Opinion
23-10083-JWB
12-18-2023
UNITED STATES OF AMERICA, Plaintiff, v. WILLIE DELANE SMITH, Defendant.
MEMORANDUM AND ORDER
JOHN W. BROOMES UNITED STATES DISTRICT JUDGE.
This matter is before the court on Defendant Willie Smith's motions to dismiss. (Docs. 17, 18.)
Defendant is charged with one count of violating 18 U.S.C. § 922(g)(1) as a felon in possession of a firearm. (Doc. 1). Defendant argues that § 922(g)(1) violates the Second Amendment under the standard articulated in New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 142 S.Ct. 2111 (2022). (Doc. 18 at 1.) The Tenth Circuit has recently held that § 922(g)(1) remains constitutional under United States v. McCane, 573 F.3d 1037 (10th Cir. 2009). Vincent v. Garland, 80 F.4th 1197, 1201-02 (10th Cir. 2023). Recently, this court expressed its concerns regarding the approach taken by the Tenth Circuit in Vincent. See United States v. Clapp, Case No. 22-10100-JWB, Doc. 31. However, as conceded by Defendant, his arguments are nevertheless foreclosed by binding Tenth Circuit precedent.
Defendant also moves to dismiss on the basis that § 922(g)(1) is an unconstitutional exercise of Congress's Commerce Clause power. (Doc. 17 at 1.) Again, Defendant concedes that this argument is also foreclosed by the Tenth Circuit but raises the issue to preserve it for further review. See United States v. Patton, 451 F.3d 615, 634-36 (10th Cir.2006).
Therefore, Defendant's motions to dismiss (Docs. 17, 18) are denied.
IT IS SO ORDERED.