section 922(g)(1) is constitutional as applied to Defendant.
Defendant argues that § 922(g)(1) is unconstitutional as applied to those who, like him, have been convicted of only nonviolent felonies. This argument is based on the three-judge panel decision in United States v. Duarte, 101 F.4th 657 (9th Cir. 2024). That opinion found that Bruen had abrogated circuit precedent (like Vongxay) upholding § 922(g)(1) under the Second Amendment, and it held that § 922(g)(1) was unconstitutional as applied to a nonviolent felon. Id. at 661-62. On July 17, the Ninth Circuit voted to rehear Duarte en banc, and the three-judge panel decision was vacated. United States v. Duarte, No. 22-50048, 2024 WL 3443151, at *1 (9th Cir. July 17, 2024). “[A] decision that has been vacated has no precedential authority whatsoever.” Marley v. United States, 567 F.3d 1030, 1038 (9th Cir. 2009) (quoting Durning v. Citibank, N.A., 950 F.2d 1419, 1424 n.2 (9th Cir. 1991)). So, the court must apply circuit precedent as it was before the three-judge panel decision.
Defendant's argument is foreclosed by that precedent. The Ninth Circuit's cases make clear that § 922(g)(1) can be constitutionally applied to any felon, and that there is no constitutional distinction between violent and nonviolent felons. United States v. Phillips, 827 F.3d 1171, 1173-74 (9th Cir. 2016). Plaintiff has been convicted of several felonies. Therefore, § 922(g)(1) can be constitutionally applied to him.
Conclusion
The Court recommends that Defendant's motion to dismiss the indictment (Doc. 33) be denied.
This recommendation is not immediately appealable to the United States Court of Appeals for the Ninth Circuit. The parties have 14 days to file specific written objections with the district court. Fed. R. Crim. P. 59(b)(2). The parties have 14 days to respond to objections. The parties may not file replies on objections absent the district court's permission. The failure to file timely objections may result in the waiver of de novo review. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).