Opinion
CRIMINAL 23-267 (DWF/DJF)
01-24-2024
United States of America, Plaintiff, v. Adrion Kelley, Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION
DONOVAN W. FRANK, United States District Judge
INTRODUCTION
Defendant Adrion Kelley moves to dismiss his indictment. (Doc. No. 24.) In a Report and Recommendation (“R&R”), Magistrate Judge Dulce J. Foster recommended denying the motion. (Doc. No. 40.) Kelley filed an objection to the R&R. (Doc. No. 44.) After an independent review of the record and objection, the Court adopts the Magistrate Judge's R&R.
DISCUSSION
The Court has conducted a de novo review of the record, including a review of the arguments and submissions of counsel, pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.2(b). The relevant factual and procedural background for the above-entitled matter is clearly and precisely set forth in the Magistrate Judge's R&R and is incorporated by reference.
Kelley argues that 18 U.S.C. § 922(g)(1)-which prohibits felons from possessing firearms-and 18 U.S.C. § 922(o)-which prohibits the possession of machine guns-are facially unconstitutional in violation of the Second Amendment. The R&R correctly concluded that Kelley's facial challenge of § 922(g)(1) is foreclosed. In United States v. Jackson, 69 F.4th 495, 501-02 (8th Cir. 2023), the Eighth Circuit “concluded that there is no need for felony-by-felony determinations regarding the constitutionality of § 922(g)(1) as applied to a particular defendant. The longstanding prohibition on possession of firearms by felons is constitutional.” United States v. Cunningham, 70 F.4th 502, 506 (8th Cir. 2023). The Court is bound by this Eighth Circuit precedent.
Kelley's facial challenge of § 922(o) is similarly unavailing. The Supreme Court noted in Heller that “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes.” District of Columbia v. Heller, 554 U.S. 570, 625 (2008). In Bruen, the Supreme Court reiterated that there is a “historical tradition of prohibiting the carrying of dangerous and unusual weapons.” New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1, 21 (2022) (internal quotations and citation omitted). Relying on Heller, the Eighth Circuit concluded that “[m]achine guns are not in common use by law-abiding citizens for lawful purposes and therefore fall within the category of dangerous and unusual weapons that the government can prohibit for individual use.” United States v. Fincher, 538 F.3d 868, 874 (8th Cir. 2008). As the Magistrate Judge noted in the R&R, the Eighth Circuit's holding in Fincher is consistent with both Heller and Bruen, and this Court remains bound by the precedent.
The Court therefore adopts the Magistrate Judge's R&R and denies Kelley's motion to dismiss the indictment.
ORDER
Based upon the foregoing, and the files, records, and proceedings herein, IT IS HEREBY ORDERED that:
1. Kelley's objection (Doc. No. [44]) to Magistrate Judge Dulce J. Foster's December 11, 2023, Report and Recommendation is OVERRULED.
2. Magistrate Judge Dulce J. Foster's December 11, 2023, Report and Recommendation (Doc. No. [40]) is ADOPTED.
3. Kelley's motion to dismiss the indictment (Doc. No. [24]) is DENIED.